[Impeachment of President William Jefferson Clinton - The Evidentiary Record Pursuant to S. Res. 16 - Index to Senate Document 106-3, Vols. I-XXIV]
[Volume XXI - Hearing of the Full Committee -- "Consequences of Perjury and Related Crimes" (December 1, 1998) Ser. No. 67]
[From the U.S. Government Printing Office, www.gpo.gov]

 
                    THE CONSEQUENCES OF PERJURY AND
                             RELATED CRIMES

=======================================================================

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED FIFTH CONGRESS

                             SECOND SESSION

                                   ON

             THE CONSEQUENCES OF PERJURY AND RELATED CRIMES

                               __________

                            DECEMBER 1, 1998

                               __________

                             Serial No. 67


                               


         Printed for the use of the Committee on the Judiciary

                                 --------

                     U.S. GOVERNMENT PRINTING OFFICE
 53-247                     WASHINGTON : 1998
_______________________________________________________________________
            For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402


                       COMMITTEE ON THE JUDICIARY

                   HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        BARNEY FRANK, Massachusetts
BILL McCOLLUM, Florida               CHARLES E. SCHUMER, New York
GEORGE W. GEKAS, Pennsylvania        HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina         RICK BOUCHER, Virginia
LAMAR S. SMITH, Texas                JERROLD NADLER, New York
ELTON GALLEGLY, California           ROBERT C. SCOTT, Virginia
CHARLES T. CANADY, Florida           MELVIN L. WATT, North Carolina
BOB INGLIS, South Carolina           ZOE LOFGREN, California
BOB GOODLATTE, Virginia              SHEILA JACKSON LEE, Texas
STEPHEN E. BUYER, Indiana            MAXINE WATERS, California
ED BRYANT, Tennessee                 MARTIN T. MEEHAN, Massachusetts
STEVE CHABOT, Ohio                   WILLIAM D. DELAHUNT, Massachusetts
BOB BARR, Georgia                    ROBERT WEXLER, Florida
WILLIAM L. JENKINS, Tennessee        STEVEN R. ROTHMAN, New Jersey
ASA HUTCHINSON, Arkansas             THOMAS M. BARRETT, Wisconsin
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California

                             Majority Staff

         Thomas E. Mooney, Sr., General Counsel-Chief of Staff
          Jon W. Dudas, Deputy General Counsel-Staff Director
         Diana L. Schacht, Deputy Staff Director-Chief Counsel
               Daniel M. Freeman, Parliamentarian-Counsel
       Paul J. McNulty, Director of Communications-Chief Counsel
                    Joseph H. Gibson, Chief Counsel
                         Rick Filkins, Counsel
                       Sharee M. Freeman, Counsel
                       Peter J. Levinson, Counsel
                       John F. Mautz, IV, Counsel
                     William E. Moschella, Counsel
                        Stephen Pinkos, Counsel

George M. Fishman, Chief Counsel     David P. Schippers, Chief 
Mitch Glazier, Chief Counsel             Investigative Counsel
John H. Ladd, Chief Counsel            
Raymond V. Smietanka, Chief Counsel  Susan Bogart, Investigative 
Laura Ann Baxter, Counsel                Counsel
Daniel J. Bryant, Counsel            Robert S. Hoover, Counsel
Cathleen A. Cleaver, Counsel         John C. Kocoras, Counsel
Vince Garlock, Counsel               Berle S. Littmann, Investigator
James W. Harper, Counsel             Stephen P. Lynch, Professional 
Susan Jensen-Conklin, Counsel            Staff Member
Debra K. Laman, Counsel              Charles F. Marino, Counsel
Blaine S. Merritt, Counsel           Jeffrey J. Pavletic, Investigative 
Nicole R. Nason, Counsel                 Counsel
Glenn R. Schmitt, Counsel            Thomas M. Schippers, Investigative 
Jim Y. Wilon, Counsel                    Counsel
                                     Albert F. Tracy, Investigator
                                     Peter J. Wacks, Investigator
                                     Diana L. Woznicki, Investigator

                             Minority Staff

         Julian Epstein, Minority Chief Counsel-Staff Director
Perry H. Apelbaum, Minority General  Abbe D. Lowell, Minority Chief 
    Counsel                              Investigative Counsel
David G. Lachmann, Counsel           Sampak P. Garg, Investigative 
Cynthia A. R. Martin, Counsel            Counsel
Henry Moniz, Counsel                 Steven F. Reich, Investigative 
Stephanie J. Peters, Counsel             Counsel
Samara T. Ryder, Counsel             Deborah L. Rhode, Investigative 
Brian P. Woolfolk, Counsel               Counsel
                                     Kevin M. Simpson, Investigative 
                                         Counsel
                                     Lis W. Wiehl, Investigative 
                                         Counsel



                            C O N T E N T S

                              ----------                              

                                HEARING

                                                                   Page
December 1, 1998.................................................     1

                           OPENING STATEMENT

Hyde, Hon. Henry J., a Representative in Congress from the State 
  of Illinois, and Chairman, Committee on the Judiciary..........     2

                               WITNESSES

Battalino, Barbara, Los Osos, California.........................     7
Carney, Thomas P., Lieutenant General, USA (Ret.)................    81
Dershowitz, Alan M., Felix Frankfurter Professor of Law, Harvard 
  Law School.....................................................    84
Edney, Leon A., Admiral, USN (Ret.)..............................    76
Higginbotham, Hon. A. Leon Jr., Paul, Weiss, Rifkind, Wharton & 
  Garrison, Washington, DC.......................................    66
Parsons, Pam, Atlanta, Georgia...................................     6
Richardson, Hon. Elliot L., Milbank, Tweed, Hadley & McCloy, 
  Washington, DC.................................................    74
Rosen, Jeffrey, Associate Professor of Law, George Washington 
  University Law School..........................................    97
Saltzburg, Stephen A., Howrey Professor of Trial Advocacy, 
  Litigation, and Professional Responsibility, George Washington 
  University Law School..........................................    90
Tjoflat, Hon. Gerald B., U.S. Circuit Judge, U.S. Court of 
  Appeals for the Eleventh Circuit, Jacksonville, FL.............    60
Wiggins, Hon. Charles E., Senior U.S. Circuit Judge, U.S. Court 
  of Appeals for the Ninth Circuit, Las Vegas, NV................    62

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Battalino, Barbara, Los Osos, California: Prepared statement          9
Carney, Thomas P., Lieutenant General, USA (Ret.): Prepared 
  statement......................................................    83
Dershowitz, Alan M., Felix Frankfurter Professor of Law, Harvard 
  Law School: Prepared statement.................................    87
Edney, Leon A., Admiral, USN (Ret.): Prepared statement..........    78
Goodlatte, Hon. Bob, A Representative in Congress from the State 
  of Virginia: Article from The New York Times dated Nov. 17, 
  1998...........................................................    36
Higginbotham, Hon. A. Leon Jr., Paul, Weiss, Rifkind, Wharton & 
  Garrison, Washington, DC: Prepared statement...................    69
Hyde, Hon. Henry J., a Representative in Congress from the State 
  of Illinois, and Chairman, Committee on the Judiciary: Prepared 
  statement......................................................     3
Jackson Lee, Hon. Sheila, a Representative in Congress from the 
  State of Texas: Prepared statement.............................   173
Moorer, Thomas H., Admiral, USN (Ret.), Former Chairman of the 
  Joint Chiefs of Staff: Prepared statement......................   149
Richardson, Hon. Elliot L., Milbank, Tweed, Hadley & McCloy, 
  Washington, DC: Prepared statement.............................    75
Rosen, Jeffrey, Associate Professor of Law, George Washington 
  University Law School: Prepared statement......................    98
Saltzburg, Stephen A., Howrey Professor of Trial Advocacy, 
  Litigation, and Professional Responsibility, George Washington 
  University Law School: Prepared statement......................    93
Scott, Hon. Robert C., a Representative in Congress from the 
  State of Virginia:
    Rule 6(c) of the Rules of Criminal Procedure.................   119
    United States v. Hvass.......................................   123
    United States v. Debrow......................................   128
    Weinburg, Robert L., The Fatal Flaw in Starr's Case for Grand 
      Jury Perjury: An Essential Element is Missing..............   119
Starr, Hon. Kenneth W., Office of the Independent Counsel, 
  Responses to Questions Posed by Members of the Committee on the 
  Judiciary......................................................   176
Wiggins, Hon. Charles E., Senior U.S. Circuit Judge, U.S. Court 
  of Appeals for the Ninth Circuit, Las Vegas, NV: Prepared 
  statement......................................................    63

                                APPENDIX

Material submitted for the hearing...............................   173



             THE CONSEQUENCES OF PERJURY AND RELATED CRIMES

                              ----------                              


                       TUESDAY, DECEMBER 1, 1998

                          House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:45 a.m., in 
room 2141, Rayburn House Office Building, Hon. Henry J. Hyde 
[chairman of the committee] presiding.
    Present: Representatives Henry J. Hyde, Bill McCollum, 
George W. Gekas, Howard Coble, Lamar S. Smith, Elton Gallegly, 
Charles T. Canady, Bob Inglis, Bob Goodlatte, Stephen E. Buyer, 
Ed Bryant, Steve Chabot, Bob Barr, William L. Jenkins, Asa 
Hutchinson, Edward A. Pease, Christopher B. Cannon, James E. 
Rogan, Lindsey O. Graham, Mary Bono, John Conyers, Jr., Barney 
Frank, Charles E. Schumer, Howard L. Boucher, Jerrold Nadler, 
Robert C. Scott, Melvin L. Watt, Zoe Lofgren, Sheila Jackson 
Lee, Maxine Waters, Martin T. Meehan, William D. Delahunt, 
Robert Wexler, Steven R. Rothman, and Thomas M. Barrett.
    Majority Staff Present: Thomas E. Mooney, Sr., general 
counsel-chief of staff; Jon W. Dudas, deputy general counsel-
staff director; Diana L. Schacht, deputy staff director-chief 
counsel; Daniel M. Freeman, parliamentarian-counsel; Joseph H. 
Gibson, chief counsel; Rick Filkins, counsel; Sharee M. 
Freeman, counsel; John F. Mautz, IV, counsel; William 
Moschella, counsel; Stephen Pinkos, counsel; Sheila F. Klein, 
executive assistant to general counsel-chief of staff; Annelie 
Weber, executive assistant to deputy general counsel-staff 
director; Samuel F. Stratman, press secretary; Rebecca S. Ward, 
office manager; James B. Farr, financial clerk; Elizabeth 
Singleton, legislative correspondent; Sharon L. Hammersla, 
computer systems coordinator; Michele Manon, administrative 
assistant; Joseph McDonald, publications clerk; Shawn Friesen, 
staff assistant/clerk; Robert Jones, staff assistant; Ann 
Jemison, receptionist; Michael Connolly, communications 
assistant; Michelle Morgan, press secretary; and Patricia 
Katyoka, research assistant.
    Subcommittee on Commercial and Administrative Law Staff 
Present: Ray Smietanka, chief counsel; Jim Harper, counsel.
    Subcommittee on the Constitution Staff Present: John H. 
Ladd, chief counsel; and Cathleen A. Cleaver, counsel.
    Subcommittee on Courts and Intellectual Property Staff 
Present: Mitch Glazier, chief counsel; Blaine S. Merritt, 
counsel; Vince Garlock, counsel; and Debra K. Laman.
    Subcommittee on Crime Staff Present: Paul J. McNulty, 
director of communications-chief counsel; Glenn R. Schmitt, 
counsel; Daniel J. Bryant, counsel; and Nicole R. Nason, 
counsel.
    Subcommittee on Immigration and Claims Staff Present: 
George M. Fishman, chief counsel; Laura Ann Baxter, counsel; 
and Jim Y. Wilon, counsel.
    Majority Investigative Staff Present: David P. Schippers, 
chief investigative counsel; Susan Bogart, investigative 
counsel; Thomas M. Schippers, investigative counsel; Jeffrey 
Pavletic, investigative counsel; Charles F. Marino, counsel; 
John C. Kocoras, counsel; Diana L. Woznicki, investigator; 
Peter J. Wacks, investigator; Albert F. Tracy, investigator; 
Berle S. Littmann, investigator; Stephen P. Lynch, professional 
staff member; Nancy Ruggero-Tracy, office manager/coordinator; 
and Patrick O'Sullivan, staff assistant.
    Minority Staff Present: Julian Epstein, minority chief 
counsel-staff director; Perry Apelbaum, minority general 
counsel; Samara T. Ryder, counsel; Brian P. Woolfolk, counsel; 
Henry Moniz, counsel; Robert Raben, minority counsel; Stephanie 
Peters, counsel; David Lachmann, counsel; Anita Johnson, 
executive assistant to minority chief counsel-staff director; 
and Dawn Burton, minority clerk.
    Minority Investigative Staff Present: Abbe D. Lowell, 
minority chief investigative counsel; Lis W. Wiehl, 
investigative counsel; Deborah L. Rhode, investigative counsel; 
Kevin M. Simpson, investigative counsel; Steven F. Reich, 
investigative counsel; Sampak P. Garg, investigative counsel; 
and Maria Reddick, minority clerk.

               OPENING STATEMENT OF CHAIRMAN HYDE

    Mr. Hyde. The committee will come to order. Today the 
committee holds an oversight hearing on the consequences of 
perjury and related crimes like subornation of perjury, 
obstruction of justice, witness tampering, misprision, and 
criminal contempt. All of these crimes thwart the proper 
workings of the justice system.
    We hold this hearing because Rule X of the House of 
Representatives requires us to exercise continuing oversight 
over the ``application, administration, execution and 
effectiveness'' of the laws under our jurisdiction. Of 
particular relevance here, we have jurisdiction over the 
judicial system and the criminal code.
    Commentators of all types have fiercely debated the gravity 
of these crimes in recent months. Otherwise responsible and 
thoughtful people have argued they are not so serious, 
particularly when they occur in civil cases or when they relate 
to hiding private sexual matters. Indeed, some have even 
suggested that being a gentleman requires one to lie under oath 
about sex.
    By their very nature, these kinds of crimes attack the 
integrity of the judicial system. Indeed, that is why they are 
crimes. To argue that in certain instances these crimes mean 
little is to say that our judicial system means little. I 
reject that notion.
    Remember the fundamentals. We have a judicial system 
because it is fairer and more civilized to settle disputes 
through judicial means rather than to settle them through brute 
force--trial by combat. When brute force prevails, the strong 
win and the weak lose--an efficient method but hardly a just 
one. It is particularly disturbing that many who generally 
claim to represent the weak now argue that the powerful should 
be allowed a pass when they break the rules.
    There is nothing just or fair in a double standard. We make 
perjury, subornation of perjury, obstruction of justice, and 
witness tampering crimes because a judicial system can only 
succeed if its procedures expose the truth. If citizens are 
allowed to lie with impunity or encourage others to tell false 
stories or hide evidence, judges and juries cannot reach just 
results. At that point, the courtroom becomes an arena for 
artful liars and the jury a mere focus group choosing between 
alternative fictions.
    So for my friends who think that perjury, lying, and deceit 
are in some circumstances acceptable and undeserving of 
punishment, I respectfully disagree. Every citizen is entitled 
to her day in court, to have her claims considered under the 
rule of law and free from these abhorrent acts. That applies no 
matter how small or unpopular or unimportant that person is and 
no matter how great or popular or powerful her opponent is.
    Chief Justice Burger resoundingly affirmed the seriousness 
of perjury when he wrote in United States v. Mandujano, 425 
U.S. 564, 1976:

    In the constitutional process of securing a witness's 
testimony, perjury simply has no place whatever. Perjured 
testimony is an obvious and flagrant affront to the basic 
concepts of judicial proceedings. Effective restraints against 
this type of egregious offense are therefore imperative. The 
power of subpoena, broad as it is, and the power of contempt 
for refusing to answer, drastic as that is, and even the 
solemnity of the oath, cannot ensure truthful answers. Hence, 
Congress has made the giving of false answers a criminal act 
punishable by severe penalties. In no other way can criminal 
conduct be flushed into the open where the law can deal with 
it.
    Similarly, our cases have consistently, indeed without 
exception, allowed sanctions for false statement or perjury. 
They have done so even in instances where the perjurer 
complained that the government exceeded its constitutional 
powers in making the inquiry.

    Even when the weak dare to confront the strong, the truth 
is not trivial. Playing by the rules is not trivial. The whole 
history of our civilization tells us that justice is not 
trivial. Lying poisons justice. If we are to defend justice and 
the rule of law, lying must have consequences. We will explore 
the impact of lying on the rule of law and the implications of 
the double standard from our distinguished panel, whom I am 
pleased to welcome.
    With that, I will recognize Mr. Conyers for an opening 
statement, and after Mr. Conyers we will go to our witnesses 
who are at the table. And all other members, if they have an 
opening statement, without objection it will be included in the 
record at this point.
    [The prepared statement of Mr. Hyde follows:]
 Prepared Statement of Hon. Henry J. Hyde, Chairman, Committee on the 
 Judiciary, and a Representative in Congress From the State of Illinois
    Today, the Committee holds an oversight hearing on the consequences 
of perjury and related crimes like subornation of perjury, obstruction 
of justice, witness tampering, misprision, and criminal contempt. All 
of these crimes thwart the proper workings of the justice system.
    We hold this hearing because Rule X of the House of Representatives 
requires us to exercise continuing oversight over the ``application, 
administration, execution, and effectiveness'' of the laws under our 
jurisdiction. Of particular relevance here, we have jurisdiction over 
the judicial system and the criminal code.
    Commentators of all stripes have fiercely debated the gravity of 
these crimes in recent months. Otherwise responsible and thoughtful 
people have argued that they are not so serious, particularly when they 
occur in civil cases or when they relate to hiding ``private'' sexual 
matters. Indeed, some have even suggested that being a gentleman 
requires one to lie under oath about sex. By their very nature, these 
kinds of crime attack the integrity of the judicial system. Indeed, 
that is why they are crimes.
    To argue that, in certain instances, these crimes mean little is to 
say that our judicial system means little. I emphatically reject that 
notion.
    Remember the fundamentals. We have a judicial system because it is 
fairer and more civilized to settle disputes through judicial means 
than to settle them through brute force. When brute force prevails, the 
strong win and the weak lose--an efficient method, but hardly a just 
one. It is particularly disturbing, and indeed shameful, that many who 
generally claim to represent the weak now argue that the powerful 
should be allowed a pass when they break the rules. There is nothing 
just or fair in a double standard.
    We make perjury, subornation of perjury, obstruction of justice, 
and witness tampering crimes because a judicial system can only succeed 
if its procedures expose the truth. If citizens are allowed to lie with 
impunity--or encourage others to tell false stories--or hide evidence--
judges and juries cannot reach just results. At that point, the 
courtroom becomes an arena for artful liars and the jury a mere focus 
group choosing between alternative fictions.
    So, for my friends who think that perjury, lying, and deceit are in 
some circumstances acceptable and undeserving of punishment, I 
respectfully disagree. Every citizen is entitled to her day in court--
to have her claims considered under the rule of law and free from these 
abhorrent acts. That applies no matter how small, or unpopular, or 
unimportant, that person is--and no matter how great, or popular, or 
powerful, her opponent is.
    Chief Justice Burger resoundingly affirmed the seriousness of 
perjury when he wrote:

          In [the] constitutional process of securing a witness' 
        testimony, perjury simply has no place whatever. Perjured 
        testimony is an obvious and flagrant affront to the basic 
        concepts of judicial proceedings. Effective restraints against 
        the type of egregious offense are therefore imperative. The 
        power of subpoena, broad as it is, and the power of contempt 
        for refusing to answer, drastic as that is--and even the 
        solemnity of the oath--cannot insure truthful answers. Hence 
        Congress has made the giving of false answers a criminal act 
        punishable by severe penalties; in no other way can criminal 
        conduct be flushed into the open where the law can deal with 
        it.
          Similarly, our cases have consistently--indeed without 
        exception--allowed sanctions for false statement or perjury; 
        they have done so even in instances where the perjurer 
        complained that the Government exceeded its constitutional 
        powers in making the inquiry.

United States v. Mandujano, 425 U.S. 564, 576-77 (1976) (plurality 
opinion) (footnote and citations omitted).
    Even when the weak dare to confront the strong, the truth is not 
trivial--playing by the rules is not trivial. The whole history of our 
civilization tells us that justice is not trivial.
    Lying poisons justice. If we are to defend justice and the rule of 
law, lying must have consequences. We will explore the impact of lying 
on the rule of law and the implications of the double standard from our 
distinguished panel whom I again welcome.
    With that, I will recognize Mr. Conyers for an opening statement.

    Mr. Hyde. Mr. Conyers.
    Mr. Conyers. Good morning, Mr. Chairman and members of the 
committee, and the distinguished judges, professors and lawyers 
who are our primary witnesses today. Now that we are 3 months 
into the third impeachment inquiry in the Nation's history, I 
believe we ought to take stock of what this committee has done 
and where we are going.
    During the first 2 months, all the committee did was to 
dump salacious grand jury material onto the Internet. The third 
month was spent hearing an incredibly one-sided presentation 
from the prosecutor, having no firsthand knowledge of the 
facts, and deposing two witnesses that have a peripheral 
relationship at best to the Independent Counsel's referral.
    Now once again the committee is floundering into another 
unrelated area. Last evening we were informed that the 
committee would now widen its investigation into campaign 
finance matters. With that announcement, this committee now 
amazingly proposes to transform itself into the discredited 
Burton committee. Campaign finance has no relationship to the 
Starr referral. And, amazingly, this committee is now 
subpoenaing both the President of the United States and the 
Attorney General of the United States to provide documents that 
they don't have authority to provide without a court order, 
whose criteria this committee is yet to even satisfy.
    Now, there are other flaws with our process at this time, 
perhaps fatal flaws. Ten days away from a proposed vote on 
articles of impeachment, and the American people and the 
President still don't know what the charges are. Neither do we. 
Well, Mr. Chairman, we cannot play hide and seek when you 
propose to overturn a national election. This close to such a 
monumental vote in the committee, you should be laying your 
cards on the table for ourselves and the American people.
    And whether you like it or not, 1 week away from such a 
monumental vote is no time to commence an entirely new area of 
investigation into campaign finance and to transform this 
committee into the Burton committee. The American people and 
Democrats and others believe that the President's conduct was 
bad, but not impeachable.
    Now, for today's hearings. I believe that there is some 
important discussion on perjury to be gleaned from some of our 
experienced witnesses here. But don't we all know that perjury 
is serious regardless of the underlying matter? We know that 
people go to jail when they perjure themselves, including civil 
proceedings. You learn that in first year criminal procedure.
    But we are not teaching a criminal procedure course. 
Rather, we are--more aptly, you, the Republican majority on 
this committee--are proposing, if I hear you correctly, to 
impeach a President. And even Republican witnesses at the 
November 9 hearing said that the charges, if proven true, would 
not amount to impeachable offenses. It has been stated 
repeatedly on the record and in this hearing and in the 
constitutional scholars community. That is the point that 
really diminishes so much from this hearing.
    Now, parenthetically, I for one think that while the 
President misled the country and his family, the legal case of 
perjury against him isn't particularly strong, and most likely 
would never have been pursued had he not been a President 
chased by a zealous prosecutor like Kenneth W. Starr. Why? 
Because his answers regarding Monica Lewinsky in the context of 
the Paula Jones litigation may not even meet the materiality 
test, and were in fact later excluded from the Paula Jones 
litigation entirely by a judge who referred to them as not 
relevant.
    Second, no one has proven that the President's statements 
regarding Ms. Lewinsky at the Paula Jones deposition and grand 
jury appearance were not technically true. If so, they cannot 
possibly be grounds for perjury.
    And, finally, I am concerned that the two judges appearing 
here today on behalf of the Republican majority should be very 
cautious, because they may violate the spirit if not the letter 
of the judicial canons which I have right here by commenting on 
an ongoing case. Please, members of the judiciary, be careful.
    Mr. Chairman, Henry Hyde, I am deeply saddened by what this 
process is becoming. Thank you.
    Mr. Hyde. Thank you.
    Our first witness is Ms. Pam Parsons of Atlanta, Georgia. 
Ms. Parsons holds Bachelor's and Master's degrees from Brigham 
Young University. In the late 1970's and early 1980's she was 
one of the most successful women's basketball coaches in the 
country, coaching at Old Dominion University and the University 
of South Carolina. In 1984 Ms. Parsons pled guilty to a Federal 
perjury charge based on her having given false testimony about 
a sexual relationship during a civil case.
    Our second witness is Dr. Barbara Battalino of Los Osos, 
California. Dr. Battalino is a graduate of the College of Mount 
St. Vincent, the Philadelphia College of Osteopathic Medicine, 
Hahnemann University and La Salle University Law School. She is 
a doctor of osteopathic medicine, a board certified 
psychiatrist, and a lawyer. She has also been a high school 
teacher.
    In 1998 the Clinton Administration brought obstruction of 
justice charges against Dr. Battalino based on her having given 
false testimony about a sexual relationship during a civil 
case. Dr. Battalino pled guilty to the charge and is currently 
serving a sentence of 6 months home detention.
    I would note for the record that the committee sought the 
permission of Chief Judge Edward Lodge of the U.S. District 
Court for the District of Idaho for Dr. Battalino to be excused 
from the home detention for her to appear today. We appreciate 
Chief Judge Lodge's cooperation in granting that permission and 
allowing Dr. Battalino to appear this morning. Dr. Battalino is 
accompanied by her attorney, Mr. Curtis Clark.
    Ms. Parsons, if you have a statement, please feel free to 
share it with us.

           STATEMENT OF PAM PARSONS, ATLANTA, GEORGIA

    Ms. Parsons. Thank God I could finally say ``I'm guilty.'' 
When you commit perjury, you are the only one that truly knows 
you have done it. It may take some time for you to get clear 
with yourself. Anything that I ever denied about myself was 
what created a spiraling journey through hell, and that day 
that I got slapped into recognizing that, yes, there are things 
that you pay consequences for, my life had a chance to turn 
around.
    You know, I enjoyed creating the opportunity to say that I 
was good at some things in my life. I loved trophies and medals 
and winning. But to turn around and take a look at that other 
side of me took more guts than it ever took to win a ball game. 
Now, I truly know what it is like to be a part of a team, and 
when that team can't trust you, you have lost it all. And I 
would rather be who I am today than to have continued coaching 
with a lie.
    I didn't have to come here today. But in fact, some level 
of destiny, yes, I did. Because when you are in a leadership 
position, no matter what it is you must tell the truth about, 
you have got to search your soul and recognize what it means if 
you don't--you don't, no matter what the price.
    The legal system was very kind to me. The judge didn't want 
to send me to jail. The reduction to 4 months was a blessing. I 
picked up cigarette butts for 4 months in Lexington, Kentucky, 
and I did it every day with a smile on my face to pay back 
humanity for my ignorance in the seriousness about the law. I 
served 5 years' probation, and in 1990 I was released. That is 
a long time to still be talking about your past, and here it is 
1998 and I am with you and I can almost not cry anymore.
    Yes, after my probation I started my personal work, and I 
took a look at what created my inability to tell the truth. In 
1996 I went back and apologized to everyone that I could, as I 
had reached a point that I could start being myself and embrace 
all parts of me, that bad girl side, and the good girl side, 
too. And today is my final apology before the Federal system to 
say yes, it is important that we recognize that our whole 
structure is based on the ability to tell the truth.
    And my inability to not be able to do it may have been my 
personal journey about my emotional self and my mental 
capacities. Incapability to tell the truth is not an excuse. It 
is your personal journey to get in touch with yourself. It is 
not a punishment to serve time. It is a consequence. And there 
were times that it wasn't easy for a person who had also been 
on a very enjoyable ride in life, in a leadership role, to be 
in the position that I was in, but the character of self is 
developed when you can look at both sides and be okay about it.
    So I came today to say very strongly that from a personal 
experience level, perjury is one of the most valuable parts of 
our system, and may we never look over the importance of 
teaching all of us, as we learn through this experience of 
ourselves and what has happened around us, that it is important 
to understand the code of the law. Thank you.
    Mr. Hyde. Thank you very much, Ms. Parsons.
    Dr. Battalino.

      STATEMENT OF BARBARA BATTALINO, LOS OSOS, CALIFORNIA

    Ms. Battalino. Thank you. Chairman Hyde----
    Mr. Hyde. Can you pull that mike a little closer, please?
    Ms. Battalino. Chairman Hyde, ladies and gentlemen, members 
of the Judiciary Committee and my fellow Americans, let me 
begin by expressing my gratitude to the Judiciary Committee for 
inviting me here today to share with you some of my thoughts 
and feelings about the consequences of perjury and related 
crimes.
    I am neither a historian nor a constitutional scholar. I am 
an American who worked hard to complete both a medical and law 
degree, and have practiced in public and government service for 
over 20 years, until I became a convicted felon in April of 
1998. I am presently fulfilling the consequences imposed upon 
me as a result of this conviction.
    I have spent many hours of prayer, a great deal of soul 
searching, and much mental deliberation in preparing this 
statement. I believe this is and ever will be one of the most 
important actions I do in my life. So many historical hearings, 
speeches and decisions have occurred in this room. It is with 
humility, reverence and awe that I sit in this Chamber sharing 
my simple impressions with you today.
    Before April 1998, I was like most of you watching or 
listening to these proceedings. That is, I was a good, loyal, 
upstanding U.S. citizen. I worked, voted, paid my taxes with 
honesty and was respected by my profession, church and family. 
What changed that? One simple lie, misstatement of fact, one 
falsehood before a Federal magistrate, that is what.
    The falsehood centered around my reticence to acknowledge 
the one act of consensual oral sex which occurred between 
myself and an unmarried male adult on Veterans Affairs 
premises. A civil suit was filed, complicated by the male party 
having secretly recorded phone conversations he and I had 
during the months an intimate relationship developed. These 
very tapes were instrumental in having the civil suit dismissed 
in September of 1998 with no monetary award or settlement being 
made by myself or the Veterans Affairs Administration.
    So, how is it that I am a convicted felon? In early 1998 my 
attorney received word that the Department of Justice planned 
to indict me for perjury based on an untruthful response I gave 
to a question regarding whether anything of a sexual nature had 
occurred between myself and that individual on June 27, 1991. 
Understanding that I would be subjecting myself to unwarranted 
civil exposure if I told the truth, I justified in my own mind 
that this deception was warranted in order to protect my 
personal and professional self-interest. In an attempt to save 
myself and my family any further embarrassment and/or financial 
loss, I agreed to accept a negotiated disposition of the 
criminal case.
    There are three main points I would like to address 
regarding today's issue, the consequences of perjury and 
related crimes. One, honesty is the best policy, and necessary 
to the preservation of the rule of law. Two, there are adverse 
consequences if this principle is not adhered to. Three, when a 
failure to adhere to the principle of truth is admitted and the 
consequences are assumed, healing and restoration can occur.
    I was wrong to lie before Judge Mikel that July 1995 date. 
I merit punishment for breaking a fundamental law of God and 
society. Making false and/or misleading statements, especially 
under oath, and regardless of the subject matter, is wrong for 
me and anyone who accepts the U.S. Constitution, Declaration of 
Independence, and the rule of law upon which this great land of 
ours is founded and persists.
    On that July 1995 date, I stepped over the fine line 
between truth and falsehood, and I can assure you once it is 
crossed, it is impossible to return to the state of 
truthfulness without repercussion or consequences.
    Consequences of wrongdoing undoubtedly affect the 
individual. My sentence will not end on February 27, 1999, when 
the electronic monitoring device is removed from my ankle, nor 
will it end on July 19, 1999 when my formal probationary period 
is completed. In a very real sense, I am condemned to a life 
sentence. I have lost my professional standing, my life as it 
had been, and my cherished privacy. These consequences are 
irrevocable.
    The consequences of wrongdoing also interfere with the 
lives of those near and dear. Family members must be exposed to 
the sneers and jeers of coworkers and to the embarrassment of 
reading unkind and sordid misrepresentations of the facts often 
published by journalists who are more interested in 
sensationalism than journalistic integrity. Sometimes the 
consequences extend beyond one's ordinary geographic 
boundaries, as in what happened to me. Public notoriety also 
has been thrust upon me.
    Admitted wrongdoing and acceptance of consequences can, 
however, become the cornerstone for restoration and healing. I 
can assure you that the pain and embarrassment felt when I 
publicly apologized to Judge Mikel Williams and the judicial 
system I had violated was far surpassed by the sense of relief 
and the spirit of peace it afforded me. I had already made 
peace with God, but we are societal beings, so we must be at 
peace with our neighbors as well in order to have true and 
complete restoration and healing. Once this occurs, life, 
liberty and the pursuit of happiness can take on a new 
dimension. I pray that I and others experiencing similar 
conditions will be afforded this blessing.
    Unfortunately sometimes agents of the government also fail 
to fully honor the truth. In my case, Assistant U.S. Attorney 
Jonathan Mitchell stepped over the line when he failed to file 
the motion for a two-point downward departure from the Federal 
sentencing guidelines which was part of our plea bargain 
agreement. Mr. Mitchell crossed the line, and he will in some 
way, some time, pay the consequences.
    Because a President is not a king, he or she must abide by 
the same laws as the rest of us. Whether Mr. Clinton is 
impeached or not is in the hands of this committee, of the 
House of Representatives and the U.S. Senate. But even if 
justice does not prevail, Mr. Clinton's consequences will be 
reserved for God and history to determine.
    We all make mistakes in life, but common frailty does not 
relieve us from our responsibility to uphold the rule of law. 
This Nation must never let any person or people undermine the 
rule of law. Without it, atrocities like slavery, genocide, 
potential nuclear and biological warfare and oppression are 
sure to rear their ugly heads once again. If liberty and 
justice for all does not reign, we, like great civilizations 
before us, will surely perish from the face of the Earth.
    Thank you.
    [The prepared statement of Ms. Battalino follows:]
         Prepared Statement of Barbara Battalino, Los Osos, CA
    Chairman Hyde, Ladies and Gentlemen Members of the Judiciary 
Committee, and my Fellow Americans: Let me begin by expressing my 
gratitude to the Judiciary Committee for inviting me here today to 
share with you some of my thoughts and feelings about The Consequences 
of Perjury and Related Crimes.
    I am neither a historian nor a Constitutional scholar. I am an 
American who worked hard to complete both a medical and law degree, and 
have practiced in public and government service for over 20 years until 
I became a convicted felon in April of 1998. I am presently fulfilling 
the consequences imposed on me as a result of this conviction.
    I have spent many hours of prayer, a great deal of soul searching, 
and much mental deliberation in preparing this statement. I believe 
this is and ever will be one of the most important actions I do in my 
life. So many historical hearings, speeches and decisions have occurred 
in this room. It is with humility, reverence and awe that I sit in this 
chamber sharing my simple impressions with you today.
    Before April 1998, I was like most of you watching or listening to 
these proceedings. That is, I was a loyal, good, upstanding U.S. 
citizen. I worked, paid my taxes with honesty, and was respected by my 
profession, church and family. What changed that? One simple lie, 
misstatement of fact, one falsehood before a federal magistrate--that's 
what.
    The falsehood centered around my reticence to acknowledge the one 
act of consensual oral sex which occurred between myself and an 
unmarried male adult on Veterans Affairs premises. A civil suit was 
filed, complicated by the male party having secretly recorded phone 
conversations he and I had during the months an intimate relationship 
between us developed. These very tapes were instrumental in having the 
civil suit dismissed in September of 1998, with no monetary award or 
settlement being made by myself or the Veterans Affairs Administration.
    So how is it I am a convicted felon? In early 1998 my attorney 
received word that the U.S. Department of Justice planned to indict me 
for perjury based upon an untruthful response I gave to a question 
regarding whether anything of a sexual nature had occurred between 
myself and that individual on June 27, 1991. Understanding that I would 
be subjecting myself to unwarranted civil exposure if I told the truth, 
I justified in my own mind that this deception was warranted in order 
to protect my personal and professional self-interest. In an attempt to 
save myself and my family any further embarrassment and/or financial 
loss, I agreed to accept a negotiated disposition of the criminal case.
    There are three main points I would like to address regarding 
today's issue, The Consequences of Perjury and Related Crimes:
          1. Honesty is the best policy, and necessary to the 
        preservation of the Rule of Law.
          2. There are adverse consequences if this principle is not 
        adhered to.
          3. When a failure to adhere to the principle of truth is 
        admitted and the consequences are assumed, healing and 
        restoration can occur.
    I was wrong to lie before Judge Mikel that July 1995 date; I merit 
punishment for breaking a fundamental law of God and society. Making 
false and/or misleading statements, especially under oath and 
regardless of the subject matter, is wrong for me and anyone who 
accepts the U.S. Constitution, Declaration of Independence and the Rule 
of Law upon which this great land of ours is founded and persists.
    On that July 1995 date I stepped over the fine line between truth 
and falsehood, and I can assure you once it is crossed, it is 
impossible to return to the state of truthfulness without repercussion 
or consequences.
    Consequences of wrongdoing undoubtedly affect the individual. My 
sentence will not end on February 27, 1999, when the electronic 
monitoring device is removed from my ankle, nor will it end on July 19, 
1999, when my formal probationary period is completed. In a very real 
sense, I am condemned to a life sentence. I have lost my professional 
standing, my life as it had been, and my cherished privacy--these 
consequences are irrevocable.
    The consequences of wrongdoing also interfere with the lives of 
those near and dear. Family members must be exposed to the sneers and 
jeers of co-workers, and to the embarrassment of reading unkind and 
sordid misrepresentations of the facts often published by journalists 
who are more interested in sensationalism than journalistic integrity. 
Sometimes the consequences extend beyond one's ordinary geographic 
boundaries, as in what happened to me. Pubic notoriety also has been 
thrust upon me.
    Admitted wrongdoing and acceptance of consequences can however, 
become the cornerstone for restoration and healing. I can assure you 
that the pain and embarrassment felt when I publicly apologized to 
Judge Mikel and the judicial system I had violated was far surpassed by 
the sense of relief, and the spirit of peace it afforded me. I had 
already made peace with God, but we are societal beings so we must be 
at peace with our neighbors as well in order to have true and complete 
restoration and healing. Once this occurs life, liberty and the pursuit 
of happiness can take on a new dimension. I pray that I and others 
experiencing similar conditions will be afforded this blessing.
    Unfortunately, sometimes agents of the government also fail to 
fully honor the truth. In my case, Assistant U.S. Attorney Jonathan 
Mitchell stepped over the line when he failed to file the motion for a 
two-point downward departure from the federal sentencing guidelines 
which was part of our plea bargain agreement. Mr. Mitchell crossed that 
line, and will in some way, some time, pay the consequences.
    Because a president is not a king, he or she must abide by the same 
laws as the rest of us. Whether Mr. Clinton is impeached or not is in 
the hands of this Committee, the House of Representatives and the U.S. 
Senate. But even if justice does not prevail, Mr. Clinton's 
consequences will be reserved for God and history to determine.
    We all make mistakes in life. But, common frailty does not relieve 
us from our responsibility to uphold the Rule of Law. Regardless, this 
nation must never let any person or people undermine the Rule of Law. 
Without it, atrocities like slavery, genocide, potential nuclear and 
biological warfare and oppression are sure to surface their ugly heads 
once again.
    If liberty and justice for all does not reign, we--like great 
civilizations before us--will surely perish from the face of the earth.

    Mr. Hyde. Thank you very much.
    Mr. McCollum.
    Mr. McCollum. Thank you, Mr. Chairman.
    Ms. Parsons, am I correct that you were basketball coach at 
the University of South Carolina when the occasion of this 
perjury that you were convicted of arose? Am I right about 
that?
    Ms. Parsons. No, I had resigned.
    Mr. McCollum. You had resigned. But you had been 
previously.
    Ms. Parsons. I had been previously.
    Mr. McCollum. Am I correct that the subject of your perjury 
was consensual sex?
    Ms. Parsons. No.
    Mr. McCollum. What was the subject of the perjury, then? 
Please clarify that.
    Ms. Parsons. Well, it is really kind of funny. There is a 
gay bar called Puss and Boots in Salt Lake City, Utah. It 
wasn't easy to say. I have been there. That occurrence was 2 
years after, then, the things that I was suing Sports 
Illustrated for. It wasn't a pretty picture for me. I thought I 
had many reasons for why I could say no, but it was an out-and-
out lie. I had been there.
    Mr. McCollum. And that is what the perjury was about, about 
whether you had been to that bar or not?
    Ms. Parsons. Yes. Now, I went to the FBI about that.
    Mr. McCollum. Let me ask you this question. You mentioned 
leadership and you mentioned the fact that it bears a heavy 
responsibility, and that is the reason I raised the basketball 
coach question with you. You were in a position at one time of 
leadership.
    Ms. Parsons. Absolutely. I was also an athletic director.
    Mr. McCollum. There you go. The President of the United 
States is the top leader in this country. What kind of a 
message do you think it sends if we conclude that he committed 
perjury and do not impeach him and he gets away scot free? What 
kind of message would that send, considering what you have been 
through and what ordinary Americans can expect to go through, 
presuming that perjury is found to be the case in a civil case?
    Ms. Parsons. Please let me give this answer. I am ready. 
Mixed message. We cannot raise our young people with mixed 
messages. There are no secrets, but the discretion of when to 
tell them things is what maturity is about. But secrecy doesn't 
cut it when we are raising young children.
    Mr. McCollum. Dr. Battalino, what is your thought about the 
double standard we might be creating if we conclude the 
President committed perjury and we don't impeach him, with 
respect to people such as yourself who are convicted and sent 
to jail or put in house arrest for perjury regarding consensual 
sex, in the Federal system? Is this fair?
    Ms. Battalino. I believe that we as a people, as a country, 
must not give the impression to our citizens, to our young 
people, to the world that we are indeed a country that does not 
take seriously the rule of law and liberty and justice for all.
    Mr. McCollum. And is it wrong to have the President of the 
United States, the highest ranking law enforcement officer of 
this country, walk away from a situation which would be 
presumably very similar to yours, if indeed we conclude that he 
committed perjury involving consensual sex? Would that be wrong 
and the wrong message?
    Ms. Battalino. I think it would be a very wrong message, 
and I would hope that that is not what indeed occurs. At the 
same time, I do believe that history will ultimately determine 
whether or not our country remains the country of justice and 
liberty for all.
    Mr. McCollum. Thank you very much. Thank you, Mr. Chairman.
    Mr. Hyde. Mr. Conyers.
    Mr. Conyers. Thank you, Mr. Chairman. I will reserve my 
time, please.
    Mr. Hyde. Mr. Frank.
    Mr. Frank. Mr. Chairman, I want to express my admiration 
for the witnesses for coming forward. It is not easy to come 
forward in a situation like this.
    Ms. Parsons, I understand particularly your reticence over 
time to talk about some aspects of your personal life. It is a 
reticence I share, and I agree with you that dealing with it 
and getting it over with is a very healthy thing.
    What I want to talk about is not directly relevant to these 
two witnesses, though, because I want to talk about the 
difference between the accusations against President Clinton 
and the cases of these witnesses. I note that the chairman 
began by describing this as a general oversight hearing which 
we just happen to be having at this time. I guess it is kind of 
a dead time, early December, and oversight on perjury in 
general just happened to fill an empty agenda.
    But not everybody has stuck to the script that this was 
simply an abstract exercise in discussing perjury. Clearly this 
is part of--it is actually an interesting hearing. I have never 
seen a hearing before that was part of the whip operation of 
one of the two parties. This is an effort to increase votes on 
the floor because they are in a little bit of trouble. But that 
is okay. We have a lot of discretion.
    But it does seem to me we ought to talk about the 
difference. With regard to the accusations against the 
President, the first go to the Paula Jones case, and there we 
have a very real difference between the President's situation 
and that of the two witnesses here.
    In both cases they have very fairly acknowledged and in a 
very admirable way, and I think they deserve a great deal of 
credit for the openness and the straightforwardness with which 
they discussed this. They were accused of perjury on matters 
which were central to the case at issue, the question of 
whether or not the patient had been mistreated, the question of 
a sexual relationship for one of the coaches. They were really 
quite central.
    In the case of the Paula Jones situation, the questions 
were entirely peripheral, ultimately ruled not to be directly 
relevant, and this troubles me in this case where you are 
talking about general principles. We have a situation in this 
country where almost anybody can sue almost anybody else. My 
Republican colleagues have tried to restrict that, and I have 
joined with them more often than many of my Democratic 
colleagues. I think we should rein in excessive litigiousness.
    But we have this problem. People have said sometimes, 
``Well, you've been sued. If you were wrong, why don't you just 
resist it?'' Well, one of the reasons is that we have in this 
country virtually unlimited discovery. Once you are sued, you 
are then subject to a great deal of investigation. I am 
troubled by a situation in which you can have people sued, even 
if there is an expectation that the ultimate suit will not be 
successful, and people then use the fact of the suit to use 
broad discovery.
    And here is the problem I have in the situation involving 
the President in the Paula Jones case. I believe that the 
clearly consensual relationship he had with Ms. Lewinsky, 
initiated by Ms. Lewinsky, improper, wrong of the President to 
engage in but clearly, indisputably consensual, was in fact 
irrelevant in every way to the Jones situation. I think that 
was what was ultimately decided.
    If you say that once you are sued, no matter how 
meritorious the lawsuit, you are then subject to unlimited 
discovery even on subjects not relevant and material to the 
case, and if you do not confess the most intimate details of 
your life in that situation, even if they were not relevant to 
the case, you are subject to perjury, we erode privacy.
    That is why I think there is a great deal of reluctance on 
the part even of some of my Republican colleagues to proceed 
against the President in the Jones case, because the precedent 
you set frankly goes contrary to what I think is a sensible 
thrust on the part of many of the Republicans, namely to limit 
the extent to which litigation can be used as a weapon, not to 
solve a particular claim but as a weapon in general. And if you 
say unlimited discovery and perjury for any aspect of those 
questions asked, even if they are later ruled nonmaterial, you 
are greatly broadening that.
    Then we have the perjury before the grand jury. Now the 
grand jury is a different story. Obviously it was somewhat 
material, as that was the only reason they had it. The problem 
here is that for--from the Republican standpoint, there is no 
way that anybody has been able to prove that the President 
committed perjury.
    And my time is starting to run out. Let me give one example 
of how absolutely insignificant those allegations are, as well 
as being difficult to prove.
    There are three charges in Mr. Starr's report that the 
President perjured himself before the grand jury. The first is 
that in August of 1998 he remembered the sexual activity as 
having begun in February of 1996 and she said it was November 
of 1995. That is, A, very easy to understand how someone 2-plus 
years later might have forgotten which month it was. Two, it 
seems to me very hard to prove.
    And, three, the notion that you are going to impeach the 
President because he said sexual activity which he acknowledged 
happened and he acknowledged was improper began in February 
rather than November is silly, especially since nothing turns 
on it. She reached no magic age in between then.
    Mr. Starr says, ``Oh, well, she stopped being an intern. 
She was an intern in November and she was not an intern in 
February. That's why the President lied.'' She did not go from 
being an intern to being the Under Secretary of Health and 
Human Services. She went from being a young intern to being a 
young, fairly insignificant employee. Nothing turned on that.
    The notion that you would impeach the President of the 
United States because more than 2 years after a sexual 
encounter which he admitted to the grand jury when he was 
before the grand jury and no other target would have been--you 
would impeach him in part because he said he remembered it as 
having been 2 years and 3 months previous or 2 years and 6 
months, and in fact it was 2 years and 8 months, there is a 
very real difference between, it seems to me, that accusation 
and the very central issues that these two witnesses have both 
fairly decided.
    Mr. Hyde. Mr. Frank, your time for questions has elapsed.
    Mr. Gekas.
    Mr. Gekas. I thank the Chair. The gentleman from 
Massachusetts has articulated the problem that is before this 
Judiciary Committee. He scoffs at and finds inconsequential 
some of the items which have been recounted as possible 
statements that would be perjurious, either before the grand 
jury or before the Jones trial or deposition. What he is saying 
is there are some, like him, believe they are so 
inconsequential, even though they are lies before a grand jury, 
under oath, that they should be discounted automatically.
    There are some that feel perhaps a pattern has evolved from 
all these, what he calls inconsequential, I am using a term 
that he may not adopt but at least that is the impression I 
get, that he feels that they are inconsequential, yet a pattern 
has existed both in the Jones trial and in grand jury that 
indicates to some that a finding could be made that perjury was 
indeed committed. And that is what we have to decide, not 
whether the President is guilty of perjury or innocent of 
perjury, but whether or not there is enough evidence 
cumulatively from which Barney could determine there was no 
perjury committed, or someone of some other point of view could 
find that yes, indeed, there is some evidence from which a jury 
could find that perjury was committed.
    Is there probable cause, in other words, on the part of 
this committee to be able to make a finding that an article of 
impeachment on perjury should lie? That is the question. And I 
think that the gentleman from Massachusetts has confirmed what 
our duty is here. He finds in drawing some conclusions that 
nothing has occurred. Others, looking at it as a pattern and 
looking at other questions that surround the testimony of the 
President in the Paula Jones depositions and in grand jury, 
could find otherwise.
    And that is what our duty is, to determine whether there is 
enough evidence, sufficient and credible, to be able to present 
to the trier of fact. That is the only thing before us. And we 
may differ on that in the final vote that may be taken on a 
possible articles of impeachment.
    I would like to ask the witness Battalino just one 
question. You had a complaint about a prosecutor who may not 
have fulfilled a plea bargain with you, et cetera. Do you 
believe that his action in any way, as sour as you think it 
was, do you think that that in any way mitigates the perjury 
that you committed?
    Ms. Battalino. No, sir, not at all.
    Mr. Gekas. I have no further questions.
    Ms. Battalino. The point I was trying to make, if I may 
make it, the point I was trying to make is that truthfulness 
must be in every action, in every contract that we make with 
each other, as individuals and as a society.
    Mr. Gekas. Thank you for the testimony.
    Mr. Hyde. The gentleman from New York, the distinguished--
--
    Mr. Gekas. I yield back the balance of my time.
    Mr. Hyde. I just took it away from you.
    Mr. Gekas. Well, I yield it.
    Mr. Hyde. Thank you. It is a pleasure to recognize the 
distinguished Senator-elect from the great State of New York, 
Mr. Schumer.
    Mr. Schumer. Thank you, Mr. Chairman.
    Mr. Chairman, as I sit here today, I am convinced this 
committee needs help. We have before us 11 witnesses who share 
practically nothing in common. We are given 5 minutes to ask 
them questions and glean insight into the most serious matter 
our committee can consider, that of passing articles of 
impeachment to remove a duly-elected President from office. 
Later today we will issue new subpoenas on unrelated matters, 
again to impeach the President.
    We are hurtling headlong into a constitutional crisis which 
the American people in their wisdom have begged us to rein in 
and reject. All across the political spectrum, including 
mainstream Republicans in your own caucus, people know that the 
President's actions are not impeachable and that these 
proceedings should end, yet here we are moving closer and 
closer to impeachment.
    Why? Because, in my judgment, there is one small segment on 
the far right who have lost all objectivity and are determined 
to impeach the President at all costs. Their hatred of the 
President exceeds their caring about this country and its 
people. And that small segment, which would represent a 
minority view anywhere else in America, dominates this 
committee. That is why we need help.
    We have a new Speaker of the House. This is his first 
crucial test. I guess I am making a plea here, and that is to 
Mr. Livingston, to step in and take control of this runaway 
train before we go over a cliff. The new Speaker-elect should 
put an end to the hearings. He should put an end to secret 
depositions. He should allow a motion to censure or a motion to 
rebuke to be debated and voted on on the floor of the House. In 
my judgment, at least, he should join with Democrats and other 
Republicans to sponsor that notion. He should lead the House 
back to the sensible middle.
    Mr. Chairman, I believe you have tried to be fair and I 
don't envy your task. But these new hearings, these new 
subpoenas wave a red flag that common sense and common wisdom 
are not welcome here. Mr. Livingston, this may be the first and 
most important test you will ever face as Speaker. Lead us out 
of this abyss.
    I yield back my time.
    Mr. Hyde. The gentleman from North Carolina, Mr. Coble.
    Mr. Coble. I thank the chairman. Good to have all of you 
with us this morning. Thank you for being here.
    Dr. Battalino, you indicated that the person with whom you 
had your sexual involvement was unmarried.
    Ms. Battalino. Yes.
    Mr. Coble. You did not divulge your marital status at the 
time.
    Ms. Battalino. I was unmarried also, sir.
    Mr. Coble. So you were both unmarried?
    Ms. Battalino. Yes.
    Mr. Coble. Dr. Battalino and Ms. Parsons, did either of you 
lose your jobs or positions as a result of your convictions?
    Ms. Parsons. No.
    Ms. Battalino. I did.
    Mr. Coble. You did, doctor. And Ms. Parsons, you had 
previously resigned, is that the----
    Ms. Parsons. Yes.
    Ms. Battalino. Not only did I lose my job, sir, but I also 
have lost my professional standing as a physician and I can no 
longer pursue my legal profession, either.
    Mr. Coble. You are reading my mind. My next question was 
going to be if either of you have been forced to surrender your 
respective licenses.
    Ms. Battalino. Yes, sir, I have.
    Mr. Coble. Both medical and law?
    Ms. Battalino. Yes.
    Mr. Coble. How about you, Ms. Parsons?
    Ms. Parsons. I have never tried to use them. I don't know.
    Mr. Coble. Folks, we were visited some days ago by the 
country's best constitutional and historical and legal 
scholars, the best in the land, and for the most part that was 
a good day, I think, Mr. Chairman. One or two of those 
witnesses laced his testimony with a good deal of arrogance, 
but I guess scholars and outstanding people have that latitude. 
But I think that notwithstanding the fact that--on balance it 
was a good day.
    But that notwithstanding, ladies, I believe that your 
testimony today describes the issue at hand more succinctly and 
with more gravity than did the illuminating information that we 
received from that battery of scholars several days ago, and I 
thank you for being here.
    Mr. Chairman, I have no further questions.
    Mr. Hyde. The gentleman from Virginia, Mr. Boucher.
    Mr. Boucher. Thank you, Mr. Chairman. In the interest of 
time, I am going to reserve my questions for the subsequent 
panels.
    Mr. Hyde. Thank you.
    The gentleman from Texas, Mr. Smith.
    Mr. Smith. Thank you, Mr. Chairman. I, too, would like to 
thank the witnesses for their testimony this morning. Quite 
frankly, I am not sure that we have heard more candid, more 
heartfelt, more trenchant testimony than what we have heard 
from you all today, and I appreciate the courage that it took 
to be here and the humility that it took to admit that you were 
wrong.
    It seems to me that there are similar points that you both 
made, and you also have some similarity in that you were both 
government employees, for example, and that you both have 
suffered severe consequences.
    Dr. Battalino, in your testimony you said, ``I was wrong to 
lie. I merit punishment for breaking a fundamental law of God 
and society. Making false and/or misleading statements, 
especially under oath, and regardless of the subject matter, is 
wrong for me and anyone who accepts the U.S. Constitution, 
Declaration of Independence, and the rule of law upon which 
this great land of ours is founded.''
    And Ms. Parsons, you mentioned the consequences for your 
actions, and I think you said in so many words it was a lot 
tougher to tell the truth than it was to win a ball game.
    And Dr. Battalino, you also mentioned that common frailty 
does not relieve us from our responsibility to uphold the rule 
of law. This Nation must never let any person or people 
undermine the rule of law.
    And Ms. Parsons, you spoke, I think very persuasively, 
about the danger of undermining what you called a code of law, 
which I think is the same thing, and reinforces I think the 
importance of it.
    So let me address questions to both of you, if I may, and 
the first one is, do you think that we should have different 
standards that apply to high level government officials, and 
apply different standards to them than we have seen applied to 
yourself? In effect, should we have exceptions to the rule of 
law or should we not? And Dr. Battalino, if you want to reply 
first.
    Ms. Battalino. I think we should not. I think that this 
country was grounded on liberty and justice for all, and 
therefore no citizens of the United States, regardless of rank, 
financial status, any reasons, should be treated differently or 
separately from other citizens.
    Mr. Smith. Ms. Parsons, if you want to follow up on that, 
and also maybe address the larger question that if we should 
mistakenly apply different standards to different individuals 
depending on their level of employment, what does that do as 
far as the American people's respect for our judicial or for 
our justice system?
    Ms. Parsons. This is a toughie. With more responsibility, 
and the more you are in the eye of the public and taking 
responsibility for this huge circle that you are creating, how 
much does it affect all of them when you lie? I know this. I 
can't get past all the ripples of what I created yet, and I was 
just a coach in a small State. I have some feeling that the 
level of position you hold makes, at least in my heart, a 
feeling that there is more responsibility to make sure that you 
do tell the truth.
    Mr. Smith. So you think there is perhaps even a higher 
standard to be applied if one holds a high-level office?
    Ms. Parsons. I hope so. If we have picked him out to be a 
leader.
    Mr. Smith. And you agree with that, Dr. Battalino?
    Ms. Battalino. Absolutely.
    Mr. Smith. The last question is this, that if we do apply 
the same standards or perhaps even higher standards, which 
should the solution be for this committee that is perhaps 
dealing with the highest level of individual? Should the 
individual----
    Ms. Parsons. Isn't this incredible, that we are in this 
position, first of all? Because I remember when I was in that 
position of hearsay or whatever happening around and about me. 
When our President travels to Japan and we hear from the stands 
things about what is happening related to those things, it is 
not cool.
    And I think that the one thing is that there are certain 
things that, though, need to be found out behind closed doors, 
just like we have certain military secrets we don't want out to 
the rest of the world. Because of the way that it makes us 
look, you don't give things out. I don't know if those words 
are correct, treason or whatever you do when you give things 
you shouldn't.
    There is a time to find out certain information quickly and 
as expediently as possible, so that you can get on with the 
rest of the business of life. But if there is something that is 
decaying away, that is corrosive to the morale of the whole 
environment, then something does have to be done, and all I can 
say is as expediently as possible.
    Mr. Smith. Dr. Battalino, real quickly, would you apply the 
same sanctions to the President that have been applied to you?
    Ms. Battalino. Absolutely.
    Mr. Smith. Thank you both. Thank you, Mr. Chairman.
    Mr. Hyde. The gentleman's time has expired.
    The gentleman from New York, Mr. Nadler.
    Mr. Nadler. Thank you.
    Ms. Parsons, were you tried, or were you tried and did you 
have a verdict, or did you plead guilty?
    Ms. Parsons. I pleaded guilty.
    Mr. Nadler. Okay. But before that, you were aware that you 
had the option of going to trial?
    Ms. Parsons. Yes.
    Mr. Nadler. And were you given to understand that if you 
went to trial, your attorney could cross-examine the witnesses 
against you?
    Ms. Parsons. It never went that far. It wasn't necessary.
    Mr. Nadler. No, but did you understand that if you went to 
trial, that that is what would happen?
    Ms. Parsons. Back then did I understand that, or today? 
Let's see. I don't remember about then, but what you are 
telling me now is they could. I don't know.
    Mr. Nadler. Okay. Mr. Chairman, the point I want to make is 
several-fold, and I am not going to ask any further questions.
    Number one, Ms. Parsons, Dr. Battalino, had they gone to 
trial, would of course have had the rights any defendant has; 
namely, that the witnesses against them would have had to come 
forward and testify; they would have had the opportunity to 
cross-examine those witnesses and to call witnesses on their 
own behalf.
    That is not what is happening in this committee. There has 
been no witness called in front of this committee against the 
President. Mr. Starr is not a witness. He has no personal 
knowledge of anything that happened. He wasn't there, he didn't 
see anything, he didn't even depose the actual witnesses. Those 
witnesses haven't been called, and it is elementary in this 
country that if you are going to charge someone with something, 
you produce the witnesses to testify against them. And it is a 
failure of the Chairman of this committee that we are going to 
consider voting impeachment, having heard no witnesses 
whatsoever against the President, and nothing, nothing can 
eliminate that failure, unless those witnesses are called.
    Now, I do not want to say that I want those witnesses 
called. I don't want them called. This entire thing should be 
dismissed, because nothing that was alleged, even if true, is 
impeachable. But if you want to prosecute the President to an 
impeachment, it is the responsibility of the prosecution to 
prove the guilt of the accused, not the responsibility of the 
accused to prove his innocence. And those 81 questions which 
were an attempt to convict, have the President convict himself 
out of his own mouth to avoid the necessity of bringing 
witnesses, were frankly unworthy of the committee, unworthy of 
the Congress, and failed in its purpose.
    The second point I want to make is in response to something 
the distinguished gentleman from Pennsylvania said, when he 
said that it is our job to determine whether there is enough 
evidence to send to trial, to send the case to the trier of 
fact, that we have to see whether there is probable cause. The 
analogy obviously is that our role is similar to the role of 
the grand jury. Well, the fact is, it is not.
    That is an analogy often made, simply because impeachment 
under our system is a two-step process. But the fact is there 
is a great difference between an indictment and a vote of 
impeachment. The former Chief Judge of the Court of Appeals of 
the State of New York, in his famous statement, said any good 
prosecutor can get a grand jury to indict a ham sandwich 
because probable cause is not much of a requirement, it is a 
low threshold.
    For us to send, for the House of Representatives to impeach 
a President and subject the country to the trauma of a 4- or 6- 
or 7-month trial in the Senate is one heck of a thing, is one 
heck of a thing to do, and we should not do it simply on 
probable cause. We should use the same standard that I believe 
they used in the Nixon case; namely, clear and convincing 
evidence, not guilt beyond a reasonable doubt but at least 
clear and convincing evidence, and that has not been shown. It 
has not been shown that the President committed perjury by 
clear and convincing evidence or any persuasive evidence at 
all.
    To adopt a contrary view, to adopt Mr. Gekas's view, would 
be to say that the role of this committee of the House is a 
mere transmission belt or rubber stamp for the special 
prosecutor. The special prosecutor laid out evidence of the 
President committing an impeachable offense. If all we need is 
probable cause, what do we need the House for? We have his 
referral; send it over to the Senate. What do we need hearings 
for?
    Well, of course we haven't had hearings, not hearings of 
witnesses, not real hearings, we have only had shams. So maybe 
that is the belief of this committee, that this is a sham 
proceeding, that all we need is to act as a transmission belt 
for the special prosecutor and needn't establish anything on 
our own.
    As of today, we have had no witnesses. To repeat, we have 
had no witnesses, no opportunity to cross-examine those 
witnesses. Fundamental fairness, elementary due process, we 
have all paid lip service to. At least since the Magna Carta, 
we demand that before we vote on impeachment, we at least 
follow the normal processes, and that we find clear and 
convincing evidence before we send anything to the Senate. 
Unlike what would have been afforded, the right that would have 
been afforded to these two witnesses or to any other criminal 
defendants in this country, these rights have not been afforded 
in this case, these procedures have not been followed, and it 
is shameful.
    I yield back the balance of my time.
    Mr. Hyde. Thank you.
    The gentleman from California, Mr. Gallegly.
    Mr. Gallegly. Thank you very much, Mr. Chairman.
    Dr. Battalino and Ms. Parsons, thank you for being here 
today. During this whole process, I have thought so many times 
what a difficult job we have sitting up on this side of the 
dais. This is certainly without question the most uncomfortable 
series of hearings that I have had to sit through in my years 
sitting on this Judiciary Committee. But looking at the two of 
you out there today, I certainly don't envy you sitting on the 
other side, and I just want to thank you very much for coming 
forward to this committee today and baring your soul and 
expressing things that I know are difficult. You must be here 
for a reason that you think is for the betterment of this 
Nation moving ahead.
    Dr. Battalino and Ms. Parsons, during the time that you 
were going through your cases, did anyone at the Department of 
Justice or anyone else, for that matter, ever suggest to you 
that you could not or would not be prosecuted because you 
testified falsely in a civil case as opposed to a criminal 
case? Dr. Battalino.
    Ms. Battalino. No, sir.
    Mr. Gallegly. Ms. Parsons.
    Ms. Parsons. No one said that to me directly.
    Mr. Gallegly. Dr. Battalino, I understand that your 
prosecution by the Department of Justice took place just in 
1998, is that correct?
    Ms. Battalino. Yes, uh-huh, correct.
    Mr. Gallegly. And that would also be during the time that 
President Clinton was in charge of the Justice Department; is 
that also correct?
    Ms. Battalino. Yes, that is correct.
    Mr. Gallegly. Ms. Parsons, maybe we could focus just for a 
second on the issue which you touched on in your testimony. In 
your position of leadership when you were a former college 
basketball coach, what do you feel, personally feel, is the 
impact of lack of honesty or lack of integrity by persons in 
leadership roles on the young people that you are so familiar 
with as a coach?
    Ms. Parsons. You affect them for the rest of your life. No 
one ever gets over what you have done. It gets easier. They are 
looking to you, in how you are experiencing life, as they are 
stepping along too. It is a masterful position and requires 
tremendous maturity.
    Mr. Gallegly. Ms. Parsons, Dr. Battalino, thank you for 
being here.
    I yield back, Mr. Chairman.
    Mr. Hyde. I thank the gentleman.
    The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Chairman, the question before us is not whether or not 
perjury is a crime or whether it applies to sex or whether it 
applies in civil cases; the question before us is whether or 
not we should vote to impeach the President. That question 
should be resolved in a fair and orderly process, but our 
process has not been fair or orderly. We have not followed the 
orderly process that was outlined in the Democratic alternative 
where we said we should first determine which allegations, even 
if true, could constitute impeachable offenses.
    If we followed the directions that we have had from many 
constitutional scholars, of course we would have concluded that 
none of the allegations before us constitute impeachable 
offenses. But if any do, then we should get the facts on those 
allegations and determine whether or not the allegations were 
true, and if any of those allegations were true, we would vote 
to decide--we would have a vote to determine whether or not 
those impeachable offenses that we determined that the 
President committed were substantial enough to warrant his 
removal from office.
    Instead of that orderly process, Mr. Chairman, we received 
a referral and released it without even reading it. Mr. Starr 
has now said that it was not his responsibility, that he is not 
responsible for the release, and absolved himself of blame for 
the fact that sexually explicit material was placed on the 
Internet. We followed that by weeks of determination of what 
other sexually explicit material should get on the Internet. We 
followed an arbitrary process where we would make up the rules 
as we went along.
    The President was sent questions. That was without 
consultation or notice. Most of us found out that the questions 
had been sent when the media notified us. We were at the same 
time denied the opportunity to take depositions of witnesses 
that we wanted.
    Mr. Chairman, without consultation, a deadline was set for 
the President to respond to those questions. We then had the 
spectacle of watching the prosecutor try to testify as a fact 
witness, and the last time we were here, the chairman 
admonished me for calling him a prosecutor. The chairman said 
that Mr. Starr was an independent, independent counsel, and not 
a prosecutor. Of course, the very next day his ethics advisor 
quit because he was being too much of an advocate.
    Mr. Chairman, there is a pronouncement without consultation 
that all of the hearsay, rumor and innuendo would be presumed 
to be true unless the President came up with proof that it was 
not true. That is without even a statement of what the 
allegations have been, and is a virtual presumption of guilt, 
and it is in the midst of an expansion of our scope, without 
notice, again.
    Mr. Chairman, I think just in closing that we should focus 
on our constitutional responsibility, determine whether or not 
we have impeachable offenses before us, even if they are true, 
and then determine what to do if they are impeachable offenses 
after we determine that they be true, if we ignore the advice 
that we received from many constitutional scholars who have 
told us that none of these allegations are impeachable 
offenses. That process can be completed in a swift matter of 
time. It should not take long.
    But here we are, we don't even have the allegations before 
us that we are going to be pursuing, and the referral came in 
early September. When we have the allegations, then we can go 
into fact-finding and can bring this to a conclusion. I don't 
believe that thus far the proceeding has been helpful in 
helping us resolve that question. Thank you.
    Mr. Smith [presiding]. The gentleman from Florida, Mr. 
Canady.
    Mr. Canady. Thank you, Mr. Chairman.
    I want to thank both witnesses for being with us here 
today. I know it is not easy to appear in a proceeding such as 
this with these circumstances, and we are very grateful for 
your testimony. I think your testimony is quite relevant to the 
core issue that the committee confronts, and as I have listened 
to your testimony, it has reminded me of statements that 
various Members of the Judiciary Committee made during the 
course of the committee's consideration of impeachment articles 
with respect to Richard Nixon.
    I was struck particularly by the parallel with comments 
that Mr. Brooks made at that time. Now, Mr. Brooks wasn't 
chairman of the committee then, of course, Mr. Rodino was. Mr. 
Brooks subsequently served as chairman of this committee during 
my first term as a Member of the Congress and a member of this 
committee, and Mr. Brooks, the gentleman from Texas, was our 
chairman.
    In the Nixon matter, he said this: ``No man in America can 
be above the law. It is our duty to establish now that evidence 
of specific statutory crimes and constitutional violations by 
the President of the United States will subject all Presidents 
now and in the future to punishment.''
    Mr. Brooks went on to say, ``No President is exempt under 
our U.S. Constitution and the laws of the United States from 
accountability for personal misdeeds, any more than he is for 
official misdeeds.''
    I think that we on this committee, in our effort to fairly 
evaluate the President's activities, must show the American 
people that all men are treated equally under the law.
    I would like to ask you, both the witnesses, to tell us 
whether you would agree with the sentiments expressed by Mr. 
Brooks during the Nixon inquiry. Dr. Battalino.
    Ms. Battalino. I was an adult during the Nixon impeachment 
hearings, and I was very impressed with the manner in which the 
committee conducted the proceedings, so I would certainly agree 
with the statements that you have made that Mr. Brooks made. I 
would hope that this committee will have the same unbiased 
approach to dealing with the justice and fairness for all 
issue.
    Mr. Canady. Ms. Parsons.
    Ms. Parsons. It is another one of these questions that--I 
remember when I was serving time, people would ask me, ``Do you 
feel like you should have served time if President Nixon 
didn't?'' I couldn't necessarily relate, because I don't 
compare oranges and apples, but I know this: that we have 
certain basic things that must be addressed with all of us, no 
matter what position we are in at any given time. It is 
unfortunate if you are in a high position of authority and in 
the public eye, but it might come up at that time, and it still 
has to be dealt with.
    Mr. Canady. Thank you. I would like to now respond to some 
of the points that have been made which I think are totally 
without merit.
    The contention has been made that essentially this 
committee has the responsibility to conduct a proceeding in the 
nature of a criminal court trial. That couldn't be further from 
the truth. The Constitution gives the sole power to try 
impeachment cases to the U.S. Senate. Now, we do have a 
responsibility to make certain that we act on a solid basis. We 
should not move forward with articles of impeachment on the 
basis of insubstantial evidence. I think all of us agree on 
that.
    The fact of the matter is that we have a mountain of sworn 
testimony that points to the conclusion that the President is 
guilty of various offenses, including lying under oath. There 
are those who believe that that evidence is unreliable, that 
the witnesses were not telling the truth. They have an 
opportunity to request that those key witnesses be called 
before the committee. I don't sense that they are really 
interested in doing that. I don't think they want to do that.
    Because the real defense that is being waged here is not 
that the facts are untrue but that it really doesn't matter. It 
is what has been referred to as the ``so what'' defense. Even 
if the President did all of these things, it doesn't really 
matter. We have no real recourse to hold him accountable under 
the Constitution.
    Well, I have to say that I disagree with that perspective. 
I think that is inconsistent with the precedents and the 
history of the impeachment power, and I hope that that 
viewpoint will not prevail.
    I thank the witnesses again.
    Mr. Hyde. The gentleman from North Carolina, Mr. Watt.
    Mr. Watt. Thank you, Mr. Chairman. I adopt as if it were my 
own the statement of my colleague, Mr. Scott, from Virginia. I 
have no questions of these two witnesses, and I yield back the 
balance of my time.
    Mr. Hyde. I thank the gentleman.
    Mr. Inglis, the gentleman from South Carolina.
    Mr. Inglis. Thank you, Mr. Chairman.
    Congratulations to our two witnesses. You have done what 
nobody else has been able to do. You have just thrown a wrench 
in the White House spin machine. It is incredible. For the 
first time since this whole thing began, you have single-
handedly done it. Have you noticed that nobody on the other 
side has asked you a single question? And particularly, that 
nobody has yet attacked you?
    Now, there is time left. We will see. But the thing that 
you have accomplished here that no one else has accomplished is 
to stop the attack on the attacker. That is all the White House 
has done in this whole proceeding. That is all our friends on 
the other side have done, is attack the attacker. It goes along 
with the defense that Mr. Canady just mentioned, the ``so 
what'' defense, but the way that you lead into that ``so what'' 
defense is to begin by attacking the attacker. So 
congratulations to both of you. You have shut them down for a 
matter of minutes now. We do have time left, we will see.
    But it occurs to me that what you have also done is you 
have shifted the focus. You see, the White House spin machine 
likes to talk about vast right-wing conspiracies, and they like 
to talk about procedural fairness, and they are real big on 
that. But the thing that eludes them is that there is another 
aspect of fairness, and that is the equal application of the 
law.
    Dr. Battalino, I would like to ask you, you were in law 
school as I was years ago; in fact, Dr. Steve Saltzburg may not 
remember this, but I was one of his students in evidence. So I 
will ask you to do what probably he asked Mr. Inglis to do at 
UVA Law School: Distinguish the case, Dr. Battalino, between 
your situation and President Clinton's.
    Ms. Battalino. Well, unfortunately, I think there are very 
many similarities, so in some respects I can empathize with Mr. 
Clinton's position and his embarrassment and avoidance of 
discussing a private sexual encounter, especially consensual, 
and also the fact that there were tape recordings. Unlike Mr. 
Clinton, the gentleman with whom I had a relationship did the 
taping of the conversations that we had.
    I think too the most important similarity is that initially 
there is a hesitancy, and there appears to continue to be a 
hesitancy on Mr. Clinton's part to assume the full 
responsibility of the fact that lying, whether it be about sex 
or about stealing or about anything, is wrong, and we cannot 
permit the concept that certain lies are okay and other lies 
are not acceptable. That is destructive to our youth, it is 
destructive to our Nation as a whole, and I believe that in the 
depths of my soul. If there was anything that I could change, 
it would be that day never to have lied.
    Mr. Inglis. Let me ask you this. Do you see any 
distinguishing facts between your case and the President's?
    Ms. Battalino. Well, certainly I was not able to have the 
great availability of great legal minds that the President has. 
In addition, I did not have the financial backing or ability to 
pursue going to a trial, and that is the main reason why I plea 
bargained.
    Mr. Inglis. So in other words, other than the circumstances 
of your own situation of lacking the power of the presidency, 
the wealth of the presidency in terms of the ability to have 
lawyers, you don't see any distinguishing facts between your 
situation and his?
    Ms. Battalino. Well, I certainly see the other distinction 
being that I was in a sense able to acknowledge that I must 
assume full responsibility for my actions; that it is not right 
to tell a lie. And by simply suggesting that once you apologize 
for the lie, it just should go away and we should move on, that 
is not the way our country is based. That is not the way our 
society is based. There do have to be consequences.
    And I would not in any way attempt to describe what those 
consequences should be. That is way beyond my level of 
expertise or condition. But I do say that there should be 
consequences, and that the consequences have to be significant 
and serious consequences.
    Mr. Hyde. The gentleman's time has expired.
    The gentlewoman from California, Ms. Lofgren.
    Ms. Lofgren. Mr. Chairman, I think my colleague, Mr. Scott, 
spoke well and really articulated what is on my mind. When last 
the committee met, I mentioned that the entire issue before us 
was one of the most embarrassing segments of American history, 
and this hearing certainly does not change that. In fact, I 
wish that I had followed Mr. Berman's example and not come here 
at all today.
    It is not the fault of the witnesses, who I credit for 
coming forward and being honest and going through their own 
embarrassment. It is not their fault that we are sitting here 
asking these two ladies questions that have nothing to do with 
the constitutional issue that faces this committee and the 
country.
    I am not going to ask them any questions, because I don't 
know that they have insight into whether the President's 
behavior matches that envisioned by George Mason and James 
Madison when they drafted the impeachment provision in the 
Constitution. I have no questions for the witness. I have 
questions for the committee on why we are sitting here when we 
do actually have some judges waiting in the audience who may 
actually have points of law to share with us, and I would yield 
back the balance of my time.
    Mr. Hyde. I thank the gentlelady. I think I will speak out 
of turn to answer the gentlelady's question. Why are we sitting 
here?
    Well, I can give you some reasons why we are sitting here. 
We are exploring the double standard. We are exploring whether 
there is one rule of law for the powerful, for the rulers, and 
another one for the ruled. We still believe this is a country 
and a nation governed by laws and not men, and we are exploring 
whether there are different consequences for different people 
in our government. That may be a sterile inquiry for the 
gentlelady, but I think it is important.
    Now, we have been criticized by the distinguished gentleman 
from New York for not producing witnesses to cross-examine, as 
though this is where the adjudicatory function is, and I guess 
the Senate is left for the accusatory function. It is the other 
way around. We accuse; they adjudicate.
    But I will say this. We have not called a lot of witnesses 
because you have pled nolo contendere. I have a quote here from 
the distinguished gentleman, he is not here now, Mr. Schumer: 
``It is clear that the President lied when he testified before 
the grand jury, not to cover a crime, but to cover embarrassing 
personal behavior. To me, Mr. Chairman, it is clear the 
President lied when he testified before the grand jury.''
    Another ember of this committee, not here: ``The President 
had an affair. He lied about it. He didn't want anybody to know 
about it. Does anyone reasonably believe that amounts to 
subversion of government?''
    Well, that is what we are here to discuss.
    So you have conceded on the facts; you never produced 
witnesses to question the facts. It is all process and 
procedure, and personal attacks on the chairman. I just think 
that is interesting.
    But the one person in this country that is sworn, as the 
chief law enforcement officer, who is sworn to take care that 
the laws are faithfully executed, if he perjures himself, what 
are the consequences of that perjury? You would say none. Maybe 
a rebuke not provided for in the Constitution or anywhere else. 
Some of us think it should be stronger than that. That is what 
we are discussing here.
    Mr. Nadler. Mr. Chairman, point of personal privilege.
    Mr. Hyde. No, sir. I let you wander on----
    Mr. Nadler. Mr. Chairman, it is a point of personal 
privilege.
    Mr. Hyde. All right. What is your point?
    Mr. Nadler. My point, Mr. Chairman, is that--it is twofold. 
One, some members of this committee on both sides of the aisle 
may have concluded the President lied; some may even have 
concluded he lied under oath. Some have not so concluded, and 
we have not pleaded nolo contendere. I have not concluded that 
he committed perjury. I have seen no proof that he committed 
perjury, and that is very much at issue.
    Mr. Hyde. Well, have lunch with Mr. Schumer. Maybe he will 
inform you.
    Mr. Nadler. The second point, he is entitled to his opinion 
and I am entitled to mine, and the President is entitled to the 
same due process as everybody else. It has been repeatedly 
stated, and you just said, that what we are saying or what some 
of us are saying is that it doesn't matter, that perjury isn't 
very important. I think what some of us are saying is that 
perjury, even though not impeachable, is prosecutable, and that 
is what upholds the rule of law.
    Mr. Hyde. Well, thank you for informing me of that. That 
comes as a surprise to me that that is your position.
    The fact is, the referral from Judge Starr has a lot of 
information under oath, grand jury testimony, sworn statements, 
depositions, and you have yet to provide a witness to 
contradict the factual assertions in the referral. We wait with 
baited breath for that to happen. We give you a full day or 
more. If you have any exculpatory witnesses, where are they? 
You don't question about it, you don't--all you do is browbeat 
the chairman and this side of the aisle for trying to do its 
job, and it is not an easy one.
    Yes, I yield to my friend from Massachusetts.
    Mr. Frank. Thank you, Mr. Chairman. I promise not to 
browbeat you in my response, and I apologize for the stress 
that you----
    Mr. Hyde. Oh, go ahead. Why should you be different?
    Mr. Frank. Well, I don't know why I am different, Mr. 
Chairman, but I just am.
    Mr. Hyde. But why should you be?
    Mr. Frank. The point I was making is that it is inaccurate 
to assert that we have conceded the point. I do not believe 
perjury has come close to being proven before the grand jury, 
and I clearly believe that the witnesses themselves refute the 
notion of an obstruction of justice. The obstruction of justice 
presumably involved Monica Lewinsky, Vernon Jordan, Betty 
Currie and Bill Clinton. There are four people who deny that an 
obstruction of justice took place: Monica Lewinsky, Vernon 
Jordan, Betty Currie and Bill Clinton. If it had been a 
prosecution, they would be a witness on this one. So no, we 
don't admit there has been an obstruction of justice. We argue 
her volunteered statements that no one asked her to lie, no one 
offered her a job, they refute that. So I just want to 
differentiate myself from this view.
    Also with regard to perjury before the grand jury, I don't 
think anybody has proven that the sex began in November of 
1995, not February of 1996, and that the President, in August 
of 1998, consciously and deliberately misrepresented that. I 
don't think anyone has proven perjury at all.
    Mr. Hyde. I thank the gentleman for his contribution, but I 
just want to say the reason we are here with these two 
exceptionally productive witnesses is to illustrate the fact 
that there are very serious consequences for perjury--for lying 
under oath. They have borne those very serious consequences to 
their detriment. They have been brave enough to come in and 
tell us about it, and I just think it is important that we 
understand that there are consequences for perjury, 
notwithstanding the trivialization of lying under oath and 
misstatements and misleading under oath. There are very serious 
consequences that some people have to pay. It is a shame 
everybody does not.
    Mr. Frank. Mr. Chairman, one more question.
    Mr. Watt. Mr. Chairman, parliamentary inquiry.
    Mr. Hyde. The gentleman from Massachusetts.
    Mr. Frank. Are you saying that if you were a prosecutor, 
you would prosecute the President for having remembered that 
the sexual activity began in February of 1996 rather than 
November of 1995? That is one of the three counts of perjury to 
the grand jury that Kenneth Starr has put forward. February of 
'96 versus November of '95, more than 2 years after the fact. 
Do you believe that that is something for which he should be 
prosecuted?
    Mr. Hyde. I would rather not answer that. It does not 
strike me as a terribly serious count. I don't rank that up 
with lying to the grand jury, saying he didn't have a sexual 
relationship.
    Mr. Frank. That is one of Mr. Starr's arguments in his 
referral, one of his three points in his referral.
    Mr. Hyde. Mr. Starr is Mr. Starr and I am myself.
    Mr. Watt. Mr. Chairman, a parliamentary inquiry.
    Mr. Hyde. The gentleman from North Carolina.
    Mr. Watt. Could I inquire of the Chair what the regular 
order is? Is the Chairman using his 5 minutes?
    Mr. Hyde. Yes, I used my 5 minutes, although I yielded, as 
you lawyers say----
    Mr. Watt. I just wanted to be clear on what the regular 
order is.
    Mr. Hyde. I hope you don't think I was violating the 
regular order.
    Mr. Watt. It has been known to happen before, Mr. Chairman.
    Mr. Hyde. Well, but I am very concerned about what you 
think, so I want to make sure you think I wasn't violating.
    Mr. Watt. It is quite obvious you are very concerned about 
what I think, Mr. Chairman. Thank you, Mr. Chairman.
    Mr. Hyde. I hope you notice I am recognizing you more and 
more.
    Mr. Goodlatte, the distinguished gentleman from Virginia. 
We will get back on track.
    Mr. Goodlatte. Thank you, Mr. Chairman.
    Mr. Chairman, my understanding of the work of this 
committee is to uphold the Constitution of the United States 
and to see that the rule of law in this country is preserved, 
and I think these witnesses are very fine contributing 
panelists as we address that issue. Quite frankly, for months, 
some on the other side in this committee have asked us to 
address the issue of whether or not the actions taken by the 
President were indeed impeachable offenses, and to point out 
regarding the comments of the gentleman from Massachusetts, it 
is far more than whether or not the President remembered the 
date that some of these activities started, and I would like to 
refresh his recollection.
    On December 23, 1997, the President signed an affidavit in 
which he swore to tell the truth, the whole truth and nothing 
but the truth in answers to written questions asked in the 
Jones v. Clinton case. Such written questions are necessary in 
civil rights lawsuits in order for the court and the parties to 
ascertain the true facts of the case. In those answers, the 
President swore that he had not had sexual relations with any 
Federal employees.
    The evidence presently before this committee, unrebutted by 
the President, indicates that he lied. The President told a 
series of lies under oath, based upon the evidence before the 
committee, after swearing to tell the truth in a deposition 
given in the Jones v. Clinton case, in order to thwart that 
Federal civil judicial proceeding.
    On January 17, 1998, the President swore to tell the truth, 
the whole truth and nothing but the truth in a deposition given 
in the Jones case. The President swore that he did not know 
that his personal friend Vernon Jordan had met with Monica 
Lewinsky, a Federal employee and subordinate and a witness in 
the Jones v. Clinton case in which the President was known as 
the defendant, and talked about the case. The evidence before 
the committee, unrebutted, indicates that he lied.
    The President swore that he did not recall being alone with 
Ms. Lewinsky. The evidence before the committee indicates that 
he lied.
    The President swore that he was not sure whether he had 
ever talked to Monica Lewinsky about the possibility that she 
might be asked to testify in the Jones v. Clinton case. The 
evidence before the committee indicates that he lied.
    The President swore that the contents of an affidavit 
executed by Monica Lewinsky in the Jones v. Clinton case, in 
which she denied they had a sexual relationship, were 
absolutely true. The evidence before this committee indicates 
that he lied.
    The President told a series of lies under oath, according 
to the evidence before this committee, after swearing to tell 
the truth, the whole truth and nothing but the truth before a 
Federal grand jury that was investigating his alleged 
misconduct.
    On August 17, 1998, 7 months after his deposition in the 
Jones v. Clinton case, the President swore to tell the truth 
before the grand jury. The President swore that he did not want 
Monica Lewinsky to execute a false affidavit in the Jones v. 
Clinton case. The evidence before this committee indicates that 
he lied.
    The President swore that he did not allow his attorney to 
refer to an affidavit before the judge in the Jones v. Clinton 
case that he knew to be false. The evidence indicates that he 
lied.
    The President swore that he did not give false testimony in 
his Jones v. Clinton deposition, and clearly the evidence 
before this committee indicates that he lied.
    The President has been afforded the opportunity, members of 
this committee have been afforded the opportunity, the 
President's counsel has been afforded the opportunity to come 
forward and rebut this evidence. We have not even begun to talk 
about subornation of perjury, obstruction of justice and abuse 
of power.
    So these witnesses are very pertinent because of their own 
testimony regarding their own experiences and the consequences 
they confronted.
    Dr. Battalino, it is my understanding that in your 
circumstances there were tape-recorded conversations with a 
trusted person that were used in the prosecution of you in that 
case; is that not correct?
    Ms. Battalino. Yes, that is right.
    Mr. Goodlatte. And it is my understanding that in that case 
you were deprived of your employment as a result of this 
prosecution; is that not correct?
    Ms. Battalino. Yes.
    Mr. Goodlatte. It seems to me that there are very 
substantial similarities. Do you have any other similarities 
that you would point out to the committee between the 
circumstances I just described about allegations regarding the 
President and the circumstances that you have very courageously 
talked about today?
    Ms. Battalino. I think since the issue has come up about 
due process, that I plea bargained, I agreed to negotiate a 
settlement. So in many respects I did not have the full due 
process right that I would have had, had I had the opportunity 
and the financial and other support of background to have a 
full trial. I opted not to do that as a means to not subject my 
family to any more financial loss, and myself, and/or any 
further embarrassment.
    Mr. Goodlatte. Let me interrupt and point out another 
similarity that----
    Mr. Hyde. The gentleman's time has expired.
    Mr. Goodlatte. Mr. Chairman, if I might ask one additional 
question that would point that out.
    Mr. Hyde. Very well.
    Mr. Goodlatte. Thank you, Mr. Chairman.
    It is my understanding that the underlying civil suit that 
you were a party to was dismissed; is that not correct?
    Ms. Battalino. Yes, that is correct.
    Mr. Goodlatte. So you nonetheless still were convicted of 
perjury in that suit and lost your Federal Government job as a 
result of that?
    Ms. Battalino. I was prosecuted before the settlement of 
the case, the final dismissal of the case, yes.
    Mr. Goodlatte. Thank you, Dr. Battalino. I appreciate you 
taking the time, and both of you having the courage to come 
before us today and talk about equal justice under the law.
    Mr. Hyde. The gentlelady from Texas, Ms. Jackson Lee.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman.
    I too want to add certainly my respect and my appreciation 
for the willingness of the two witnesses to come before us 
today. I think it is difficult for you and for those of us who 
have offered a different perspective, for our questions are not 
directed personally at you or to in any way disrespect, as I 
indicated, the courage you have offered today or what you have 
gone through.
    And I think your presence here today is a testament to your 
leadership as an American. You were willing to accept the 
invitation for, in some sense, what you might add to a very 
important process. And so in this instance may I say, whatever 
happened to you in the past, you are great Americans and we 
should acknowledge that.
    I do want to indicate to the chairman, however, where we 
are today. And in the course of doing so, I will have one or 
two questions for the witnesses.
    We are here today as a result of a September 11th, 1998 
referral from the Office of Independent Counsel dealing with 
the question of impeachment of a President of the United States 
of America. We are also here pursuant to a resolution passed on 
the Floor of the House, drafted by Republicans to indicate that 
the world was their oyster, whatever might come, they would 
look at it. So we are here today.
    As we have proceeded, I had hoped that as Chairman Rodino 
in 1974, with the trust of the American people, with the eyes 
of the world watching, on something so somber as removal of a 
President, we would have proceeded possibly in executive 
session, as did the Rodino committee; cross-examining and 
examining vigorously, and I assume debating, which of course 
those records are still somewhat in executive session; and 
finally reaching a common consensus on the direction that we 
should recommend to the full House. We only know the Rodino 
result by way of that 1 day in August when Members of that 
committee offered their thoughts. We ultimately know that 
several of the members, of the Republican members of the 
committee, voted in favor of articles of impeachment.
    This time, today, however, December 1st, 1998, we have had 
no fact witnesses; we have had a hearsay witness, we have had 
Mr. Starr. He indicated that his world was a world of law, and 
not of public opinion and television appearances, though he 
took to appearing before us on November 19th in front of the 
television cameras and proceeded to move to 20/20 to make his 
advocacy even more heightened before the American people, and 
possibly an attempt to as well make himself the darling of 
those who would desire impeachment. We had no further calling 
of witnesses.
    We had articles of impeachment drafted and notice given to 
those of us who are Democrats by the airwaves of the public 
media. Frankly, we now are looking at further investigations, 
pursuant to again the notice of the media, on campaign finance 
issues that have been reviewed by several committees, one in 
the Senate and in the House.
    So I would simply say that it would be in order for you to 
be here if we had proceeded uniformly, but we have ignored the 
language of the Constitution, that impeachment is grounded on 
treason, bribery and other high crimes and misdemeanors. This 
is not to take away from what happened to you, the tragedy of 
your life, and now you have, if you will, repented or 
acknowledged and are now offering your insight. But we are here 
to be guided by the constitutional standards of treason, 
bribery, high crimes and misdemeanors.
    What our Republican friends fail to tell America as they 
divide over this very tense issue is that the President can be 
prosecuted under these alleged crimes once leaving office. Our 
job is not simply to abide by the public understanding of 
lying. The President has apologized for misleading the American 
people. I assume he was embarrassed; he has embarrassed his 
family, he has embarrassed and tainted his legacy. But our 
charge is simply to determine whether these are impeachable 
offenses.
    I would simply say to you, Ms. Parsons, that I thank you 
for your presence. It is my understanding that your involvement 
dealt with allegations dealing with another female, and I would 
simply ask both of you at the time, not today, at the time that 
you might have said an untruth, were you avoiding 
embarrassment? Were you avoiding hurt to your family members, 
or to yourself, or to your setting? Was it one where you 
thought that, ``If I do this,'' putting aside what happened 
later, that ``it would be an ultimate embarrassment to all who 
love me and respected me in this private matter.'' Ms. Parsons, 
not now today, but when it happened, were you embarrassed about 
what you were charged or asked to answer the question on?
    Ms. Parsons. No.
    Ms. Jackson Lee. You were not embarrassed?
    Ms. Parsons. No. What I was, was manipulating my way around 
who wouldn't understand what I was doing.
    Ms. Jackson Lee. And what a tragedy that a private matter 
like that had to be considered, where you had to manipulate.
    Dr. Battalino.
    Ms. Battalino. I think, Ms. Jackson Lee, as I mentioned in 
my statement, that yes, that was certainly one of the thoughts 
and feelings that had crossed my mind; that I was, indeed, 
embarrassed, and that I was making an attempt to justify that 
because I was embarrassed and because it was something of a 
personal nature, that adjudicated my not telling the truth, but 
that was wrong, and I knew that it was wrong at the time. I 
don't think that embarrassment or exposing a feeling and an 
experience that is personal is acceptable to not tell the 
truth, especially when it is under oath or it is a statement 
directly to the American people.
    Mr. Hyde. The gentlelady's time has expired.
    Ms. Jackson Lee. In these instances, as the witnesses have 
said, Mr. Chairman, I thank you for your indulgence, that they 
had plead and that they had indicated their untruth themselves. 
In this instance, we have none of that at this point, and we 
simply need to analogize this to whether these are impeachable 
offenses for the President of the United States.
    I do thank you for appearing here and telling us of your 
stories under your fact situations, which are so different from 
that of the President.
    Mr. Hyde. The time of the gentlelady has expired.
    Ms. Jackson Lee. I thank the chairman very much for his 
indulgence.
    Mr. Hyde. You are welcome.
    Mr. Buyer.
    Mr. Buyer. I want to thank the chairman for having orderly 
proceedings, because our function here under the Constitution 
is like the grand jury function, the accusatory function, which 
you have said before. So I want to thank you.
    I also would say that I find perjury under the same 
classification of bribery, meaning when it is said of treason, 
bribery or other high crimes, I believe perjury constitutes 
other high crimes. So I wanted to be instructive to my 
colleague there that lacked that scope.
    I also want to share with Ms. Parsons, when I was back home 
during Thanksgiving, my daughter plays high school basketball, 
and while I was in the stands, I couldn't help but my own 
friends would talk to me about this case and the proceedings, 
and what I found was very interesting. What some of my friends 
who weren't focusing on the legal technicalities and the legal 
side of this issue with the President, they are sitting in the 
stands watching a high school basketball game, they remember 
and they can't get out of their mind the President shaking his 
finger into their face on television saying, I didn't have 
sexual relations with that woman. And then they immediately 
say, ``Well, don't impeach him because of an affair.''
    See, I think that was highly representative of I think a 
lot of people in America. They just remember that shaking the 
finger and they think that somehow this impeachment is about 
that affair.
    So I have to agree with my colleague here, Mr. Inglis. He 
put it very eloquently. You two have done something that no one 
else could do, and that is to keep the extreme partisans quiet 
here today. The extreme partisans are trying to play into what 
my neighbors were then saying, ``Well, don't impeach him 
because of a sexual affair.'' No, you went to jail over 
perjury.
    So let me just take a step back here, and what I would now 
say to my neighbors at home and to the rest of you and to 
America is that in May of 1994, Paula Jones, a citizen of the 
United States, filed a civil rights lawsuit, a civil 
proceeding, against the President, alleging that he sexually 
harassed her and that he was, while he was Governor of Arkansas 
in the Jones v. Clinton case. The Supreme Court unanimously 
affirmed her right to bring that case and her right to have a 
fair hearing and an orderly ruling as guaranteed by the 
Constitution.
    In that case the judge ruled that the President was 
required to testify, as is common in harassment cases and in 
any sexual relations--about any sexual relations he had or 
sought to have with any State or Federal employees within a 
relevant time frame. This information is often necessary for 
plaintiffs who bring civil rights sexual harassment cases, for 
to prove those cases, especially when those--when the harassing 
conduct occurred in private and is the ``he-said, she-said'' 
situation. This information is used in court to lend 
credibility to the plaintiff's case.
    It is alleged that in relation to his duty to testify 
truthfully in the Jones v. Clinton case, the President lied 
under oath, encouraged others to lie under oath, tampered with 
witnesses, obstructed justice. It is also alleged the President 
committed the same offenses and abused the power of his office 
in relation to Federal criminal proceedings that grew out of 
his misconduct relating to the case of Jones v. Clinton.
    So there are some that like to say this is only a political 
proceeding. No, this is a legal proceeding that we are 
conducting here because we do have a standard. It is given to 
us in the Constitution.
    Now, I couldn't help but think of both of you as you were 
testifying, because I thought that--let me ask both of you. Dr. 
Battalino and Ms. Parsons, was one of the reasons that you 
testified falsely because you thought it would give you an 
advantage in the civil case in which you were involved in, and 
do you believe that the courts would work well if witnesses 
were allowed to testify falsely without any punishment?
    The other question I have for you would be, I also found it 
quite interesting, as my colleague Mr. Goodlatte went through a 
series of alleged perjuries the President may have committed, 
doctor, you were sent to prison because you said no to a 
specific question that said, ``Did anything of a sexual nature 
take place in your office on June 27, 1991?'' And you answered 
``no'' and you went to prison.
    Ms. Battalino. Yes.
    Mr. Buyer. On one ``no''?
    Ms. Battalino. One ``no''.
    Mr. Buyer. Mr. Goodlatte gave a whole series of lists 
whereby the President sought to obstruct justice in a civil 
proceeding where he stood to lose money out of his own wallet. 
So I am interested in your answer to that.
    The other thing I find quite interesting, Dr. Battalino, 
when you were under a wire, your quote was, when this gentleman 
revealed to authorities that you had had sex in your office, 
you responded, quote, ``No, that is not what I told you to 
do.''
    So my question is, what did you tell him to do? And if that 
doesn't sound like a cover story, did you have a cover story? 
Because what I also find quite interesting, in all of my years 
of criminal prosecution and defense, I have never heard 
defendants ever say to each other, ``Okay, I tell you what, I 
want you to lie.'' They don't say that. They say, ``Here is the 
story,'' and then you have to prove by circumstantial evidence 
about the obstruction, i.e., cover story.
    So please answer the series of questions.
    Ms. Battalino. May I start with the last question?
    Mr. Buyer. Yes.
    Ms. Battalino. To tell you the truth, I have never heard 
the transcripts in full, nor have I--I mean I haven't heard the 
recordings, nor have I read the transcripts. So I am at a 
disadvantage in terms of exactly what I said and what the 
intent of what I said was about.
    As I recall, the discussion that you are relating to had to 
do with telling my superiors at the VA hospital whether or not 
we did, indeed, have a sexual encounter on the premises. As far 
as a cover story goes, I think certainly that on some level 
there was an intent to influence the civil case by the response 
that I gave. I think it was a confused, unclear concept and 
perception that I had, but I would not doubt that there was 
some intent to influence the civil proceedings.
    Mr. Hyde. The gentleman's time has expired.
    Mr. Buyer. Mr. Chairman, would you permit the witnesses to 
answer, Ms. Parsons?
    Mr. Hyde. Certainly.
    Ms. Parsons. I may have gotten caught in one lie, but there 
was a definite pattern.
    Mr. Buyer. Was one of the reasons you gave false testimony 
because you thought it would give you an advantage in your 
civil case?
    Ms. Parsons. Because--I created the defense because I felt 
that most of the things that were surrounding me could not be 
understood by the general public or the people that were 
involved. And it is a ridiculous reason, but my strategy was 
very--the only thing I can say is, it is called incorrect 
thinking.
    Ms. Battalino. May I respond?
    Mr. Buyer. Yes, ma'am.
    Ms. Battalino. In my case also, I think that there was an 
element whereby I was not so much attempting to influence the 
results of the civil case, but that in my mind there was--that 
that case--and in a sense maybe I can empathize with one of the 
explanations that I have heard Mr. Clinton give, and that is 
because I did not think that that lawsuit was a legitimate or 
an honest civil case--that that caused me in my mind to justify 
giving that inaccurate testimony, and there is no excuse for 
that.
    Mr. Buyer. Thank you, Mr. Chairman.
    Mr. Hyde. The gentleman's time has expired.
    The gentlelady from California, Ms. Waters.
    Ms. Waters. Thank you very much, Mr. Chairman.
    I would like to declare myself in relationship to whether 
or not I believe the President perjured himself, because of 
statement that someone attempted to clarify. I am not convinced 
that the President has perjured himself.
    Having said that, I would like to raise a question I guess 
to one of the lawyers on this side of the aisle: Are all cases 
of perjury prosecuted? Mr. Nadler? Can you help me on that 
question?
    Mr. Nadler. No. Prosecutorial discretion is exercised. Some 
are prosecuted and some aren't.
    Ms. Waters. So there could be extenuating circumstances: 
Intent, materiality, any of those things could possibly cause a 
prosecutor not to pursue prosecuting someone who may have 
perjured themselves?
    Mr. Nadler. That is true. The prosecutor would have to 
weigh two things: How strong a case he thinks he has in terms 
of his ability to prove it, and how important he thinks it is 
in terms of his other cases.
    Ms. Waters. How many cases do you think that are out there 
that are not prosecuted? Is this the exception rather than the 
rule? Do we have many cases of perjury that are? Thank you. I 
didn't think so, and I don't think any time has been spent 
trying to find out whether or not that is the case.
    Mr. Chairman and my Ranking Member, ever since the 
Judiciary Committee dumped the Independent Counsel's salacious 
referral into the public domain, I warned this body that 
Americans were becoming increasingly more suspicious of their 
government and our ability to be fair and sensible. The public 
has told us time and time again that Americans want fairness 
and they want us to get to the people's business.
    In order to attend this hearing, I was forced to cancel at 
the last minute a very important forum on women and AIDS that 
was to be held in my district today as part of World AIDS Day. 
World AIDS Day is held every December 1st to bring attention to 
the global AIDS crisis. As you may know, the HIV/AIDS epidemic 
has reached crisis proportions, both here and abroad, with half 
of all new infections worldwide occurring among young people 
age 15 to 24, and with 34 million people infected in sub-
Saharan Africa alone. Here in the United States, the HIV/AIDS 
crisis continues to ravage our citizens, and it is devastating 
in the African-American community.
    By raising the critical issue of HIV/AIDS, I do not mean to 
abdicate my constitutional duty. Far from it. As Chair of the 
Congressional Black Caucus, I have argued that Members of 
Congress must carry out their duty to uphold the Constitution 
and ensure fair and judicious process. Is lying under oath a 
serious matter? Yes. Should perjury be tolerated? No. We did 
not need this panel of 11 witnesses to explain the obvious.
    The larger question that looms is whether impeachment is a 
proper tool to address the President's response to questions 
about his private consensual sexual affair. I must admit, I am 
not convinced that the President's answers regarding his 
relationship with Monica Lewinsky are ``great and dangerous 
offenses,'' ``attempts to subvert the Constitution,'' or ``the 
most extensive injustice,'' as described by George Mason, the 
man who proposed the high crimes and misdemeanors language 
adopted by the framers of the Constitution.
    By adopting a selective impeachment process, Republicans on 
this committee have elevated President Clinton's responses 
about whatever affair he may have had with Ms. Lewinsky to high 
crimes and misdemeanors. In comparison, the lies that were told 
by Presidents Reagan and Bush propagated regarding the illegal 
sale of arms during the Iran-Contra diversions do not in their 
mind constitute great and dangerous offenses to the country and 
the Constitution.
    Let's take a look at what we have here. In his deposition, 
the President denied having sexual relations with Monica 
Lewinsky and he denies touching specific parts of her body. 
Although Ms. Lewinsky said the President did touch certain 
parts of her body, she too stated she did not have sexual 
relations with the President.
    In contrast, President Reagan in his January 26, 1987 
interview with Independent Counsel Lawrence Walsh, stated he 
approved the shipment of arms to Iran. Three years later 
President Reagan said he had no recollection of whether he 
approved or had discussions about arms sales. President Bush, 
who initially acknowledged he was regularly informed of the 
Iran-Contra activities, later stated he was out of the loop of 
the illegal Contra arms sales.
    The same Members of Congress who defended the lies and 
illegal actions of Presidents Reagan and Bush now want 
President Clinton's head for what they consider lying about his 
private sexual affair. This double standard would be laughable 
if it were not a serious constitutional abuse. Where were the 
cries for impeachment when Presidents Reagan and Bush 
repeatedly lied to the office of independent counsel, Congress 
and the American people?
    Mr. Hyde. The gentlelady's time has expired.
    Ms. Waters. May I have 30 more seconds?
    Mr. Hyde. You surely may.
    Ms. Waters. Where were the charges of perjury and 
obstruction of justice when President Bush refused to submit to 
a second interview with Independent Counsel Lawrence Walsh to 
ascertain his knowledge of the diversion of arms sales proceeds 
to the Contras? When I compare the Iran-Contra activities and 
the lives lost, an evasive response about a private sexual 
affair pales in comparison. The American people are not stupid. 
They understand intuitively that the framers of the 
Constitution reserved high crimes and misdemeanors for the 
abuses practiced by Presidents Reagan and Bush and not for 
President Clinton's misleading statements about an embarrassing 
affair.
    I will conclude at this point, Mr. Chairman.
    Mr. Hyde. The gentleman from Virginia.
    Mr. Goodlatte. I thank you, Mr. Chairman. I would ask that 
a New York Times article, dated November 17, 1998, outlining 
prosecutions for perjury and indicating that in the last 5 
years there have been nearly 500 Federal court prosecutions for 
perjury and in the State of California alone in 1997, there 
were more than 4,300 prosecutions for perjury, and I would ask 
this article be made a part of the record.
    Mr. Hyde. Without objection, so ordered.
    [The information follows:]

                [From The New York Times, Nov. 17, 1998]

          In Truth, Even Little Lies Are Sometimes Prosecuted

                         (By William Glaberson)

    A Texas judge was convicted of perjury for declaring that he had 
used political contributions to buy flowers for his staff when, in 
fact, the flowers went to his wife.
    A Florida postal supervisor is in prison for denying in a civil 
deposition that she had a sexual relationship with a subordinate.
    An Ohio youth who had been arrested for under-age drinking 
testified that he had never been read his rights by the police. He was 
convicted of perjury for lying and sent to jail for 60 days.
    Defenders of President Clinton have argued that his accusers are 
overzealous in saying he should be impeached or subject to criminal 
charges on the grounds that he committed perjury when he denied in a 
civil deposition that he had a sexual relationship with Monica S. 
Lewinsky.
    But a review of more than 100 perjury cases in state and Federal 
courts and statistics on the number of perjury prosecutions brought 
around the country show that people are prosecuted in America for what 
might be called small lies more regularly than the Clinton defenders 
have suggested:

                                               THE RISKS OF LYING
----------------------------------------------------------------------------------------------------------------
                                                                             Federal Prosecutions
                                                             ---------------------------------------------------
                                                                                               Total Major
                                                                Perjury  Prosecutions         Prosecutions
----------------------------------------------------------------------------------------------------------------

1997........................................................                       87                    49,655
1996........................................................                       99                    47,146
1995........................................................                       85                    45,053
1994........................................................                       93                    44,678
1993........................................................                      111                    45,902
----------------------------------------------------------------------------------------------------------------



                                                                            California Prosecutions
                                                             ---------------------------------------------------
                                                                                              Total Felony
                                                                Perjury  Prosecutions         Prosecutions
----------------------------------------------------------------------------------------------------------------

1997........................................................                    4,318                   326,768
1996........................................................                    3,572                   328,168
1995........................................................                    3,302                   345,125
1994........................................................                    2,520                   342,321
1993........................................................                    1,968                   345,469
----------------------------------------------------------------------------------------------------------------
Sources: Administrative Office of the U.S. Courts; California Department of Justice.

      
    With the House Judiciary Committee's hearings into the possible 
impeachment of the President set to begin this week, the President's 
defenders are expected to return to their theme. His lawyer, David 
Kendall, has said that ``no prosecutor in the United States would bring 
a perjury prosecution on the basis'' of the kinds of questions Mr. 
Clinton was asked about his sexual harassment lawsuit.
    But interviews with lawyers, legal experts and a woman who is 
serving a sentence for lying about sex in a civil case show that, far 
from being shrugged off, the threat of prosecution for perjury, even in 
civil cases, is a crucial deterrent in the legal system.
    ``Symbolically, the sword of Damocles hangs over every perjurer's 
head and no one can know whether they're the perjurer that's going to 
be prosecuted,'' said Jeffrey Abramson, a former prosecutor and an 
expert on jury trials who is a professor of legal studies and politics 
at Brandeis University.
    One statistic on perjury prosecutions has been widely circulated 
since the President's supporters began arguing that perjury was little 
more than a technicality seized upon by the President's enemies: of 
49,655 cases filed by Federal prosecutors last year, only 87 were for 
perjury.
    State courts, where statistics are harder to come by, are another 
matter. Data supplied by court officials in two states, California and 
New York, suggest that perjury prosecutions are not as rare as some 
have suggested. In California alone last year, there were 4,318 felony 
perjury cases. In New York there were 395 perjury cases last year. And 
even in the Federal system, prison officials said in October that 115 
people were serving sentences for perjury in Federal prisons alone.
    The review of the cases offers some support for Mr. Clinton's 
defenders. Perjury charges are brought in civil cases far less 
frequently than in criminal cases. In addition, the law covering 
perjury is highly technical, with courts sometimes ruling that some 
obviously misleading statements like those Mr. Clinton acknowledges 
making may not constitute perjury under the law.
    But the cases also show that, even in civil cases, judges are 
sometimes provoked by perjury more than by many of the evils they see 
everyday. In the Florida case of the postal supervisor in July, the 
judge, Lacey A. Collier, sentenced the supervisor, Diane Parker, to 13 
months for falsely denying in a civil deposition that she had a sexual 
relationship with a male subordinate.
    ``One of the most troubling things in our society today,'' Judge 
Collier said, ``is people who raise their hands, take an oath to tell 
the truth and then fail to do that. An analogy might be made to 
termites that get inside your house. Nobody sees it, nobody knows about 
it until the house collapses around you.''
    Some courts have gone out of their way to say that perjury in civil 
cases is as important as perjury in any other testimony.
    In a 1988 civil suit in Georgia, for example, a founder of the 
Southern White Knights of the Ku Klux Klan, David Wayne Holland, was 
found liable for violating the rights of civil rights marchers.
    Although perjury prosecutions make up a small percentage of total 
cases, Federal and state officials do pursue them.
    In 1990, Mr. Holland was convicted of perjury for lying about his 
assets so the plaintiffs could not recover any of the $450,000 they had 
won in the verdict. In the sentencing, a Federal judge in Georgia said 
that because Mr. Holland had lied in a civil proceeding, the sentence 
was to be less severe than it would have been had he lied in a criminal 
case. The judge sentenced Mr. Holland to home detention and community 
service.
    But in 1994, a Federal appeals court criticized that ruling and 
sent the case back for a sterner sentence. ``We categorically reject 
any suggestion, implicit of otherwise,'' the appeals court judges said, 
``that perjury is somehow less serious when made in a civil 
proceeding.''
    The review of perjury cases also shows that, although lies about 
sex are rarely the subject of perjury prosecutions, there are 
precedents that come quite close to the accusations against Mr. 
Clinton.
    In 1984, Pam Parsons, the former women's basketball coach at the 
University of South Carolina, went to prison for 4 months after a 
perjury conviction for her testimony in a civil libel lawsuit she had 
filed against Sports Illustrated.
    The magazine reported that she had had a lesbian relationship with 
at least one team member and recruited players ``with sex in mind.'' 
Ms. Parsons and the player testified, denying, among other things, that 
they had frequented a lesbian bar. The jury in the libel case decided 
for the magazine. Then, the women were indicted for perjury. Both 
pleaded guilty.
    In a current case, Barbara Battalino, a former Veterans Affairs 
psychiatrist at a medical center in Idaho, has become, perhaps, the 
best known admitted perjurer in the United States. She now acknowledges 
she performed oral sex in her Government office on a Vietnam veteran 
who was seeking psychiatric help in 1991.
    She says the man, Ed Arthur, was never formally her patient. But 
she also admits that when he brought a civil suit for medical 
malpractice and sexual harassment, she lied when his lawyer asked her 
at a deposition whether ``anything of a sexual nature'' occurred in her 
office when she was alone with Mr. Arthur.
    Mr. Arthur provided the prosecutors with tapes he had secretly made 
of her telling him to deny their affair. She was convicted of perjury. 
She is serving 6 months under home confinement and says she has had to 
give up her medical license because she was convicted of felony perjury 
charges.
    In an interview after one network television interview and before 
another, Dr. Battalino, 53, said she was sorry she had told a lie, even 
though it was to try to keep an embarrassing sexual relationship 
private. But if Mr. Clinton escapes punishment, she said, she deserves 
a pardon.
    ``I think he's getting special treatment because he's the 
President. He has used his office to get his message across that what 
he did was no big deal. That wasn't good enough for me. I apologized to 
the judge that I lied to.''
    Some supporters of Mr. Clinton have suggested that the independent 
counsel, Kenneth W. Starr, was using the possibility of a perjury 
charge as a way to damage Mr. Clinton because Mr. Starr opposed his 
politics. They have said that was an abuse of Mr. Starr's powers as a 
prosecutor, suggesting that if Mr. Clinton were a private person he 
would never be charged with perjury for lying about private sexual 
matters.
    But whether it is an abuse of power or not, other prosecutors in 
other high-profile cases have sometimes pushed for perjury charges--to 
send a signal to the public that lying will be punished. In fact, there 
is some evidence that the higher the profile of the case, the likelier 
the perjury charge.
    In a Kansas murder case that attracted wide local publicity, the 
Geary County Attorney, Chris E. Biggs, won a perjury conviction of a 
local minister who prosecutors said had played a role in the killing. 
The prosecutors charged the minister had lied in a related civil case 
about whether he had had a sexual relationship with one of the people 
charged with him in the killing.
    ``It is important,'' Mr. Biggs said in an interview, ``to send a 
message because the whole system depends on people telling the truth 
under oath.''
    Similarly, in Kentucky, a Federal appeals court last month affirmed 
the perjury conviction of Robert DeZarn, who was the Adjutant General 
of the Kentucky National Guard. He had been charged with perjury for 
denying in an investigation that he had engaged in improper political 
fund-raising from subordinates. At the time of the perjury charge, the 
fund-raising investigation was the subject of extensive news reports in 
Kentucky.
    For many years, some scholars and many practicing lawyers have 
suggested that lying under oath was epidemic in the courts. But some 
legal experts say they are even more troubled by what they say is a 
highly technical approach the courts often take in defining what 
perjury is. In a 1973 case, Bronston v. United States, the U.S. Supreme 
Court laid down a rule for perjury cases that is still the governing 
law for courts across the country.
    Some of Mr. Clinton's critics have said the fine distinctions set 
forth in the Bronston case are at the heart of Mr. Clinton's assertion 
that he did not commit perjury when he denied that the had ``sexual 
relations'' as that term was defined in Ms. Jones's sexual harassment 
lawsuit.
    The man at the center of the 1973 case, Samuel Bronston, a movie 
producer, filed for bankruptcy and was asked in testimony in his 
bankruptcy case whether he had ever had Swiss bank accounts.
    Mr. Bronston's answer was, ``The company had an account there for 
about 6 months, in Zurich.'' In truth, he once had $180,000 in an 
account in Geneva.
    Mr. Bronston was later found guilty of perjury. The Supreme Court 
reversed the conviction. The Court said that even if Mr. Bronston's 
answers ``were shrewdly calculated to evade,'' it was the lawyer's 
responsibility to bring the witness ``back to the mark, to flush out 
the whole truth.''
    Some critics of the ruling say it added momentum to the rampant 
telling of half-truths in the courts. Robert Blecker, a professor at 
New York Law School who has written about perjury law, said that judges 
nationally have concluded that the Supreme Court Justices were 
permitting what most people would consider lying under oath. ``They 
sent a signal,'' Mr. Blecker said, ``that you can calculatingly mislead 
by a statement that is carefully crafted to say one thing when you are 
really saying something else.''

    Mr. Hyde. The gentleman from Tennessee, Mr. Bryant.
    Mr. Bryant. Thank you, Mr. Chairman. And I might add to 
that. I think the gentlelady from California asked a very valid 
question in terms of are all perjury offenses prosecuted? 
Certainly that is not the case, and in most instances I suspect 
it is because they are not detected. But I would be greatly 
surprised if any of the distinguished members of the judiciary 
who will testify, as well as our former Attorney General and 
law professors from distinguished law schools, would say that 
it is not unimportant to prosecute people who commit perjury in 
a court. Truthful testimony underpins our judicial system; we 
must keep that judicial system strong. We don't want to go back 
to the point that whoever has the most guns wins the case. It 
is important that we have honest, truthful testimony, complete 
testimony. When someone raises their hands to tell the truth, 
they also say to tell the whole truth and nothing but the truth 
and not to hedge around.
    One of my colleagues earlier had mentioned from the other 
side that the President has admitted to misleading the American 
people. I have a difficult time, when I listen to that oath, 
squaring how someone can say I misled the American people, but 
I told the truth when I said, I swear to tell the truth, the 
whole truth and nothing but the truth. How can you mislead 
somebody when you take that oath, without committing perjury?
    And perhaps someone on the second panel who is legally 
trained can educate me on that. But it seems to me that if you 
mislead someone, you commit something less than telling the 
truth, the whole truth and nothing but the truth, so help you 
God.
    I did want to point out to the gentlelady from California, 
as my colleague from Virginia did, that in California, in her 
home State, in 1993 there were 1,900 people, these were 
estimates, 1,968 people actually prosecuted for perjury. It has 
gone up every year; 2,500 in 1994, 3,300 in 1995, 3,500 in 
1996, and 4,300 in 1997. Unfortunately, what this reflects is a 
societal pattern of increased lying. You hear about it in kids 
that are cheating on tests at school. Those numbers are going 
up. We are becoming, I guess, more tolerant, and that is very 
important in Washington these days, that we become tolerant. 
Unfortunately, we are becoming tolerant of lying in this 
country, as seen from these prosecutions in the State of 
California increasing.
    So what do we do as a Congress when we find that our 
President has allegations against him, not just one time, but 
over a period of several months of lying under oath? Can we 
ignore that and say well, everybody does that. Well, maybe they 
do. But not everybody gets caught. And we have the chief law 
enforcement officer of this country, the man who appoints the 
Attorney General, the man who appoints the U.S. Attorneys who 
prosecute all the Federal laws out there in all the Federal 
courts, this person is alleged to have lied.
    Now, Ms. Battalino, I certainly--your testimony struck me 
when you said that you at a point crossed the line, you made a 
conscious choice. And I think we heard that in Mr. Starr's 
testimony, that the President had several occasions when he 
made a conscious decision, an educated decision, he weighed the 
pluses and minuses. And I mentioned to Mr. Starr what struck me 
was when the President talked to Dick Morris and said, ``I'm in 
a quandary, what do I do here?'' And they decided to take a 
poll on what to do, whether to tell the truth or not to tell 
the truth, what would sell and what wouldn't sell. Mr. Morris 
took an overnight poll and came back and said, ``Well, they'll 
forgive you for adultery but not for perjury.'' At that point 
it looks like he made a choice and, according to Mr. Morris, 
made the statement that ``We'll just have to win.''
    It was at that point, from that point forward, that the 
President got other people involved. And, therefore, it may 
have been just simply lies within the family, maybe it was 
grounds for a divorce. In all honesty, I don't like what he 
did, but I don't think he had violated any laws with Ms. 
Lewinsky, but up to that point it may have been grounds for a 
divorce. But once he made the decision, that choice, after 
talking with Dick Morris to move forward, he became involved in 
a legal process and had other people in his administration get 
involved, from filing affidavits to telling stories that they 
would repeat in grand juries.
    I am concerned not so much about whether we are lowering 
the expectation, the level for impeachment--because we hear 
that a lot--I am more concerned with the Lindsey Graham test: 
Will we be able to look back in 30 years and say that we did 
the right thing, or are we going to look back and say did we 
lower the standards for the presidency? Are we willing to say 
we are going to accept perjury and these other things, if 
proven true, by the chief law enforcement officer, Commander in 
Chief of this country who sends our soldiers off? Are we going 
to question that in 30 years? Or are we going to do the right 
thing?
    I hope, as a result of these hearings and your gracious 
testimony today, that we will have all the information we need 
to make that conscious choice for the American people.
    I yield back the balance of my time.
    Mr. Hyde. The gentleman's time has expired. The gentleman 
from Massachusetts, Mr. Delahunt.
    Mr. Delahunt. Thank you, Mr. Chairman.
    I want to welcome you to this hearing. I along with 
everyone else appreciate the courage that you have displayed 
here this morning. I wasn't going to pose any questions, but I 
feel that I must; otherwise I might be labeled as an extreme 
partisan. I thought that was the word that I heard from one of 
my colleagues on the other side.
    So just let me ask one question and then I would like to 
make some observations. But has either one of you, and I 
presume you haven't, have an opportunity to review the grand 
jury testimony of Mr. Clinton, of any of the significant 
witnesses, such as Ms. Lewinsky, prior to coming here this 
morning?
    Ms. Battalino. Could you repeat that?
    Mr. Delahunt. Yes. Did you have a chance to review or read 
the grand jury testimony or any of the documents that were 
referred to the committee by Mr. Starr?
    Ms. Battalino. Just those that were open to public 
knowledge.
    Mr. Delahunt. Well, let me ask you this. Did you have a 
chance to sit down and actually read the grand jury testimony 
of Mr. Clinton, or Ms. Lewinsky? Have you?
    Ms. Battalino. I have read excerpts.
    Mr. Delahunt. You have read excerpts. And you, Ms. Parsons?
    Ms. Parsons. I have not. I did not want to be biased.
    Mr. Delahunt. Thank you. You know, much has been stated 
this morning about the rule of law. I think every member of 
this committee is concerned about the rule of law, whether we 
be Republican or whether we be Democrats. But I think it is 
really important also to understand that you were prosecuted 
under the criminal code of the United States. Every American 
citizen--and I think it is important that the American people 
understand this--every American citizen, including a President, 
whether that President be President Clinton or, in the case of 
the Watergate hearings some 24 years ago, President Nixon, is 
subject to prosecution. And I think it has been made rather 
clear in the record that any allegations that may be proven to 
be true involving perjury or obstruction of justice pose no 
problems in terms of criminal prosecution and statute of 
limitation issues.
    So I think it is important to remind ourselves that upon 
the expiration of any President's term, the same process that 
you both experienced applies to that President, again whether 
it be President Clinton or President Nixon. I don't remember 
President Nixon, when President Ford pardoned him for any 
potential criminal prosecution saying, well, I don't need that 
because I am above the rule of law. My memory is he accepted 
that pardon readily and, I am sure, welcomed it. So when we 
talk about the rule of law, we are talking about the criminal 
code, and every single President of the United States is 
subject to that.
    However, let us understand very clearly that presidential 
impeachment applies to only one American citizen, the President 
of the United States. So, of course there are differences.
    Ms. Battalino. May I make a statement?
    Mr. Delahunt. No, I don't have enough time, but I would be 
more than happy to discuss it with you afterward, Dr. 
Battalino.
    I think it is important to remember that. And I guess what 
I am hearing today is two varying perspectives of what we ought 
to be about as a committee. I keep hearing, I think it was my 
friend from Virginia, Mr. Goodlatte, who talked about who 
rebutted evidence by the President, as if it was the President 
of the United States who had a duty to rebut evidence. My 
memory, and I see my time is running out, is that one of the 
fundamental concepts included in due process, which pervades 
the entire Constitution including Article 2, is the presumption 
of innocence, not a presumption of guilt.
    I yield back.
    Mr. Hyde. I am pleased to yield the gentleman another 
minute if he will let Dr. Battalino answer the question you 
posed to her.
    Mr. Delahunt. No, because the gentleman to my left is 
anxious to get on and I know--but I will be happy to talk to 
you, Dr. Battalino. And I really want to thank the Chair for 
indulging me as he always does. Thank you.
    Mr. Hyde. You are properly grateful.
    Dr. Battalino, you had an answer that you were not 
permitted to give. Would you give it now, please?
    Ms. Battalino. I would be happy to. Thank you, sir. The 
point I wished to make is that I certainly would have preferred 
to have the ability to complete my profession before I was 
prosecuted, also. I didn't have that opportunity.
    Mr. Hyde. Thank you. The gentleman from Florida, Mr. 
Wexler.
    I am sorry, Mr. Chabot. Forgive me.
    Mr. Chabot. Thank you. Dr. Battalino, the distinguished 
gentlelady from Texas asked you earlier about if your 
motivation for lying was at least partially to avoid the 
embarrassment that might come out as a result of all these 
things. And I think you indicated yes, that was part of the 
motivation.
    Ms. Battalino. Yes.
    Mr. Chabot. Despite that, did the fact that you lied to 
hide an embarrassment in any way avoid any of the consequences 
that you had to go through as a result of the perjury?
    Ms. Battalino. No, it didn't. And as I mentioned in my 
statement, I regret that I did not tell the truth sooner and 
apologize sooner, because when I did, when I had the ability to 
do that, the internal strength and grace to do that, it made 
such a difference in my life. It gave me a sense of relief, a 
sense of accommodation to the wrong that I had done.
    Mr. Chabot. So despite the fact that obviously anybody in 
this situation would want to avoid the embarrassment, the fact 
that you perjured yourself created a very heavy price that you 
personally had to pay?
    Ms. Battalino. Absolutely.
    Mr. Chabot. You were no longer able to practice as a 
doctor, you lost your law license, and the criminal problems 
that you have had as a result of this, are obviously a very 
heavy price that you have paid. And I think, as we have all 
said, obviously nobody condones the activities, but it took a 
lot of courage on both of your parts to be here this morning 
and testify before this committee. I think it is also important 
for all of us to remember that the two of you here today are 
representative not just of yourselves but 113 other Americans 
who right now are suffering criminal consequences in the 
Federal criminal justice system because they committed perjury; 
113 people either behind bars or under some sort of home 
confinement or whatever, but they have been convicted. That is 
just the Federal courts. We have also got 50 States out there, 
and there are thousands and thousands of other people who have 
committed perjury and that have suffered severe consequences as 
a result of that.
    Would either one of you like to comment on what sort of 
message it sends to those people who are either behind bars or 
are on probation or whatever, who have been convicted of 
perjury? If this President has committed perjury and ultimately 
gets away with it, what message does it send to those people?
    Ms. Battalino. I am more concerned about the message that 
it gives on a broader level, not just those of us that have 
been prosecuted. I would hope that all of us that have been 
prosecuted, and that it is a legitimate prosecution, that we 
would all be able and willing to admit that we were wrong and 
we did the wrong thing and not make any attempt to excuse the 
wrong that we did. So my concern is at a much broader level to 
the young people, the citizens of the United States. I think it 
is wonderful that these proceedings are allowing the public to 
understand that there have been prosecutions, that perjury is a 
serious breach in our law, in our view of law as a society, as 
a Nation. So I would hope that at a broader level, this would 
have more of a significance and a reality for my fellow 
American citizens.
    Mr. Chabot. Thank you. Let me just comment, also. It was 
also brought up on the other side by one of the distinguished 
Members that the President is accused of lying relative to the 
dates of when he first began this inappropriate relationship, 
as to whether it was November of 1995 or whether it was 
February of 1996. And I think it is important to note that one 
of the reasons that apparently the President did lie about that 
is because at the earlier date, Ms. Lewinsky was still an 
intern. And I think everybody understands or should understand 
that interns are absolutely, unequivocally off-limits, and 
everybody understands that. So at that later date, she was no 
longer an intern. I think everybody understands or should 
understand that that is apparently the reason that the lie 
about the dates took place. And the other thing that I think is 
important is there are a whole lot of other lies which are much 
more significant: the lie about whether or not a relationship 
actually took place; whether they were alone together; and 
whether or not--what was this President's involvement in this 
job search to essentially make this witness keep her mouth 
shut. There is a whole range of issues that suggests that lies 
took place, not just that one particular thing about the date.
    At this point I think I will yield back my time. Thank you.
    Mr. Hyde. I thank the gentleman. The gentleman from 
Florida, Mr. Wexler.
    Mr. Wexler. Thank you, Mr. Chairman. I am afraid that this 
committee has become the theater of the absurd. I admire the 
personal courage of the women before us today, I truly do. But 
it seems that their personal courage is being misused by some 
for the partisan goal of impeaching the President.
    No one, no one, is suggesting that perjury is anything but 
wrong. No one is suggesting that lying to the American public 
is anything but wrong. The only question before this Judiciary 
Committee is whether the President's actions rise to the level 
of an impeachable offense. If not, what consequences should the 
President face?
    Some suggest if we do not impeach, there are no 
consequences for the President. In that regard, Mr. Chairman, I 
believe it is helpful and timely to read your eloquent and 
moving words to the House of Representatives on July 20, 1983, 
when the House took your lead and opted to censure a 
Congressman who had a sexual relationship with a 17-year-old 
page, not a consenting adult.
    These are Chairman Hyde's wise words: We sit here today not 
as finders of fact. The facts are stipulated. We sit here not 
to characterize the crime, the breach, the transgression, 
because we all know the transgression, which is admitted and it 
is stipulated as reprehensible. We sit here to find a 
punishment that fits the breach. And so in searching our souls 
for the appropriate punishment, I ask the Members to consider 
the situation in its totality, in its entire context.
    I suggest to the Members that this man would rather have 
lost an arm at the shoulder than have to tell his wife, than 
have to grieve his wife as he did with the media. I suggest 
that all life is about is to earn the esteem of our fellow men. 
That is what we are here for. That is why we run for election. 
That is lost to this man. He is embarrassed. He is humiliated. 
He is displaced and it endures. It is not over. It will never 
be over. It will not be over as long as he lives. And it will 
remain after he lives. It will be with him. And it will be with 
his family as long as they live.
    Mr. Chairman, I suggest to the Members that compassion and 
justice are not antithetical. They are complementary. The 
Judeo-Christian tradition says hate the sin and love the 
sinner. We are on record as hating the sin, some more 
ostentatiously than others. I think it is time to love the 
sinner.
    Mr. Chairman, your wise words carry today, in 1983, and I 
plead with you now to once again lead this Congress to censure 
and end this nightmare for the good of our Nation. Thank you, 
Mr. Chairman.
    Mr. Hyde. I thank the gentleman for quoting me so 
accurately. I regret to say that we didn't carry the day, but 
we made a good effort.
    The gentleman from Georgia, Mr. Barr.
    Mr. Barr. Thank you, Mr. Chairman. I would like to ask both 
of the witnesses if the following is the oath that you took in 
the court proceedings that then gave rise to the charges 
against you. Quote: ``Do you solemnly swear that the testimony 
you are about to give in this matter will be the truth, the 
whole truth and nothing but the truth, so help you God,'' 
closed quote?
    Ms. Parsons. Yes.
    Ms. Battalino. Yes.
    Mr. Barr. I would like to quote this again for the record. 
This is the President. ``Do you solemnly swear that the 
testimony you are about to give in this matter will be the 
truth, the whole truth and nothing but the truth, so help you 
God?''
    ''I do.''
    I yield back the balance of my time.
    Mr. Hyde. I thank the gentleman. The distinguished 
gentleman from New Jersey, Mr. Rothman.
    Mr. Rothman. Thank you, Mr. Chairman. First I want to thank 
both of these women for testifying today. You have displayed 
enormous courage in coming here and telling your stories so 
eloquently. You have taken quite a journey. You have recited 
your journeys in a compelling way, and we have all been deeply 
touched.
    I do want to address some remarks, though, to my colleagues 
on this committee. At least from this one Democrat, and I think 
I speak for most of us, we acknowledge that perjury is a very 
serious offense. And, when proven, it is punishable under the 
criminal law. If Mr. Starr or any other prosecutor feels that 
President Clinton committed perjury, the prosecutor can bring a 
criminal charge against the President and have him tried 
criminally for perjury. Whether that is during his presidency 
or after his presidency is a matter of constitutional law, but 
he can be brought up on criminal charges for perjury. With 
regards to perjury--that is as it should be. He should not be 
above the law. But with regards to whether perjury is a grounds 
for impeachment, it may well be.
    But first this committee has to determine whether the 
President committed perjury. And then this committee must 
determine whether perjury about the facts that are proven, if 
they are proven, rises to the level of an impeachable offense, 
treason, bribery, or other high crimes and misdemeanors, or 
does it require a lesser sanction?
    I simply would conclude my remarks by saying that so far in 
our 3 months' worth of work, this committee has not resolved 
either of those two questions.
    I yield back, Mr. Chairman.
    Mr. Hyde. I thank the gentleman. The gentleman from 
Tennessee, Mr. Jenkins.
    Mr. Jenkins. Thank you, Mr. Chairman. The questions I had 
have been asked and answered, and I would like to reserve my 
time in this matter.
    Mr. Hyde. I thank the gentleman. The gentleman from 
Wisconsin, Mr. Barrett.
    Mr. Barrett. Thank you, Mr. Chairman. And I want to thank 
both witnesses for being here today. I think it is part of the 
healing process for you to come before us today to share your 
experiences. Just so I am sure, Ms. Parsons, in your case you 
were actually the plaintiff in that case; is that correct? You 
were the one who initiated the case?
    Ms. Parsons. Yes.
    Mr. Barrett. And, Doctor, you were the defendant in a claim 
of malpractice; is that correct?
    Ms. Battalino. Malpractice and sexual harassment. However, 
I was dismissed of the charge early on, before the final 
determination and the final dismissal.
    Mr. Barrett. The actual perjury occurred when you went to 
the government to ask the government to pay your expenses or to 
make sure that you could not be held personally liable; is that 
correct?
    Ms. Battalino. It was at one of the certification hearings.
    Mr. Barrett. Under the Federal Tort Claims Act.
    Ms. Battalino. Yes, that I misrepresented the truth.
    Mr. Barrett. And you had initiated that, you had gone to 
the government?
    Ms. Battalino. It was an appeal, yes.
    Mr. Barrett. Thanks. I just wanted to make sure that I 
understood that.
    Mr. Scott. I didn't understand. Could you ask the question 
again? I didn't quite understand the answer.
    Mr. Barrett. The question was, for the doctor, under the 
Federal Tort Claim Act, because she was a Federal employee, the 
government would in certain circumstances cover her expenses 
and hold her immune from personal liability. I understand that 
you had requested, you had taken the step to have that happen?
    Ms. Battalino. That is correct. They had already certified 
me for the June 27, 1991 date. We were appealing to have that 
coverage extended through the whole claim of sexual harassment, 
which was dismissed.
    Mr. Barrett. I just want to make sure that I understood 
that. I do think that this is an important hearing because it 
does show that healing is part of the process. Unfortunately, 
as you can probably glean from the proceedings today, although 
this is far tamer than we have seen in the past, this committee 
has not begun the healing process and Congress has not begun 
the healing process, and I think that that is something that 
the American people desperately want.
    Ms. Battalino. Yes.
    Mr. Barrett. I have talked to probably thousands of people 
now in my district and from around the country and there are 
people who hate the President and hate what he did. There are 
people who support the President. But the common thread that I 
hear over and over again is that the American people want this 
chapter of history behind us. And I don't know that we have 
come to grips with that.
    When I hear that later today we may be expanding this probe 
into matters that the Government Reform and Oversight Committee 
has already investigated and we are going to continue that, I 
think that that shows you that we are not there yet. I am 
optimistic. The Chairman did promise me that we would complete 
this by early January when my wife was expecting. Mr. Chairman, 
I want you to know that we are still kicking around the names 
Henry for a boy and Henrietta for a girl, depending on whether 
you keep to that promise. But I think we can do it. I think we 
have to do that. We have to get beyond this. I think that we 
can do that. I am certain that the new Speaker, Bob Livingston, 
does not want to have the first vote that is taken under his 
leadership as Speaker to be whether this is going to continue.
    So the question is how to resolve this and the question is 
how do we do it when the vast percentage of American people 
think that what the President did was wrong. The President has 
acknowledged it, just as you have acknowledged it, that what 
you did is wrong. But there are misgivings with the political 
process and the part that the political process plays in this, 
because we are trying to determine for the first time in this 
country's history whether we are going to impeach and remove 
from office a President of the United States.
    Obviously we have had an impeachment of a President, of 
President Johnson, but we have never had a removal. So there is 
gravity that is attached to this issue that I don't think has 
been reflected in these hearings, and I think that that is 
unfortunate.
    I again remain hopeful that we can do that, but I haven't 
seen great signs of evidence. I think it is also important to 
note, as several others have, that no person should be above 
the law. We hear that over and over again, and I agree with 
that. What we don't hear as often is that President Clinton, 
once he leaves office, can be charged with the same offenses 
that you were charged with, and if he takes it to trial or he 
enters into an agreement, it would be resolved. But President 
Clinton is not above the law and should not be above the law. 
If he has done something criminally wrong and it is proven in 
court after he leaves office, then he has a debt to pay to 
society.
    But it is my hope, and I think the hope of most American 
people, that we can resolve this issue and get back to the 
issues that the people in America care about.
    I yield back my time.
    Ms. Jackson Lee. Will the gentleman yield?
    Mr. Barrett. I would like to yield to the witness, quickly.
    Ms. Parsons. I resigned in the middle of a season. We were 
ranked second in the Nation, 7-0, kind of like the economy, 
doing very well. That team went out of the top 20, a number of 
them transferred, the program has never been the same. When you 
remove the leader, sometimes you have things that are going to 
happen that you may not want.
    You made a very good point. Timing is an issue in any 
resignation or any proceedings related to the leader. And I 
appreciate that, because I sense that one thing we don't need 
right now is to not have a leader in a world where leadership 
matters.
    Mr. Barrett. If I could have 30 seconds, Ms. Jackson Lee 
asked me to yield to her.
    Ms. Jackson Lee. Mr. Barrett, I simply want to add to a 
comment that you made that it is time to heal this Nation. As 
you have talked to so many of your constituents, I have heard 
from so many people acknowledging what we have all 
acknowledged, frankly: What the President did was absolutely 
wrong.
    But how can we constitutionally move to a point of healing? 
And frankly I think we have the tools to do so. I hope that we 
will consider rebuking, reprimand or censure, and I hope that 
we will try to heal the Nation. These ladies represent healing.
    Mr. Hyde. The gentleman's time has expired.
    Ms. Jackson Lee. I thank Mr. Barrett very much.
    Mr. Hyde. The gentleman from Arkansas, Mr. Hutchinson.
    Mr. Hutchinson. Thank you, Mr. Chairman. I want to express 
my appreciation for the spirit of the comments of the gentleman 
from Wisconsin. He did make one reference, and Mr. Rothman from 
New Jersey did as well, that the President, like everyone else, 
can be held accountable in a criminal fashion for prosecution 
during his tenure or after he leaves office. Mr. Dershowitz is 
going to testify later, and I think he has indicated that such 
prosecution probably would not happen. I too think it is very 
doubtful. I think in theory it is within the realm of 
possibility, but in a practical sense, I doubt it will happen. 
And so I have to come back to the responsibility of this 
committee to deal with the consequences of any actions we find 
of the President.
    I want to come back to the witnesses and thank both of you 
for being here. Each of your testimonies illustrates in very 
human terms that there are consequences of our actions and 
decisions in life. Teenagers learn this and we continually 
learn it through adulthood. But there will also be consequences 
of the decisions of this committee. It has been pointed out 
before that our decision will have an impact on the institution 
of the presidency, and will likely have an impact on the future 
conduct of elected officials, whatever we decide. But I think 
your testimony points out other considerations, for example 
that there is a principle of equal justice and that our 
decision very likely will impact upon that principle. That 
principle of equal justice ensures that whether a doctor, a 
lawyer or a basketball coach, we are all expected to obey the 
requirements of the law, and if not, there should be equal 
treatment under the law. I think your testimony addressed that 
point, and even though it might not certainly resolve all the 
decisions that we make, it puts it in perspective and helps us 
in this process.
    Our debate on the President is a little bit different 
because we are talking about impeachment, a constitutional 
remedy. I understand that it is different. But still your 
testimony helps balance the impact of the consequences of what 
we will do and the decision that we will make.
    There has been talk that perjury is not always pursued, and 
I think that is true, but I also think it is so critically 
important. I remember on a couple of occasions being in the 
courtroom with a Federal judge, and the Federal judge hears the 
testimony of a witness, and the judge knows that the witness is 
lying, and the judge directs the U.S. Attorney to open a case 
and either to pursue contempt proceedings against that person 
or to pursue a criminal investigation for perjury. And so I 
have not seen any Federal judges that treat perjury lightly, 
nor should they.
    There have been cases cited from different States, but in 
Arkansas, we have people in prison, as I speak, for perjury. 
Two defendants in 1997, on average, got 62 months in jail for 
perjury. Not all of them received prison time. Some were fined. 
Some were given probation. There are also cases in my State 
that deal with the issue of perjury at the State level and not 
just the Federal level.
    And so I think it is not something we just dismiss. It is 
not something we say, ``Everyone does it.'' And whatever we 
decide in this committee is going to have consequences. Our 
responsibility, my responsibility, is to determine the facts 
and apply the law and the Constitution. That is the same thing 
any jury has to do in any courtroom. We can call witnesses, 
yes, we can do that, but we are trying to balance streamlining 
these procedures and getting it done with hearing the facts.
    I have spent a lot of time, I know other Members of the 
committee have as well, reviewing the grand jury transcripts 
and reviewing the evidence before us, and we can make these 
decisions but we have to concentrate upon the facts and apply 
the Constitution. There is room for sincere debate here. I am 
interested in the debate that is going to be forthcoming in 
this committee and I hope that everyone will withhold judgment 
until we hear the debate, and we hear each other's points of 
view.
    Finally, I do want to ask a question of the witnesses 
today. Each of you have been convicted of lying under oath and 
I think each of you has expressed remorse or regret about that. 
My question to you is: When you lied under oath, how did you 
justify that, in your own mind at that time? Dr. Battalino.
    Ms. Battalino. I think, as I have mentioned earlier, the 
main justification that I pursued was that the civil lawsuit 
was not well grounded, was not accurately grounded, and that in 
order to save embarrassment for myself and my profession, that 
I was justified in misleading and misrepresenting the complete 
truth.
    Mr. Hutchinson. Your justification was that the civil suit 
was not well grounded. In hindsight, after you have been 
punished for that perjury, what is your view of that?
    Ms. Battalino. Oh, that was very poor judgment on my part. 
I would like to state that the consequences of a misjudgment 
should be significant. It shouldn't be something that is 
dismissed lightly and all that is required is to say, ``Well, 
I'm sorry, I made a mistake, I didn't tell the full truth.''
    Mr. Hyde. The gentleman's time has expired. The gentleman 
from Massachusetts, Mr. Meehan, do you desire time?
    Mr. Meehan. Thank you, Mr. Chairman, just briefly. I was up 
in my office watching the testimony of both of you, and I give 
you both credit for coming before the committee and telling 
your story, which I am sure can be difficult to do. I am 
curious, because oftentimes this has been a pretty politically 
charged atmosphere and you may have noticed the debate over the 
period of the last few months has been pretty political, and a 
lot of times those of us on the Minority side don't get a 
chance to find out who is going to be called as a witness until 
the press tells us; or, like last night, I got a call late 
about who the subpoenas were going to be. So it is a pretty 
political atmosphere here.
    I am just curious how you guys got to be contacted. Did 
somebody call you guys about testifying, or how did that work? 
Did you volunteer? Who contacted you? How did you end up coming 
before the committee?
    Ms. Battalino. I was invited by one of the--my attorney got 
a call from one of Mr. Hyde's aides, asking whether or not I 
would be willing to come and be here as a witness.
    Mr. Meehan. Ms. Parsons, how did that--was it the same way 
with you?
    Ms. Parsons. I got a call. But also, you know, I heard from 
the media. I didn't know for sure I would be here either. They 
were asking me before I knew. So I know how you feel.
    Mr. Meehan. I am on the committee and I don't know.
    Ms. Parsons. It wasn't like it was some big thing. It was 
like, could you tell about perjury if you wanted to?
    Mr. Meehan. Right. In either one of the cases, neither one 
of you were convicted or charged with treason or bribery or 
high crimes and misdemeanors, right?
    Ms. Parsons. It didn't get that far.
    Ms. Battalino. We don't merit those.
    Mr. Meehan. Mr. Chairman, no further questions.
    Mr. Hyde. Thank you. The gentleman from Indiana, Mr. Pease.
    Mr. Pease. Thank you, Mr. Chairman.
    Ms. Parsons and Dr. Battalino, I suppose it is evident by 
now that there are a number of things happening before this 
committee throughout this matter and in our hearing today. 
Sometimes it seems that we talk at you instead of with you, or 
to each other and not with you at all. To the extent that may 
in fact or appearance lead you to conclude that your being here 
today is insignificant or incidental or unappreciated, I 
apologize for that. I want to express my gratitude for your 
courage in being here. There is nothing I can add to your 
testimony, so I will content myself with at least not adding 
further to your discomfort, and instead I will yield my time to 
the gentleman from Virginia, Mr. Goodlatte.
    Mr. Goodlatte. I thank the gentleman for yielding. I just 
briefly want to respond to the gentleman from Massachusetts, 
Mr. Delahunt, regarding the presumption of innocence.
    And I would say to him that I think everybody in this room 
believes and recognizes that everyone in this country, 
including the President of the United States, is entitled to a 
presumption of innocence. However, I would say to him that the 
committee has before it very substantial evidence of many 
instances of perjury, and it is that evidence upon which the 
committee will have to base its decision, and when that takes 
place what we are going to be confronted with is a situation 
where the President has the opportunity to come forward and 
offer rebuttal testimony. And so far, the President and his 
attorneys have chosen largely not to do that.
    And so that is the concern that I have. If the President 
has that kind of evidence to rebut perjury, he should step 
forward and do so, because we do have substantial evidence 
before us, and we will have to evaluate the evidence that we 
have.
    Mr. Delahunt. Will the gentleman yield?
    Mr. Goodlatte. Yes, I yield to the gentleman.
    Mr. Delahunt. I want to thank you, because I think it is 
important to draw the contrast here and I respect the 
gentleman's position. But I think if we go back to the single 
precedent that occurred in this century, this committee heard 
direct evidence from individual witnesses. They were able to 
evaluate, they were able to assess credibility, and they were 
able to probe memories. There are many facts that are alleged--
there are many facts that are alleged that have clearly 
different inferences that could be drawn, and I think we all 
understand that those on the committee who have had the 
opportunity to review the referral, I think it is important to 
note----
    Mr. Goodlatte. Reclaiming my time, I would say to the 
gentleman, first of all, that in the other case that the 
gentleman cites, the witnesses were all called by the President 
and they were heard in executive session depositions. We did 
not have an independent counsel statute at that time, the 
independent counsel has done that work, nor has the President 
requested that those witnesses be brought forward for him to 
cross-examine them.
    And I would yield my time back to the gentleman from 
Indiana.
    Mr. Delahunt. If I could ask the indulgence of the Chair.
    Mr. Hyde. Well, this time belongs to Mr. Pease, who yielded 
to Mr. Goodlatte, who has yielded back, so now Mr. Pease has 
the time.
    Mr. Delahunt. Mr. Pease, would you be kind enough to yield?
    Mr. Pease. I will yield to my colleague from Massachusetts 
for purposes of a response to the question.
    Mr. Delahunt. I thank the gentleman. I think it is 
important that we note that in the committee report crafted by 
Mr. Schippers, counsel for the Majority, and I am quoting, 
``Monica Lewinsky's credibility may be subject to some 
skepticism. At an appropriate stage of the proceedings, that 
credibility will, of necessity, be assessed together with the 
credibility of all witnesses in light of all the other 
evidence.''
    I would suggest that simply accepting a report from Mr. 
Starr does not meet that particular standard. And I thought it 
was fascinating when Mr. Starr himself testified that he 
acknowledged that he had never been present at a grand jury 
proceeding, with the exception of the President's testimony; 
had never participated in any of the interviews conducted by 
the FBI agents; and, in fact, had never met Monica Lewinsky. I 
daresay that we are abdicating our responsibility if we simply 
accept the transmittal from the independent counsel, and I 
disagree with my friend from Virginia that that constitutes 
evidence.
    I yield back.
    Mr. Chabot. Will the gentleman yield?
    Mr. Pease. I yield to the gentleman from Ohio.
    Mr. Chabot. Real quickly. We could call more and more and 
more witnesses. We are trying to get this wrapped up as 
expeditiously as possible. I think both sides want to do that. 
If we call more witnesses and drag this on into next year, then 
they are going to scream because they say we are on a fishing 
expedition, we have already got enough evidence. I think we are 
trying to do this properly. I think Chairman Hyde has led this 
committee in a very expeditious manner, in a very fair manner. 
I commend Chairman Hyde for doing that, and I yield my time 
back to the gentleman from Indiana.
    Mr. Pease. I yield back the balance of my time.
    Mr. Hyde. I thank the gentleman. Mr. Cannon of Utah.
    Mr. Cannon. Thank you Mr. Chairman. First of all, I would 
like to associate myself with the statement by Mr. Goodlatte 
who set forth the many times the President has apparently lied 
under oath. I would like to thank the witnesses for coming here 
today. They exemplify the importance of what we are 
investigating in this committee. In case my Democratic 
colleagues, the American public, and the media have not yet 
figured it out, let me say this investigation is about perjury 
and obstruction of justice. It is not about Monica Lewinsky. It 
is about perjury. This is not about Paula Jones. It is about 
perjury. This is not about Ken Starr. It is about perjury.
    As these witnesses demonstrate and as the actions of the 
Clinton Justice Department have proven, perjury is a serious 
crime. As every American knows and as these witnesses have 
shown here today, perjury undermines the American system of 
justice. Perjury violates the rule of law. Perjury is 
subversion of government. Perjury is a cancer which must be 
removed for society to heal itself. Perjury is an impeachable 
offense. We owe it to the witnesses who are currently being 
published for perjury to assure that no man is seen to be above 
the law or becomes an example to all Americans that they can 
violate the law. No matter how popular, no matter what the 
polls say, no matter how vilified the investigation has become, 
no man is above the law. If we establish that the President 
committed perjury, we are duty bound to act. Whether or not the 
President's supporters on this committee or elsewhere 
hypocritically choose to turn a blind eye to justice, we are 
bound to act to uphold the rule of law. Again I thank the 
witnesses for being here today, and I yield back the balance of 
my time.
    Mr. Hyde. I thank the gentleman. Mr. Rogan from California.
    Mr. Rogan. Mr. Chairman, thank you. For the last 11 months 
our country, as well as the committee, has been treated to a 
litany of law professors, Members of Congress, attorneys, and 
talk-show guests explaining to us that perjury somehow is no 
longer important or doesn't have significance. And the purpose 
of this hearing, as I understood it, Mr. Chairman, is so we 
could shed some light on that preposterous concept.
    During my days as a judge, had a lawyer ever appeared in my 
court and made such a suggestion, I would have been on the 
phone immediately with the State Bar to inquire as to the 
status of his or her law license. Having said that, Dr. 
Battalino, your case intrigues me.
    I want to make sure I understand the factual circumstances. 
You lied about a one-time act of consensual sex with someone on 
Federal property; is that correct?
    Ms. Battalino. Yes, absolutely correct.
    Mr. Rogan. This act of perjury was in a civil lawsuit, not 
in a criminal case?
    Ms. Battalino. That's also correct.
    Mr. Rogan. And, in fact, the civil case eventually was 
dismissed?
    Ms. Battalino. Correct.
    Mr. Rogan. Yet despite the dismissal, you were prosecuted 
by the Clinton Justice Department for this act of perjury; is 
that correct?
    Ms. Battalino. That is correct.
    Mr. Rogan. I want to know, Dr. Battalino: During your 
ordeal, during your prosecution, did anybody from the White 
House, from the Clinton Justice Department, any Members of 
Congress, or academics from respected universities ever show up 
at your trial and suggest that you should be treated with 
leniency because ``everybody lies about sex''?
    Ms. Battalino. No, sir.
    Mr. Rogan. Did anybody ever come forward from the White 
House or from the Clinton Justice Department and urge leniency 
for you because your perjury was only in a civil case?
    Ms. Battalino. No.
    Mr. Rogan. Did they argue for leniency because the civil 
case in which you committed perjury was ultimately dismissed?
    Ms. Battalino. No.
    Mr. Rogan. Did anybody from the White House ever say that 
leniency should be granted to you because you otherwise did 
your job very well?
    Ms. Battalino. No.
    Mr. Rogan. Did anybody ever come forward from Congress to 
suggest that you were the victim of an overzealous or sex-
obsessed prosecutor?
    Ms. Battalino. No.
    Mr. Rogan. Now, according to the New York Times, they 
report that you lied when your lawyer asked you at a deposition 
whether ``anything of a sexual nature'' occurred; is that 
correct?
    Ms. Battalino. Yes, that is correct.
    Mr. Rogan. Did anybody from Congress or from the White 
House come forward to defend you, saying that that phrase was 
ambiguous or it all depended on what the word ``anything'' 
meant?
    Ms. Battalino. No, sir. May I just--I am not sure it was my 
lawyer that asked the question, but that is the exact question 
that I was asked.
    Mr. Rogan. The question that was asked that caused your 
prosecution for perjury.
    Ms. Battalino. That's correct.
    Mr. Rogan. No one ever argued that that phrase itself was 
ambiguous, did they?
    Ms. Battalino. No.
    Ms. Waters. Will the gentleman yield?
    Mr. Rogan. Regrettably, my time is limited and I will not 
yield for that reason.
    Now, Doctor, you lost two licenses. You lost a law license.
    Ms. Battalino. Well, I have a law degree. I was not a 
member of any bar.
    Mr. Rogan. Your conviction precludes you from practicing 
law?
    Ms. Battalino. That is correct, sir.
    Mr. Rogan. You also had a medical degree and license.
    Ms. Battalino. That is correct.
    Mr. Rogan. You lost your medical license?
    Ms. Battalino. Yes. I am no longer permitted to practice 
medicine either.
    Mr. Rogan. Did anybody from either the White House or from 
Congress come forward during your prosecution, or during your 
sentencing, and suggest that rather than you suffer the severe 
punishment of no longer being able to practice your profession, 
perhaps you should simply just receive some sort of rebuke or 
censure?
    Ms. Battalino. No one came to my aid or defense, no.
    Mr. Rogan. Nobody from the Clinton Justice Department 
suggested that during your sentencing hearing?
    Ms. Battalino. No.
    Mr. Rogan. Has anybody come forward from the White House to 
suggest to you that in light of circumstances, as we now see 
them unfolding, you should be pardoned for your offense?
    Ms. Battalino. Nobody has come, no.
    Mr. Rogan. Are you going to ask for a pardon? Have you 
thought about that?
    Ms. Battalino. That is a difficult question. Certainly I 
want to assume full responsibility for the fact--for the 
reality that I did commit a crime and that it was wrong to do 
and I deserve to pay consequences for it. However, if indeed, 
as you suggest, some of the reasoning that has come up in terms 
of some very specific points in my conviction, I certainly 
would hope that if indeed there is no reason for anything less 
than censure or more than censure to be expected, that 
certainly I would hope that the administration would consider 
leniency and pardon for me, yes.
    Mr. Rogan. If the Congress of the United States ultimately 
takes the position that lying under oath over such matters is 
not an offense worthy of punishing a public official otherwise 
sworn to uphold the law, and is not worthy of that person 
potentially having their job placed in jeopardy, would you feel 
that you were the victim of an unfair double standard?
    Ms. Battalino. Yes, I would.
    Mr. Rogan. Mr. Chairman, I see my time has expired. I thank 
the Chairman.
    Ms. Waters. Mr. Chairman.
    Mr. Hyde. The gentleman from South Carolina, Mr. Lindsey 
Graham.
    Mr. Graham. Thank you, Mr. Chairman. That was a very well 
done litany, explaining why it is a little calmer today. I 
think my friend from South Carolina mentioned this fact. The 
reason it is calmer today, we have real people who suffered 
real consequences for something that we are all wrestling with. 
I am going to put a little different spin on this. Both of you 
pled guilty; is that correct?
    Ms. Parsons. Yes.
    Ms. Battalino. Yes.
    Mr. Graham. Are you glad that you did?
    Ms. Battalino. Absolutely.
    Ms. Parsons. Absolutely.
    Mr. Graham. Did the court consider your guilty plea in a 
positive light? Do you think it helped the disposition of your 
case?
    Ms. Battalino. I think in my case, Judge Lodge did express 
concern that I had suffered significant consequences, but 
nonetheless felt that because of the Federal guidelines that he 
was mandated to give me some serious consequences.
    Mr. Graham. But it is my understanding that if one pleads 
guilty, that is something the judge can consider in a positive 
light.
    Ms. Battalino. That is correct.
    Mr. Graham. Is that true, Ms. Parsons?
    Ms. Parsons. I believe that is very true.
    Mr. Graham. Mr. Chairman, there was a case mentioned where 
you came to bat for someone in Congress. Is it--isn't it true, 
from my understanding of that case, that the gentleman in 
question admitted every accusation against him?
    Mr. Hyde. Yes.
    Mr. Graham. All I want to say is it is easier to go to bat 
for somebody when they recognize they are wrong. My friends on 
the other side, this has been a good day for the committee. 
This has been one of our better days. If you believe the 
President of the United States did not commit perjury, I can 
understand why you would not want to take this so far. Mr. 
Schumer and myself are at the opposite ends of the political 
spectrum, but I admire him greatly for saying that he believes 
the evidence suggests the President lied under oath, but having 
said that, he believes the underlying conduct is not something 
you would want to overturn a national election about. I don't 
know if an individual's case should be equated to overturning a 
national election. For you it is very important as your 
liberty. But I think we should have as our last resort 
impeachment, not our first resort, but there are other 
dispositions yet to come.
    But let me tell you how I feel about the President. I feel 
he lied under oath. I feel he is dancing on the head of a pin, 
still. He is insulting my intelligence. Mr. Schumer wants to 
conclude he lied under oath but not go forward. I respect that, 
but I cannot live with that conclusion. I think the day we say 
the President of the United States obviously commits perjury 
before a Federal grand jury and is not subject to losing his 
job is the day we redefine the presidency in terms of a law 
that will damn this country later on. That is unacceptable for 
me.
    Mr. Schumer asked Mr. Livingston to help us. I am now 
asking the President of the United States to help us. Mr. 
President, if anybody on your behalf or you are watching this, 
I ask you now to consider coming before the American people and 
do what these two ladies have done, people convicted of crimes 
who have served jail time, who are now being talked about in 
terms almost of being American heroes. That is the goodness of 
this country, that if you will own up to your mistakes, people 
will go out of their way to forgive the sin. But if you, Mr. 
President, continue to deny what I think is the obvious, in my 
opinion you have forfeited the right to lead this country in 
the next century. If you will own up and do what these two 
ladies have done, I will go to bat for you.
    I yield back the balance of my time.
    Mr. Hyde. The gentlelady from California, Ms. Bono.
    Ms. Bono. Thank you, Mr. Chairman. I simply want to thank 
the witnesses for their testimony and say also, as my 
colleagues have said, it is very courageous for you to be here 
today. I think we have all learned some very, very valuable 
lessons. But I cannot add any further questions that haven't 
already been asked at this point, so I will yield the balance 
of my time to my colleague from Indiana.
    Mr. Buyer. I thank the lady for yielding. Dr. Battalino, 
you weren't convicted of perjury, were you?
    Ms. Battalino. No, one count of obstruction of justice.
    Mr. Buyer. Obstruction of justice. Are you aware that the 
President is also being--stands accused of obstruction of 
justice in his civil case?
    Ms. Battalino. Yes.
    Mr. Buyer. Part of the allegations against the President 
then with regard to obstruction of justice, because I want to 
be clear, people have been referring to you as someone who 
committed perjury, therefore you are convicted of perjury but 
your conviction was for obstruction of justice.
    Ms. Battalino. Yes, that is more accurate.
    Mr. Buyer. So what we have is the President accused of 
perjury but he also stands accused of obstruction of justice, 
and it is because his obstruction occurred by his conduct and 
actions in a civil case, a civil rights case, i.e., Jones v. 
Clinton.
    Ms. Battalino. Yes.
    Mr. Buyer. As also part of the President's, I believe, 
engaged in a pattern of obstruction in the Jones v. Clinton 
case while it was pending, it was done in order to thwart those 
proceedings. Earlier you had testified to some of my 
questionings that you also engaged in this same pattern because 
you attempted to thwart the legal proceedings; is that true?
    Ms. Battalino. Yes, that is correct.
    Mr. Buyer. And no matter what the motivation was, even 
though you justified it in your mind as I listened to some of 
the questioning, you could find no justifiable excuse?
    Ms. Battalino. No, there is no justifiable excuse. No 
honest legitimate justifiable excuse, no. My motives were of 
self-interest, and I think that that is what is behind not 
telling the complete truth. It is generally for self-interest.
    Mr. Buyer. A lot of people, not only some on this committee 
and in the press, they like to focus on a young lady by the 
name of Monica Lewinsky, but nobody likes to talk about 
Kathleen Willey. Kathleen Willey, who was an individual who was 
a volunteer at the White House, it has been alleged, who went 
to the President for a job and she alleged that there may have 
been a sexual assault even by the President upon her, and that 
she ended up getting a job. And then the real question is, 
well, was there sexual harassment or not sexual harassment and 
she got a job out of it? And there seems to be this pattern of 
rewarding the ``Jane Doe's.'' And Kathleen Willey was also a 
witness in that Jones v. Clinton case, and so the committee has 
also been looking into other witnesses, and I am citing here an 
Associated Press piece of Monday, November 30. This Associated 
Press piece discussed that during a private session with 
impeachment investigators, a Democrat operative, Nathan Landow, 
invoked the fifth amendment over 70 times. This is an 
individual who has been accused of having--trying to develop a 
relationship with Kathleen Willey to prevent her from 
cooperating not only in the Jones case but coming forward about 
the allegations of sexual harassment, which also there is 
another witness out there against the President who for some 
reason people don't want to talk about, because they want to 
keep in front of people's minds, oh, this is a case about the 
President's affair with Monica Lewinsky.
    No, this is a case about obstruction of justice and denying 
someone equal access to the courthouse door. Even the powerless 
and the poor and the needy gain access to the courthouse door, 
and it is never meant to be manipulated by the powerful.
    So I want to thank both of you for coming and your 
testimony here today and I thank the gentlelady from California 
for yielding me this time. I yield back her time.
    Ms. Waters. Mr. Chairman.
    Mr. Hyde. The gentlelady from California.
    Ms. Waters. I would like to ask for unanimous consent to 
raise a point of clarification. I have been sitting here trying 
to figure out what is the crime for having sex with someone in 
the workplace. And I guess there is something else going on 
here. The person was a patient; is that right?
    Ms. Battalino. The person was a patient of the VA. He was 
not my particular patient.
    Ms. Waters. But he was a patient in the hospital. And the 
loss of your license had to do with professional standards?
    Ms. Battalino. Incorrect. It had to do with the fact that I 
was convicted of a felony.
    Ms. Waters. Are you a psychiatrist?
    Ms. Battalino. That is right.
    Ms. Waters. And it had nothing to do with the fact that 
there was sexual relations with a patient?
    Ms. Battalino. No, it did not. I was dismissed from that 
charge. And the case itself, the whole sexual harassment 
accusation was dismissed.
    Ms. Waters. It was a sexual harassment case?
    Ms. Battalino. Correct.
    Mr. Hyde. The committee has finished questioning this 
panel; and before you both leave, I sincerely want you to know 
what a great contribution you have made to our understanding of 
a very tough issue. And we have not only read about it, now we 
have seen it and listened to it, and we understand it a lot 
better. Thank you for your bravery and your cooperation.
    Ms. Battalino. Thank you.
    Mr. Hyde. Now, the committee is going to recess subject to 
the call of the Chair, and the committee will stay here, 
because we are going to meet for the purposes of conducting 
business pursuant to the notice. Mr. Conyers--we are going to 
discuss some subpoenas, and we need authority from the 
committee to issue them. I will be more detailed in a moment.
    Mr. Delahunt. Mr. Chairman, if you would indulge me, I 
would like to welcome two natives of the Commonwealth of 
Massachusetts.
    Mr. Hyde. Surely.
    Mr. Delahunt. I would like to welcome the former Attorney 
General of the Commonwealth of Massachusetts and the former 
Attorney General of the United States, Mr. Richardson, for whom 
I have great respect.
    I also want to welcome a friend of mine from Cambridge, 
Massachusetts, who works over at Harvard University, Professor 
Dershowitz.
    Mr. Dershowitz. Nobody works at Harvard University.
    Mr. Hyde. They study.
    I am somewhat reluctant to start without a better 
complement. I hate to keep you waiting. You have already waited 
so long. Some of the Members will come straggling in, I 
daresay. So we will resume.
    Again, your patience has been saintly. We thank you very 
much.
    On our second panel we have nine witnesses who will give us 
a variety of perspectives on the consequences of perjury and 
related crimes. The panel consists of Federal judges, a former 
Attorney General, retired military officers, legal scholars, 
and this morning we had the other panel of people who have 
actually been convicted of these crimes.
    Let me note at the outset that all of these witnesses are 
appearing in their personal capacities and none of their 
statements should be construed as expressing the views of any 
organizations with which they might be associated.
    Our first witness is the Honorable Gerald B. Tjoflat, a 
U.S. Circuit Judge on the U.S. Court of Appeals for the 
Eleventh Circuit.
    Judge Tjoflat is a graduate of the University of Cincinnati 
and Duke University School of Law. His law school tenure was 
interrupted by 2 years' service as a special agent in the U.S. 
Army Counterintelligence Corps.
    After law school, Judge Tjoflat practiced law in 
Jacksonville, Florida, for a number of years. He took the bench 
in 1968 as a Circuit Judge on Florida's Fourth Judicial 
Circuit. In 1970, he was appointed to the U.S. District Court 
for the Middle District of Florida. In 1975, he was appointed 
to the U.S. Court of Appeals for the Fifth Circuit; and when 
Congress split the Fifth Circuit, he went to the newly created 
Eleventh Circuit. He served as Chief Judge for the Eleventh 
Circuit from 1989 until 1996.
    In addition to his court duties, he is active in local and 
national community service, educational, and professional 
development organizations. He received the 1996 Fordham-Stein 
Prize, a national prize that recognizes positive contributions 
of the legal profession to American society.
    Next to Judge Tjoflat is the Honorable Charles Wiggins, a 
man who served on this committee for many years. He is now a 
Senior U.S. Circuit Judge on the U.S. Court of Appeals for the 
Ninth Circuit. Judge Wiggins is a former colleague and a dear 
friend. We are particularly pleased to have him here today. He 
graduated from college and law school at the University of 
Southern California and served two tours as an infantry officer 
in the U.S. Army.
    He began his law practice in El Monte, California, in 1957, 
where he also served in a variety of local elected offices. In 
1966, he was elected to the U.S. House of Representatives, 
where he served with distinction on this committee during the 
impeachment inquiry of President Nixon, and he played a very 
vital role in that hearing.
    Judge Wiggins left Congress in 1978, returned to private 
practice until 1984 when he was appointed to the Ninth Circuit, 
and he has served on that court since that time.
    Is Mr. Conyers here?
    We will skip you, Judge Higginbotham, only because Mr. 
Conyers wants the honor of introducing you. It is not out of 
disrespect.
    Our next witness is the Honorable Elliot Richardson.
    Mr. Richardson is a graduate of Harvard College and Harvard 
Law School. After law school, he clerked for Judge Learned Hand 
of the Second Circuit and Supreme Court Justice Felix 
Frankfurter.
    Throughout his distinguished career, he has served in 
numerous public positions, including Secretary of Health, 
Education and Welfare; Secretary of Defense; Attorney General 
of the United States; Secretary of Commerce; and Ambassador to 
the Court of St. James. That is a resume.
    In 1992, he retired as a senior partner in the Washington 
office of the law firm Milbank, Tweed, Hadley & McCloy. In 
January of this year, President Clinton awarded him the 
Presidential Medal of Freedom.
    Now I will yield to John Conyers for purposes of 
introducing Judge Higginbotham.
    Mr. Conyers. Thank you, Mr. Chairman.
    A. Leon Higginbotham, Jr., started out as a President 
Kennedy appointee to the FTC. He had finished Antioch, Yale Law 
School, Harvard, University of Michigan, New York University, 
University of Pennsylvania. I counted them. He has 62 honorary 
degrees from universities.
    He has written extensively, particularly about race 
relations in America and how the justice process has impacted 
it. He is currently writing his biography and other writings. 
He has been so helpful in the civil rights movement across the 
years.
    He is presently Professor of Jurisprudence at Harvard and 
the John F. Kennedy School of Government, of counsel to Paul, 
Weiss, Rifkind, Wharton & Garrison in their New York and 
Washington offices, and a former Circuit Judge and Chief Judge 
of the U.S. Court of Appeals for the Third Circuit.
    We are delighted that you, as well as all of the 
distinguished members here, could stay with us for this lengthy 
period today.
    Thank you, Mr. Chairman.
    Mr. Hyde. Thank you, Mr. Conyers.
    Our next witness is Admiral Bud Edney, who retired from the 
U.S. Navy in 1992 after 39 years of service. He is a graduate 
of the U.S. Naval Academy and has a Master of Public 
Administration degree from Harvard University.
    A naval aviator, he has logged over 5,600 carrier flight 
hours and flown 350 combat missions. During his career, his 
assignments included command of a carrier air wing, command of 
the aircraft carrier U.S.S. Constellation, and command of a 
carrier battle group. He also served as commander of all U.S. 
forces in the Atlantic and Commandant of Midshipmen at the U.S. 
Naval Academy.
    He concluded his career as Supreme Allied Commander of NATO 
forces in the Atlantic and Commander in Chief of the U.S. 
Atlantic Command, following his service as Vice Chief of Naval 
Operations and Chief of Naval Personnel.
    Since his retirement, he has served as a member of the 
Defense Department's Roles and Mission Commission, as a senior 
fellow at the Center for Naval Analysis, as a director of the 
Retired Officers Association, and a director of Newport News 
Shipbuilding. He presently teaches ethics at the Naval Academy, 
holding the Distinguished Leadership Chair.
    Our next witness is Lieutenant General Thomas Carney, who 
retired from the U.S. Army in 1994 after 35 years of service. 
He is a graduate of the U.S. Military Academy and has a 
master's degree in operations research and systems analysis 
from the Naval Postgraduate School.
    Just before his retirement, he served as the Army's Deputy 
Chief of Staff for Personnel. In that position he was 
responsible for developing all plans, policies, and programs 
for the management of the Army's military and civilian 
personnel. Prior to holding that position, he commanded the 
Army's Recruiting Command, where he was responsible for the 
Army's efforts to recruit new soldiers.
    General Carney has also held a number of combat commands, 
including serving as Commander of the Fifth Infantry Division 
and Assistant Commander of the 82nd Airborne Division.
    An airborne qualified Ranger, he served two tours of duty 
in Vietnam, was awarded two Distinguished Service Medals, three 
Legions of Merit, three Bronze Stars, the Combat Infantryman's 
Badge for coming under fire in combat, and a Combat Jump Star 
for making a parachute jump into combat.
    Since his retirement, General Carney has served as an 
independent management consultant to the Shell Oil Company, the 
Delaware Port Authority, the Deloitte & Touche accounting firm, 
and the National Academy of Public Administration.
    Most recently, he served as the Deputy Librarian of 
Congress, where he acted as chief executive officer of the 
world's largest library.
    Our next witness is professor Alan Dershowitz, the Felix 
Frankfurter Professor of Law at Harvard Law School.
    Professor Dershowitz is a graduate of Brooklyn College and 
Yale Law School. After law school, he clerked for Chief Judge 
David Bazelon of the D.C. Circuit and Supreme Court Justice 
Arthur Goldberg. Since that time, he has taught at Harvard Law 
School.
    He has authored dozens of books and articles on various 
subjects, and he has represented numerous high-profile clients, 
including O.J. Simpson, Mike Tyson, and Claus von Bulow.
    Our next witness is Professor Stephen Saltzburg, the Howrey 
Professor of Trial Advocacy, Litigation and Professional 
Responsibility at George Washington University Law School.
    Professor Saltzburg is a graduate of Dickinson College and 
the University of Pennsylvania Law School. After law school, he 
clerked for Judge Stanley Weigel of the U.S. District Court for 
the Northern District of California and Supreme Court Justice 
Thurgood Marshall. He taught at the University of Virginia Law 
School for many years before moving to George Washington in 
1993.
    He has also served as Deputy Assistant Attorney General for 
the Criminal Division and an Associate Independent Counsel. He 
has published numerous articles in the field of criminal law.
    Our next witness is Professor Jeffrey Rosen, an Associate 
Professor of Law at George Washington University Law School.
    Professor Rosen is a graduate of Harvard College and Yale 
Law School. After law school, he clerked for Chief Judge Abner 
Mikva of the D.C. Circuit.
    In addition to his teaching duties, Professor Rosen is the 
Legal Affairs Editor of the New Republic and a staff writer for 
the New Yorker. He has authored numerous published articles.
    We will begin with Judge Tjoflat.
    It would be helpful if you could hold your remarks in chief 
to about 5 minutes. We will have the light on. If you go over, 
I certainly am not going to cut you off. But we have a big 
panel, and we have an inquiring membership up here.
    Judge Tjoflat.

 STATEMENT OF HON. GERALD B. TJOFLAT, U.S. CIRCUIT JUDGE, U.S. 
  COURT OF APPEALS FOR THE ELEVENTH CIRCUIT, JACKSONVILLE, FL

    Judge Tjoflat. Thank you, Mr. Chairman.
    As you indicated before you began the introductions, none 
of us here appears in behalf of any group, so I don't appear in 
behalf of the judicial branch or the judges of the Eleventh 
Circuit. I appear alone.
    The views I express on the subject of the consequences of 
perjury and related crimes are my own views, though I think 
they are shared in general, as my own opinion, by most judges 
and probably by most of the Members of this committee. I am not 
here to suggest what the committee should do however.
    Mr. Hyde. Your Honor, Mr. Conyers.
    Mr. Conyers. Mr. Chairman, with all due fairness to our 
sitting judges here, I want to explain to you that we have the 
cannons, we have the advice from the experts, and the fact that 
you are indicating your own individual views are not 
exculpatory at all. And so, if you want, I will send down to 
you the ABA Code of Judicial Conduct, Cannon 3(b)9. That 
doesn't talk about your views.
    We know you are not representing anybody but yourself. But, 
as a sitting judge, you are still under the Code of Judicial 
Conduct which precludes sitting judges from commenting on 
pending matters. Aware?
    Judge Tjoflat. I am fully aware. It is not my intent to 
comment on the merits of the matter before this panel.
    Mr. Conyers. I just wanted to bring this to your attention, 
sir.
    Judge Tjoflat. I am fully familiar with the cannons, and I 
appreciate your citing them.
    The system of justice depends on three things in order to 
function as its framers intended. The first thing is an 
impartial judiciary. It is absolutely imperative that whoever 
is on the bench in a matter be impartial. The second thing that 
is indispensable to the administration of justice is a bar of 
lawyers who are committed to adhering to the code of ethics at 
all times, in all matters. And the third thing that is 
indispensable to the administration of justice is the oath 
taken by witnesses.
    Those three things together under our system produce 
justice. It is like a three-legged stool in a way. If one of 
the legs or two of the legs break, then the stool collapses.
    To the extent that this situation permeates the system, 
either because the oath is not obeyed or because lawyers do not 
adhere to the cannons of ethics or because judges don't carry 
out their oaths of office, disrespect for the rule of law is 
bred and the people mistrust the system. And when they do that, 
they resort to other means of resolving their disputes.
    Now, today's hearing focuses on the third element, and that 
is the oath. In particular, what effect perjury has on the 
system of justice.
    One way to illustrate what perjury can do to the 
administration of justice is to imagine a pool of water, a 
pond, and you drop a pebble into the pond, and the pebble is 
perjury, let us say, and it creates a ripple effect. The extent 
of the ripple effect depends on the extent to which the perjury 
is material, is important to the matter under inquiry, to the 
truth-seeking process.
    Now, what happens with the ripple effect is that perjury of 
that sort implicates the judicial system and the parajudicial 
system, we will call it. It may require--for example, if it 
occurs in a case that is on trial, it may require a continuance 
of the case. It may require a mistrial. It may require more 
discovery.
    In a criminal case, it could likewise produce the same 
effect, a mistrial, require a continuance.
    If it is a pretrial proceeding of some sort, other 
machinery of the courts may have to be brought into play, 
because the natural tendency is to counteract perjury with 
other evidence in order to shed light on the truth. And when 
that occurs, the courts are taxed in the sense that they cannot 
be made available to other litigants who are standing in the 
pipeline ready to be served. The courts have to expand 
themselves and their processes to accommodate the perjury, and 
that is called obstruction of justice. The perjury in that 
circumstance impedes the due administration of justice. It 
causes, as I say, delay and expenditure of judicial resources, 
and it precludes a summary disposition many times of cases.
    With that, Mr. Chairman, I will conclude my opening 
remarks. I am sure there will be questions later.
    Mr. Hyde. Very well. Judge Wiggins.

   STATEMENT OF HON. CHARLES E. WIGGINS, SENIOR U.S. CIRCUIT 
JUDGE, U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT, LAS VEGAS, 
                               NV

    Judge Wiggins. Thank you. Thank you, Mr. Chairman.
    I want to make it clear that I am appearing as an 
individual at the request of Chairman Hyde, that I am appearing 
today as an individual and not as a member of the Ninth 
Circuit. I am appearing here at the request of Henry Hyde, your 
chairman, and I am honored to be here in his company today.
    I have a problem. I am just about blind, and I can't read 
my remarks, but I have prepared remarks, and I have submitted 
them. If you have questions of me, I will be sure that they are 
written down, and I will respond after I get back to my 
magnifying machine that permits me to read.
    Well, the question asked by Chairman Hyde was whether I 
would state my views concerning the impeachability of perjury 
and obstruction of justice, and that is an easy question to 
answer. Of course, they are. They are impeachable. And I don't 
think there should be any debate on that subject.
    The debate should occur ultimately before the House of 
Representatives, ultimately, on whether or not the President 
should be impeached. There is no question he is vulnerable. I 
think that that indicates to the committee what its 
responsibility is.
    Is there probable cause to believe that President Clinton 
has committed impeachable offenses, namely perjury and 
obstruction of justice? We can question the legitimacy of the 
testimony, but I think there is little doubt, little doubt, 
that the President is vulnerable, could be impeached.
    But that doesn't preclude a second judgment by you as a 
Member of the House to vote in the public interest on the 
question of whether the President should be impeached. That 
question troubles me greatly. I believe that the committee is 
within its responsibility to report articles of impeachment to 
the House, as a matter of law and as a factual matter, too. I 
confess that there are factual issues, too. I resolve those 
questions in favor of the committee voting to impeach the 
President but that doesn't preclude my second-guess.
    As a full Member of the House when you are called upon, as 
I think you will be, called upon to vote as a Member of the 
House of Representatives, your standards should be the public 
interest. I confess to you that I would recommend that you not 
vote to impeach the President. I am not a fan of impeachment, 
as you know. But I find it troubling that this matter has grown 
to the consequence that it now occupies on the public screen.
    When the President has lied--I think he has lied, but the 
issue is whether the President should be impeached, and you are 
ultimately going to be called upon to cast your vote in that 
regard. I would urge that you not vote to impeach the 
President.
    I want to send some sort of clue to you on my own research 
concerning the impeachability of offenses. I find it very 
troubling that the Judiciary Committee seems to be willing to 
impeach a President for such vague concepts as abuse of power. 
I find that there is not any necessity that the President know 
that his acts were impeachable, that he was abusing power at 
the time he did them. That is true with respect to the Nixon--
President Nixon impeachment experience, and it is true today.
    There is some talk about impeaching the President for abuse 
of power. I think that is too vague. The President is entitled 
to notice, some notice, that he is performing acts that are 
wrong and that he did those acts notwithstanding that notice.
    I think that the text of my remarks speak for themselves, 
and I will stop at this time, Mr. Chairman.
    Mr. Hyde. Thank you, Judge Wiggins.
    [The prepared statement of Judge Wiggins follows:]
Prepared Statement of Hon. Charles E. Wiggins, U.S. Circuit Judge, U.S. 
         Court of Appeals for the Ninth Circuit, Las Vegas, NV
                                   i
    My name is Charles E. Wiggins. I am a senior judge on the U.S. 
Court of Appeals for the Ninth Circuit. My chambers and residence are 
in the city of Las Vegas, Nevada. I am appearing here this morning at 
the request of Chairman Henry Hyde.
    Before I begin, I wish to emphasize that I am appearing this 
morning as an individual offering my personal views. I do not presume 
to speak for the Ninth Circuit.
    Also, I wish to advise the Committee that I am suffering from 
diabetes and that it has affected my vision. I am unable to read my 
remarks. However, I have prepared formal remarks for submission to the 
Committee. I will be testifying from my memory of what is a part of my 
formal submission to the Committee.
    Two members of the present Committee may recall that I served as a 
member of this Committee during the investigation of Richard Nixon, 
some 25 years ago. It may be because of my previous experience that I 
have been invited as a witness today.
    First, I would like to define the scope of my intended remarks. I 
will respond, of course, to the questions asked me by the Committee but 
I should like to avoid the question that may be on the forefront of 
your minds: whether President Clinton should be impeached.
    As I see it, the responsibility for considering whether or not the 
President should be impeached is the sole responsibility of the House 
of Representatives. It will, possibly, indict the President for what it 
believes to be high crimes and misdemeanors. The responsibility of this 
Committee, as I see it, is much narrower. The Judiciary Committee is 
charged by the House of Representatives of conducting an investigation 
of the facts to ascertain whether or not there is probable cause to 
believe that the President has committed a high crime or misdemeanor. 
The affirmative response to that question is a necessary precondition 
to a second vote by the full House of Representatives as to whether or 
not the President should be impeached. I would like to confine my 
preliminary remarks this morning to the first question: whether there 
is probable cause to believe that the President has committed acts 
which are fairly characterized as high crimes or misdemeanors.
    Many of you, I suspect, are willing to leap immediately to the 
second question of whether or not the President should be impeached. I 
urge that you restrain yourselves for now and confine your present 
interest to the first question.
                                   ii
    The facts concerning the President's misconduct are fairly simply 
stated. The President was sued in a civil proceeding for sexual 
harassment by Paula Jones. During the pretrial discovery, the court 
authorized plaintiff's counsel to examine the President concerning his 
involvement with other employees. Plaintiff's counsel wanted to conduct 
the authorized discovery with respect to Monica Lewinsky. Miss Lewinsky 
thereafter had a conversation with the President in which the President 
advised her to prepare an affidavit and to deny that she had sexual 
relations with him. Although the President has acknowledged that he had 
an improper personal relationship with Miss Lewinsky, he requested that 
Miss Lewinsky file a false affidavit in the Jones lawsuit.
    Thereafter, the President was called as a witness before the grand 
jury and he repeated his story that he did not have a sexual 
relationship with Monica Lewinsky. Subsequently, the President 
acknowledged that his story was false or misleading and that he in fact 
had such a relationship with Miss Lewinsky.
    I don't believe that any supporter of the President in these 
proceedings would maintain that the President is innocent of misleading 
the plaintiff's counsel in the deposition proceeding or before the 
grand jury. In short, the President lied in his testimony before both 
proceedings.
    The question, then, is what is the House of Representatives to do 
about these lies. Specifically, you have inquired of me whether or not 
I believe the crimes of perjury and obstruction of justice give to the 
Congress the right to try the public official for impeachable offenses. 
It is clear that both perjury and obstruction of justice are 
significant crimes. Both are felonies. A review of the impeachment 
precedents indicate that at least one federal judge has been impeached 
by the House of Representatives because he committed the crimes of 
perjury and obstruction of justice. The absence of any contrary 
precedents is important to me. There is simply no law prohibiting the 
impeachment of the President for having committed the felony crimes of 
perjury and obstruction of justice. That power to impeach the President 
does not indicate that the President should be impeached; it merely 
refers to the right of impeachment in the House of Representatives.
    I have heard said that in the context of the crimes attributed to 
President Clinton, the claim is made that they are so routine as to 
properly be overlooked. I have no doubt that many Americans have lied 
about their sexual escapades to their wives, but I am not so convinced 
that the right to lie should be recognized before governmental bodies 
charged with finding the truth. The grand jury was just such a 
proceeding. The President evidently lied when he had been sworn to tell 
the truth in proceedings before the grand jury. I don't believe that we 
can ever condone a deliberate lie made when given under oath to tell 
the truth. We should not condone the telling of a lie, but the issue 
here is whether we should remove the President from office for telling 
a lie.
                                  iii
    Given the facts in this case, what is the Congress to do about it?
    I would recommend that the House Judiciary Committee confine its 
attention to whether or not probable cause exists that the President 
has committed an impeachable offense. I don't have any hesitancy in 
finding that preliminary fact to be true and I don't think that many 
members of this Committee would disagree with that assessment. When the 
issue comes to a vote before the Committee, I would recommend that the 
members of this Committee cast their votes consistent with the law that 
the President is found to have committed a high crime or misdemeanor. 
Thereafter the issue would go before the House and I don't know whether 
a member of the House would be bound by the preliminary findings if he 
had a conviction that the public interest would be served by not 
impeaching the President. I tentatively would suggest that a member 
should cast his or her ballot on what the member perceives to be the 
public interest under the circumstances. But that does not mean that 
this Committee should shirk its responsibility to find that the 
President has committed an impeachable offense.
                                   iv
    I wish to comment briefly on the frequently stated notion that 
perjury is tolerated when the underlying offense is sexual misconduct. 
Nothing could be further from the truth. The substantive offense is 
perjury, a felony. Whether the underlying offense is a crime or not is 
immaterial. A defendant is not permitted to lie under oath with respect 
to sexual pecadillos. That is the law in the Ninth Circuit and is the 
law everywhere in the country.
    But the further question before the Congress as a whole is whether 
the President must be removed from office for lying about such 
misconduct.
                                   v
    The essential prerequisite of an impeachable offense is that it be 
fairly characterized as misconduct involving treason, bribery or other 
high crimes and misdemeanors. There is considerable controversy in 
applying those words. I suppose it will always be thus. However, let me 
offer some guidelines to a finding of an impeachable offense.
    First, I need not comment upon the crimes of treason or bribery. 
They are not involved in this case. The answer to the question of 
whether perjury or obstruction of justice is a high crime or 
misdemeanor is a relatively simple one. Of course it is. Many persons 
have been incarcerated for committing perjury in the context of 
relatively minor sexual offenses and obstruction of justice has been a 
commonly employed offense in such cases as well. Many men and women 
have been charged and sentenced on such offenses. We should simply 
acknowledge that perjury is a high crime and obstruction of justice is 
as well. If we do acknowledge it to be so, then President Clinton is 
not impeached as a result of such finding but he is vulnerable to 
impeachment. He may be impeached by the House of Representatives if it 
deems the offense to be sufficiently egregious.
    As I view the impeachment process, the House Judiciary Committee is 
not only charged with determining whether probable cause exists or to 
find that the President has committed an impeachable offense. If you, 
as a committee, conclude that perjury and obstruction of justice are 
impeachable offenses, you may then proceed to the next question as to 
whether probable cause exists to find that the President has committed 
these acts. If you find that probable cause in fact exists, and the 
offenses are impeachable, I think you have a responsibility to conclude 
that the President should be impeached by the full House of 
Representatives. I do not presume to tell members of this committee how 
they should vote if called upon to vote as a member of the full House.
    When the issue is presented to the full House of Representatives, I 
do not believe that the full House is limited to a narrow legal 
conclusion but can judge the matter in a broader sense. It may view the 
question of whether the President is not only vulnerable, but whether 
he in fact should be impeached.
    Let me give you a few bench marks or guidelines that I find to be 
significant in deciding whether misconduct is an impeachable offense. 
First, we should recognize that the target of impeachment is an 
individual, in this case the President of the United States, and as 
such the misconduct attributed to him should not be the misconduct of 
an administration but personal misconduct of the part of the President. 
There is no question in this case that the misconduct was committed by 
President Clinton personally. But that was not always the case in the 
situation involving President Nixon. He and his administration were 
accused of a broad range of offenses that did not involve presidential 
misconduct personally.
    Second, the President, if he is target of impeachment, must be 
given some reasonable notice that the misconduct alleged to him was 
wrong. Our constitution mandates such a finding as a part of due 
process and the President is entitled to that. I caution against 
charging the President with such vague offenses as abusing power. 
Although there is some controversy about this, the abuse of power is 
always judged after the fact. There is no necessary finding that the 
President knew that he was abusing his power. I find that to be a 
dangerous precedent and one that should not be emulated by future 
Congresses.
    Third, after having considered the issue at some length, I have 
come to the conclusion that the misconduct alleged to the officer 
subject to impeachment should be a crime. A person is subject to 
knowledge of the law and to knowledge that his conduct is criminal if 
in fact it is so. Not all offenses, even if crimes, should result in 
the removal of the President from his office, but having committed 
those crimes, the President is vulnerable and should be charged if 
probable cause exists that the President has committed the offenses 
alleged.
    As I see it, then, the responsibility of this Committee is narrow. 
It need not concern itself about whether an impeachable offense has 
been committed. Of course they have. The question before this Committee 
is whether to acknowledge that fact and report a possible bill of 
impeachment to the full House. Once the matter is pending before the 
full House, the question is a fundamentally different one. The question 
then is whether the President should be impeached for the misconduct 
found to exist by the House Judiciary Committee.
    I don't mind confessing that if I had a vote on this Committee, I 
would vote to impeach the President. But before the full House of 
Representatives, I certainly am not sure. I am presently of the opinion 
that the misconduct admittedly occurring by the President is not of the 
gravity to remove him from office.
    If the President is not subject to impeachment before the full 
House, what then should the Congress do about the President's admitted 
misconduct? That is a very difficult question. Certainly the President 
should not be permitted to walk away from his misdeeds without 
punishment. The options should rest with the House and the Senate as to 
whether or not the President should be sanctioned. I think that he 
should be.
    I believe that the President's reputation is important to him and I 
believe that money is important to him as well. If the President is 
criticized by a formal vote of the House and Senate, that may be enough 
but I would recommend that both parties explore the possibility an 
economic sanction against the President as well--something on the order 
of a million dollars.
                                   vi
    Let me summarize what I have intended to say in the body of my 
remarks. First, there is substantial disagreement in the Judiciary 
Committee but that should be resolved by a vote. The vote should occur 
at the earliest possible date. The question to be voted upon is whether 
probable cause exists to find that the President of the United States 
committed impeachable offenses, namely perjury and obstruction of 
justice. I personally conclude that the President is properly indicted 
by the Judiciary Committee for having committed those offenses. If the 
Committee so concludes, it should pass promptly a Bill of Impeachment 
to the full House of Representatives. If, on the other hand, the 
Committee does not so conclude, the matter is over at that point.
    Second, the matter should be brought promptly to a vote by the full 
House. The question before the full House is not whether probable cause 
exists, but whether the President should be impeached. I conclude that 
the President should not be impeached and would so vote in the full 
House.
    If, on the other hand, a majority in the House concludes that the 
President is subject to impeachment and should be impeached, the issue 
should go to the Senate for their consideration. Both votes before the 
House should occur this year and should not entail substantial 
acrimonious debate.
    The Senate can consider the matter at its leisure next year. But I 
would hope that it resolves the issue of whether the President is 
guilty of impeachable offenses promptly.
    I would hope that the Senate in consultation with the Congress 
would consider an appropriate sanction to be levied against the 
President.

    Mr. Hyde. Judge Higginbotham.

   STATEMENT OF HON. A. LEON HIGGINBOTHAM, JR., PAUL, WEISS, 
          RIFKIND, WHARTON & GARRISON, WASHINGTON, DC

    Mr. Higginbotham. Mr. Chairman, when I was 35 years old, 
about at the age of Congresswoman Waters, I became a U.S. 
District Judge. I had that coveted honor for 29 years. I 
retired about 5 years ago, so that I am talking solely as an 
individual. But I have enough absolute confidence to say to you 
that I do not speak only for myself. My wife read this speech, 
and she concurs.
    I have in my first two books spent hundreds of hours going 
over Farrand and Elliot, who were the two prior major scholars 
who give us the whole American legal history; and maybe I 
should start by quoting them. But as I listened today and as I 
have heard you before, I don't think what this illustrious body 
needs are quotes from Madison or Mason or Benjamin Franklin but 
quotes from a person known as Luther Standing Bear, a member of 
the Lakota tribe who said, ``Thought comes before speech.''
    The more I have reflected on it, it seems to me that that 
is the critical issue: Do we have the capacity, when dealing 
with one of the most important constitutional issues which this 
committee will ever have, to pause and to give thought before 
you speak and before you vote.
    I have filed a very detailed statement, with all of the 
things which academicians do, with the footnotes which will 
satisfy those who want footnotes. And as I listened to the 
debate this morning, I heard a spectrum of profoundly 
conflicting views. Some argued very convincingly that there is 
a scintilla, or maybe more than a scintilla, of evidence to 
justify a perjury prosecution. And others, I thought with 
extraordinary good sense, question whether this case had the 
probative weight to make the critical judgment that is 
necessary.
    And I came to the conclusion that I could not put your 
thoughts together, and therefore, in my document, I used the 
words which every great appellate lawyer uses when you want to 
test the core, and the phrase is, ``assuming arguendo,'' is 
there a cause of action? Assuming arguendo that all of the 
adverse evidence that has been alleged by my adversary, is 
there a prima facie case?
    And I will assume for the purposes of analytical discussion 
that some reasonable people could find a prima facie case. But 
if you are going to understand my good friend Luther Standing 
Bear, that is not the end of the thought, but only the 
beginning, and the thought issue has to be if there is a prima 
facie case of perjury, does that establish a basis for the 
unique punishment inherent in impeachment.
    Now, Justice Frankfurter, and I don't have to tell my good 
friend Elliott Richardson because he heard it so many times, 
would often say, if I can define the question, I can determine 
the answer. For me, the proper question is, even if there is 
perjury, is there a basis for impeachment? And in the document 
which I have submitted to you, quoting and relying on the 
historians who have appeared before you, Professor Holden of 
Virginia, Professor Sunstein and others, I don't believe that 
this case reaches the narrow category of egregious or large-
scale abuses of authority that comes from the exercise of 
distinctly Presidential power. That does not mean that there is 
any precedent to justify the President's sexual conduct, but we 
are not talking about grand theater, we are talking about a 
profound constitutional inquiry which few generations of 
Congressmen have ever had to make. And it is that foundation 
from which I would like to address my comments to you.
    And when you have been teaching in law school, the one 
thing you always try to test the students on is a hypothetical. 
You are much too smart to be students, and I am much too old to 
not be a professor. Let me give you what, if I were teaching my 
class at Harvard, would be the hypothetical I would present to 
them.
    I would say, suppose that on January 17, 1998, and on 
August 17, 1998, which are the two dates in which President 
Clinton testified, that he appeared before a grand jury and 
that his testimony was that when he was driving his automobile 
in a 50-mile-per-hour speed zone, that he said he was going 49. 
But the record demonstrates beyond a reasonable doubt that he 
was going 55, and it would demonstrate that he knew that he was 
going 55, and therefore, you have perjury material to that 
inquiry. Could the President of the United States under those 
circumstances be removed from office because he gave a false 
statement about the speed of his car in a grand jury inquiry?
    Those of you who use the word perjury in the abstract, as 
if it is a ``per se'' formula which covers everything, then it 
would be impeachable. I submit to you that perjury has 
gradations, and I spent a lot of time in my paper suggesting to 
you that there are gradations of perjury. Some are serious, and 
some are less. And though I do not applaud the President for 
what he did, for impeachment purposes there is not much 
difference between someone who testified falsely on a speeding 
incident than someone who testified falsely about his 
relationship in a sexual matter voluntarily with a private 
person. So therefore, that is one point I think you have to 
clarify: Are you going to follow a per se perjury rule, or will 
you look at gradations? We look at gradations of perjury even 
under the sentencing rules, and I cite them here to you.
    Now, let me press the doctrine a little more. The two 
ladies who testified today, Pam Parsons and Barbara Battalino, 
I respect them as decent human beings who, like all of us, or 
maybe like me, have frailties; who may not have had the level 
of perfection which some of you have. So they have frailties, 
and they were sentenced. But what is the relevance? What is the 
probative relevance of what they did compared to impeaching a 
President, one who got more than 49 percent of the votes of the 
citizens of this Nation? When Ms. Parsons and Dr. Battalino 
were sentenced, the President was not removed. But in the Jones 
case, there was a powerful concurring opinion by Justice 
Breyer, and in that concurring opinion, he said the President 
is the most indispensable person in the government. You cannot 
equate the Presidency of the United States with the basketball 
coach from South Carolina, and that takes not a thing from her 
excellence and the human empathy which we must have for her.
    And there are other concerns I had when I heard the word 
``double standards.'' And if you were a student in my class, I 
would have started a real Socratic inquiry. What do you mean 
about double standards? Under the statute, under the statute 
the President of the United States can be treated just like 
they were. The only difference is a time delay until January 
20, 2001. It is not that he has immunity, it is a question of 
delay, and the Founding Fathers when creating this Constitution 
were concerned about the complexity of government that they had 
a whole series of rules----
    Mr. Coble. Mr. Chairman, Judge, pardon me for interrupting 
you, but I know the light has been on for about 10 to 12 
minutes.
    Judge Higginbotham. I apologize.
    Mr. Hyde. I was going to ask the judge if he could bring 
his remarks to a close.
    Mr. Coble. No discourtesy to you, I was just thinking about 
the other folks on the panel.
    Judge Higginbotham. An eminently fair comment. So let me 
look at Congress.
    Mr. Frank. That is a terrible way to repay fairness, Judge.
    Mr. Coble. Mr. Chairman, at least I tried.
    Judge Higginbotham. If you are talking about double 
standard, look at Dombrowsky v. Eastland, which stands for the 
proposition that Members of the U.S. Congress can go on the 
floor of the House and commit what in a private setting would 
be libel. They can say things, I know none of you do it, which 
are malicious, which are even fraudulent, and you have absolute 
immunity from any liability whatsoever, and that has been 
applied to judges in Stump v. Sparkman to prosecutors in Imbler 
v. Pachtman and to witnesses in Briscoe v. LaHue. So therefore, 
we don't have a single standard in the operation of our 
society; we do have some situations of special privilege.
    And I thank you, Mr. Chairman, for your extraordinary 
indulgence of me.
    Mr. Hyde. Thank you, Judge.
    [The prepared statement of Mr. Higginbotham follows:]
 Prepared Statement of Hon. A. Leon Higginbotham, Jr.,\1\ Paul, Weiss, 
              Rifkind, Wharton & Garrison, Washington, DC
---------------------------------------------------------------------------
    \1\ Chief Judge Emeritus (Ret.), U.S. Court of Appeals; Public 
Service Professor of Jurisprudence, John F. Kennedy School of 
Government, Harvard University; Senior Counsel, Paul, Weiss, Rifkind, 
Wharton & Garrison; Commissioner, U.S. Commission on Civil Rights.
---------------------------------------------------------------------------
                   i. ``thought comes before speech''
    Mr. Chairman, it is a coveted and extremely challenging honor to 
speak to this distinguished Committee. Each member of this Committee is 
at a critical fork in the road of constitutional inquiry. I cannot 
think of any judgment that will, in the long run, have more profound 
significance to the future of our country and to our citizens than your 
decision as to whether, on the evidence before you, Articles of 
Impeachment should or should not be filed against the President of the 
United States. Although on several occasions Congress has declared war, 
this is only the third time that the Committee on the Judiciary has 
seriously considered whether Articles of Impeachment should be issued 
against an American President. By the very infrequency that such 
proceedings have been initiated, and the polarization such proceedings 
could cause, we are confronted with a situation that requires the 
Judiciary Committee to be ever mindful of the potentially harmful 
consequences of any process that may have only a minuscule rationality.
    My approach to this momentous problem is what a leader of the 
Lakota tribe named Luther Standing Bear once said: ``Thought comes 
before speech.''
         ii. no valid basis to vote for articles of impeachment
    You have received a plethora of comments by premier scholars on the 
issue as to whether, after a fair reading of Article II of the U.S. 
Constitution,\2\ the facts on the present record warrant the filing of 
Articles of Impeachment. I agree generally with the comments of 
Professors Matthew Holden, Jr., Cass R. Sunstein, Arthur M. 
Schlesinger, and Father Robert F. Drinan, who have testified before 
you, and I do not believe that, on the present record, there is a valid 
basis to vote Articles of Impeachment.
---------------------------------------------------------------------------
    \2\ ``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.''
---------------------------------------------------------------------------
             iii. the constitutional basis for impeachment
    I recognize that there is intensive debate as to whether the record 
establishes that actual perjury was committed by the President. For the 
purpose of my analysis before this Committee, I will assume, arguendo, 
that the record has a prima facie basis for statutory perjury. But, 
even with a ``finding'' of criminal liability for perjury, a more 
relevant question remains unresolved--that is whether this case of 
statutory perjury constitutes a basis for impeachment of the President. 
It is my understanding that the Committee--or at least a majority of 
the Committee--has categorized the topic for discussion today as ``The 
Consequences of Perjury and Related Crimes.'' I submit that a 
discussion of perjury in the abstract is not adequate to form a wise 
judgment on the more complex issue as to whether the President of the 
United States should be impeached, pursuant to Article II.
    From my view, Professor Sunstein framed the issue flawlessly when 
he wrote:

          . . . with respect to the President, the principal goal of 
        the impeachment clause is to allow impeachment for a narrow 
        category of egregious or large-scale abuses of authority that 
        come from the exercise of distinctly presidential powers. On 
        this view, a criminal violation is neither a necessary nor a 
        sufficient condition for impeaching the President. What is 
        generally necessary is an egregious abuse of power that the 
        President has by virtue of being President. . . . Impeachment 
        is generally foreign to our traditions and prohibited by the 
        Constitution. Outside of [a special] category of cases, the 
        appropriate course for any crimes is not impeachment, but a 
        prosecutorial judgment after the President has left office, 
        whether indictment is appropriate.
          * * * * * * *
          There are grave systemic dangers in resorting to impeachment 
        except in the most extreme cases. The prospect of impeachment 
        can be highly destabilizing to government, and in an era in 
        which the opposing party and the mass media are likely to be 
        aligned in accusing political opponents of criminality, there 
        is a continuing risk that impeachment proceedings will become 
        routine rather than exceptional. This risk is all the more 
        serious in light of the central modern role of the American 
        President, both domestically and internationally.\3\
---------------------------------------------------------------------------
    \3\ Professor Sunstein testified before the House Committee on the 
Judiciary on November 9, 1998, and has written and presented a 
comprehensive essay as the Roberts Lecture at the University of 
Pennsylvania on November 10, 1998.
---------------------------------------------------------------------------
   iv. would all acts of perjury constitute a basis for impeachment, 
                   regardless of the factual context?
    My discussion today will address three questions. The first 
question is the sine qua non issue for this Committee's consideration: 
whether all acts of perjury, regardless of the factual context, warrant 
a Congressional committee voting for an Article of Impeachment. In 
other words, is any incident of perjury, on any matter, on any subject, 
per se, in and of itself, a basis for impeachment of a President? The 
second question for consideration is: If some acts of perjury by a 
President can rise to the level of impeachable offenses and other acts 
of perjury do not, then, what is the limiting principle that 
differentiates the two types of perjury? The final question is: If the 
perjury of which the President has been charged is not impeachable 
under the Constitution, as I argue, then, what, if any, permissible 
responses remain for addressing the President's behavior?
    The first question is whether all types of perjury by a President 
are per se impeachable offenses. Let us examine the concept of per se 
perjury by setting up a factually specific hypothetical. Suppose that 
in either January or August 1998 \4\ President Clinton testified under 
oath, but in this hypothetical, he was not asked about sexual matters, 
but was questioned about his driving record. Let us assume that the 
President, at some point before giving his testimony, was cited for 
driving his car at a speed of 55 miles-per-hour in a 50-mile-per-hour 
speed zone. Suppose further that, when the President was questioned, 
again under oath, he falsely testified that he was only driving 49 
miles-per-hour on the date in issue. Would that false statement about 
the speed of his car constitute a valid constitutional basis for this 
Committee to issue a proposed Article of Impeachment? I submit to you 
that it would be grossly improper to impeach a President under such a 
factual scenario, because perjury regarding a 55-mile-per-hour traffic 
offense does not rise to the level of ``Treason, Bribery, or other high 
Crimes and Misdemeanors'' about which the framers were concerned when 
they drafted Article II. Is perjury about a traffic offense different 
than perjury about a sexual matter involving consenting adults? I 
submit that as to impeachment purposes, there is not a significant 
substantive difference between the hypothetical traffic offense and the 
actual sexual incident in this matter. The alleged perjurious 
statements denying a sexual relationship between the President of the 
United States and another consenting adult do not rise to the level of 
constitutional egregiousness that triggers the impeachment clause of 
Article II.
---------------------------------------------------------------------------
    \4\ The President testified in his deposition in the Jones v. 
Clinton case on January 17, 1998, and before the Grand Jury on August 
17, 1998.
---------------------------------------------------------------------------
                  v. are there gradations of perjury?
    If perjury is not per se impeachable, the purist might demand that 
we draw a bright line that clearly delineates between impeachable and 
non-impeachable perjury. However, as Justice Holmes said on two 
different occasions: ``Neither are we troubled by the question where to 
draw the line. That is the question in pretty much everything worth 
arguing in the law. Day and night, youth and age are only types''; \5\ 
and ``I do not think we need trouble ourselves with the thought that my 
view depends upon differences of degree. The whole law does so as soon 
as it is civilized.'' \6\
---------------------------------------------------------------------------
    \5\ Irwin v. Gavit, 268 U.S. 161, 168 (1924).
    \6\ LeRoy Fibre Company v. Chicago, Milwaukee & St. Paul Railway, 
232 U.S. 340, 354 (1913) (Holmes, J., concurring).
---------------------------------------------------------------------------
    As serious a crime as perjury is, there exists a spectrum of 
gravity with regard to false statements. As judges, we follow Congress' 
instructions--your instructions--to recognize this spectrum every time 
we sentence an individual for perjury under the U.S. Sentencing 
Guidelines (the ``Guidelines''). Section 2J1.3 of the Guidelines 
mandates that we increase the base offense level, and therefore the 
sentence, of a defendant convicted of perjury by different degrees 
depending on the harm caused by the false statement.
    Section (b)(1) requires us to increase the offense level by 8 if 
the offense ``involved causing or threatening to cause physical injury 
to a person, or property damage, in order to suborn perjury.''
    Section (b)(2) requires us to increase the offense level by 3 if 
the perjury ``resulted in substantial interference with the 
administration of justice.''
    Section (c)(1) provides that ``if the offense involved perjury in 
respect to a criminal offense,'' we must use the offense level for an 
accessory after the fact if that offense level would be higher.
    At one end of the spectrum are examples of clearly impeachable 
perjury, such as providing false testimony that causes grave injury to 
the country. For example, if the President had committed treason by 
selling nuclear secrets to a foreign agent, it could cause grave injury 
to the country and it would be an impeachable offense--and it would 
also be an impeachable offense if he lied about his treason.
    At the other end of the spectrum are examples of perjury that 
clearly do not merit impeachment under the high constitutional 
standard.\7\ I provided one such example earlier. If the President had 
lied about the commission of a traffic violation, I submit that his 
false testimony would not cause anywhere near sufficient injury to the 
nation to warrant impeachment.
---------------------------------------------------------------------------
    \7\ Professor Sunstein asserts that an originalist understanding of 
the Constitution mandates that impeachment be used only in those rare 
cases in which it can be proven that the President engaged in a large-
scale abuse of presidential power. Put differently, to be impeached, 
the President must have abused a distinctly presidential power and that 
abuse must have been of such a scope and magnitude as to cause grave 
injury to the country.
---------------------------------------------------------------------------
    To my mind, President Clinton's alleged perjury regarding 
consensual sexual relations clearly falls on the end of the spectrum 
with my example of perjury regarding a traffic violation. Assuming his 
statements were false and material, they did not cause anywhere near 
the gravity of injury required by the Constitution for impeachment.
    I cannot in the abstract articulate exactly where the line between 
impeachable and non-impeachable perjury does fall. Instead, I can only 
urge that you allow yourselves to be guided by a principle of restraint 
in interpreting an ambiguous area of constitutional inquiry, 
particularly where the failure to exercise such restraint could result 
in the nullification of the will of the majority of the electorate, not 
to mention the profound weakening of the institution of the presidency.
                 vi. the alleged double standard issue
    Judge Bowman stated in his Eighth Circuit opinion in Jones v. 
Clinton,\8\ that ``[t]he President of the United States, like all other 
government officials, is subject to the same laws that apply to all 
other members of our society.'' Some persons make the deceptive 
contention that there is a double standard at work, in that the 
President is being treated differently than ``everyone else.'' They 
assert that if the President is not impeached, he will not be held 
responsible for an act for which an ordinary citizen would be 
sanctioned.
---------------------------------------------------------------------------
    \8\ 72 F.3d 1354, 1358 (8th Cir. 1996), aff'd, 520 U.S. 681 (1997).
---------------------------------------------------------------------------
    It is my understanding that the Committee has invited two persons 
to testify who have been convicted of perjury in federal court. I 
presume that the inference that some seek to make is that President 
Clinton should be treated the same as they were, and that he should not 
get some ``special privilege.'' However, in reality, the President is 
not receiving any ``special privilege.'' The Justice Department may 
prosecute Mr. Clinton for perjury in 2001 or earlier,\9\ just as Ms. 
Barbara Battalino and Ms. Pam Parsons were prosecuted. President 
Clinton is subject to the exact same criminal penalties to which Ms. 
Battalino and Ms. Parsons were subject. Reliance on the duality 
``problem'' as a basis to initiate an impeachment of the President is 
fallacious and unconstitutional. It reminds me of what Samuel Johnson 
once said: that we should avoid arguments that are ``too foolish for 
buffoonery and too wild for madness.'' \10\
---------------------------------------------------------------------------
    \9\ It is an open question as to whether or not the President may 
be criminally prosecuted while in office.
    \10\ See Lillian B. Miller, ``The Dye is Now Cast,'' at 163.
---------------------------------------------------------------------------
    Right now, the issue before the Committee is whether or not 
President Clinton should be impeached. The testimony provided by Ms. 
Battalino and Ms. Parsons is wholly irrelevant to this inquiry because 
this alleged differential treatment goes to the realities of 
maintaining a federal government on a stable and rational basis. Ms. 
Battalino and Ms. Parsons did not receive 379 electoral votes and 
47,401,054 (49.3%) of the popular vote to put them in office as the 
President of the United States. Their immediate prosecution would not 
raise the destabilizing impact that a prosecution of the President 
might. Their testimony has limited probative value as to the 
appropriateness of an impeachment inquiry against President Clinton. I 
urge the Committee to remain focused, and not to be swayed by the 
irrelevant testimony of Ms. Battalino and Ms. Parsons.
      vii. the ``abuse of power'' issue in the nixon and clinton 
                    proceedings--are they the same?
    One of the ``related crimes'' about which I have been asked to 
testify is ``abuse of power.'' As an initial matter, I observe that 
there is no federal crime of ``abuse of power'' or ``misuse of power.'' 
The words do not appear in any criminal statute of which I am aware.
    To the extent that the Office of the Independent Counsel (``OIC'') 
relies upon similar language in Article II of the Articles of 
Impeachment filed against President Richard M. Nixon, the two matters 
concern starkly different behavior. The conduct of President Nixon 
consisted of a continuous and systematic attempt to deprive citizens, 
deemed by the President to be his political enemies, of their liberty, 
by bringing to bear the awesome power of various agencies of the 
federal government. The allegations against President Nixon evince an 
abuse of distinctly Presidential powers in an attempt to oppress 
political enemies and other private citizens.
           Using the Internal Revenue Service (``IRS'') to 
        engage in improper tax audits and investigations of political 
        enemies.
           Attempting to obtain confidential information 
        maintained by the IRS concerning political enemies.
           Using the Federal Bureau of Investigation (``FBI''), 
        the Secret Service and other executive personnel to undertake 
        improper electronic surveillance and other investigatory 
        techniques with regard to political enemies, and permitting 
        improper use of materials obtained thereby.
           Creating and maintaining a secret investigative unit 
        within the Office of the President, which utilized the 
        resources of the Central Intelligence Agency (``CIA''), engaged 
        in covert and illegal activities, and attempted to prejudice 
        the constitutional rights of an individual to a fair trial.
           Failing to act when subordinates impeded the 
        investigation into the break-in of the headquarters of the 
        Democratic National Committee.
           Interfering with executive branch agencies, 
        including the FBI, CIA and Department of Justice.
    The charges by the OIC against President Clinton are not comparable 
to those leveled against President Nixon. First, the charges against 
President Clinton are based on the weakest of evidence, as revealed by 
the phraseology used by the Independent Counsel in his testimony before 
this Committee. For example, each charge relating to the alleged abuse 
of power by the President is prefaced by the words ``the evidence 
suggests.''
    Moreover, the allegations against President Clinton, even if true, 
do not reveal the kind of systematic and repeated abuse of distinctly 
Presidential power, in derogation of the constitutional rights of 
citizens of the United States, exemplified by the charges against 
President Nixon. Rather, they relate to the purely private matter of 
the Jones v. Clinton case, his relationship with Ms. Lewinsky and their 
sequelae.
                 viii. the obstruction of justice issue
    The obstruction of justice charge levied against President Nixon 
was based on actions that were far more serious than those which 
President Clinton allegedly committed. President Nixon was accused of 
obstructing the investigation of the unlawful entry into the 
headquarters of the Democratic National Committee in order to secure 
political intelligence. As part of this obstruction, President Nixon 
allegedly made false statements to investigators, withheld material 
evidence, counseled witnesses to give misleading statements, and 
condoned secret payments intended to influence the testimony of key 
witnesses.
    President Clinton is being accused of obstruction of justice 
because he allegedly lied under oath about a private relationship 
between two consenting adults.\11\ Quite simply, even if one assumes 
that the President lied about the relationship between him and Ms. 
Lewinsky, such a lie does not rise to the level of egregious conduct 
which is required to support an impeachment inquiry against a 
President. Mr. Starr alleges that President Clinton asserted legally 
baseless privileges to conceal relevant information from the grand 
jury. However, it is worth noting that Justices Ginsburg and Breyer 
both argued, in dissent, that the Supreme Court should have heard the 
issue of whether or not there is a Secret Service evidentiary 
privilege. Thus, that asserted privilege is clearly not baseless.\12\
---------------------------------------------------------------------------
    \11\ According to Mr. Starr, the evidence also ``suggests'' that 
President Clinton reached an agreement with Ms. Lewinsky that each 
would make false statements under oath; that President Clinton 
improperly provided job assistance to Ms. Lewinsky; that President 
Clinton coached a potential witness (Ms. Betty Currie) with a false 
account of relevant events; and that President Clinton attempted to 
conceal gifts which had been subpoenaed from Ms. Lewinsky.
    \12\ See Rubin v. United States, No. 98-93, 1998 WL 407152 (U.S., 
Nov. 9, 1998) (Ginsburg, J., dissenting from denial of certiorari); id. 
(Breyer, J., dissenting from denial of certiorari).
---------------------------------------------------------------------------
     ix. are there different criteria in presidential and judicial 
                             impeachments?
    As a matter of constitutional law, there is a higher threshold the 
House must meet in order to impeach a President as compared to its 
constitutional authority to impeach a federal judge.
    Looking at the text of the Constitution, one finds that judges are 
subject to the ``good behavior'' clause of Article III, Section 1, 
while the President, Vice President and other civil officers are not. 
While constitutional scholars disagree on whether this language lowers 
the threshold for the impeachment of judges, it certainly ought to give 
one pause before applying the same impeachment standards to the 
President that one would apply to a federal judge.
    In addition, and more importantly, there are structural, functional 
and pragmatic differences between the presidential and judicial 
impeachment processes.
    First, the President is one of only two civil officers of the 
United States popularly elected (for all intents and purposes) by a 
national constituency. Judges are appointed for life by the President 
and the Senate, and can claim the support of no constituency, national 
or local.
    The President is subject to political checks and balances other 
than impeachment--the requirement of running for re-election after 4 
years, the constant interaction between the legislative and executive 
branch (on legislation, appointments, legislative oversight, etc.), the 
President's concern for his own party in the next Congressional and 
Presidential election, and so on. The only checks on a federal judge 
are one's conscience and the threat of impeachment.
    The President can be ousted from office by the people after his 
current term ends, or in the case of a second-term President such as 
President Clinton, is automatically disentitled to serve another term 
by virtue of the 22nd Amendment. Judges hold office for life. The need 
is far more pressing in these circumstances, therefore, to remove a 
judge who is dangerous, corrupt or a criminal than to remove a 
President with similar attributes. It would be especially damaging to 
the nation for a federal officer to draw a salary from the federal 
government while in prison, and then, what is worse, to countenance his 
or her returning to office after prison. Such concerns exist with 
regard to federal judges--indeed, both Judges Claiborne and Nixon were 
impeached after having been sentenced to prison--but not the President.
    As Justice Breyer has said, and few can disagree, the President is 
the ``sole indispensable [person] in government.'' \13\ There are more 
than 1,100 federal judges. To remove a sitting President is to 
decapitate an equal and co-ordinate branch of government with one fell 
swoop.
---------------------------------------------------------------------------
    \13\ Clinton v. Jones, 520 U.S. 681, 713 (1997) (Breyer, J., 
concurring in the judgment).
---------------------------------------------------------------------------
    The application of a different standard to the impeachment of the 
President than the impeachment of federal judges is also not without 
precedent in this body. The House Judiciary Committee in 1974 declined 
to file an Article of Impeachment against President Nixon based on the 
allegations that he filed false tax returns from 1969 through 1972. The 
Committee's decision was based largely on its determination that an 
instance of private misconduct, even if criminal, did not amount to an 
impeachable offense, as opposed to an extreme abuse of distinctly 
Presidential authority. By contrast, the Committee filed Articles of 
Impeachment against Judges Claiborne, Nixon and Hastings alleging 
similar conduct. The ``common law of impeachment'' has thus forged a 
distinction between a President and federal judges for impeachment 
purposes.
           x. your vote and america's rendezvous with destiny
    I do not believe that perjury is a trivial matter and, as I have 
noted in several opinions while serving on the U.S. Court of Appeals 
for the Third Circuit, perjury is a serious offense.\14\ But, I submit 
that the impeachment clause was not intended to give unlimited options 
to either an unrestrained committee of Congress or a super-aggressive 
Office of the Independent Counsel seeking to use the label of perjury 
to prosecute a President for what primarily was a dereliction of sexual 
morals, where the underlying sexual acts did not constitute a grave 
injury to the country.
---------------------------------------------------------------------------
    \14\ See, e.g., Fraternal Order of Police v. City of Philadelphia, 
859 F.2d 276 (3d Cir. 1988) (noting that ``the fifth amendment does not 
protect a citizen against the consequences of committing perjury''); 
Government of the Virgin Islands v. Martinez, 831 F.2d 46 (3d Cir. 
1987) (noting that the Supreme Court ``has consistently emphasized the 
gravity of perjured testimony''); United States v. Messerlian, 832 F.2d 
778 (3d Cir. 1987) (finding that ``the evidence of perjury as an `overt 
act' of conspiracy could legitimately support a conviction on Count 2 
by a rational trier of fact'').
---------------------------------------------------------------------------
    I submit that your individual vote will have a profound impact on 
the entire history and future of the United States of America. I would 
remind you once again of the incisive words of Luther Standing Bear: 
``Thought comes before speech.'' I pray that this Committee will, in a 
non-partisan way, rise to its highest potential of statesmanship by 
giving this issue its calm and insightful thought before speaking and 
casting a vote that will affect America's rendezvous with destiny.
    I wish to acknowledge the valuable contributions of my colleagues 
Tiffany S. Bingham, Carol Derby, Michael J. Mannheimer, Joanne L. 
Monteavaro, Shaun M. Palmer, Joseph Sansone, Amy B. Vernick and Linda 
Y. Yueh.
    Mr. Hyde. Mr. Richardson, Ambassador Richardson.

STATEMENT OF HON. ELLIOT L. RICHARDSON, MILBANK, TWEED, HADLEY 
                    & McCLOY, WASHINGTON, DC

    Mr. Richardson. Mr. Chairman and members of the committee, 
thank you for giving me this opportunity to share with you my 
perspective on the responsibilities thrust upon you by 
President Clinton's conduct. It is a perspective gained from 
experience not only as a U.S. Attorney General, but also as a 
State attorney general and U.S. attorney. In fact, I may well 
be the only person who has held all three of those jobs. I will 
be glad, of course, to respond to your questions and hope that 
my testimony will in the end have contributed to saving more 
time than it cost.
    As you have reminded us, Mr. Chairman, the principal focus 
of this hearing is on the consequences of perjury and related 
crimes. That certainly has to be the area of your and your 
fellow citizens' primary concern. It does not follow, however, 
that there needs to be comparable emphasis on evidentiary 
matters. There is no material difference, indeed, between the 
Starr report's allegations and the President's admissions: It 
is accepted that he did in fact over a period of months deny, 
withhold and misrepresent the truth as to his relationship with 
Monica Lewinsky. This committee, moreover, has no need to 
decide whether or not these lies constitute perjury as that 
term is defined by criminal law. Taking into account the 
number, persistence, and context of these lies, as well as the 
fact that they were deliberately intended to mislead bodies 
officially charged with pursuing the truth, you could 
reasonably regard them as warranting impeachment, even though 
they may not fall within the definition of perjury.
    But Article II, Section 4 of the Constitution specifies 
that on conviction by the Senate for an impeachable offense, 
the only available penalty is removal from office. To 
contemplate impeachment, therefore, is to raise the question of 
whether or not the circumstances justify so drastic a penalty.
    The members of this committee, I submit, already have all 
the information they need on which to base their own individual 
answers to this question. If a majority of you conclude that 
the answer to this question should be no, it is obvious that 
the actual adoption by the House of Representatives of 
impeachment charges would be pointless. Worse, such action 
would automatically transmit those charges to the Senate for 
trial, thus indefinitely prolonging final resolution of this 
matter. The Senate itself, meanwhile, would have no alternative 
but to convict or acquit: No intermediate outcome would be 
possible.
    This body, by contrast, is in a position right now to 
submit to the House as a whole its best judgment as to an 
intermediate course. And since, unlike a judicial sentence, 
such an outcome--censure or rebuke, with or without a formal 
acknowledgment of guilt--cannot be made proportional in 
severity to the seriousness or number of the offenses charged, 
an attempt by the House to make the grounds for its 
intermediate action seem more precise would serve no useful 
purpose.
    To my mind, the intermediate course offers the most 
appropriate and least destructive solution. The initial 
wrongdoing was not criminal, and did not, in contrast to that 
of Richard Nixon, entail the abuse of power. Given a 
President's unique status as a Chief Executive whose authority 
derives from a majority vote of the American people, his crimes 
or misdemeanors should, in order to justify his removal, have 
to be higher than those at issue here.
    Thank you, Mr. Chairman. That completes my prepared 
statement.
    Mr. Hyde. Thank you, Mr. Richardson.
    [The prepared statement of Mr. Richardson follows:]
Prepared Statement of Hon. Elliot L. Richardson, Milbank, Tweed, Hadley 
                        & McCloy, Washington, DC
    Mr. Chairman and members of the committee: Thank you for giving me 
this opportunity to share with you my perspective on the 
responsibilities thrust upon you by President Clinton's conduct. It is 
a perspective gained from experiences as a U.S. Attorney, State 
Attorney General, and Attorney General of the United States. In fact, I 
believe that I'm the only person who has held all three of these jobs. 
I will be glad, of course, to respond to your questions and hope that 
my testimony will in the end have contributed to saving more time than 
it cost.
    The principal focus of this hearing, I understand, is on issues of 
perjury and related crimes. That, certainly, has to be the area of your 
and the nation's primary concern. It does not follow, however, that 
there needs to be comparable emphasis on evidentiary matters. There is 
no material difference, indeed, between the Starr report's allegations 
and the President's admissions: it is accepted that he did in fact over 
a period of months deny, withhold, and misrepresent the truth as to his 
relationship with Monica Lewinsky. This committee, moreover, has no 
need to decide whether or not these lies constitute ``perjury'' as that 
term is defined by criminal law. Taking into account the number, 
persistence, and context of these lies as well as the fact that they 
were deliberately intended to mislead bodies officially charged with 
pursuing the truth, you could reasonably regard them as warranting 
impeachment even though they may not come within the definition of 
perjury.
    But Article II, Section 4 of the Constitution specifies that on 
conviction by the Senate for an impeachable offense the only available 
penalty is removal from office. To contemplate impeachment, therefore, 
is to raise the question of whether or not the circumstances justify so 
drastic a penalty. The members of this committee already have all the 
information they need on which to base their answers to this question. 
If a majority of you conclude that the answer to this question should 
be ``no,'' it will then be obvious that the actual adoption by the 
House of Representatives of impeachment charges would be pointless. 
Worse, such action would automatically transmit those charges to the 
Senate for trial, thus indefinitely prolonging final resolution. The 
Senate itself, meanwhile, would have no alternative but to convict or 
acquit: no intermediate outcome would be possible.
    This body, by contrast, is in a position right now to submit to the 
House as a whole its best judgment as to an intermediate course. And 
since, unlike a judicial sentence, such an outcome--censure or rebuke, 
with or without acknowledgment of guilt--cannot be made proportional in 
severity to the seriousness or number of the offenses charged, an 
attempt by the House to make the grounds for its intermediate action 
seem more precise would serve no useful purpose.
    To my mind, the intermediate course offers the most appropriate and 
least destructive solution. The initial wrongdoing was not criminal and 
did not, in contrast to that of Richard Nixon, entail the abuse of 
power. Given a President's unique status as a chief executive whose 
authority derives from a majority vote of the American people, his 
crimes or misdemeanors would, in order to justify his removal, have to 
be higher than those at issue here.
    Thank you, Mr. Chairman. That completes my prepared statement.

    Mr. Hyde. Admiral Edney.

        STATEMENT OF LEON A. EDNEY, ADMIRAL, USN (RET.)

    Mr. Edney. Good afternoon, Mr. Chairman. It is a pleasure 
to appear before your distinguished committee today. I ask that 
you bear with my voice today. One of the benefits of reaching 
my stage in life is that you get to take your grandchildren to 
the Macy's Day Parade. Those that witnessed it this year, it 
rained the entire time, but I did enjoy my time in the Big 
Apple.
    In view of my particular experience as a career military 
officer serving this Nation's defense needs for 37 years, I 
will focus my remarks on the importance of ethics and integrity 
in the military chain of command of this great country, and at 
the top of that chain of command, as we all recognize, is our 
Commander in Chief.
    We live in a society that more and more is transmitting a 
confused message on the subject of ethics and integrity, so 
much so that it often makes one wonder if we are losing our 
way. Faced with this reality, the Armed Forces have concluded, 
all personnel must be inculcated repeatedly with the 
requirement and expectation that military leadership must 
evolve from a foundation of trust and confidence. Ethics and 
integrity of our military leadership must be much higher than 
the society at large, and even the elected officials that serve 
that society. Success in combat, which is our business, depends 
on trust and confidence in our leaders and in each other. 
Ethics and integrity are the basic elements of trust and 
confidence, both in our military leadership, both from above 
and, more importantly, from below.
    So today in our military, we are asking our people, what is 
right? Why do what is right? The moralist answer is, because it 
is the right thing to do. Our answer is, because the trust and 
confidence required of our profession demands it. This trust 
and confidence must exist up and down the chain of command 
where operations require execution of orders that endanger 
lives. Doing what is right based on the whole truth must be 
natural and automatic to the American military officer.
    Whenever one reflects on the need for ethics within the 
military profession as executed by those who have the privilege 
of leading the American soldier, sailor, marine, airman and 
Coast Guardsman and the duty of defending our national security 
interests, I believe it is necessary to reflect on the roots of 
our Nation, for it is there where the higher calling of this 
Nation, some call it a moral purpose that we serve today, 
began. We must never forget the values that this Nation was 
founded on. They are marked forever by the lives of those who 
fought and gave the ultimate sacrifice for those principles and 
beliefs.
    I would submit to you, while there are many effective 
styles of leadership, two essential ingredients of successful 
military leadership are integrity and ethics. Rank and high 
positions do not confer privileges. They entail unavoidable 
responsibilities and accountability. Young Americans, and that 
is who fights and loses their lives in our wars, and we should 
never forget it, young Americans in our military place their 
leadership on a pedestal of trust and confidence when they earn 
it. The troops have the right to expect unfailing professional 
performance and integrity from each level of leadership. As 
military leaders at all levels, we need to consistently display 
that match between words and deeds, between laws and 
compliance, between institutional values and behavior.
    Now, the catch is this match must take place 24 hours a 
day. There is no duty time and that off time where you can let 
your hair down and not represent these basic values. There can 
be no compromise on this issue, when professionally the 
ultimate you can demand of a subordinate is that he or she lay 
down their life in the execution of your orders on behalf of 
this country.
    When all is said and done, military leadership must have a 
moral base, a set of ethical values to keep us true to the high 
ideals of our forebears, who provided us the cherished 
inheritance of freedom and justice. The integrity of an 
officer's word, signature, commitment to truth concerning what 
is right, and acting to correct what is wrong, must be natural, 
involved and rise to the forefront of any decision or issue. 
Leadership by example must come from the top; it must be 
consistently of the highest standards, and it must be visible 
for all to see. Do as I say and not as I do won't hack it in 
our military. This country is firmly entrenched in the 
principle of civilian leadership of our military and the 
authority of the President of the United States. Therefore, I 
believe those who hold that leadership position to be credible 
should meet the same standards.
    America and our Armed Forces have always stood on the side 
of right and human decency. You do not throw these core values 
away in the process of defending them. You also do not lower 
the bar of ethical standards and integrity when individuals 
fail to live up to them. We must continue to remove those who 
fall short and seek those who meet and exceed the requirements. 
Dual standards and less accountability at the top will 
undermine the trust and confidence so essential to good order 
and discipline, as well as mission success.
    Mr. Hyde. I would remind you that you need to close.
    Admiral Edney. The fact is these are core values for 
military leadership. Concerning what is right and what is 
wrong, there are any number of courses of action that they can 
take. Mistakes will happen and can be corrected, usually with a 
positive learning curve. To cover up mistakes and 
responsibility by lying or obstruction cannot be tolerated. The 
leadership of our Armed Forces must be based on principle, not 
litigious double-talk. Thus, the leadership trade of our 
military as well as the civilian leaders of the military must 
demonstrate above all else a commitment to integrity and ethics 
on a daily basis.
    In summary, we must learn from our past mistakes, but we 
must get on with the business at hand and focus on the future, 
not our wake. Military readiness and mission accomplishment 
depends on the trust and confidence and the integrity of our 
leader. The actions of the leader are more important than the 
words. It is important for those who lead to know what you 
stand for. It is also important to know what you won't stand 
for.
    Finally, regardless of what the exit polls say, the 
character of a nation and its leaders does matter, and it 
matters most to those who are prepared to lay down their lives 
for that nation. Those entrusted with the defense of our Nation 
are in the risk-taking business.
    Finally, our leaders must eschew obfuscation in all we do. 
Our national leaders must talk straight and with integrity on 
every issue. If we lie to ourselves as an institution, or as 
individuals within that institution, we are laying the seeds of 
our own individual and national destruction.
    Thank you for the privilege of addressing this committee.
    Mr. Hyde. Thank you, Admiral.
    [The prepared statement of Mr. Edney follows:]
        Prepared Statement of Leon A. Edney, Admiral, USN (Ret.)
    Mr. Chairman, I appear before your distinguished committee today to 
participate in a panel discussion addressing leadership and ethics as 
they relate to the current issues before this committee and the nation. 
In view of my particular experience as a career military officer 
serving this nation's defense needs for over 37 years, I will focus my 
remarks on the importance of ethics and integrity in the military 
leadership of this great country of ours. For the past 2 years, I have 
been the full-time occupant of the Distinguished Leadership Chair at 
the U.S. Naval Academy. This Chair is endowed by the private donation 
of one the Academy's alumni and therefore my remuneration is not paid 
for with government or taxpayers' dollars. I spend my time teaching 
ethics 3 days a week, leadership 2 days a week and participate in a 
Brigade-wide Integrity Development Program once a month. This is an 
indicator of the relevance and importance placed on these subjects by 
those charged with developing the ethical-based leadership required by 
our officer corps. While I provide this information as background, I 
appear before you today and make this statement as a concerned 
individual citizen and retired military officer; not as a 
representative of any organization with which I am currently 
affiliated.
    We live in a society that more and more is transmitting a confused 
message on the subject of ethics and integrity, which makes one wonder 
if we are losing our way. In our last Presidential election, both 
candidates emphasized family values, one wanted two parents to be the 
center of the family responsibilities. The other felt it takes a 
village of caring people to raise our children; it seems to me both 
were right. When we look in the window of the American society to see 
how we are doing, the picture is not too comforting. Approximately one 
out of four babies born today is illegitimate and 25% of all children 
are being raised by a single parent. Even in the declining base of our 
more traditional two-parent families, both parents routinely work full-
time jobs. It often appears we are more interested in raising wealth 
than our children. Consequently, TV viewing is up 60% among our 
children and scanning the Internet, not reading the classics, is a 
close second. Those interested in leadership and ethics development 
must ask this question: What ethical messages are our children getting 
from many afternoon TV talk shows as well as the prime time violence 
and comic titillation on TV in the evening? Now this same material is 
easily available on the Internet. Recent surveys indicate 70% of 
college students admit cheating at least once. You can buy books on how 
to cheat and succeed in most off-campus book stores. The suicide rate 
among teens is up 11% in the last 5 years. Crime and drugs remain 
dominant factors in our cities. More interesting is the fact that 50% 
of our crime involves employees stealing from employers. These are 
values and lessons of life that are getting transmitted to our youth. 
It is often a message that subtly implies: So what if it is wrong, 
everyone is doing it. This is the background from which our entry-level 
enlisted and officers are coming from.
    Faced with this reality, the armed forces have concluded, all 
personnel must be inculcated repeatedly with the requirement and 
expectation that military leadership must evolve from a foundation of 
trust and confidence. The ethics and integrity of our military 
leadership must be much higher than the society at large and even the 
elected officials that serve that society. Success in combat, which is 
our business, depends on trust and confidence in our leaders and each 
other. Ethics and integrity are the basic elements of trust and 
confidence in our military leadership, both from above and more 
importantly from below.
    While the requirements for successful military leadership are 
clear, it is also clear we do not always meet these standards. At the 
end of the Gulf War, just 7 years ago, our military and its leaders 
stood at the pinnacle of professional performance and public esteem 
following the dramatic successes in the Gulf War. We led everyone's 
list of those for whom the public had trust and confidence. Since then 
we have had Tailhook as a watershed event. There have been serious 
sexual harassment and ethical behavior charges in all the services, 
many involving very senior leadership that have resulted in more than a 
dozen flag officers being removed from office for violations of 
integrity and ethics. The issue of chemical weapons exposure in the 
Gulf War raises questions concerning straight talk if not the integrity 
of the leadership with regards to our troops and the public. Leadership 
within the Army has been tarnished by Skin Head racial incidents at 
Fort Bragg, the revelations at Aberdeen and the alleged abuses of the 
former Sergeant Major of the Army. The tragic shoot down of friendly 
helicopters in Northern Iraq as well as several Navy and Marine air 
accidents also raised questions of confidence and integrity in the 
military training process. The Naval Academy had the EE Cheating 
Scandal in 1993-1994 plus a few highly publicized incidents of drug use 
and car thefts by members of the Brigade. The Marine Corps had cheating 
on exams at their Officers Basic School, the publicized tradition of 
blood pinning and the recent relief of a commander in the field for 
apparently advocating the destruction of any films documenting routine 
failures in flight discipline. Unfortunately, I could list more 
examples but the message is our house does not look in order on the 
issue of ethics and integrity, no matter where you look from the White 
House to the house next door. Whenever these disconnects between our 
standards of behavior and our actions occur, the solution is not to 
lower our standards. Rather, we must maintain the standards and improve 
our performance while holding those who fail accountable.
    In the military profession, a breach of your integrity, ethics or 
honor is always accompanied by a leadership failure. The bottom line 
for our military leadership requirements is that integrity and ethics 
cannot be taken for granted or treated lightly at any level of training 
or interaction. All our personnel must be inculcated repeatedly with 
the requirement that military leadership must evolve from a foundation 
of trust and confidence in our ethics and core values of honor, courage 
and commitment to do what is right. Today we are asking our people, 
What is right? Why do what is right? The moralist answer is because it 
is the right thing to do. Our answer is because the trust and 
confidence required of our profession demands it. Doing what is right 
based on the whole truth must be natural and automatic for the American 
military officer. We need to clearly identify our core values and 
repeatedly reinforce them among all members of the armed forces so that 
they become second nature.
    Whenever one reflects on the need for ethics within the military 
profession, as executed by those who have the privilege of leading the 
American soldier, sailor, airman, marine and Coast Guardsman in the 
duty of defending our national security interests, I believe it is 
necessary to reflect on the roots of our nation. For it is there where 
the higher calling of this nation, some call it a moral purpose that we 
serve today, began. Some current day thinking would have us believe 
that those who espouse a bridge to the past have no vision. I submit if 
the vision of the present is missing the values that this nation was 
founded on, we should strengthen that bridge to the past, for it is 
built on the lives of those who fought and gave the ultimate sacrifice 
for those principles and beliefs.
    While there are many effective styles of leadership, two essential 
ingredients of successful military leadership are integrity and ethics. 
Rank and high positions do not confer privileges; they entail 
unavoidable responsibilities and accountability. Young Americans in our 
military place their leadership on a pedestal of trust and confidence 
when we earn it. They have the right to expect unfailing professional 
performance and integrity from each level of leadership. Military 
leaders at all levels need to consistently display that match between 
words and deeds, between rules and compliance, between institutional 
values and behavior. The catch is this match must take place 24 hours a 
day, there is no duty and then off time where you can let your hair 
down and not represent these core values. There can be no compromise on 
this issue in a profession where the ultimate you can demand of a 
subordinate is that they lay their life on the line in the execution of 
your orders.
    When all is said and done, military leadership must have a moral 
base, a set of ethical values, to keep us true to the high ideals of 
our forbears who provided us the cherished inheritance of freedom. The 
integrity of an officer's word, signature, commitment to truth, 
discerning what is right and acting to correct what is wrong; these 
must be natural, involved and rise to the forefront of any decision or 
issue. Leadership by example must come from the top, it must be 
consistently of the highest standards and it must be visible for all to 
see. Do as I say and not as I do just won't hack it! This country is 
firmly entrenched in the principle of civilian leadership of our 
military in the authority of the President. Therefore, those who hold 
that leadership position, to be credible, must meet the same standards.
    America and her Armed Forces have always stood on the side of right 
and human decency. You do not throw these core values away in the 
process of defending them. You also do not lower the bar of ethical 
standards and integrity when individuals fail to live up to them. We 
must continue to remove those who fall short and seek those who meet 
and exceed the requirements. Dual standards and less accountability at 
the top will undermine the trust and confidence so essential to good 
order and discipline as well as mission success. The fact is, core 
values for military leaders and their civilian Commander in Chief 
remain in effect no matter where they are or what they are doing, 24 
hours a day. When observed by anyone, they must reflect the 
institution's core values of respect for decency, human dignity, 
morality and doing what is right--in or out of uniform, on or off duty. 
I believe that ethical men and women have a conscience that warns you 
when you are about to cross the line from right to wrong. The true test 
of integrity for the ethical leader is doing what is right when no one 
is watching. He or she knows and that is all that is required to do 
what is right. Unfortunately, those few senior military and civilian 
officials that bring shame on themselves, their families and their 
country by ethical indiscretions were probably doing the same thing as 
more junior officials. It was not newsworthy then, but it was just as 
wrong. If in these cases the leader chooses to lie or otherwise avoid 
his/her responsibilities, the continuation of that military leadership 
is adverse to morale, good order and discipline and eventually combat 
effectiveness. As has been said on many occasions: ``Habit is the daily 
battleground of character.''
    I agree with Stephen Crater's three requirements for ethical action 
on issues of integrity. First, discern what is right and what is wrong 
based on all the facts and the truth. This takes pro-active involvement 
not selective avoidance. Second, you must act on what you discern to be 
wrong, even at personal cost and I might add the corrective action must 
be effective. And third, openly justify your actions as required to 
meet the test of right and wrong. Under this clear definition, whenever 
an individual or collective breakdown in our core values is observed, 
immediate corrective action must be taken. There are any number of 
courses of action available and the best one will depend on the 
circumstances at the time. What is never acceptable, is the toleration 
of observed wrong actions or the acceptance of an environment that 
allows wrong actions to occur. To allow this is a fundamental breakdown 
in the integrity of the leadership responsibilities and trust placed in 
the acceptance of one's oath of office. Above all else, military 
leadership is a commitment to seek out responsibility, to understand 
and accept accountability, to care, to get involved, to motivate, to 
get the job done right the first time, through our people. Mistakes 
will happen and can be corrected, usually with a positive learning 
curve. The coverup of mistakes and responsibility by lying or 
obfuscation cannot be tolerated. The leadership of our Armed Forces 
must be based on principle, not litigious double talk. Thus the 
leadership traits of our military as well the civilian leadership of 
the military must demonstrate above all else, a commitment to integrity 
and ethics on a daily basis. This must be most visible at the top, if 
we as a nation are to meet our constitutional responsibilities to 
``Provide for the Common Defense'' now burdened with the mantle of 
world leadership.
    In closing, I offer the following summary observations on ethics 
and military leadership:
           We must learn from our past mistakes, but we must 
        get on with the business at hand and focus on the future, not 
        our wake. We have a cadre of young leadership in our armed 
        services that makes me confident for the future.
           Ethics and integrity essential for successful 
        military leadership starts at the top. In our country the top 
        military leadership is subject to duly elected civilian 
        authority specifically empowered in the office of the President 
        of the United States.
           Military readiness and mission accomplishment 
        depends on trust and confidence in the integrity of the leader.
           Actions of the leader are more important than words.
           It is important for those you lead to know what you 
        stand for and equally important what you won't stand for.
           Loyalty down is just as important as loyalty up.
           Regardless of what the exit polls imply, the 
        character of a nation and its leaders does matter and it 
        matters most to those who are prepared to lay down their lives 
        for that nation. Those entrusted with the defense of our nation 
        are in a risk-taking business. If we ever become risk adverse 
        because the integrity of our leadership is in question or even 
        perceived to be in question, we all lose.
           Finally, our leaders must ``eschew obfuscation'' in 
        all we do. Our national leaders must talk straight and with 
        integrity on every issue. If we lie to ourselves as an 
        institution or as individuals within that institution, we are 
        laying the seeds of our own individual and national 
        destruction.
    Thank you for the privilege of addressing this Committee on these 
important issues.

    Mr. Hyde. Lieutenant General Carney.

 STATEMENT OF THOMAS P. CARNEY, LIEUTENANT GENERAL, USA (RET.)

    Mr. Carney. Thank you, Mr. Chairman, members of the 
committee. I have been asked to testify to the importance of a 
code of ethics and particularly to integrity on the 
effectiveness of military forces. I emphasize as you did, Mr. 
Chairman, I am speaking for myself as a private citizen who 
happens to be a retired Army lieutenant general; I am not 
speaking for the military.
    Prior to attending West Point almost 40 years ago, my 
Jesuit high school mentor made me aware that I would have to 
swear an oath and that I better be comfortable with it. When I 
read it, I found it to be an oath I could live with. Later at 
West Point I learned how unique it was in military history. 
American servicemen and women swear allegiance to the concepts 
embodied in a document. We do not swear allegiance to a king or 
a President or the motherland or to the regiment. We swear to 
support and defend the Constitution of the United States 
against all enemies, foreign and domestic, and to bear true 
faith and allegiance to the same. Even in retired status, we 
live by that oath.
    Indeed, even in retired status we are subject to the 
Congress's body of law for the military known as the Uniform 
Code of Military Justice, to include Article 88, which 
precludes contentious words against the President, and I intend 
certainly not to make any such remarks today, although I 
believe actions to which he admitted we would find personally 
to be contemptuous. Of course, also included in that oath is 
that we will, and I quote, ``obey the orders of the President 
and the officers appointed over me.'' That is in the oath, and 
that is not negotiable.
    We have a professional military today, the best the world 
has ever seen. It is not a drafted military, as the one I first 
joined; it is a military that is guided by its oath and by its 
supporting code of ethics. Regardless of the service, as the 
admiral has pointed out, these codes are quite similar, but I 
will discuss the Army's in particular, of which I am most 
familiar.
    The first of those codes I encountered was the West Point 
motto: Duty, Honor, Country; three simple words that I still 
study today. The boundless nature of the word ``country'' is 
best described in article 1 of the prisoner of war's code of 
conduct. Quote: ``I am an American fighting man. I serve in the 
forces which guard my country and our way of life, and I am 
prepared to give my life in their defense.''
    The word ``honor'' includes all the chivalrous aspects of 
the word, including integrity. Integrity was very clearly 
delineated for us in the cadet honor code. Quote: ``A cadet 
does not lie, cheat or steal, nor associate with those who 
do.'' No one ever made a distinction about whether or not you 
were under oath or not.
    The rationale for the code went beyond the notion that 
honorable men do not lie, cheat or steal. It included the 
reality that battlefield reports impact decisions that affect 
the outcomes of battles and the lives of soldiers. 
Consequently, soldiers don't want to serve with or around other 
soldiers that they don't trust. For this trust to exist, the 
military must insist on the highest standards of integrity.
    And the word ``duty'' in the duty, honor, country motto 
said to us that we are not just prepared to give our lives, we 
are prepared to live tough lives as well. So today, soldiers 
are months away from their families serving in Haiti, Bosnia, 
and Croatia, Macedonia, Kuwait, Korea, Central America and 
elsewhere.
    Now, there have been very good efforts over the years to 
add clarity to the words, duty, honor, country, and in my view 
none has been any better than the recent articulation of the 
seven Army values. This particular card is carried in the 
wallets of all of the U.S. soldiers, and a dog tag, slightly 
smaller, is worn on their dog tag chains. Those three words I 
discussed are expounded on in the seven words duty, honor, 
loyalty, integrity, selfless service, courage, and respect for 
others. Note that integrity has now been separately listed from 
honor to add even more emphasis to its importance.
    Why is it important that the military services be value-
based institutions? There are both external and internal 
reasons. Externally, to paraphrase a great American, America's 
military is created by America, is for America, and is from 
America. It hasn't been any other way for the 225 years of its 
history, and particularly the last 25, since the draft ended. 
It is not really an all-voluntary Army, it is an all-recruited 
Army, and each year a half a million American men and women 
have to personally elect to join it, and another 1.8 million 
have to elect to remain. That is truly from America. So the 
military must have a positive image, or frankly, we will have 
to return to the draft.
    Despite occasional mistakes and setbacks, the military has 
been the most admired institution in America for almost two 
decades, according to the Gallup Poll's survey of Americans' 
confidence in their institutions. It is my own view as an old 
recruiter that it can't be any other way. If you erode the 
value system, Americans will not be proud to join, nor to stay. 
Fortunately, today's highest military leaders are attuned to 
this reality, and none of them need to be reminded of the 
importance of an ethical climate. They talk it, and they walk 
the talk.
    The internal reasons for having solid values. Those half 
million who join us every year come from all backgrounds and 
all walks of life, and not every one of them has had the 
advantage of being born to parents like my mom and dad. Not all 
of them have been exposed to the Ten Commandments and the 12 
points of the Scout law, so the Army has an aggressive program 
of character development starting with basic training.
    I am not so naive as to think that the Army of a million 
men and women, Active, Guard and Reserve, are void of weak 
leaders. Certainly not. But the good news is that there are 
systems to weed them out in peacetime so that the terrible 
wartime consequences can be avoided.
    Will soldiers follow weak leaders that don't abide by the 
standards I have attempted to describe? The answer is yes. They 
must, for they are bound by their oath to ``obey the orders of 
the President and the officers appointed over me.'' But the 
difference between an average unit and the best unit is most 
often its leaders. Great leaders, men of character, inspire 
soldiers to do extraordinary things. Conversely, a general 
malaise hangs over units whose leaders are weak. Soldiers want, 
indeed deserve, leaders who are held accountable for the same 
standards that they are held. The credibility of the system is 
at stake when that is not the case. The military cannot afford 
to have its standards viewed as irrelevant or out of step. 
Military leadership development programs, the code of ethics 
and the Uniform Code of Military Justice all work together in 
concert to ensure that the standards are applied equally up and 
down the chain.
    I look forward to your questions, sir.
    Mr. Hyde. Thank you, General.
    [The prepared statement of Mr. Carney follows:]
 Prepared Statement of Thomas P. Carney, Lieutenant General, USA (Ret.)
    I have been asked to testify to the importance of a Code of Ethics, 
and particularly integrity, to the effective leadership of military 
forces. My biographical sketch was sent to the committee last week. To 
summarize it, my active duty military career ended 4\1/2\ years ago as 
the Army's Deputy Chief of Staff for Personnel. One of my duties in 
that position was to advise the Chief of Staff on leader development 
programs. Prior to that time I had the privilege of leading American 
soldiers on three continents from platoon to division level. That 
experience included two Infantry combat tours in Vietnam, including 
command of a company of paratroopers.
    Prior to attending West Point almost 40 years ago, my Jesuit high 
school mentor made me aware that I would have to swear an oath, and 
that I'd better be comfortable with it. When I read it I found it to be 
an oath I could live with. Later at West Point I learned how unique it 
was in military history. American servicemen and women swear allegiance 
to the concepts embodied in a document. We do not swear allegiance to a 
king or a president or the motherland or the regiment. We swear to 
support and defend the Constitution of the United States against all 
enemies, foreign and domestic, and to bear true faith and allegiance to 
the same. Even in retired status we live by the oath--indeed, even in 
retirement we are subject to the Congress' body of law for the military 
known as the Uniform Code of Military Justice.
    Of course, also included in that oath is that we will, and I quote, 
``. . . obey the orders of the President and the officers appointed 
over me.'' That's in the oath. It is non-negotiable.
    We have a professional military today--the best the world has ever 
seen. It's not a drafted military as was the one I first joined. It's a 
military that is guided by its oath and by its supporting code of 
ethics. Regardless of the service, they are all quite similar. I will 
discuss the Army's, of which I'm most familiar.
    The first of those codes I encountered is the West Point motto--
Duty, Honor, Country. Three simple words that I'm still studying to 
this day.
    The boundless nature of the word ``Country'' is best described in 
Article I of the Prisoner of War's Code of Conduct: ``I am an American 
fighting man. I serve in the forces which guard my country and our way 
of life. I am prepared to give my life in their defense.''
    The word ``Honor'' included all the chivalrous aspects of the word, 
including integrity. Integrity was very clearly delineated for us in 
the Cadet Honor Code: ``A cadet does not lie, cheat or steal, nor 
associate with those who do.'' The rationale for the code went beyond 
the notion that honorable men do not lie, cheat or steal. It included 
the reality that battlefield reports impact decisions that affect the 
outcome of battles and the lives of soldiers. Consequently soldiers 
don't want to serve with or around other soldiers they don't trust. For 
this trust to exist, the military must insist on the highest standard 
of integrity.
    And the word ``Duty'' in the Duty, Honor, Country motto, said to us 
that we're not just prepared to give our lives, we're prepared to lead 
a tough life as well. We're prepared to move our family and our 
household 28 times in 31 years. We're prepared to spend countless 
nights and days in field training, or to jump out the door of a 
perfectly good airplane on a moonless night. And today's soldiers can 
add months away from their families while in Haiti, Bosnia, Croatia, 
Macedonia, Kuwait, the Sinai, Korea, Germany, Central America and 
elsewhere.
    There have been very good efforts over the years to amplify on the 
meaning of Duty, Honor, Country. In my view none has been any better 
than the recent articulation of the seven Army values:
          Duty
          Honor
          Loyalty
          Integrity
          Selfless Service
          Courage
          Respect for Others
Note that Integrity has now been separately listed from Honor to add 
even more emphasis to its importance.
    Why is it important that the military services be values-based 
institutions? There are both external and internal reasons. Externally, 
to paraphrase a great American, America's military is created by 
America, is for America and is from America. It hasn't been any other 
way for 225 years, but particularly the last 25 years since the draft 
ended. This is not really an all-volunteer Army--it's an all-recruited 
Army. Each year a half-million young American men and women have to 
personally elect to join the military, and another 1.8 million have to 
elect to remain. That is truly ``from America.'' So the military must 
have a positive image or frankly, we'll have to return to the draft. 
Despite occasional mistakes and setbacks, the military has been the 
most admired institution in America for almost two decades, according 
to the Gallup poll survey of Americans' confidence in their 
institutions. It's my personal view as an old recruiter that it can't 
be any other way. Erode the value system and Americans will not be 
proud to join nor to stay.
    Fortunately today's highest military leaders are attuned to this 
reality--and none of them need to be reminded of the importance of an 
ethical climate. They talk it, and they walk the talk.
    Now consider the internal military reasons for having a solid set 
of core values. Those half-million who join us every year come from all 
backgrounds and all walks of life. Not every one of them has had the 
advantage of being born to parents like my mom and dad. Not all of them 
have been exposed to the Ten Commandments or the 12 points of the Scout 
Law. So the Army has an aggressive program of character development 
starting with basic training.
    Now I am not so naive as to think that an Army of a million men and 
women, Active, Reserve, Guard, are void of weak leaders. Certainly not. 
But the good news is that there are systems to weed them out in 
peacetime so that the terrible wartime consequences can be avoided.
    Will soldiers follow weak leaders that don't abide by the standards 
I've attempted to describe? The answer is yes. They must, for they are 
bound by their oath ``to obey the orders of the President and the 
officers appointed over me.''
    But the difference between an average unit and the best unit is 
most often its leaders. Great leaders, men of character, inspire 
soldiers to do extraordinary things. Conversely, a general malaise 
hangs over units whose leaders are weak. Soldiers want, indeed deserve, 
leaders who are held accountable for the same standards that they are 
held. The credibility of the system is at stake when that is not the 
case. The military cannot afford to have its standards viewed as 
irrelevant or out of step. Military leadership development programs, 
the code of ethics and the Uniform Code of Military Justice all work 
together in concert to insure that the standards are applied equally up 
and down the chain of command.
    I look forward to your questions.

    Mr. Hyde. Professor Dershowitz.

STATEMENT OF ALAN M. DERSHOWITZ, FELIX FRANKFURTER PROFESSOR OF 
                    LAW, HARVARD LAW SCHOOL

    Mr. Dershowitz. Thank you. For nearly a quarter of a 
century I have been teaching, lecturing and writing about the 
corrosive influences of perjury on our legal system, especially 
when committed by those whose job it is to enforce the law, and 
ignored, or even legitimized, by those whose responsibility it 
is to check those who enforce the law.
    I appreciate very much your asking me to share my 
experience and expertise here with you today. On the basis of 
my academic and professional experience, I believe that no 
felony is committed more frequently in this country than the 
genre of perjury and false statement crimes. Perjury during 
civil depositions and trials is so endemic that a respected 
appellate judge once observed that ``experienced lawyers say 
that, in large cities, scarcely a trial occurs in which some 
witness does not lie.'' Police perjury in criminal cases, 
particularly in the context of searches and other exclusionary 
rule issues, is so pervasive that the former police chief in 
San Jose and Kansas City has estimated that ``hundreds of 
thousands of law enforcement officials commit felony perjury 
every year testifying about drug arrests'' alone.
    But in comparison with their frequency, perjury crimes are 
among the most underprosecuted in this country. As prosecutor 
Michael McCann concluded, ``Outside of income tax violation, 
perjury is probably the most underprosecuted crime in 
America.'' Moreover, there is evidence that false statements 
are among the most selectively prosecuted of all crimes and 
that the criteria for selectivity bears little relationship to 
the willfulness or frequency of the lies, the certainty of the 
evidence, or any other neutral criteria relating to the 
elements of perjury.
    Historically, I think we can all agree that false 
statements have been committed of considerable variations in 
degree. The core concept of perjury grows out of the Bible, the 
Ten Commandments, ``bearing false witnesses,'' a term that 
consisted in accusing another falsely of a crime.
    Clearly the most heinous brand of lying is the giving of 
false testimony that results in the imprisonment of somebody 
who is innocent. Less egregious, but still quite serious, is 
false testimony that results in the conviction of a person who 
may be guilty, but whose rights were violated in a manner that 
would preclude conviction if the police testified truthfully. 
There are many other points on this continuum, ranging from 
making false statements about income taxes to testifying 
falsely in civil trials. The least culpable genre of false 
testimony are those that deny embarrassing personal conduct of 
marginal relevance to the matter at issue in the legal 
proceeding.
    I think it is clear that the false statements of which 
President Clinton is accused fall at the most marginal end of 
the least culpable genre of this continuum of offenses and 
would never even be considered for prosecution in the routine 
cases involving an ordinary defendant.
    My own interest in the corrosive influences of perjury 
arose from two cases that I appeared in as a young lawyer. In 
both cases the policemen were caught committing perjury, one on 
tape and the other by his own admission. In both cases, the 
policemen were promoted, not prosecuted. Neither of those 
policemen were called to appear as witnesses here today.
    All reports on the pervasive problems of police perjury and 
tolerance of the lying by prosecutors and judges point to a 
widespread problem. The Mollen Commission in New York, for 
example, concluded that the practice of police falsification is 
so common that it has spawned its own word: ``testilying.'' 
Officers also commit falsifications to serve what they perceive 
to be legitimate law enforcement ends and are committing 
perjury. The Commission provided several examples of perjury 
cover stories that had been suggested to young officers in 
order to make arrests.
    Many judges who listen to or review testimony on a regular 
basis agree with Judge Alex Kozinski of the ninth circuit who 
publicly stated, ``It is an open secret long shared by 
prosecutors, defense lawyers and judges that perjury is 
widespread among law enforcement officials,'' yet there is 
little apparent concern to remedy that serious abuse of the 
oath to tell the truth, even among those who now claim to be so 
concerned with the corrosive influences of perjury on our legal 
system.
    This committee, for example, in pursuance of its oversight 
mandate has never, to my knowledge, conducted hearings on this 
deeply corrosive issue, which has far more dangerous impact 
over our legal system than anything charged against President 
Clinton. If this were truly today an objective hearing on the 
consequences of perjury or on double standards, it would focus 
on the most serious types of perjury: that committed by police, 
with the approval of prosecutors and judges. Yet we see no such 
concern.
    A perfect example of the selective morality regarding 
perjury occurred when President George Bush pardoned the former 
Secretary of Defense Caspar Weinberger in 1992, even though the 
evidence was absolutely clear and convincing.
    The real issue is not the couple of convicted perjurers who 
appeared before this committee today or the judges who 
condemned the evils of perjury, but the hundreds of thousands 
of perjurers who are never prosecuted and who this committee 
does not seem to care about, many for extremely serious and 
calculated lies designed to undercut constitutional rights of 
unpopular defendants, and the judges who say nothing and do 
nothing about this corrosive phenomenon. You could not fit into 
this room or into this building all of the people who testified 
more perjuriously than President Clinton and were not ever 
prosecuted.
    If we really want to reduce the corrosive effect of perjury 
on our legal system, the place to begin is at or near the top 
of the perjury hierarchy. If, instead, we continue deliberately 
to blind ourselves to pervasive police perjury and other 
equally dangerous forms of lying under oath and focus on a 
politically charged tangential lie in the lowest category of 
possible perjury, hiding embarrassing facts by evasive answers 
to poorly framed questions which were marginally relevant to a 
dismissed civil case, we will be reaffirming the dangerous and 
hypocritical message that perjury will continue to be 
selectively prosecuted as a crime reserved for political or 
other agenda-driven purposes.
    A Republican aide to this committee was quoted in The New 
York Times as follows: ``In the hearing we will be looking to 
whether it is tenable for a Nation to have two different 
standards for lying under oath, one for the President and one 
for everyone else.''
    On the basis of my research and experience, I am convinced 
that if President Clinton were an ordinary citizen, he would 
not be prosecuted for his allegedly false statements. If 
President Clinton were ever to be prosecuted or impeached for 
perjury on the basis of the currently available evidence, it 
would, indeed, represent an improper double standard, a 
selectively harsher one for this President and perhaps a 
handful of other victims of selective prosecution and the usual 
laxer one for everyone else, especially popular police 
perjurers. Thank you.
    [The prepared statement of Mr. Dershowitz follows:]
 Prepared Statement of Alan M. Dershowitz, Felix Frankfurter Professor 
                       of Law, Harvard Law School
                                   i
    My name is Alan M. Dershowitz and I have been teaching criminal law 
at Harvard Law School for 35 years. I have also participated in the 
litigation--especially at the appellate level--of hundreds of federal 
and state cases, many of them involving perjury and the making of false 
statements. I have edited a casebook on criminal law and have written 
10 books and hundreds of articles dealing with subjects relating to the 
issues before this committee. It is an honor to have been asked to 
share my experience and expertise with you all here today.
    For nearly a quarter century, I have been teaching, lecturing and 
writing about the corrosive influences of perjury in our legal system, 
especially when committed by those whose job it is to enforce the law, 
and ignored--or even legitimized--by those whose responsibility it is 
to check those who enforce the law.
    On the basis of my academic and professional experience, I believe 
that no felony is committed more frequently in this country than the 
genre of perjury and false statements. Perjury during civil depositions 
and trials is so endemic that a respected appellate judge once observed 
that ``experienced lawyers say that, in large cities, scarcely a trial 
occurs in which some witness does not lie.'' He quoted a wag to the 
effect that cases often are decided ``according to the preponderance of 
perjury.'' \1\ Filing false tax returns and other documents under pains 
and penalties of perjury is so rampant that everyone acknowledges that 
only a tiny fraction of offenders can be prosecuted. Making false 
statements to a law enforcement official is so commonplace that the 
Justice Department guidelines provide for prosecution of only some 
categories of this daily crime. Perjury at criminal trials is so common 
that whenever a defendant testifies and is found guilty, he has 
presumptively committed perjury.\2\ Police perjury in criminal cases--
particularly in the context of searches and other exclusionary rule 
issues--is so pervasive that the former police chief of San Jose and 
Kansas City has estimated that ``hundreds of thousands of law-
enforcement officers commit felony perjury every year testifying about 
drug arrests'' alone.\3\
---------------------------------------------------------------------------
    \1\ Jerome Frank, Courts On Trial 85 (1949).
    \2\ Many such defendants now have years added on to their sentences 
under the federal guidelines, which add points for perjury at trial.
    \3\ Joseph D. McNamara, Has the Drug War Created an Officer Liars' 
Club? Los Angeles Times, Feb. 11, 1996, at M1.
---------------------------------------------------------------------------
    In comparison with their frequency, it is likely that false 
statement crimes are among the most under-prosecuted in this country. 
Though state and federal statutes carry stringent penalties for 
perjury, few perjurers ever actually are subjected to those penalties. 
As prosecutor E. Michael McCann has concluded, ``Outside of income tax 
evasion, perjury is . . . probably the most underprosecuted crime in 
America.'' \4\ Moreover, there is evidence that false statements are 
among the most selectively prosecuted of all crimes, and that the 
criteria for selectivity bears little relationship to the willfulness 
or frequency of the lies, the certainty of the evidence or any other 
neutral criteria relating to the elements of perjury or other false 
statement crimes. Professor Richard H. Underwood, the Spears-Gilbert 
Professor of Law at the University of Kentucky's law school, writes 
that:
---------------------------------------------------------------------------
    \4\ From Mark Curriden, The Lies Have It, A.B.A. J., May 1995, at 
71, quoted in Lisa C. Harris, Perjury Defeats Justice, 42 Wayne L. Rev. 
1755, 1768-69 (1996) (footnote omitted). See also Hon. Sonia Sotomayor 
& Nicole A. Gordon, Returning Majesty to the Law and Politics: A Modern 
Approach, 30 Suffolk U. L. Rev. 35, 51 n.52 (1996) (``Perjury cases are 
not often pursued, and perhaps should be given greater consideration by 
prosecuting attorneys as a means of enhancing the credibility of the 
trial system generally.''); Fred Cohen, Police Perjury: An Interview 
With Martin Garbus, 8 Crim. L. Bull. 363, 367 (1972), quoted in 
Christopher Slobogin, Testilying: Police Perjury and What to Do About 
It, 67 U. Colo. L. Rev. 1037, 1060 n.13 (1996) (``. . . no trial lawyer 
that I know will argue that police perjury is nonexistent or 
sporadic.'')

          . . . more often, the [perjury] law has been invoked for 
        revenge, or for the purpose of realizing some political end 
        (the very base reason that lies are sometimes told!), or for 
        the purpose of nabbing a criminal who might otherwise be 
        difficult to nab, or, dare I say it, for the purpose of gaining 
        some tactical advantage. Proving that perjury was committed, or 
        that a ``false statement'' or a ``false claim'' was made, may 
        be an easier, or a more palatable, brief for the 
        prosecution.\5\
---------------------------------------------------------------------------
    \5\ Richard H. Underwood, Perjury: An Anthology, 13 Ariz. J. Int'l 
& Comp. L. 307, 379 (1996).

    Historically, false statements generally have admitted of 
considerable variations in degree.\6\ The core concept of perjury was 
that of ``bearing false witness,'' a biblical term that consisted in 
accusing another of crime.\7\
---------------------------------------------------------------------------
    \6\ See, e.g., Richard H. Underwood, False Witness: A Lawyer's 
History of the Law of Perjury, 10 Ariz. J. Int'l & Comp. L. 215, 252 
n.157 (1993).
    \7\ See, e.g., Underwood, id. at 223 and accompanying note 37.
---------------------------------------------------------------------------
    Clearly, the most heinous brand of lying is the giving of false 
testimony that results in the imprisonment or even execution of an 
innocent person. Less egregious, but still quite serious, is false 
testimony that results in the conviction of a person who committed the 
criminal conduct, but whose rights were violated in a manner that would 
preclude conviction if the police were to testify truthfully. There are 
many other points on this continuum, ranging from making false 
statements about income or expenses to testifying falsely in civil 
trials. The least culpable genre of false statements are those that 
deny embarrassing personal conduct of marginal relevance to the matter 
at issue in the legal proceeding.
    Much of the public debate about President Clinton and possible 
perjury appears to ignore the following important lessons of history:
          1. That the overwhelming majority of individuals who make 
        false statements under oath are not prosecuted;
          2. That those who are prosecuted generally fall into some 
        special category of culpability or are victims of selective 
        prosecution; and,
          3. That the false statements of which President Clinton is 
        accused fall at the most marginal end of the least culpable 
        genre of this continuum of offenses and would never even be 
        considered for prosecution in the routine case involving an 
        ordinary defendant.
                                   ii
    My interest in the corrosive effects of perjury began in the early 
1970s when I represented--on a pro bono basis--a young man who was both 
a member of and a government informer against the Jewish Defense 
League. He was accused of making a bomb that caused the death of a 
woman, but he swore that a particular policeman, who had been assigned 
to be his handler, had made him certain promises in exchange for his 
information. The policeman categorically denied making any promises, 
but my client had--unbeknownst to the policeman--surreptitiously taped 
many of his conversations with the policeman. The tapes proved beyond 
any doubt that the policeman had committed repeated perjury, and all 
charges were dropped against my client. But the policeman was never 
charged with perjury. Instead he was promoted.\8\
---------------------------------------------------------------------------
    \8\ See Dershowitz, The Best Defense 67 (1982). The chief of 
detectives of New York wrote a book about this case in which he 
confirmed these facts. See Albert Seedman, Chief! (1974).
---------------------------------------------------------------------------
    The following year, I represented, on appeal, a lawyer accused of 
corruption. The major witness against him was a policeman who 
acknowledged at trial that he himself had committed three crimes while 
serving as a police officer. He denied that he had committed more than 
these three crimes. It was subsequently learned that he had, in fact, 
committed hundreds of additional crimes, including some he specifically 
denied under oath. He too was never prosecuted for perjury, because a 
young Assistant U.S. Attorney, named Rudolph Giuliani, led a campaign 
against prosecuting this admitted perjurer. Shortly afterward, the 
policeman explained:

          Cops are almost taught how to commit perjury when they are in 
        the Police Academy. Perjury to a policeman--and to a lawyer, by 
        the way--is not a big deal. Whether they are giving out 
        speeding tickets or parking tickets, they're almost always 
        lying. But very few cops lie about the actual facts of a case. 
        They may stretch an incident or whatever to fit it into the 
        framework of the law based on what they consider a silly law of 
        the Supreme Court.\9\
---------------------------------------------------------------------------
    \9\ See Dershowitz, The Best Defense, supra note 8, at 377. This 
was confirmed in a book entitled Prince of the City (and a motion 
picture of the same name), whose contents were approved by the 
policeman. See Robert Daley, Prince of the City (1978).

    Nor is the evidence of police perjury merely anecdotal. Numerous 
commission reports have found rampant abuses in police departments 
throughout the country. All objective reports point to a pervasive 
problem of police lying, and tolerance of the lying by prosecutors and 
judges, all in the name of convicting the factually guilty whose rights 
may have been violated and whose convictions might be endangered by the 
exclusionary rule.
    As the Mollen Commission reported:

          The practice of police falsification in connection with such 
        arrests is so common in certain precincts that it has spawned 
        its own word: ``testilying.'' . . . Officers also commit 
        falsification to serve what they perceive to be ``legitimate'' 
        law enforcement ends--and for ends that many honest and corrupt 
        officers alike stubbornly defend as correct. In their view, 
        regardless of the legality of the arrest, the defendant is in 
        fact guilty and ought to be arrested.\10\
---------------------------------------------------------------------------
    \10\ Commission to Investigate Allegations of Police Corruption and 
the Anti-Corruption Practices of the Police Department, Milton Mollen, 
Chair; July 7, 1994, at 36 [hereinafter Mollen Report]. The report then 
went on to describe how

        . . . officers reported a litany of manufactured tales. 
      For example, when officers unlawfully stop and search a 
      vehicle because they believe it contains drugs or guns, 
      officers will falsely claim in police reports and under 
      oath that the car ran a red light (or committed some other 
      traffic violation) and that they subsequently saw 
      contraband in the car in plain view. To conceal an unlawful 
      search of an individual who officers believe is carrying 
      drugs or a gun, they will falsely assert that they saw a 
      bulge in the person's pocket or saw drugs and money 
      changing hands. To justify unlawfully entering an apartment 
      where officers believe narcotics or cash can be found, they 
      pretend to have information from an unidentified civilian 
---------------------------------------------------------------------------
      informant.

Id. at 38.

    Even more troubling, in the Mollen Commission's view, ``the 
evidence suggests that the . . . commanding officer not only tolerated, 
but encouraged, this unlawful practice.'' The commission provided 
several examples of perjured cover stories that had been suggested to a 
young officer by his supervisor:

          Scenarios were, were you going to say (a) that you observed 
        what appeared to be a drug transaction; (b) you observed a 
        bulge in the defendant's waistband; or (c) you were informed by 
        a male black, unidentified at this time, that at the location 
        there were drug sales.
          QUESTION: So, in other words, what the lieutenant was telling 
        you is ``Here's your choice of false predicates for the 
        arrest.''
          OFFICER: That's correct. Pick which one you're going to 
        use.\11\
---------------------------------------------------------------------------
    \11\ Mollen Report, supra note 10, at 41.

    Nor was this practice limited to police supervisors. As the Mollen 
---------------------------------------------------------------------------
Commission reported:

          Several former and current prosecutors acknowledged--``off 
        the record''--that perjury and falsification are serious 
        problems in law enforcement that, though not condoned, are 
        ignored. The form this tolerance takes, however, is subtle, 
        which makes accountability in this area especially 
        difficult.\12\
---------------------------------------------------------------------------
    \12\ Mollen Report, supra note 10, at 42.

    The epidemic is conceded even among the highest ranks of law 
enforcement. For example, William F. Bratton, who has headed the police 
departments of New York City and Boston, has confirmed that 
``testilying'' is a ``real problem that needs to be addressed.'' He 
also placed some of the responsibility squarely at the feet of 
---------------------------------------------------------------------------
prosecutors:

          When a prosecutor is really determined to win, the trial prep 
        procedure may skirt along the edge of coercing or leading the 
        police witness. In this way, some impressionable young cops 
        learn to tailor their testimony to the requirements of the 
        law.\13\
---------------------------------------------------------------------------
    \13\ Boston Globe, November 15, 1995, at 1.
---------------------------------------------------------------------------
    Many judges who listen to or review police testimony on a regular 
basis privately agree with Judge Alex Kozinski of the U.S. Court of 
Appeals for the Ninth Circuit, who publicly stated: ``It is an open 
secret long shared by prosecutors, defense lawyers and judges that 
perjury is widespread among law enforcement officers,'' and that the 
reason for it is that ``the exclusionary rule . . . sets up a great 
incentive for . . . police to lie to avoid letting someone they think 
is guilty, or they know is guilty, go free.'' \14\ Or, as Judge Irving 
Younger explained, ``Every lawyer who practices in the criminal courts 
knows that police perjury is commonplace.'' \15\
---------------------------------------------------------------------------
    \14\ Stuart Taylor, Jr., For the Record, American Lawyer, Oct. 
1995, at 72.
    \15\ Irving Younger, The Perjury Routine, The Nation, May 8, 1967, 
at 596-97.
---------------------------------------------------------------------------
    As these judges attest, this could not happen without active 
complicity of many prosecutors and judges. Yet there is little apparent 
concern to remedy that serious abuse of the oath to tell the truth--
even among those who now claim to be so concerned with the corrosive 
influences of perjury on our legal system. The sad reality appears to 
be that most people care about perjury only when they disapprove of the 
substance of the lie or of the person who is lying.
    A perfect example of selective morality regarding perjury occurred 
when President George Bush pardoned former Secretary of Defense Caspar 
Weinberger in 1992, even though physical records proved that Weinberger 
had lied in connection with his testimony regarding knowledge of Iran 
arms sales. Not only was there no great outcry against pardoning an 
indicted perjurer, some of the same people who insist that President 
Clinton not be allowed to ``get away'' with lying were perfectly 
prepared to see Weinberger ``get away'' with perjury. Senator Bob Dole 
of Kansas spoke for many when he called the pardon a ``Christmas Eve 
act of courage and compassion.'' \16\
---------------------------------------------------------------------------
    \16\ Elaine Sciolino, On the Question of Pardons, Dole has Taken 
Both Sides, The New York Times, 16 Oct. 1996, at A15.
---------------------------------------------------------------------------
    The real issue is not the handful of convicted perjurers appearing 
before this committee, but the hundreds of thousands of perjurers who 
are never prosecuted, many for extremely serious and calculated acts of 
perjury designed to undercut constitutional rights of unpopular 
defendants.
    If we really want to reduce the corrosive effects of perjury on our 
legal system, the place to begin is at or near the top of the perjury 
hierarchy. If instead we continue deliberately to blind ourselves to 
pervasive police perjury and other equally dangerous forms of lying 
under oath and focus on a politically charged tangential lie in the 
lowest category of possible perjury (hiding embarrassing facts only 
marginally relevant to a dismissed civil case), we would be reaffirming 
the dangerous message that perjury will continue to be a selectively 
prosecuted crime reserved for political or other agenda-driven 
purposes.
    A Republican aide to this committee was quoted by The New York 
Times as follows:

          In the hearing, we'll be looking at perjury and its 
        consequences, and whether it is tenable for a nation to have 
        two different standards for lying under oath; one for the 
        President and one for everyone else.\17\
---------------------------------------------------------------------------
    \17\ Eric Schmitt, Panel Considers Perjury and Its Consequences, 
The New York Times, Nov. 28, 1998, at A13.

On the basis of my research and experiences, I am convinced that if 
President Clinton were an ordinary citizen, he would not be prosecuted 
for his allegedly false statements, which were made in a civil 
deposition about a collateral sexual matter later found inadmissible in 
a case eventually dismissed and then settled. If President Clinton were 
ever to be prosecuted or impeached for perjury on the basis of the 
currently available evidence, it would indeed represent an improper 
double standard: a selectively harsher one for the president (and 
perhaps a handful of other victims of selective prosecution) and the 
---------------------------------------------------------------------------
usual laxer one for everyone else.

    Mr. Gekas [presiding]. The members of the committee will 
refrain from demonstrations. That is not part of the decorum of 
this committee.
    The time of the witness has expired, and we now turn to 
Professor Saltzburg.

 STATEMENT OF STEPHEN A. SALTZBURG, HOWREY PROFESSOR OF TRIAL 
 ADVOCACY, LITIGATION, AND PROFESSIONAL RESPONSIBILITY, GEORGE 
                WASHINGTON UNIVERSITY LAW SCHOOL

    Mr. Saltzburg. Thank you. Mr. Chairman, members of the 
committee, the conflict among you is as understandable as it is 
powerful. On the one hand it is totally unacceptable to anyone 
interested in fair and equal justice to say that if the 
President committed perjury in a Federal court or before a 
Federal grand jury, he should get away with it because he is 
President. We cannot excuse perjury in the most highly 
publicized case involving the most powerful official, if we 
expect the oath to be taken seriously by future witnesses.
    On the other hand, our Constitution uses carefully chosen 
words when it limits impeachable offenses to bribery, treason 
and other high crimes and misdemeanors. There is a strong 
argument that perjury, as offensive as it is, does not amount 
to corruption of or abuse of office when the false answers 
relate to questions that do not address the President's 
official acts and duties.
    There is reason, good reason then, why members of the 
committee, the full House and the public are conflicted. They 
want to condemn lying and deceit and have their government 
teach that truth matters, while at the same time protecting 
this President and future Presidents from impeachment charges 
that do not rise to the level of misconduct that would justify 
removal from office. Is there a way to resolve the conflicts, 
condemn lying and deceit, affirm truth, and limit the scope of 
impeachment at the same time? I think there is, and that is 
what I want to talk about.
    Judge Starr testified accurately, in my view, that some of 
the answers that the President gave in the Paula Jones 
deposition were ``not true,'' or were ``false.'' This is very 
different from saying, as some have, that the President 
committed perjury in giving these answers.
    An example will help to make my point. During the Jones 
deposition, the President was asked to use a very carefully 
crafted definition of sexual relations. That definition defined 
certain forms of sexual contact as sexual relations, but for 
reasons known only to the Jones lawyers, limited the definition 
to contact with any person for the purpose of gratification. It 
is not at all clear that the President's interpretation of the 
definition of ``any person'' as meaning other than himself was 
unreasonable. The question could have been worded much more 
clearly, and crass and unkind as it might be to suggest it, it 
is also unclear whether the President sought to gratify any 
person but himself. Thus, his answers might, in fact, be true, 
rather than false.
    Now, some of you will wince and say, aha, semantics, 
wordsmithing. But you must face the fact that you cannot 
investigate perjury allegations without considering the state 
of mind and intent of a witness, and all of the things that 
might be on a witness's mind are relevant to a perjury inquiry. 
Indeed, once you recognize the difficulty of investigating 
perjury, the beginning of an answer emerges to my question of 
how to resolve the conflicts that divide you and the American 
people.
    In considering past impeachments involving Federal judges 
who can be indicted while in office, the Congress generally has 
waited to let the criminal process work. Only after a judge was 
convicted of perjury did you consider impeachment. The 
President's unique constitutional role makes it unlikely that 
he can be indicted and/or prosecuted while in office, so you do 
not have the option of waiting, but you do have the option of 
deciding that allegations of perjury that do not involve 
corruption of or abuse of office should not give rise to an 
impeachment investigation or charge, because perjury is an 
elusive crime to prove, involves subjective judgments that are 
especially difficult to make in a politically charged 
environment, and when rising out of personal conduct is too 
attenuated from the official duties of the President.
    I respectfully suggest to you that whether or not the 
President is guilty of perjury, he certainly answered questions 
in the Paula Jones deposition in a way that intended to mislead 
the Paula Jones lawyers about his relationship with Monica 
Lewinsky. I understand the President's predicament. 
Understanding the President's predicament, however, is not to 
excuse it. He could have conceded liability, thereby avoiding 
the need to answer questions. He could have refused to answer 
questions about Ms. Lewinsky and suffered the consequences. He 
could have sought to make an ex parte submission to the court. 
He could have done many things, but he was not entitled to 
mislead. The President made the wrong choice, and there must be 
consequences for that.
    It is my firmly held view, however, that this committee has 
focused too much on whether the President actually committed 
perjury. It would be and it is dangerous to send a message that 
testimony is acceptable as long as it is not perjurious. This 
committee has the opportunity to promote the rule of law and to 
emphasize the importance of truth in judicial proceedings if it 
declares that no witness, not the President, not anybody, may 
deliberately deceive a court and deliberately create a false 
impression of facts. This is not exclusively a Republican or a 
Democratic notion, it is what ordinary, honest Americans want 
and expect from their judicial system.
    I refer you in my written testimony to a Washington State 
case that I tried and won in which a law firm and a company 
were punished for making false and misleading, not perjurious, 
statements. If you agree with me that misleading a court is 
wrong, whether or not it is perjurious, then your path is 
clear. It involves two steps. One is collective, and one is 
individual. You should be able to unanimously agree upon a 
resolution that condemns the President for doing what he 
obviously did, which was answering questions in the Jones 
deposition to deceive the court and the lawyers, to condemn the 
President for defending that conduct before the grand jury, and 
to condemn him for lying to the American people. Such a 
resolution is perfectly consistent with your constitutional 
responsibilities. Nothing in the Constitution suggests that 
when a President engages in conduct that is reprehensible, but 
not impeachable, Congress must be silent.
    Any resolution passed by both Houses of Congress would be 
placed before the President. Placing such a resolution before 
him would enable him to act with honor by signing it or to veto 
it and face the condemnation of the American people. That is 
the collective step.
    The individual step is equally important. Each of you has 
the right to communicate, if you choose, your belief that 
Federal District Judge Wright should consider whether to impose 
sanctions on the President for his testimony in the Paula Jones 
case. Even though the case has been settled, Judge Wright 
retains power to sanction misbehavior litigation that was 
before her.
    I believe it is important for Judge Wright to consider and 
to impose sanctions on the President. I say this because if I 
were in the Department of Justice and received strong evidence 
that a witness in a Federal civil deposition lied under oath, 
my reaction in almost every case would be to refer the evidence 
to the Federal judge to whom the case was assigned. It is hard 
to imagine using scarce prosecutorial resources to investigate 
the matter when the court and at least one party in a civil 
case have every incentive to do the investigation, to correct 
any injustice that occurred, and to sanction misbehavior.
    Judge Wright is in many respects the only hero I see in 
this matter. Out of respect for the Presidency, she personally 
was present when the Jones lawyers presented their questions. 
She narrowed the definition of sexual relationship to protect 
the President. She fought to make a gag order work to protect 
both sides against embarrassment, and, though appointed by a 
Republican President, she found insufficient evidence to 
justify Paula Jones a jury trial.
    My speculation is that Judge Wright stayed her judicial 
hand, while this impeachment inquiry is ongoing, not wanting to 
intrude or to have the judicial branch perceived as even 
slightly partisan. But if this committee ends its 
investigation, she should punish the President. She should send 
a clear message to all future witnesses. If she does so, she 
should satisfy any legitimate interest in promoting truth 
identified by the committee or by the independent counsel. If 
she does, and you agree to censure his conduct, we will have 
resolved the conflicts that divide you. In doing so, the 
government will teach the importance of truth and of 
responsibility; we will condemn lying and deceit and assure 
that consequences attach to witness misconduct, and we will 
carefully and properly reserve the political death penalty of 
impeachment for behavior more closely related to conduct of 
office than this President's.
    [The prepared statement of Mr. Saltzburg follows:]
 Prepared Statement of Stephen A. Saltzburg, Howrey Professor of Trial 
     Advocacy, Litigation, and Professional Responsibility, George 
                    Washington University Law School
    In any discussion about perjury it is important to begin with two 
counterintuitive facts: (1) the making of a false statement under oath 
is not necessarily perjury; and (2) lying under oath is not necessarily 
perjury. A witness does not commit perjury unless the witness makes a 
false statement knowing it is false and intending to make the false 
statement, and the false statement relates to a material matter.
    American judges and lawyers have dealt with the crime of perjury 
for more than 200 years. They know that it is a crime that we purposely 
make difficult to prove. We make it difficult to prove because we know 
that putting any person under oath and forcing that person to answer 
``under penalty of perjury'' is a stressful experience. Anyone who has 
been a witness in any formal proceeding knows how stressful it can be. 
Honest mistakes are made, memories genuinely fail, nervous witnesses 
say one thing and in their minds hear themselves saying something 
different, and deceit in answers to questions about relatively trivial 
matters that could not affect the outcome of a proceeding but that 
intrude deeply into the most private areas of a witness's life causes 
little harm.
    Like so many Americans, I have read the referral that Judge Starr 
submitted, I watched him testify before this Committee, and I am 
familiar with the testimony before the Committee on November 9th of 
some of my law professor colleagues and others about the meaning of 
``high Crimes and Misdemeanors.'' What I have seen, heard and read has 
led me to conclude that many members of the Committee and probably many 
more members of the full House are conflicted in their thinking about 
the referral that has been presented.
    On the one hand, it is totally unacceptable to anyone interested in 
fair and equal justice to say that, if the President committed perjury 
in a federal court or before a federal grand jury, he should get away 
with it because he is President, the economy is good, or we are at 
peace. We cannot excuse perjury in the most highly publicized case 
involving the most powerful official if we expect the oath to be taken 
seriously by future witnesses. Let's be honest. No one here can or 
should bear the thought of witnesses lying under oath in the future and 
telling themselves that their lies are acceptable because of what they 
think the President did--namely, make a private judgment that it was 
more important to protect himself than to advance the search for truth. 
Government is the great teacher. We cannot permit it to teach us that 
lying under oath is acceptable.
    On the other hand, our Constitution uses carefully chosen words 
when it limits impeachable offenses to bribery, treason, and other high 
crimes and misdemeanors. Although the debates on the impeachment 
language in the Constitution were sparse, there is solid support for 
the conclusion that the framers intended to limit impeachment to 
corruption of or abuse of office. There is a strong argument that 
perjury, as offensive as it is, does not amount to corruption of or 
abuse of office when the false answers relate to questions that do not 
address the President's official acts and duties. There is a clear 
danger to the Presidency of defining impeachable offenses too broadly, 
lest every opposition party seek to define every future instance of 
presidential misconduct as a crime in order to initiate an impeachment 
inquiry.
    There is reason, good reason, then, why members of this Committee, 
the full House, and the public are conflicted. They want to condemn 
lying and deceit and have their government teach that truth matters 
while at the same time protecting this President and future Presidents 
from impeachment charges that do not rise to the level of misconduct 
that would justify removal from office.
    Is there a way to resolve the conflicts, condemn lying and deceit, 
affirm truth, and limit the scope of impeachment? I think there is, and 
that is what I want to talk about now.
    Judge Starr testified, accurately in my view, that some of the 
answers that the President gave in the Paula Jones deposition were 
``not true'' or were ``false.'' This is very different from saying, as 
some have, that the President committed perjury in giving these 
answers. That is far from clear. Let me give you an example. The 
President was asked whether he had ever been alone with Monica Lewinsky 
and answered that he had not, except perhaps when she had delivered 
pizza. If we accept the account of the relationship between Ms. 
Lewinsky and the President found in the Starr referral, we know that on 
various occasions only the President and Ms. Lewinsky were in 
particular locations in the White House. Thus, most of us would regard 
the President's answer as false. Now, the President's explanation 
appears to be that the door to the Oval Office was never completely 
closed and/or that Ms. Currie was always in an adjacent area. Is this 
explanation persuasive? Not to me. It is difficult for me to imagine 
the President at a news conference asked whether he had met alone with 
a visiting Head of State and answering ``no,'' because he recalled that 
Ms. Currie was in an adjacent office. But, is it clear that the 
President committed perjury? Not to me. It is one thing to say that his 
use of the word ``alone'' is unpersuasive, and quite another to say 
that he intended to testify falsely as opposed to narrowly.
    One other example will suffice to make the point. During the Jones' 
deposition, the President was asked to use a very carefully crafted 
definition of sexual relations. That definition defined certain forms 
of sexual contact as sexual relations but, for reasons known only to 
the Jones lawyers, limited the definition to contact with any person 
for the purpose of gratification. It is not at all clear that the 
President's interpretation of the definition of ``any person'' as 
meaning other than himself was unreasonable. The question could have 
been much more clearly worded. And, crass and unkind as it might be to 
suggest it, it is also unclear whether the President sought to gratify 
any person but himself. Thus, his answers might in fact be true rather 
than false.
    Some of you surely will wince and say that this is semantics, word-
smithing. But, you must face the fact that you cannot investigate 
perjury allegations without considering the state of mind and intent of 
a witness, and all of the things that might be on a witness's mind are 
relevant to a perjury inquiry.
    Indeed, once you recognize the difficulty of properly investigating 
perjury, the beginning of an answer emerges to my question of how to 
resolve the conflicts that divide you and the American people. In 
considering past impeachments involving federal judges, who can be 
indicted while in office, the Congress generally has waited to let the 
criminal process work. Only after a judge was convicted of perjury did 
you consider impeachment.
    The President's unique constitutional role makes its unlikely that 
he can be indicted and/or prosecuted while in office. So, you do not 
have the option of waiting until the criminal process works before 
considering impeachment. But, you do have the option of deciding that 
allegations of perjury that do not involve corruption of or abuse of 
office should not give rise to an impeachment investigation, because 
perjury is an elusive crime to prove, involves subjective judgments 
that are especially difficult to make in a politically charged 
environment, and when arising out of personal conduct is too attenuated 
from the official duties of the President.
    You have the option of making this decision while also sending a 
clear message about the government as teacher. It is the role of 
government as teacher that I want now to address.
    I respectfully suggest to you that, whether or not the President is 
guilty of perjury, he certainly answered questions in the Paula Jones 
deposition in a way that intended to mislead the Paula Jones lawyers 
about his relationship with Monica Lewinsky.
    I understand the President's predicament. He feared that the truth 
about Ms. Lewinsky would provoke the public condemnation that 
ultimately was visited upon him. He feared that, gag orders 
notwithstanding, any testimony he gave would become public, a 
reasonable fear in my judgment having seen the response by the Jones 
team to the President's motion for summary judgment. He believed that 
Ms. Lewinsky had not been rewarded as a result of their relationship, 
but instead had been unceremoniously moved from the White House to the 
Pentagon. As a result, he reasonably believed that the Lewinsky affair 
did not fit any claim of a pattern of rewards and punishments as 
alleged by the Jones team.
    Understanding the President's predicament is not to excuse it. He 
could have conceded liability, thereby avoiding the need to answer 
questions. He could have refused to answer questions about Ms. Lewinsky 
and suffered the consequences. He could have sought to make an ex parte 
submission to the court. He could have done many things. But, he was 
not entitled to mislead the court and the Jones lawyers, even if he did 
not lie. And, as a lawyer and the highest ranking law enforcement 
officer in the land with a duty to see that the laws are faithfully 
executed, he had a duty to assure that his lawyer did not file a false 
affidavit that would mislead the court.
    The President made the wrong choice, and there must be consequences 
for that. It is my firmly held view that this Committee has focused too 
much on whether the President actually committed perjury. Resolving 
that question by the Congress is not worth the candle in my view given 
the attenuation of the alleged perjury to the President's official 
duties. Moreover, the Committee ought to recognize that it would be 
dangerous to send a message that testimony is acceptable as long as it 
is not perjurious. That is the wrong message for future witnesses.
    This Committee has the opportunity to promote the rule of law and 
to emphasize the importance of truth in judicial proceedings if it 
declares that no witness--not the President, not anybody--may 
deliberately deceive a court and deliberately create a false impression 
of facts. This is not exclusively a Republican or Democratic notion. It 
is what ordinary, honest Americans want and expect in their judicial 
system.
    A unanimous Washington State Supreme Court accepted this argument 
in Washington State Physician Insurance Exchange & Assoc. v. Fisons 
Corp., 122 Wash. 2d 299, 858 P.2d 1054 (1993). In that case, sanctions 
were awarded against a law firm and its client company for withholding 
documents. The defendant drug manufacturer, sued by the family of a 
brain-injured young child and her doctor, promised to provide in 
discovery all documents relating to the product that caused the brain 
damage, Somophyllin Oral Liquid (SOL). After the family settled with 
the company and shortly before the doctors's suit was to go to trial, a 
document leaked to the doctor's lawyer resulted in the disclosure that 
the company and its counsel had withheld some 60,000 pages of documents 
involving ``theophylline'' which is the only active ingredient in SOL. 
The company had advertised to doctors that ``Somophylline is 
theophylline,'' but unbeknownst to the plaintiffs had never told them 
that when it promised to produce all documents relating to SOL it had 
decided unilaterally that all documents related to theophylline did not 
relate to SOL. According to the appellate counsel for the company and 
its trial lawyers, the concealment of the documents was nothing more 
than ``ducking and dodging'' which goes on all the time in litigation.
    My argument in that case was that ``ducking and dodging'' that 
amounts to deceit or fraud on the court is wrong, it is sanctionable, 
and it is wrong whether or not it amounts to perjury. Had my argument 
failed, I and many other law teachers would have had to decide whether 
we wanted to teach our students that they had to learn how to engage in 
deceit, misrepresentation and fraudulent concealment short of perjury. 
But, we won and established the principle that I urge upon you today: 
Every witness, especially the President, has a duty to provide answers 
under oath that are not intended to mislead the tribunal about the 
truth. It is not enough to avoid perjury; a commitment to the truth is 
required. The President has an additional obligation not imposed upon 
ordinary witnesses: to be honest with the American people even when not 
under oath.
    If you agree with me, your path is clear and involves two steps, 
one collective and one individual. You should be able to unanimously 
agree upon a resolution that (a) condemns the President for doing what 
he so obviously did, answering questions in the Jones deposition in a 
way that he intended and knew would mislead the Jones team about his 
relationship with Ms. Lewinsky and permitting his lawyer to file an 
affidavit that he knew was misleading as it was characterized to the 
court, (b) condemns the President for defending his deposition conduct 
before the grand jury and for failing to recognize at a minimum that he 
had misled the court, and (c) condemning the President for lying to the 
American people. Should you pass such a resolution, it could be 
forwarded to the Senate which could then decide whether or not to 
support it.
    Such a resolution is perfectly consistent with your constitutional 
responsibilities. Nothing in the Constitution suggests that, when a 
President engages in conduct that is reprehensible but not impeachable, 
Congress must be silent. Any resolution passed by both Houses of 
Congress would be placed before the President. Placing such a 
resolution before him would enable him to act with honor by signing it 
or to veto it and thereby maintain that he sees no problems with his 
testimony and representations to the people. The resolution would be a 
responsible action by Congress. Signing it would be a responsible 
action by the President. This is the collective step.
    The individual step is equally important. Each of you has the right 
to communicate, if you choose, your belief that Federal District Judge 
Susan Weber Wright should consider whether to impose sanctions on the 
President for his testimony in the Paula Jones case. Even though the 
case has been settled, Judge Wright retains power to sanction 
misbehavior in litigation that was before her.
    I believe it is important for Judge Wright to consider and to 
impose sanctions upon the President. I explain why as I come to an end. 
If I were in the Department of Justice and received strong evidence 
that a witness in a federal civil deposition lied under oath, my 
reaction in almost every case would be to refer the evidence to the 
federal judge to whom the case was assigned. It is hard to imagine 
using scarce prosecutorial resources to investigate the matter when the 
court and at least one party in the civil case have every incentive to 
do the investigation, to correct any injustice that occurred, and to 
sanction misbehavior.
    This would have been the likely scenario with respect to the 
President but for the existence of an Independent Counsel who perceived 
that aspects of the Lewinsky matter might relate to his ongoing 
investigation. The end result was that the President has been 
investigated as no other person would have been. No other citizen would 
have agreed to testify without immunity to a grand jury that wanted to 
ask whether the citizen lied in a deposition. The President concluded, 
wrongly in my view, that he should testify. As a result he endeavored 
to defend the indefensible.
    Judge Wright is in many respects the only hero I see in this 
matter. Out of respect for the Presidency, she was personally present 
when the Jones lawyers questioned the President. She narrowed their 
definition of sexual relationship to protect the President. She fought 
to make her gag order work to protect both sides against embarrassment. 
And, though appointed by a Republican President, she found insufficient 
evidence to justify Paula Jones a jury trial. Whether right or wrong in 
the end, Judge Wright demonstrated a respect for a coequal branch of 
government and a commitment to honest, impartial decisionmaking. She is 
a reminder of the vital importance of an independent, high quality 
judiciary.
    My speculation is that Judge Wright has stayed her judicial hand 
while this impeachment inquiry is ongoing, not wanting to intrude or to 
have the judicial branch perceived as even slightly partisan. If this 
inquiry ends, she is free to act. If you share my view that, whether or 
not the President committed perjury, he misled the court, failed to 
demonstrate a commitment to the truth, and failed to act as a lawyer 
and chief executive officer should, then you can join me in urging that 
Judge Wright assert herself in this matter as she would if misconduct 
by any other witness became apparent. She should punish the President 
and send a clear message to all future witnesses. If she does so, she 
should satisfy any legitimate interests in promoting truth identified 
by the Committee or the Independent Counsel.
    If she does and you agree to censure his conduct, we will have 
resolved the conflicts that divide you. In doing so, the government 
will teach the importance of truth and responsibility, we will condemn 
lying and deceit and assure that consequences attach to witness 
misconduct, and we will carefully and properly reserve the political 
death penalty of impeachment for behavior more closely related to 
conduct of office than this President's.

    Mr. Gekas. The time of the witness has expired. We now turn 
to Professor Rosen.

STATEMENT OF JEFFREY ROSEN, ASSOCIATE PROFESSOR OF LAW, GEORGE 
                WASHINGTON UNIVERSITY LAW SCHOOL

    Mr. Rosen. Thank you, Mr. Chairman. It is a great honor to 
be here today.
    This is, I think Democratic and Republican Members may 
agree, a brutal and unforgiving time in American politics, in 
which ordinary citizens and their elected representatives are 
increasingly threatened with punishment for relatively minor 
transgressions of the kind that the law used to excuse. 
Responsibility for this unhappy state of affairs can be traced 
in the post-Watergate era to the explosive convergence of three 
novel and expanding sets of laws: the sexual harassment laws, 
the laws prohibiting lies to Federal officials, and the 
independent counsel law.
    President Clinton deserves his share of blame for the 
expansion of these laws, and it is only fair that he be held 
accountable to them. Nevertheless, the appropriate response to 
the allegations against the President lies not in impeachment 
or in removal from office, but in congressional censure 
combined with the possibility of criminal prosecution or civil 
sanctions after the President leaves office.
    This committee, I think, deserves great credit for focusing 
the attention of the Nation on the ways in which people can and 
are severely punished for highly technical violations of the 
laws against lying. In that sense, I thought the testimony this 
morning was terribly useful. But it is surely significant that 
neither the independent counsel nor anyone else, to my 
knowledge, has been able to identify a case where a defendant 
was prosecuted, let alone convicted, for peripheral statements 
in a civil proceeding that he or she did not initiate in order 
to derive some kind of benefit. This coincides with the 
traditional reluctance in American law to prosecute perjury 
based simply on statements asserting one's innocence.
    Because defendants have traditionally been viewed as 
inherently unreliable, their testimony, unlike that of 
witnesses, was not taken under oath until after the Civil War. 
Judges recognize that the instinct for self-preservation is so 
strong that a guilty defendant will naturally be tempted to lie 
to protect himself, and it was considered a form of moral 
torture to force an accused to choose between incriminating 
himself on the one hand and facing eternal damnation for 
betraying his oath to God on the other.
    In Jones v. Clinton, the Supreme Court established that a 
sitting President can be sued and personally deposed and his 
private life subject to wide-ranging discovery, even about 
conduct that preceded his inauguration. In an increasingly 
partisan environment, any remotely plausible lawsuit against a 
President will find ample funding, and inevitably there will be 
a clash of testimony.
    Now, in ordinary civil suits this is nothing to worry 
about. Assessment of credibility, after all, is the main 
function of a jury, and people who lie in civil depositions are 
ordinarily punished by losing the case rather than being 
prosecuted for perjury. Paula Jones, for example, is not 
threatened with a perjury prosecution, even though she may have 
misstated the degrees of her salary increases. If this 
President is impeached for lying during civil discovery, 
however, every time a future President's testimony is 
contradicted under oath, an impeachment inquiry may have to be 
triggered; and the country and President will again be 
distracted in ways whose costs are hard to measure.
    The most serious allegation against President Clinton is 
that he may have committed perjury before the grand jury when 
he contradicted Ms. Lewinsky's assertion that he touched her 
breasts and genitals with an intent to gratify her. It seems 
implausible on the one hand that the core of the President's 
defense to the charges against him is that he didn't intend to 
arouse or gratify Ms. Lewinsky when he touched her. But 
wouldn't it be equally implausible to impeach the President of 
the United States on the grounds that he committed perjury when 
he denied that he intended to arouse Ms. Lewinsky?
    This committee chose not to ask the President to clarify 
his state of mind about this embarrassing subject when it 
submitted 81 questions to him, and therefore, an impeachment 
count on this ground might fall short of the clear and 
convincing evidence standard that governed you during the 
Watergate impeachment hearings.
    This is an indiscreet subject, but let me close with a call 
for prosecutorial discretion. Many of you are understandably 
concerned about establishing a double standard. Why should 
ordinary citizens be convicted of perjury for lying about sex 
while the President escapes punishment? But this concern is 
unfounded. If you exercise your discretion not to impeach the 
President, he will still be subject after he leaves office to 
precisely the same legal penalties as the witness who testified 
so movingly before us this morning: possible criminal 
prosecution and conviction, as well as possible civil sanctions 
or disbarment. Indeed, you may well choose to rebuke the 
President with a reputational sanction that no ordinary citizen 
faces: a congressional resolution of censure.
    The Lewinsky investigation has been, in many ways, a 
nightmare for the country, but it has also been, for all of us, 
a constitutional education, reminding us that even well-
intended laws can have illiberal consequences when they are 
expanded beyond their historical roots. By reclaiming your 
constitutional duty to exercise your sole power of impeachment, 
which includes the power not to impeach, you can offer the 
country an inspiring example of statesmanship, while at the 
same time rebuking the President for his reckless conduct in a 
way that will remain a permanent part of his legacy. Thank you.
    [The prepared statement of Mr. Rosen follows:]
Prepared Statement of Jeffrey Rosen, Associate Professor of Law, George 
                    Washington University Law School
    My name is Jeffrey Rosen. I am an associate professor at the George 
Washington University Law School, where I teach constitutional law and 
criminal procedure. I am also the legal affairs editor of The New 
Republic and a staff writer for The New Yorker. It is a great honor to 
be here to today to testify about ``The Consequences of Perjury and 
Related Crimes.''
    This is, I think Republican and Democratic members will agree, a 
brutal and unforgiving time in American politics, when ordinary 
citizens and their representatives are increasingly threatened with 
punishment for relatively minor transgressions of the kind that the law 
used to excuse. Responsibility for this unhappy state of affairs can be 
traced, in part, to the convergence of three sets of laws--the sexual 
harassment laws, the laws prohibiting lies to federal officials, and 
the Independent Counsel law--which have been recklessly expanded in the 
post-Watergate era. President Clinton deserves his share of the blame 
for the expansion of these laws, and it is only fair that he should be 
held accountable to them. But the appropriate legal response to the 
allegations against the president lies not in impeachment or removal 
from office, but in congressional censure, combined with the 
possibility of criminal prosecution or civil sanctions after the 
president leaves office. The well-intentioned but ill-advised 
Independent Counsel law has already wreaked enough havoc on our 
constitutional order. If you let it further distort the standards for 
impeachment, our system of government will be altered, with 
consequences that are beyond our power to imagine.
    In the course of preparing an article about perjury for The New 
Yorker last August, I was struck by the degree to which the public 
appears to recognize instinctively what the law has long acknowledged: 
that lies vary in degree and in kind, and that they should be treated 
accordingly. Historically, American law has been sensitive to the 
distinction among different kinds of lies, and American prosecutors and 
judges have made allowances for human frailty. They have examined a 
liar's state of mind, the seriousness of the lie, and its effects on 
other people, before deciding which lies deserve to be punished. In the 
post-Watergate era, however, thanks to an unfortunate combination of 
judicial decisions and overreaching by Democratic and Republican 
prosecutors and independent counsels, the laws of perjury and 
obstruction of justice have been expanded far beyond their historical 
roots. As a result, there is now a gap between the kinds of lies that 
most people think should be illegal and those the law actually forbids. 
And this greatly increases the importance of prosecutorial discretion--
the central question you face as you debate whether or not to impeach 
the president of the United States.
    There is no doubt that some independent counsels and ordinary 
prosecutors in the post-Watergate era have abused their discretion, 
indicting people for relatively trivial lies. This is why I think you 
and your colleagues, Chairman Hyde, have performed an important service 
by focusing the nation's attention on the degree to which people's 
lives can be destroyed for highly technical violations of the laws 
against lying. But many of these cases are cautionary tales of 
prosecutorial excess to be avoided, not examples to be emulated. 
Morever, the convicted perjurers from whom we will hear this morning 
told lies that met the legal standard for perjury beyond reasonable 
doubt: that is to say, they were clearly intentional and highly 
material to the legal proceedings in which they were told. By contrast, 
it is far less clear that a jury would convict the president of the 
United States for perjury in the Paula Jones case, in the face of his 
testimony that he believed his statements were legally accurate when he 
made them, and the fact that reasonable people can disagree about 
whether or not the statements were material to the case at the time 
they were told. If one thing is clear from the history of past 
Independent Counsel investigations, it is that juries, faced with 
ambiguous charges of perjury, often give the defendant the benefit of 
the doubt: when Lawrence Walsh prosecuted Oliver North for lying to 
Congress, a Washington, DC, jury refused to convict.
    You, of course, are meeting not as an ordinary grand jury, but in 
your most extraordinary constitutional capacity, as grand inquest of 
the nation, deciding whether or not to recommend the impeachment of the 
president of the United States. And here the case for prosecutorial 
discretion is especially strong. There is, I know, disagreement among 
you about whether or not high crimes and misdemeanors are limited to 
offenses against the structure of government. I agree with those 
representatives and scholars who have concluded that constitutional 
text and history, as well as congressional precedent, suggest that lies 
about private transgressions unconnected to the president's official 
duties should not be considered impeachable offenses. But even those of 
you who take a far more expansive definition of impeachable offenses--
even if those who believe that it may include perjury that has nothing 
to do with the president's official duties--still have the obligation 
to ask yourselves not whether you may vote for impeachment, but whether 
you should. Just as ordinary prosecutors and grand juries often decide 
not to indict crimes that are technically indictable, because they are 
unlikely to secure convictions, so you must ask yourself whether it is 
worth putting the country through the trauma of an impeachment trial 
when both the Senate and the people of the United States have strongly 
indicted that conviction, on the current facts, is highly unlikely.
    There are special reasons to be concerned about prosecutorial 
discretion as you contemplate whether or not to impeach a president for 
perjury and obstruction of justice in a civil lawsuit unrelated to his 
conduct as president. Such a precedent might put future presidents at 
risk in a way that does the country serious harm. In Jones v. Clinton, 
the Supreme Court established that a sitting president can be sued and 
personally deposed, and his private life subjected to wide-ranging 
discovery, even about conduct that preceded his inauguration. In an 
increasingly partisan environment, any remotely plausible lawsuit 
against a president will find ample funding, far beyond the economic 
constraints that ordinarily discipline civil litigation. Inevitably, 
there will be a clash of testimony. In ordinary civil suits, this is 
nothing to worry about: assessment of credibility is the main function 
of the jury; and people who lie in civil depositions are ordinarily 
punished by losing the case rather than being prosecuted for perjury. 
Paula Jones, for example, is not threatened with a perjury prosecution, 
even though the evidence suggests she may not have been telling the 
truth when she claimed that her salary increases were diminished after 
she rebuffed Governor Clinton's alleged advance.
    If the president is impeached for lying during civil discovery, 
however, every time a future president's testimony is contradicted 
under oath, a serious investigation may have to be triggered. Even if 
the Independent Counsel statute is not renewed, as its constitutional 
flaws are increasingly obvious to Democrats and Republicans, future 
Justice Departments and future House Judiciary Committees will find it 
hard to ignore potential offenses no less grave than those that lead to 
President Clinton's impeachment. If the House is controlled by the 
opposing political party, furthermore, the investigation will gain a 
partisan motor. The brutal machinery will again grind into motion, a 
special prosecutor will be appointed, and the country and the president 
will again be distracted, in ways whose costs are hard to measure.
    Many of you are understandably considered about establishing a 
double standard. Why should Barbara Battalino be convicted of perjury 
for lying about sex in a civil case while the President escapes 
punishment? But this concern is unfounded. If you exercise your 
discretion not to impeach the president, he will still be subject, 
after he leaves office, to precisely the same legal penalties as the 
witnesses who are testifying before you today: possible criminal 
prosecution and conviction, as well as possible civil sanctions or 
disbarment. Indeed, you may well choose to rebuke the president with a 
reputational sanction that no ordinary citizen faces: a congressional 
resolution of censure, expressing your collective disapproval of his 
reckless conduct. But the question before you today is not whether the 
president should be liable to ordinary criminal punishment, but whether 
impeachment is an appropriate punishment for lying about sex in a 
dismissed civil case, despite the fact that the president was elected 
twice by the American people and continues to retain their confidence.
    It is surely significant that neither the Independent Counsel nor 
anyone else, to my knowledge, has been able to identify a case where a 
defendant was prosecuted, let alone convicted, for peripheral 
statements in a civil proceeding. This coincides with the traditional 
reluctance, in American law, to prosecute perjury based simply on 
statement's asserting one's innocence. For most of English and American 
history, courts avoided putting defendants in situations where they 
might be tempted to perjure themselves under any circumstances. Judges 
recognized that the instinct for self preservation is so strong that a 
guilty defendant will naturally be tempted to lie to protect himself, 
and it was considered a form of moral torture to force the accused to 
choose between incriminating himself on the one hand and facing eternal 
damnation for betraying his oath to God on the other. It's because of a 
similar awareness of human frailty that prosecutors traditionally don't 
prosecute criminal defendants for perjury after they've taken the stand 
to insist on their innocence and are subsequently found guilty.
    Because defendants were viewed as inherently unreliable, their 
testimony, unlike that of witnesses, was not taken under oath until 
after the civil war. Moreover, the way that reform came about was not 
exactly a model of enlightenment. After Reconstruction, Southern states 
were forced to repeal laws that had prohibited African-Americans from 
appearing as witnesses in court. As blacks began to sue to enforce 
their newly acquired rights, racist white Southerners worried that 
juries might be more likely to believe a black witnesses who had sworn 
to the truth of his testimony than a white defendant who had not. So at 
the end of the nineteenth century, Southern states began to introduce 
the defendant's oath. The famous perjury trials in America, from Alger 
Hiss to H.R. Halderman, are twentieth century affairs.
    But the most dramatic expansion of the law of lying in America took 
place in the post-Watergate era, and it was driven by the passage of 
the Independent Counsel Act in 1978. From the beginning, Independent 
Counsels who have had difficulty proving the crimes they were appointed 
to investigate have tried to justify their labors by indicting people 
for lying and obstructing their investigations. The Independent 
Counsel's best friend has turned out to be an old law called the False 
Statements Act, which prohibits ``any false, fictitious, or fraudulent 
statements'' to federal officials, even if the statements weren't made 
under oath. Originally adopted during the New Deal to cover any 
statements by citizens to government agencies, the law was invoked 
during the nineteen-eighties and nineties by a parade of independent 
counsels to punish unsworn lies to F.B.I. agents, to Congress, and 
eventually, to the independent counsel's themselves. As a result, the 
day-to-day enterprise of politics has become a very risky affair.
    During the 1980s and 90s, judges worried about the unfairness of 
prosecuting people for the entirely natural impulse to deny their guilt 
when asked point blank if they were guilty. Everyone expects a suspect 
to lie when cornered, after all. To prevent unscrupulous prosecutors 
from trapping their targets this way, several federal courts carved out 
an exception to the False Statements Act, which they called the 
``exculpatory no.'' According to the ``exculpatory no'' doctrine, if 
you do nothing more than deny your guilt, without actively misleading 
federal investigators, you haven't committed a federal felony. The 
``exculpatory no'' doctrine was a short-lived effort by judges to 
ensure that the law of lying coincided with our common sense intuitions 
about which lies deserve to be punished and which do not, but that 
effort turned out to be short lived. Last January, in Brogan v. U.S., 
the Supreme Court ruled that lower-court judges had exceeded their 
authority by creating an ``exculpatory no exception.'' In a separate 
opinion, Justice Ruth Badger Ginsburg worried that ``an overzealous 
prosecutor or investigator--aware that a person has committed some 
suspicious acts, but unable to make a criminal case--will create a 
crime by surprising the suspect, asking about those acts, and receiving 
a false denial.''
    Like the false statements act, the perjury and obstruction of 
justice laws have been expanded in the post-Watergate era so that they 
no longer require active misleading and are sometimes invoked to punish 
purely self-protective lies. In his legal referral, for example, the 
Independent Counsel points to the Battalino case to support his claim 
that false denials of sexual relations in connection with a pending 
civil proceeding can form the basis of an obstruction of justice 
charge. A Veteran's Administration psychiatrist named Barbara 
Battalino, whose testimony we will hear today, resigned after her 
supervisors learned that she was having an affair with one of her 
patients, a man named Edward Arthur. Mr. Arthur later sued for medical 
malpractice, and Ms. Battalino asked the U.S. Attorney for the District 
of Idaho to ``certify'' her under for coverage under the Federal Tort 
Claims Act. Interviewed by attorneys for the United States, Ms. 
Battalino denied that she had engaged in sexual relations with Arthur 
in her office on June 27, 1991. She was certified for coverage relating 
to conduct on or before, but not after June 27, 1991, and on appeal, 
she again denied, in a hearing before a magistrate, that anything of a 
sexual nature took place in her office on June 27, 1991. In April, 
1998, Ms. Battalino was charged with obstructing justice by falsely 
denying that she had ``performed oral sex'' on Arthur in her office. 
Shortly after, she pleaded guilty to obstruction of justice.
    But there is an obvious and important difference between the 
Battalino case and the allegations against the president. Ms. 
Battalino's attempt to hide the timing of her sexual encounter with Mr. 
Arthur was the central question at issue in the civil suit against her, 
and it also went to the heart of her effort to get the federal 
government to cover any damages that Mr. Arthur might be awarded. As a 
result, Ms. Battalino's false statements look almost like an attempt to 
defraud the government, and are therefore far more material than the 
president's statements about his relationship with Monica Lewinsky, 
which were peripheral, at best, to the Paula Jones case. The analogy 
would be more precise if, while the Paula Jones suit was pending, 
President Clinton had filed for coverage under the federal tort claims 
act, and in the course of appealing the denial of his claim, had denied 
in a court hearing that he had ever met Paula Jones.
    To support his argument that withholding evidence in a civil 
proceeding can constitute obstruction of justice, the Independent 
Counsel also points, in his legal referral, to the recent Texaco case 
in New York, in which federal prosecutors indicted two former Texaco 
executives, Robert Ulrich and Richard Lundwall, for conspiring to 
obstruct justice when they discussed withholding documents in a 
discrimination suit against the company. But the Texaco case shows how 
rarely the obstruction of justice statute is applied in this context. 
The prosecution arose out of the political firestorm that followed a 
report in The New York Times that a group of Texaco executives that 
included Ulrich and Lundwall had been caught on tape using racial 
epithets. Although it later emerged that the reports of racial epithets 
were exaggerated, Texaco responded by docking the retirement benefits 
of Ulrich and Lundwall and settling the antidiscrimination suit for 
$176 million. Public outrage, however, was so intense that Mary Jo 
White, the U.S. Attorney for the Southern District of New York, felt 
moved to go further, and she indicted Lundwall and Ulrich for 
obstruction of justice, pointing to the fact that they had placed 
certain documents in a folder marked ``withheld from legal'' in the 
Texaco case. Lundwall and Ulrich successfully argued that this was the 
first time in 166 years that the federal obstruction of justice law had 
been invoked to punish someone for withholding documents in a civil 
case that hadn't even been subpoenaed by the other side. Their lawyers 
convincingly portrayed them as innocent but legally unsophisticated 
employees, who had tried to separate the relevant documents from ones 
they thought were irrelevant, including an order form for an egg salad 
sandwich at a company lunch. Last May, a federal jury in White Plains 
acquitted Lundwall and Ulrich on all counts.
    In allowing the unprecedented Texaco prosecution to go forward, the 
U.S. District Court for the Southern District of New York stressed the 
``great many good reasons why federal prosecutors should be reluctant 
to bring criminal charges relating to conduct in ongoing civil 
litigation. Civil litigation typically involves parties protected by 
counsel who bring frequently exaggerated claims that, under supervision 
of a judicial officer, are narrowed and ultimately compromised during 
pretrial proceedings. Prosecutorial resources would risk quick 
depletion if abuses in civil proceedings--even the most flagrant ones--
were the subject of criminal prosecutions rather than civil remedies. 
Thus, for numerous prudential reasons, prosecutors might avoid entering 
this area.'' The ultimate acquittal of the Texaco defendants suggests 
that prosecutors who fail to exercise discretion in close cases 
involving allegations of perjury or obstruction of justice are unlikely 
to persuade ordinary citizens to convict.
    The most serious allegation against the president is that he may 
have committed perjury before the grand jury when he appears to have 
contradicted Ms. Lewinsky's assertion that he touched her breasts and 
genitals with an intent to gratify her. But the President's denial was 
phrased with typically exquisite legalisms: He testified: ``If you had 
direct contact with intent to arouse or gratify, that would fall within 
the definition . . . You are free to infer that my testimony is that I 
did not have sexual relations, as I understood this term to be 
defined.'' It seems absurd, on the one hand, that the only thing 
standing between the president of the United States and impeachment is 
his suggestion that he didn't intend to arouse or gratify Ms. Lewinsky 
during their encounters. But it would be equally absurd to impeach him 
on the ground that he committed perjury because he actually intended 
for her to enjoy herself. Because this committee chose not to ask the 
president to clarify his state of mind about this embarrassing subject 
during its eighty-one questions to him, an impeachment count on this 
ground might fall short of the clear and convincing evidence standard 
that governed the Watergate impeachment hearings. Moreover, impeaching 
the president based on his failure to admit that he intended to gratify 
Ms. Lewinsky would be hard to reconcile with the Watergate Congress's 
refusal to vote an impeachment count for President Nixon's alleged 
false statements on his tax returns.
    Finally, if one takes the view, as many constitutional scholars do, 
that the president cannot be criminally indicted while he is in office, 
it's arguable that the sole purpose of calling the president before the 
grand jury was to obtain testimony from him in order to accuse him of 
perjury before the House. This looks uncomfortably like what some 
courts have defined as a ``perjury trap,'' and while the precise legal 
contours of the perjury trap defense are unsettled, the House can 
certainly weigh the possibility that the president was set up by 
federal prosecutors, acting indirectly in concert with private 
litigants, as it decides whether or not to impeach.
    Let me end with a call for prosecutorial discretion. The Lewinsky 
investigation has been, in many ways, a nightmare for the country; but 
it has also been a constitutional education, reminding all of us that 
even well-intentioned laws can have illiberal consequences when they 
are expanded far beyond their historical roots. The Independent Counsel 
law, we can now see more clearly than ever, has dramatically unsettled 
the constitutional balance, creating a politically unaccountable and 
unconstrained officer who combines the functions of prosecutor, 
impeachment investigator, legislator, judge, and jury. By reclaiming 
your constitutional duty to exercise ``the sole Power of impeachment,'' 
which includes the power not to impeach, you can offer the country a 
shining example of statesmanship, while at the same time censuring the 
president in a way that will remain an permanent part of his legacy.

    Mr. Gekas. Thank you very much, Professor Rosen. We will 
now begin the 5-minute rule exposition of the Members of the 
committee. We will begin with 5 minutes granted to the 
gentleman from Michigan.
    Mr. Conyers. Thank you very much. I want to thank every one 
of you who have been here today. For us the wait was worth it. 
We only hope that it has some small measure of fulfillment for 
you yet. I commend everyone here. Let us talk in terms of the 
realities that confront the 37 Members in front of you. How do 
we move toward the exit door with some small measure of grace, 
Judge Higginbotham? How do we put a wrap around this inquiry 
for when it is studied by future scholars and by other Members 
on the Judiciary Committee? How do we put an end to it even 
though we are so fragmented at this point apparently? But 
somehow around this one question of perjury, which I think has 
been discussed very importantly, Professor Dershowitz, and I 
think that we have a frame of reference on it, what do you 
think we might want to do? Professor Saltzburg has been most 
explicit about that and I thank you for that part of it. But 
would you begin this dialogue with us, please? Because that is 
the key here. How can we find some path of reconciliation that 
will get us with some small measure of honor out of the door 
altogether?
    Judge Higginbotham. Were you talking to me, sir?
    Mr. Conyers. I was.
    Judge Higginbotham. More than 100 years ago when Justice 
Holmes gave his famous common law lectures, he said that ``the 
life of the law has not been logic: it has been experience.'' 
At another time, he said that a page of history is worth a 
volume of logic. It seems to me that you have to put this 
impeachment issue within the corridor of history. There is 
another poignant reminder chiseled on the walls at Auschwitz 
that ``Those who cannot remember the past are condemned to 
repeat it.'' If this committee reflects on history and becomes 
aware of the fact that there has never been, never been an 
impeachment proceeding at such a minuscule level, then it seems 
to me you must pause and question whether an impeachment is 
appropriate.
    Everyone talks about the Nixon experience. But that is as 
different as the difference between zero and infinity. In the 
Nixon case, he was using the Internal Revenue Service, not 
patting some woman on the side, using the Internal Revenue 
Service, to engage in improper tax audits and investigation of 
political enemies. In the Nixon case, he was attempting to 
obtain confidential information maintained by the IRS 
concerning political enemies. In the Nixon case, he was using 
the Federal Bureau of Investigation, the Secret Service and 
other executive personnel to undertake improper electronic 
surveillance and other investigatory techniques with regards to 
political enemies. In the Nixon case, he was creating and 
maintaining a secret investigative unit within the Office of 
the President which utilized the resources of the Central 
Intelligence Agency, engaged in covert and illegal activities, 
and I could name several others that are beyond dispute.
    Is that comparable to this? If it is not, then I think 
Justice Holmes was right, a page of history is worth a volume 
of logic.
    Mr. Conyers. Thank you so much, Judge. Professor 
Dershowitz, would you elucidate for us, please?
    Mr. Dershowitz. I think history will not be kind to this 
committee. History will not be kind to this Congress. I think 
this committee and this Congress will go down in history along 
with the Congress that improperly impeached Andrew Johnson for 
political reasons. I think there is no exit strategy that will 
permit this committee and this Congress to regain any place in 
history which is going to look positively. It made a dreadful 
mistake by ever opening up an impeachment inquiry on the basis 
of sex lies and coverups of sexual events. It is down that 
line. Now it is getting worse. It is like my typical client. 
First, he commits the crime and then he compounds the crime by 
making it worse. Now it is becoming worse, because now we are 
seeing incredible hypocrisy introduced into the debate. ``Oh, 
we care so much about perjury. What a terrible thing perjury 
is.'' The only reason the majority of this committee cares 
about perjury is because they believe that President Clinton, 
their political opponent, is guilty of it. They couldn't have 
cared less about perjury when Caspar Weinberger was guilty of 
it.
    Mr. Gekas. The time of the witness has expired and the time 
of the gentleman from Michigan has expired.
    Mr. Dershowitz. And they don't care at all about perjury by 
the police, as evidenced by the lack of attention to this 
problem.
    Mr. Conyers. Judge Gekas' patience has expired.
    Mr. Gekas. That is exactly right. Now you may applaud. 
Please don't take me literally.
    The Chair now turns to the gentleman from Florida, Mr. 
McCollum.
    Mr. McCollum. Thank you very much, Mr. Chairman. First of 
all, I sat on the Iran-Contra committee and I do not believe 
for one minute that Caspar Weinberger committed perjury, but 
that is beside the point. I also am chagrined with some other 
testimony today that implies that the President of the United 
States is irreplaceable. I don't think anybody is 
irreplaceable. I don't think anybody is indispensable. I think 
Al Gore would make as fine a President as President Clinton. I 
don't necessarily agree with him politically but I certainly 
do.
    I also am very concerned that some have tried to diminish 
the nature of the perjury and the obstruction of justice, which 
I think there is compelling evidence of. The President 
committed perjury, from my reading of every bit of the facts we 
have here, and I am really convinced of this the more I have 
studied it, and I have studied it a great deal more even this 
weekend, when he lied both before the grand jury and in the 
Paula Jones case about whether he had sexual relations with 
Lewinsky, whether he was alone with her, whether he talked with 
her about her testimony and on numerous other occasions, and 
not only that but it is very clear that long before she was 
subpoenaed in the Jones case, the President and Monica Lewinsky 
had an understanding that she would deny and he would deny any 
sexual relations if anybody ever asked about it, and then when 
she was subpoenaed he suggested that she file an affidavit 
knowing good and well that it was going to be false and 
encouraged her to do that. And then when there was a subpoena 
for her to produce any gifts that he had given to her that 
specifically named a hat pin and she wondered why in the world 
that was named there and was really worried about it because 
that was the first gift she said he ever gave her, he then 
conspired with her to hide those gifts from the court. And then 
after that, he encouraged his secretary, Betty Currie to lie to 
protect him.
    Now, all of that to me if proven, and I think it has been 
proven in this case and I think it would be proven in any court 
of law and a jury would convict him of all of those things, 
rises to a very high level of high crimes and misdemeanors. Not 
only does it do that, but to me the problem that we see in this 
is that there is injury to the Nation, grave injury, if we find 
this to be true that the President has committed these crimes 
and then we tolerate them, then we don't impeach him.
    The real question here today shouldn't be what are the 
consequences of perjury, the real question is what are the 
consequences of not impeaching the President if he has 
committed perjury and obstruction of justice and witness 
tampering? What are the consequences? What are the consequences 
to the courts with respect to that if we look the other way? 
There are parties to every civil lawsuit. Those parties to 
every lawsuit out there expect truth to be told. If witnesses 
that they call or witnesses who are called lie or encourage 
other people to lie or hide evidence or encourage other people 
to hide evidence, then the parties to that lawsuit can't get 
justice, they can't get a fair judgment. That is what 
undermines the court system. And to have the President of the 
United States engaging in activities that do that and then we 
don't impeach him, he gets away with it, we tolerate it, we 
don't hold him accountable, that is the problem. Congress has 
that responsibility under the Constitution. I think that is the 
injury to the Nation there.
    Then with respect to our military, as, Admiral Edney, you 
and General Carney well stated and Admiral Moorer said in 
written testimony that he didn't give here today, what about 
his role as Commander in Chief. When you expect military 
officers to be the leaders and you expect military officers to 
be, as Admiral Moorer, a former chairman of the Joint Chiefs of 
Staff has said to us, to serve as role models for honorable and 
virtuous conduct and you find that we don't hold the President 
accountable, the Commander in Chief accountable for matters 
that officers would be removed for, probably court-martialed 
for, what does that do to undermine our military and our good 
order and discipline in the military?
    So I have two questions to ask. One I want to ask to Judge 
Tjoflat and one I want to ask to you, Admiral Edney. Judge 
Tjoflat, if we find the President guilty of perjury, 
obstruction of justice, and so forth, and do not impeach him, 
what injury do you believe this could cause to the justice 
system? Are people more likely to commit perjury in the future 
if we do that than not? And then because my time is running 
out, I want to ask Admiral Edney if we find the President to 
have been guilty of perjury, obstruction of justice, and so 
forth, and don't impeach him, what does this mean since he is 
the Commander in Chief? Does it mean that we are undermining 
the trust and confidence you discussed essential to good order 
and discipline in the military? Will we be undermining it if we 
don't impeach him if we find him guilty of these crimes I just 
described?
    Judge Tjoflat, would you first respond and then Admiral 
Edney.
    Mr. Tjoflat. I think your question implies the answer.
    Mr. McCollum. And the answer is?
    Mr. Tjoflat. If that is the committee's finding, then there 
is going to be an effect on the administration of justice.
    Mr. McCollum. A negative effect?
    Mr. Tjoflat. Yes.
    Mr. McCollum. If we don't impeach him?
    Mr. Tjoflat. Well, I don't know about the remedy. All I am 
saying is if that is the committee's finding, then you have a 
negative effect on the administration of justice, if that is 
the case.
    Mr. McCollum. What about the good order and discipline of 
the military, Admiral Edney, you described? I have always heard 
the term prejudice to the good order and discipline. Could you 
tell us what that means and would we be undermining that if we 
didn't impeach the President of the United States if he is 
guilty of these crimes that have been described if we find him 
so?
    Mr. Edney. I don't believe that there is any straight, 
clear answer to that, because the military of this country 
serve under a different code, which you recognize as the UCMJ, 
and the President operates under the civilian laws. The 
professional military of this country will perform their duties 
in loyalty to the Constitution and the Office of the President. 
That is the strength of the military. Will it undermine the 
good order and discipline to have that example? That is like 
how you ensure safety. But it will not have a beneficial effect 
in the ability to measure the disadvantages or the adversarial 
effects as far as who stays in the military, who will come in 
the military, who will serve and the quality of the people. We 
need a portion of this country's best to serve in the military. 
It is hard for me to put an exact quantitative statement to 
your question, but certainly it is an issue that will not 
affect the performance of the military, but it might affect the 
quality and the numbers that make it a career.
    Mr. Gekas. The time of the gentleman has expired. We turn 
to the gentleman from Massachusetts for 5 minutes.
    Mr. Frank. Admiral, let me follow up on that because I 
gather you are saying that while you can't quantify, and I 
appreciate your pointing out we all tend sometimes to be 
alarmists and I would certainly agree with you that people that 
are in the military now are going to do their best and we 
should not assume they are as easily swayed from their duty and 
people will make that on both sides, but you said it could have 
a longer term negative effect and that is because the 
commander, the person right up there in the chain of command, 
in the civilian chain of command but nonetheless in the chain 
of command, might be seen to be getting away with conduct and 
not be held accountable for conduct that would be severely 
punished in the military, is that true?
    Mr. Edney. What you will see in my judgment, Congressman 
Frank, is a tendency to see the rationale that is being put 
forth here on the insignificance of lying and the 
insignificance of adultery and these other issues as then being 
used as a defense, and in that manner it will undercut the good 
order and discipline.
    Mr. Frank. We don't have to speculate, because in December 
of 1992, George Bush, the outgoing President, pardoned Caspar 
Weinberger, who had been Secretary of Defense for I think 6 
years during the Reagan administration. While the Commander in 
Chief is here, the Secretary of Defense is between you all and 
the Commander in Chief, and he has a very direct relevance 
here. So I guess I would ask you, my colleague from Florida 
says he is confident that Caspar Weinberger didn't commit 
perjury. I don't know whether Caspar Weinberger committed 
perjury or not and will never know because George Bush pardoned 
him. He was indicted on four counts, including obstruction of 
Congress, false statements and two counts of perjury, and 
George Bush pardoned him after the 1992 election. So the 
Secretary of Defense, who is obviously very directly in the 
chain of command of the Armed Services was indicted on two 
counts of perjury and the President of the United States 
pardoned him. Did that have the negative effect on the military 
that you are afraid? If not, why not? Because isn't it very 
similar? The Secretary of Defense certainly has a relevance to 
the military. He is in the chain of command.
    Mr. Edney. No, first of all, the Weinberger case was never 
carried forth, so we do not know----
    Mr. Frank. As a matter of fact, the President pardoned him. 
But he was indicted. And the question about whether or not it 
was carried forth begs the question because the question is 
whether we should carry this forth. Caspar Weinberger was 
indicted. I guess the question is, when George Bush pardoned 
Caspar Weinberger was he saying to the military, ``Look, he's 
not going to be held accountable,'' and did that not have a bad 
effect to pardon someone before he was even tried but was 
indicted?
    Mr. Edney. There was no proof on whether or not Caspar 
Weinberger committed----
    Mr. Frank. Of course there was no proof because it didn't 
go to trial. There couldn't be proof. George Bush made it 
proof-proof. That is the problem. It would be similar here. So 
if we don't move to impeach President Clinton there wouldn't be 
any proof either. In both cases independent counsel have made 
charges. In fact, in the Weinberger case, the independent 
counsel went a step further. He brought indictments. In this 
case he just came and told us. They are on the same footing. I 
have to say if in fact this was the case, my guess is this 
doesn't have a big effect on morale in either case.
    I do want to say, I remember when George Bush pardoned 
Caspar Weinberger, Les Aspin, the late Les Aspin who later 
became the Secretary of Defense, he was chairman of the Armed 
Services Committee, he praised, he said it was okay for George 
Bush to do that. He wasn't terribly partisan. I don't criticize 
George Bush for pardoning Caspar Weinberger, but I do think 
what is sauce for the wild goose chase ought to be sauce for 
the gander, to join our metaphors of the day.
    Mr. Edney. Pardon my voice. One of the differences is the 
Weinberger case involves the execution of foreign policy, which 
is much more complex to understand than the issues involved, 
whereas the issues involved here are a very common, frequent 
occurrence in the military and they get----
    Mr. Frank. I think, A, you are denigrating the military, at 
least the top ranks. I would hope they would understand 
national security policy that had to do with arms sales which I 
think frankly many of you understand better than I, but also I 
would say the charge was lying and not remembering. It wasn't 
some complex question about name six Ayatollahs. It was not a 
foreign policy test. It was, ``Do you remember?'' ``No, I don't 
remember.'' It happened last week. Do you know of any such 
things? They were on his desk. According to them he was denying 
that he remembered things that were on the desk a little bit 
away.
    Bill Clinton is being accused by my friends on the other 
side of perjury before the grand jury because he said in August 
of 1998 that the activity began in February of 1996 and Monica 
Lewinsky said November of 1995. That is one of the three counts 
of grand jury perjury. A question of a couple of months 
difference in remembering something over 2 years. Caspar 
Weinberger was asked for a much shorter period of time.
    So I disagree with you as to the complexity and I must say 
I think that I, unfortunately, have to infer a lack of 
objectivity in your approach to this.
    Mr. Edney. I am not implying on either case, but I will say 
that no matter who does it, whether it is a Republican or a 
Democrat, if you are found to be guilty of lying under oath, 
under the judicial system of this country, it is a serious 
offense.
    Mr. Frank. But neither one has been found because of the 
pardon and----
    Mr. Edney. Then there is no conclusion to your question. If 
you haven't found guilt in Weinberger or the President, I'm not 
making any conclusions.
    Mr. Hyde. The gentleman's time has expired. The gentleman 
from Pennsylvania, Mr. Gekas.
    Mr. Gekas. I thank the Chair. Many of the Members who have 
immediately rushed to the side of President Clinton, as they 
did from the very first moment that this case began, have 
already even from that very first moment pronounced that the 
President is guilty of no offense, even though he lied under 
oath or may have committed perjury or all these others, it is 
not an impeachable offense. In my estimation, they have issued 
individual pardons to the President as they sit here as Members 
of Congress. They say he committed these acts, we don't think 
that they should be impeachable.
    Mr. Nadler. Will the gentleman yield?
    Mr. Gekas. I will not yield.
    I want to go to a little scene that was erected by Judge 
Higginbotham and ask if I might use assuming arguendo back at 
you for a moment.
    Mr. Higginbotham. It would be a pleasure. I want you to 
know that I once lived in your great Commonwealth.
    Mr. Gekas. Very good. The scene that you constructed was of 
the President admitting only to going 49 miles per hour while 
everybody in the world knew that he was doing 55. Is that what 
you said?
    Mr. Higginbotham. No, I did not state it with that 
precision. It is here, in my statement. I said the hypothetical 
was the President factually was going 55 miles per hour in a 50 
miles per hour zone. He is questioned before a grand jury as to 
what was his speed, and he says 49, knowing that it was 55.
    Mr. Gekas. Very good. Stop right there. Can you, assuming 
arguendo, assume also that there is another person involved in 
this case, a woman or a man or someone whose child was run over 
by the defendant who insisted he did not go over 50 miles per 
hour but everyone in the world knows that he violated the speed 
limit at 50 and thus he could amount to be a destroyer of the 
case of the plaintiff who insists that negligence, or speeding, 
or going over the speed limit is the cause of the great damage 
to one's family. Is that an assumption that is beyond scenario?
    Mr. Higginbotham. I am perfectly willing to accept your 
amendment of the scenario and I am willing to answer it if you 
will allow.
    Mr. Gekas. I will let you in a moment. What I am asking is, 
isn't that tantamount to the Paula Jones case where Paula 
Jones, whether you agree or not that she should have been 
granted the right by the Supreme Court to sue the President of 
the United States. By the way, I disagreed with that opinion of 
the Supreme Court. I still rue the day that the Supreme Court 
ruled that way in that particular case. But now that is 
history. Paula Jones was entitled, then, under the ruling of 
the Supreme Court, was she not, Judge Higginbotham, to the 
pursuit of her rights to find damages against the defendant in 
her case? Now, if indeed the President and Monica Lewinsky 
testified falsely in those proceedings in order to destroy the 
case of a fellow American citizen, to get away with not having 
to pay damages, to avoid the possibility of being found liable 
by a jury, to do all of those things, isn't that more serious 
than just a case of a triviality like a traffic offense where 
if it is limited to a traffic offense all of us would say you 
are absolutely correct, but when it involves destroying a 
negligence case or a reckless case of involuntary manslaughter, 
doesn't it take on different connotations when rights are 
destroyed by virtue of false statements under oath? That is a 
very important question to me.
    Mr. Higginbotham. No doubt about it. I tried personal 
injury cases for 13 years as a Federal district court judge. 
Not in your area, sir, but in Philadelphia. I must have had 200 
right angle collisions tried before me where there was a 
traffic light.
    Mr. Gekas. That is why I didn't go to Philadelphia.
    Mr. Higginbotham. In 200 cases, 199 of them had the green 
light on each side. So that either Philadelphia has the worst 
traffic light system in the world where all the lights are 
green when people approach them or there is a diminution of 
accuracy in such case.
    Mr. Hyde. The gentleman's time has expired.
    Mr. Gekas. I ask unanimous consent for 30 seconds more.
    Mr. Hyde. Of course.
    Mr. Gekas. I am simply drawing the parallel and you have 
helped me to draw it, that the added element of the fact that 
certain other American citizens' constitutional rights, to use 
the words of Professor Dershowitz, the constitutional rights, 
might be damaged by perjury where he thinks that should be 
investigated further, these constitutional rights to sue for 
damages might have been damaged by the testimony before a grand 
jury.
    I yield back the balance of my time.
    Mr. Higginbotham. If you want me to answer, Mr. Chairman, I 
am perfectly willing to, but I don't want to be disrespectful 
of your ruling.
    Mr. Hyde. You are being instructed that you should answer.
    Mr. Higginbotham. All I was suggesting is you can't apply a 
per se rule and you have to be factually specific.
    Mr. Gekas. And you have helped me.
    Mr. Higginbotham. Okay.
    Mr. Hyde. I thank the gentleman. Mr. Boucher, the gentleman 
from Virginia.
    Mr. Boucher. Thank you very much, Mr. Chairman. I will 
direct this question to Professor Rosen, Professor Saltzburg 
and Professor Dershowitz, and following their answers if others 
on the panel would also like to comment and if time permits, we 
would be happy to hear from them as well.
    Since the referral to this committee of September 9 by the 
Office of Independent Counsel, a great deal has been said about 
the supremacy of the rule of law and the principle of American 
jurisprudence that no person, including the President of the 
United States, should be above the law. We have heard 
statements from witnesses today referring to those principles 
and a number of Members of this panel have talked about those 
very important principles in their questions. Some have 
suggested that if one concludes that the President committed a 
crime such as perjury, the only way to pay service to these 
important principles is to impeach and remove the President 
from office. But the constitutional history of the impeachment 
power suggests that it was not designed as a punishment for 
individual misconduct on the part of the President. Rather, it 
was designed to protect the Nation from the conduct of a 
President who through his actions has become a national threat. 
Punishment of the individual for any crimes that the individual 
may have committed while he holds the office of the presidency 
is expressly provided for in Article I, Section 3 of the U.S. 
Constitution.
    In his testimony before this committee last week, the 
independent counsel, Mr. Starr, stated that in his view the 
President would be vulnerable to the criminal justice process 
when he leaves the office of the presidency in January of the 
year 2001. He stated that the President at that time could be 
indicted, tried, convicted and given appropriate sentence for 
any crimes, including perjury, that were committed by the 
President during his tenure in the presidency. Mr. Starr also 
confirmed that the statute of limitations for the offenses that 
are described in his referral is 5 years and that there would 
be time remaining within the statute of limitations to indict 
and prosecute the President after he leaves office in the year 
2001.
    So given the fact that the President can be prosecuted for 
any crimes that he may have committed while in office and given 
the fact that the impeachment power was designed for the 
protection of the Nation, not for the punishment of the 
President individually, should the House of Representatives 
decide that the President should not be impeached, would you 
not agree that the rule of law and the principle that no person 
is above the law, including the President of the United States, 
is well served because the President is vulnerable to 
prosecution, indictment and trial for any crimes that he 
commits while he holds the office of President?
    Mr. Dershowitz, let's begin with you.
    Mr. Dershowitz. Theoretically the President could be 
prosecuted after he leaves office. The President will not be 
prosecuted after he leaves office, for several reasons. First, 
this would be a selective prosecution. People who commit acts 
like the President are never prosecuted for those acts. Second, 
no prosecutor in his right mind would indict a President unless 
he were confident he would get a conviction. There would be no 
conviction in this case. The problem is that by Kenneth Starr 
holding this threat of prosecution over the President and his 
lawyers, they have made it impossible for the President to come 
and apologize and do what many Members of this House would like 
him to do, acknowledge more than he has already acknowledged. 
As a practicing criminal lawyer, I can tell you no lawyer worth 
his salt would ever recommend the President acknowledge 
anything while there is a prosecution pending. So the answer is 
very simple. Let Kenneth Starr announce now what he will 
inevitably announce months from now, he will not prosecute the 
President, and I have a relatively high level of assurance that 
the President would respond by making statements unlike the 
statements he has made up to now. But don't expect the 
President to admit complicity while at the same time 
encouraging the independent prosecutor to threaten him with 
prosecution. It won't happen.
    Mr. Boucher. Let me briefly ask the other two witnesses to 
respond. And the question is this. Is not the rule of law well 
served by the President being vulnerable to the criminal 
justice process just as any other American is for crimes that 
he commits while he holds the office of the presidency?
    Professor Saltzburg.
    Mr. Saltzburg. I want to begin my answer by just saying to 
the chair that a couple of us have to leave at 5 and I know 
that by yielding, if there are questions Members want to ask, 
we would like to be able to answer them and I want to answer 
this one. I think that it is very clear to me that there is now 
a threat of criminal prosecution against the President. I am 
very serious when I suggest to you that but for this 
committee's going forward, I believe there is every reason to 
think that Judge Wright would do what judges ought to do, which 
is at the first hint, not just of perjury but that the court 
has been deceived, it ought to take action. If you wanted to 
really send a message to the American people that everybody is 
equal under the law and you really cared about honesty and 
integrity in the court system, what you would do is you would 
put it in the hands of the court, where it can't be now because 
the court out of respect for a co-equal branch of government 
would just leave it with this committee. There is a solution 
that would guarantee that the President would be no better off 
and no worse off but for timing.
    Mr. Boucher. Professor Rosen.
    Mr. Rosen. I agree with Professor Saltzburg that Kenneth 
Starr may indeed bring a criminal prosecution. But I'm 
interested in the light that your question casts on the 
decision that your colleagues on the other side face--those who 
believe that the perjuries in question are impeachable 
offenses. What light does the unlikelihood that a jury would 
convict cast on the question of prosecutorial discretion? The 
lying cases suggest that even overzealous prosecutors who bring 
lying prosecutions rarely succeed.
    Oliver North, for example, was prosecuted for lying to you, 
for lying to Congress, and a Washington, DC, jury acquitted. 
There are many other cases of juries who are far more indulgent 
of lies because they have common sense intuitions about what 
lies should be punished and therefore they ultimately acquit. 
It seems that if you conclude that your jury, your trier of 
fact, the Senate, is unlikely to convict, that might indeed be 
a factor in your decision as the grand inquest of the Nation 
whether or not to bring an impeachment article in the first 
place.
    Mr. Hyde. The gentleman's time has expired. Mr. Coble.
    Mr. Coble. Thank you, Mr. Chairman. Thank you all for being 
with us, gentleman. Judge Tjoflat, is perjury a less offensive 
transgression in a civil case rather than a criminal one?
    Mr. Tjoflat. No, the perjury is the same regardless of the 
circumstances. I think that that is well-settled.
    Mr. Coble. Thank you, sir. That was my thought as well.
    Admiral or General, I am familiar with the military 
imposition of sanctions for fraternization. I have always felt 
that they should probably be imposed more flexibly. As an 
enlisted member I have gone ashore with officers. As an officer 
I have gone ashore with enlisted members and never had any 
fraternization problems. So that is why I am thinking the way 
that I do.
    But let me put this to you, Admiral. In the unlikely event, 
probably unlikely event that an admiral would have a sexual 
affair with a seaman or a third class petty officer and it was 
ultimately revealed, what would be the consequences?
    Mr. Edney. The consequences would be immediate removal from 
the position they held and a required resignation and potential 
loss of salary. But certainly the first two, removal from 
office and a required resignation. And then it would be up to 
the Congress what the salary of my retirement would be.
    Mr. Coble. General, I am sure you concur with that 
probably?
    Mr. Carney. It depends on the nature of the discredit to 
the service. If this had become rather public within the 
command, it was viewed to be detrimental to the good order and 
discipline.
    Mr. Coble. And I will talk with you all later on ashore one 
night about the flexibility of sanctions. We will do that 
another day. Professor Saltzburg, Professor Dershowitz says 
that he believes that history will not smile favorably upon 
this committee nor upon this Congress. How do you think history 
will smile upon this committee, this Congress and President 
Clinton?
    Mr. Saltzburg. Let me say that I think anyone who predicts 
history is wrong. Having said that, I will answer your 
question. I don't think that--as for this committee, I think 
Professor Dershowitz is premature. You haven't reached a 
judgment yet. I know some of the press say you have. But if I 
thought you had, I wouldn't have come today. You are struggling 
with important issues. If you do your job well and, in my 
judgment, if you decide that there is a better way to handle 
this than impeachment, that there is a better way, then history 
will say that you took a difficult task and you did it well.
    I think as for the Congress, it depends also on what this 
committee does. It is hard to know how the Congress will be 
judged because it will depend upon what you do first. And as 
for the President, I think tragically, for any President, I 
don't just say this about this President, I think that 
throughout history, every time the name Bill Clinton is 
mentioned, the name Monica Lewinsky will be mentioned also, and 
that for any President has to be the ultimate tragedy.
    Mr. Coble. Of the professorial staff you were sitting in 
between the two learned men, so I went in the middle. Let me 
put a question to the appellate judges. Gentlemen, have you all 
ever upheld a perjury case that was sent to you by a district 
court?
    Mr. Tjoflat. Yes, I think many times.
    Mr. Coble. Judge Wiggins.
    Mr. Wiggins. Yes.
    Mr. Coble. And Judge Higginbotham.
    Mr. Higginbotham. Yes, I cite some cases which I wrote in 
footnote 13, sir.
    Mr. Coble. I see my time is about to expire. I want the 
chairman to recognize that I beat the red clock again, Mr. 
Chairman. Good to have you with us, gentlemen.
    Mr. Hyde. Thank you, Mr. Coble.
    Mr. Nadler.
    Mr. Nadler. Thank you, Mr. Chairman. Mr. Chairman, I have a 
question for the three professors at the end, Professors 
Dershowitz, Saltzburg and Rosen.
    We have talked a lot today about equality before the law. 
The President is neither--should not be above the law, 
presumably shouldn't be beneath the law either but he shouldn't 
be above the law any more than any other person. I would like 
to ask the three of you two separate questions on this. In 
terms of the fairness of the procedure, I alluded earlier today 
to the fact that we are considering impeachment, we are going 
to be voting on articles of impeachment next week, and so far 
what has happened is that an independent counsel gave us a 
report in which he characterized testimony that he received or 
his people received, he reached conclusions from it, 
conclusions of fact and conclusions of law, the President did 
this, the President did that, we know that from so and so's 
testimony, and these deeds amount to impeachable offenses. He 
reached those conclusions, he gave those conclusions to us. The 
only witness we have had as to that so far has been the 
prosecutor, who in effect said I was right in the report, these 
witnesses said these things, we conclude, or I conclude that he 
committed impeachable offenses and they are impeachable 
offenses.
    Now we are told that we don't need, the prosecution in 
effect doesn't have to call any witnesses before the committee 
because after all they testified under oath at the grand jury. 
We don't need to hear them. We are also told--and they are 
believable because they testified under oath. We are also told 
that by the defense in effect, the Democrats here, not calling 
any witnesses, we are pleading nolo contendere, we are 
essentially admitting the facts. Some of us think the facts 
haven't been put before the committee because there is no 
evidence before the committee since the prosecutor's opinions 
and conclusions are not evidence.
    My first question is how would you judge all of that? Have 
we followed any kind of procedure that comports with due 
process or is this upside down?
    My second question is a more simple question. The analogy 
has been made to the grand jury, we don't have to call their 
witnesses here, we are more like the grand jury, we just have 
to find probable cause and pass it on to the Senate. Given the 
precedents, do we need probable cause, do we need clear and 
convincing evidence, what is our role?
    Mr. Dershowitz. I think the two questions really are rolled 
up into one. If in fact Congress is like the grand jury and if 
impeachment is exactly like indictment, then what they are 
doing is flawless. But obviously the analogy is completely 
flawed. Indictment is the second most serious act that can be 
taken in a constitutional government, second only--I am sorry, 
impeachment, second only to removal. When you impeach a 
President, you have gone down historically and made a very 
significant decision. Andrew Johnson was impeached. That will 
live with him for the rest of his life. It doesn't get undone, 
in the rest of our lives, in the rest of the lives of our 
country. It doesn't get undone simply by the fact that he was 
not removed by one vote. And so for impeachment to occur, you 
need to do what the committee did last time around with 
President Nixon. You need to hear evidence. You need to make 
credibility determinations. You need to ask yourselves the 
question, is the evidence, has it reached a level of clear and 
compelling evidence so that you are prepared to go down on 
record historically as saying, I am prepared to impeach a 
President of the United States, to start the process of undoing 
an election, to in effect implement a legislative coup d'etat, 
the most dramatic act of check and balance. To think that it is 
like an indictment which could be handled on the basis of 
hearsay testimony, having a prosecutor come in and say I have 
interviewed six witnesses and this is what they say because the 
courts say you can indict on the basis of hearsay, is to 
misunderstand the difference between a criminal case and a 
great constitutional crisis.
    Mr. Nadler. Professor Saltzburg.
    Mr. Saltzburg. Congressman, I don't know that you are going 
to like my answer, but it is going to be shorter and 
straightforward. As one who has watched this committee struggle 
a little bit with accusations flying back and forth, let me 
answer you this way. There was no independent counsel in 1974. 
There was no one who did that kind of investigation, and it 
makes all the difference in how you view due process in my 
judgment. I think that the independent counsel's report is a 
fair starting point. I think that it is wrong to suggest that 
you ignore it and proceed as though it didn't exist, and that 
it is perfectly fair for the majority to say point to the 
things that we ought to take evidence on. I don't see how--
having said that, however, I don't see how, to answer your 
first question, certain judgments could be made without certain 
witnesses. I don't see how you could make an obstruction of 
justice conclusion regarding gifts without hearing from the 
participants because as I read the information that you have, 
the testimony is absolutely confusing as to the gifts. You have 
to hear that. That is one, while others, it seems to me, you 
wouldn't have to hear witnesses. You know what the President 
said. You heard his explanation. It is enough to make a 
judgment about whether you think this is impeachable.
    As for the standard, you know, there isn't a one of the 
three of us who can give you much help on this because you know 
more about it than we do. We didn't run for office. We didn't 
go out to the voters and get elected. We aren't the ones who 
held ourselves out there to be criticized, to fight those 
battles. You know much better than anybody what this is about. 
What it is about is a simple question. If you decide to impeach 
the President, you are saying that it is important enough to 
paralyze this country for some period of time because that is 
what it will be. You have got to decide that it is that 
important. And if it is, if you reach that conclusion, you will 
do it. All I can tell you is, I have a judgment about that but 
it is no better than yours and I don't think I can help you. It 
is not just indictment. We can indict any individual anywhere 
anytime without paralyzing the country. So the question you ask 
yourself, is the quality of the evidence and the nature of the 
charges enough to warrant putting the country, not just the 
President but the country, through that kind of proceeding?
    Mr. Hyde. Go ahead, Professor.
    Mr. Rosen. I'm not sure that was shorter than Professor 
Dershowitz's
    Mr. Saltzburg. You don't have tenure. You should be 
careful.
    Mr. Rosen. The one salutary effect of this particular 
hearing is to convince people on both sides of the political 
spectrum of the deep constitutional problems with the 
independent counsel statute, and I think this goes to the core 
of the question. Section 595(c), which requires the independent 
counsel to advise the House of Representatives of substantial 
and credible evidence, arguably requires him to turn over raw 
information. It is arguably a derogation of your sole 
constitutional authority, under Article I, Section 2, to 
exercise the sole power of impeachment if you allow the 
independent counsel or anyone else to do the narrative project 
of forming legal conclusions and judging the credibility of 
witnesses. Clearly you do have an obligation to engage in 
independent fact finding about whether or not the alleged 
statements in question rise to the technical level of perjury.
    As to the second question, regarding the Johnson Congress, 
its name was taken in vain earlier today and I would like to 
say a word on its behalf. The Johnson Congress acted with such 
constitutional scrupulousness. The Senate carefully separated 
the lower level charges of public disorderliness and general 
partisanship from the abuse of power charge, violating the 
tenure of office act. On that count--and this is an important 
precedent, I think--it was established beyond clear and 
convincing evidence. President Johnson didn't dispute that he 
had, indeed fired Stanton, or that he was indeed guilty of the 
charge in question. Therefore, the relevant precedent sets the 
bar quite high. This is not probable cause. This is a question 
about which the entire Congress, Members from both parties, 
converged and agreed.
    Mr. Hyde. The gentleman's time has expired. The Chair will 
yield himself 5 minutes. I missed part of Professor 
Dershowitz's statement and I regret that. I had to attend to 
some other business. But I take it there was some concern about 
this committee being the only engine in the country that is 
moving in the direction we are moving in. By way of defense for 
this committee, I am proud of this committee, both sides of 
this committee. We are fighting really for a principle that is 
submerged in all of the personality that overwhelms this 
discussion and in the Dow Jones average.
    We are fighting for the rule of law really. What does it 
mean? What does an oath mean? It isn't that you tell a 
falsehood about 55 miles an hour. It is that you have sworn to 
almighty God to tell the truth, the whole truth, and nothing 
but the truth in a formalized procedure and that you are the 
one man in the country who has a constitutional obligation to 
take care that the laws are faithfully executed. You are the 
chief law enforcement officer in the country, and you have 
taken that oath and you have cheapened it. You have disparaged 
it. And is that not worth our time and discussion? Because the 
rule of law--if you look at Auschwitz--do you see what happens 
when the rule of law doesn't prevail?
    Now, I do not leap from the Oval Office on a Saturday 
afternoon to Auschwitz, but there are similarities when the 
rule of law does not obtain, or where you have one law for the 
powerful and one for the nonaristocratic. That is what we are 
discussing, the significance of the oath, the significance of 
truth, the breach of promise when someone lies to you having 
raised their hand and sworn to tell the whole truth. I wonder 
why they don't just say tell the truth. Why do they say the 
whole truth and nothing but the truth? Evasions. Evasions. 
There are all kinds of lies. There are fibs, little white lies, 
there is hyperbole, exaggeration, mental reservations, 
evasions. But then there is swearing to God to tell the truth, 
the whole truth, and nothing but the truth and then 
deliberately deceiving and lying. I think that is worth our 
time to thrash this thing out. I don't know where it is going 
to come out. I think if many of you--if Mr. Wiggins, who 
surprised me today, has his way--we will pass a resolution of 
impeachment out of here and it will fail on the floor and that 
will end it. And what becomes of the rule of law? What has 
happened to the oath? Has it been cheapened? And what does that 
mean for the rule of law? These are important questions. And 
what about that taking care that the laws be faithfully 
executed? Have we diminished that?
    Mr. Dershowitz. May I respond?
    Mr. Hyde. Yes. If I am running out of ideas, you may 
respond.
    Mr. Dershowitz. I think you have made an excellent point 
and I think it is crucially important for this committee to be 
concerned with the rule of law and the importance of the oath. 
I think this committee is doing a terrible, terrible disservice 
to the rule of law and to the sanctity of the oath by 
trivializing the differences, as Judge Tjoflat said in one of 
the most unbelievably wrongheaded statements I have ever heard 
from a judge, that there is no difference between types of 
perjury. I challenge anybody to respond and say that there is 
no difference between a police officer who deliberately frames 
an innocent man or woman who he knows is guilty and subjects 
that person to false imprisonment or the electric chair and 
someone who lies to cover up a private embarrassing sex act. 
What this committee is doing is trivializing the oath. What 
this committee is doing is trivializing the rule of law. By 
only focusing on perjury because they want to get a President 
of the opposite party, they are telling the American public 
they don't care about perjury, they don't care about the real 
perjury that exists and is pervasive in this country in 
courthouses and in courtrooms and police stations. All they 
care about is Democratic perjury, not Republican perjury by 
Caspar Weinberger, which doesn't exist because you have read 
that record and you don't believe it is perjury, not perjury by 
police officers, not perjury that affect the lives of Americans 
on a daily basis but only perjury committed by one Democratic 
President. Nothing can trivialize the rule of law more than to 
selectively isolate this case and act as if it is the only case 
of perjury that is worth--that is important.
    Mr. Chairman, you contributed to that in the beginning when 
you said that this was going to be a broad hearing about the 
pervasive influence of perjury on the American system. That is 
Hamlet without the prince. To talk about the pervasive 
influence of perjury on the American legal system and ignore 
100 years of police perjury and documented reports about police 
perjury and pretend and close your eyes and make believe that 
the only perjury worth considering is perjury about a sex lie 
committed by a President of the opposite party trivializes the 
rule of law and trivializes the oath of office.
    Mr. Hyde. I thank you, Professor Dershowitz. I don't thank 
you for criticizing the motives, saying that we are out to get 
the President. You haven't the slightest idea of the agony that 
many of us go through over this question. Many of us are 
sensitive to those concerns, all of us I daresay. I think you 
have disparaged us by leaping to conclusions without any basis.
    I will tell you something. These two women who came here 
today are suffering permanent damage because they lied under 
oath about matters that are relatively trivial, relatively 
trivial, and we are concerned about the double standard. That 
may mean nothing to you.
    Mr. Dershowitz. It means a great deal to me.
    Mr. Hyde. But it means something to us.
    Mr. Dershowitz. It means a great deal to me. You selected 
these two women. When is the last time this committee has 
expressed concern about the rights of criminal defendants? 
Separate criminal defendants can show that the President is 
being selectively prosecuted.
    Mr. Conyers. Mr. Chairman.
    Mr. Hyde. Yes, Mr. Conyers.
    Mr. Conyers. And I thank you for this interchange, but it 
is not unknown to ourselves and to anyone that has been 
watching our proceedings in the Judiciary Committee that we are 
split totally down the middle in the most partisan fashion that 
has ever happened. Never, Judge Wiggins, in our '74 proceedings 
were we split this far apart. The result is fairly obvious of 
what is going to happen to anybody with the least understanding 
of this matter. So for you to be offended by the Dershowitz 
evaluation strikes me as a little disingenuous. You know what 
we are going to do here, because it has been said repeatedly by 
every Republican Member of the committee. So let's not get 
offended by the truth at this point in our proceedings.
    Mr. Hyde. You know a lot more than I know about how the 
Republicans, every Member, is going to vote, because I don't 
know.
    Mr. Conyers. Well, I have heard them tell me what they were 
going to do. They tell me what is impeachable. I have heard it, 
sir. And I thank you for the intervention.
    Mr. Hyde. You bet. The gentleman from Texas.
    Mr. Smith. Mr. Chairman, I am going to yield part of my 
time to my colleague from California, Mr. Gallegly.
    Mr. Gallegly. Thank you very much for yielding, my good 
friend from Texas, Mr. Smith. Mr. Chairman, thank you for your 
comments. You echoed, I am sure, the sentiments of many Members 
on this committee, and we share that frustration. I want to 
thank this witness panel for coming here today. I know the hour 
is getting late. I understand we have a couple of individuals 
that have to leave here shortly. We still have 20 Members of 
our committee that have not had an opportunity to ask a 
question. So for the sake of brevity and respect for the 
gentleman that yielded to me, I would just like to ask Judge 
Tjoflat one question.
    Judge, if you would be kind enough to explain to us your 
opinion of what the consequences would be to our system of 
justice if perjury becomes commonplace in our courts? What 
would happen if lying on the witness stand is winked at because 
the person on the witness stand for whatever reason feels it is 
inconvenient, embarrassing or maybe even politically harmful if 
he or she told the truth under oath?
    Mr. Tjoflat. As I said in my opening remarks, the system of 
justice functions because of three things: First an impartial 
judge, second lawyers who obey the cannons of ethics and 
thirdly witnesses who take the oath sincerely. And it is a 
three-legged stool. If any one of those legs collapses, then 
the system is unable to render justice, as I see it. And of 
course if it happens repeatedly, then the people lose respect 
for the law, they lose confidence in the system of justice and 
they resort to other means to resolve their disputes.
    Mr. Gallegly. Thank you very much, Judge Tjoflat. I want to 
thank Mr. Smith for yielding to me and would yield back to him.
    Mr. Smith. Mr. Chairman, I am going to reclaim my time and 
address my first question to Judge Wiggins. Judge Wiggins, in 
your prepared testimony, you made this assertion: ``The answer 
to the question of whether perjury or obstruction of justice is 
a high crime or misdemeanor is a relatively simple one. Of 
course it is.'' It is not that clear to everybody here today 
and perhaps to some of your panelists, though it is clear to a 
large number of other people. Why is it that you feel that 
perjury is an impeachable offense?
    Mr. Wiggins. Why do I feel that way?
    Mr. Smith. Yes.
    Mr. Wiggins. I think the phrase treason, bribery and other 
high crimes and misdemeanors is a deliberately vague phrase and 
does not have a fixed meaning, except perhaps for treason and 
bribery. But the others, offenses, are vague. And I don't think 
that you must impeach for every finding of perjury and every 
finding of obstruction of justice. But there are some findings 
of perjury and obstruction of justice that are so clearly 
important to arouse public attention to the gravity of the 
offense and misconduct of the offender and you must react. Now 
I think that if you say that is the crime of perjury, for 
example, an impeachable offense, of course it is. It is a 
crime. It is a felony. Thousands of people are in jail or have 
been in jail for violating that crime. If the President commits 
perjury, he is vulnerable for impeachment. But--and that is the 
issue before this committee. But once it passes from this 
committee----
    Mr. Smith. I understand.
    Mr. Wiggins. It is for the House of Representatives and 
that is where I may draw a different conclusion.
    Mr. Smith. The point that I was hoping to make, which you 
did make, was that perjury, in your judgment at least, is 
clearly and can be an impeachable crime. Is that right?
    Mr. Tjoflat. Of course it can be.
    Mr. Smith. Thank you.
    Thank you, Mr. Chairman.
    Mr. Hyde. Thank you.
    Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Chairman, I want to submit for the record with 
unanimous consent a copy of Rule 6(c) of the Rules of Criminal 
Procedure that state that the court shall appoint one or more 
jurors to be the foreperson and another to be deputy 
foreperson. The foreperson shall have the power to administer 
oath and affirmations and shall sign all indictments.
    It is my understanding that the President was sworn in by 
one of the prosecutors at the grand jury testimony. I also have 
a copy of a memo from Bob Weinberg that outlines the basis for 
raising questions about the oath and two cases that are 
relevant to this issue, and I would like these introduced into 
the record.
    Mr. Hyde. Without objection, so ordered.
    [The information follows:]

        Rules of Criminal Procedure for the U.S. District Courts

                    iii. indictment and information
Rule 6. The Grand Jury
          * * * * * * *
    (c) Foreperson and deputy foreperson.The court shall appoint one of 
the jurors to be foreperson and another to be deputy foreperson. The 
foreperson shall have power to administer oaths and affirmations and 
shall sign all indictments. The foreperson or another juror designated 
by the foreperson shall keep a record of the number of jurors 
concurring in the finding of every indictment and shall file the record 
with the clerk of the court, but the record shall not be made public 
except on order of the court. During the absence of the foreperson, the 
deputy foreperson shall act as foreperson.
                                 ______
                                 

  The Fatal Flaw in Starr's Case for Grand Jury Perjury: An Essential 
                           Element is Missing

                      (By Robert L. Weinberg \1\)
---------------------------------------------------------------------------

    \1\ Robert L. Weinberg has been a Visiting Lecturer in Criminal 
Procedure at the University of Virginia School of Law for the past 33 
years, and was the court-appointed counsel for the appellant in the 
District of Columbia Circuit case ofGaither v. United States (cited 
above). He is a former president of the District of Columbia Bar.
---------------------------------------------------------------------------
Introduction
    Now that the post-election proceedings of the House Judiciary 
Committee are focusing on whether any of the Independent counsel's 
charges rise to the level of an impeachable offense, the alleged grand 
jury perjury of the President is the charge that impeachment proponents 
most strongly argue constitutes a ``high Crime or Misdemeanor.'' For 
example, at the November 9 Judiciary Subcommittee Hearing seeking to 
define impeachable offenses, South Carolina Rep. Lindsey Graham opined 
that Clinton should not be impeached for his allegedly perjurious 
deposition in the Paula Jones case but that the President's alleged 
perjury before the grand jury would be ``a good candidate for an 
article of impeachment.'' (The Washington Post, Nov. 10, 1998, p. A4.
    The President has of course vigorously denied the factual basis of 
Starr's charge of grand jury perjury, which rests upon certain 
contradictions between the grand jury testimony of Lewinsky and 
Clinton. But close scrutiny of the record of Clinton's grand jury 
appearance may render it unnecessary for the House and Senate to 
adjudicate this underlying factual controversy, because it will show 
that the charge of grand jury perjury lacks an essential legal element. 
this missing element would require dismissal of an indictment against 
the President for the ordinary crime of perjury. it should likewise 
defeat a charge by the House that he is guilty of the ``high crime'' of 
grand jury perjury.
The Oath
    The transcript of President Clinton's grand jury testimony, 
submitted to Congress by the Office of Independent Counsel (OIC) in 
support of its perjury allegation, recited that Clinton was ``duly 
sworn.'' \2\
---------------------------------------------------------------------------
    \2\ House Doc. 105-311, p. 454.
---------------------------------------------------------------------------
    But was he? Or is this transcript misleading?
    By omitting a verbatim transcription of the administration of the 
oath to the President, the OIC transcript glosses over the circumstance 
that the grand jury oath was given to the President by the wrong 
person. The Clinton grand jury transcript contrasts with the 
transcripts of grand jury testimony by Monica Lewinsky and other 
witnesses, which recite that the witness was ``duly sworn by the 
Foreperson of the Grand Jury.'' \3\ The difference is critical, because 
the Federal Rules of Criminal Procedure authorize only the grand jury 
foreperson (or in her absence, the deputy foreperson) to swear the 
witness.
---------------------------------------------------------------------------
    \3\ House Doc. 105-311, pp. 723, 964; House Doc. 105-316, pp. 14, 
124, 173.
---------------------------------------------------------------------------
    A different version of the transcript, attributed to the Federal 
Document Clearing House, was printed in The Washington Post the day 
after the videotaped version was publicly released by the House.\4\ The 
Post version does include the verbatim transcription of the 
administration of the oath to President Clinton, recording that the 
oath was given by a Mr. Bernard J. Apperson. But Mr. Apperson is not 
the grand jury foreperson; she was sitting a mile away from the 
President with the other grand jurors, listening to the oath in the 
Court House on a video feed. The oath-giving Mr. Apperson was 
identified in the Post transcript as an associate counsel of OIC, a 
member of Kenneth Starr's prosecution staff.
---------------------------------------------------------------------------
    \4\ The President's Grand Jury Testimony,'' The Washington Post, 
Sep. 22, 1998. p. A31.
---------------------------------------------------------------------------
Legal Argument
    Under the federal perjury statute, 18 U.S.C. Sec. 1621, the 
prosecution must establish, as the first essential element of the 
offense of perjury, that the defendant took ``an oath authorized by a 
law of the United States.'' \5\ This requirement, that the oath be 
authorized by a federal statute, rule or regulation, has been 
recognized in numerous cases, including the U.S. Supreme Court's 
decisions in U.S. v. Hvass, 355 U.S. 570, 574 (1958), and U.S. v. 
Debrow, 346 U.S. 374, 376 (1953). ``the oath administered must be 
authorized by a law of the United States.'' Debrow at 377.\6\ It 
necessarily follows that: ``An oath taken before an officer who has no 
authority to administer it cannot serve as the basis for an indictment 
for perjury.'' U.S. v. Doshen, 133 F.2d 757, 758 (3rd Cir. 1953).\7\
---------------------------------------------------------------------------
    \5\ The quoted language appears in U.S. v. Hvass, 355 U.S. at 574 
(1958), which in turn quotes it from U.S. v. Debrow, 346 U.S. at 376 
(1953).
    \6\ In Hvass, the Court held, 8 to 1, that an oath required by a 
duly promulgated Rule of a Federal District Court was an oath 
authorized by ``a law of the United States'' within the meaning of 
Section 1621.
    \7\ In Doshen the conviction on a perjury count was reversed by the 
Third Circuit because the immigration officer who administered the oath 
was not authorized to swear a witness in the particular type of 
immigration proceeding that was involved. In Smith v. United States, 
363 F.2d 143, 144-45 (5th Cir. 1966), the Fifth Circuit reversed a 
perjury conviction because the prosecution failed to offer the evidence 
needed to prove ``an essential element of the crime of perjury,'' 
``Proof of the charge requires that sufficient evidence be adduced 
before the jury upon which it can be found beyond a reasonable doubt 
that an oath was administered to the defendant by some officer 
authorized to do so.''
---------------------------------------------------------------------------
    This requirement is no recent innovation. It has been an essential 
element of perjury ever since the federal perjury statute was adopted, 
in 1790. In an 1882 Supreme Court case reviewing an indictment brought 
under the federal perjury statute, the perjury counts were invalidated 
because the oath had been taken before a notary public who was not 
authorized by the laws of the United States to administer the oaths in 
question (oaths which were required for certain reports to the 
Comptroller of the Currency). The Supreme Court held:

          ``It is fundamental in the law of criminal procedure that an 
        oath before one who, although authorized to administer some 
        kind of oaths, but not the one which is brought in question, 
        cannot amount to perjury at common law, or subject the party 
        taking it to a prosecution for the statutory offense of 
        wilfully false swearing.'' United States v. Curtis, 107 U.S. 
        671, 672-73 (1882). (Emphasis supplied.)
    Thus President Clinton cannot be charged or convicted ``for the 
statutory offense of wilfully false swearing'' before the grand jury, 
if Mr. Apperson, who administered the oath, lacked legal authority to 
do so. Indeed, Mr. Starr's own legal memorandum, transmitted to 
Congress in support of his Referral, recognizes this principle in its 
analysis of the elements of the federal perjury statute, 18 U.S.C. 
1621; but it does not even consider whether the Independent Counsel 
might have failed to comply with the statutory requirement. See Legal 
Reference by OIC, House Doc. 105-311, pp. 268-69.\8\
---------------------------------------------------------------------------
    \8\ Starr's discussion is directed specifically to 18 U.S.C. 
Sec. 1621. The Memorandum also discusses a slightly different perjury 
statute, 18U.S.C. Sec. 1623, listing the five minor respects in which 
Sec. 1623 differs from Sec. 1621; but the oath requirement is not one 
of these differences. See Legal Reference, House Doc. 105-311, at pp. 
269-70, n.6.
---------------------------------------------------------------------------
    Prior to the adoption of the Federal Rules of Criminal Procedure, 
which became effective in 1946, the federal perjury statute had 
included an express requirement that an indictment for perjury aver the 
name of the person who administered the oath and his authority to do 
so. (R.S. Sec. 5396; former 18 U.S.C. Sec. 558.) Although this formal 
pleading requirement was replaced by the more liberal pleading 
provisions of the Federal Rules of Criminal Procedure, Rule 7(c)--under 
which it was sufficient for perjury indictments to allege that the oath 
was ``duly authorized''--proof of this essential element of due 
authorization still required proof at trial that the oath which had 
been administered to the defendant was one authorized by law. This is 
shown by the Supreme Court's decision, upholding the validity of a 
perjury indictment and conviction, in U.S. v. Debrow, 346 U.S. 374 
(1953).
    The only authorization in federal law for administering an oath to 
a grand jury witness is found in Rule 6(c) of the Federal Rules of 
Criminal Procedure. That Rule provides that the Court shall appoint the 
foreperson and deputy foreperson of each federal grand jury, and that: 
``The foreperson shall have power to administer oaths and affirmations 
. . . . During the absence of the foreperson, the deputy foreperson 
shall act as foreperson.'' The U.S. Supreme Court, in describing the 
duties of the grand jury foreperson,\9\ lists ``administering oaths'' 
as one of the foreperson's three responsibilities. Hobby v. U.S., 468 
U.S. 339, 344-45 (1984). Similarly, a Justice Department Manual 
provides that ``the witness is sworn by the grand jury foreman'' and 
that `` one of the foreman's most important functions is the 
administration of the oath to witnesses.'' U.S. Department of Justice 
Antitrust Division, Grand Jury Manual (1976) at p. 149 and p. 25.
---------------------------------------------------------------------------
    \9\ The opinion uses the term ``foreman.'' Subsequently, Rule 6(c) 
was amended to use the gender neural term ``foreperson.''
---------------------------------------------------------------------------
    Nowhere in the Federal Rules of Criminal Procedure, or any statute 
governing grand jury proceedings, is a prosecutor authorized to 
administer the oath to grand jury witnesses. Only the grand jury 
foreperson, or deputy foreperson, is authorized to swear the witnesses. 
The lack of such authority for prosecutors is not an oversight, or a 
technicality; it is inherent in the constitutional role of the grand 
jury. The framers of the Bill of Rights included in the Fifth Amendment 
a guarantee of grand juries for the federal courts, in order to protect 
the ordinary citizen against the power of the federal prosecuting 
authorities. Just as grand juries in the thirteen colonies had served 
to protect colonists from oppressive prosecutions by the Crown, the 
Fifth Amendment's grand jury clause was intended to protect Americans 
from unwarranted prosecutions by the new federal government. Opinions 
of the U.S. Supreme Court have often noted the constitutional 
obligation of the federal grand jury to stand as an independent body 
between the prosecuting attorney and the accused; e.g.
    Stirone v. United States, 361 U.S. 213, 218 (1960); Russell v. 
United States, 369 U.S. 749, 770-71 (1962); Ex parte Bain, 121 U.S. 1, 
11 (1887). The U.S. Court of Appeals for the District of Columbia--the 
jurisdiction where the Starr grand jury sits--has followed the teaching 
of these cases in Gaither v. United States, 413 F.3d 1061 (D.C. Cir. 
1969), where the court invalidated longstanding practices of 
prosecutorial infringement on the independence of all D.C. grand 
juries. As stated by the D.C. Circuit in Gaither:``The grand jury is 
interposed `to afford a safeguard against oppressive actions of the 
prosecutor or the Court.' '' \10\
---------------------------------------------------------------------------
    \10\ The D.C. Circuit's quotation was from the Fifth Circuit's 
decision in the famous case of U.S. v. Cox, 342 F.2d 167, 170 (5th 
Cir.), cert denied sub nom Cox v. Hauberg, 381 U.S. 935 (1965). ``The 
constitutional provision is, as has been said, for the benefit of the 
accused.'' Ibid.
---------------------------------------------------------------------------
    In its most recent analysis of the grand jury's constitutional 
role, the Supreme Court noted: ``the grand jury is mentioned in the 
Bill of Rights, but not in the Constitution . . . . In fact the whole 
theory of its function is that it belongs to no branch of the 
institutional Government, serving as a kind of buffer or referee 
between the Government and the people.'' As one manifestation of this 
independence, ``It swears in its own witnesses.'' United States v. 
Williams, 504 U.S. 36, 47, 48 (1992).
    It is thus hardly surprising that only the neutral foreperson, and 
not the partisan prosecutor, was entrusted with the authority to 
administer oaths to witnesses when the Supreme Court promulgated, and 
the Congress approved, Rule 6(c) of the Federal Rules of Criminal 
Procedure. Independent Counsel Starr and his staff simply failed to 
follow the prescribed procedure for predicating a perjury charge on a 
duly authorized grand jury oath.
    A possible reason for OIC taking this risky course is suggested by 
an intriguing colloquy between the President and a Deputy Independent 
Counsel, recorded near the end of the Clinton transcript. The President 
notes that he had invited all the grand jurors to come to the White 
House to participate in the proceeding. (If they had come, then the 
grand jury foreperson would presumably have been there to administer 
the oath.) But the Deputy Independent Counsel responds that the 
President's invitation was rejected because, if the grand jurors 
attended at the White House, then videotaping of the session would have 
been precluded. (House Doc. 105-311, pp. 627-28.) Thus OIC's tactic for 
obtaining a videotape which it presumably comtemplated releasing to 
Congress, undercut OIC's strategy of ensnaring the President in a 
perjury net before the grand jury.
    The invalidity of the OIC-administered oath did not, however, 
deprive the President's questioning of its value for the grand jurors. 
They were provided the opportunity to hear and evaluate the information 
provided by the President under 4 hours of interrogation by the OIC 
staff, and to consider that information in their subsequent 
deliberations. The situation is similar to a grand jury receiving and 
considering a report, transcript or videotape of a police or FBI 
interview in deciding whether or not to charge the interviewee, or 
anyone else, with a substantive crime. But since the interviewed 
witness was not sworn, he obviously could not be charged with perjury, 
even if the grand jury disbelieved his answers to the police. In the 
absence of an oath validly administered to President Clinton, there 
likewise is no predicate for charging him with perjury before the grand 
jury, as a ground for impeachment or in a criminal indictment.
    While a majority of the Judiciary Committee, or of the House, might 
seek to argue that a false but non-perjurious statement to grand jurors 
could still be considered an impeachable offense, it is much harder to 
make the case that a non-perjurious denial of details of private sexual 
conduct amounts to a ``high Crime or Misdemeanor.'' Among all the 
grounds of impeachment urged in the Starr report, the ringing charge of 
``perjury'' before the grand jury has presented the strongest case for 
OIC and its Congressional supporters to argue that a ``high Crime or 
Misdemeanor'' is properly alleged for a potential impeachment trial 
before the Senate. But if the ``perjury'' charge must be dismissed 
because an essential element of the ``high crime'' is lacking, then 
there is no occasion for the Senate to try, or the House to resolve, 
the underlying substantive issue: whether President Clinton or Monica 
Lewinsky was untruthful in their conflicting grand jury testimony as to 
who touched whom, where and when. The Senate can be spared an unseemly 
trial, and the House a fatally flawed charge.
                                 ______
                                 

                         UNITED STATES v. HVASS

                                 No. 92

                   SUPREME COURT OF THE UNITED STATES

                        january 27, 1958, argued
                         march 3, 1958, decided
Prior history
    Appeal From the U.S. District Court for the Northern District of 
Iowa.
Disposition
    147 F.Supp. 594, reversed and remanded.
Core terms
    Perjury, oath, indictment, regulation, administered, clear 
legislative, prescribe, authorizes, contest, lawfully, founded, 
competent tribunal, satisfactory, resident, Criminal Appeals Act, 
fitness to practice, rules of practice, willfully false, homestead 
entry, decisional law, material fact, time to time, local land, local 
rule, prescribed, supplied, residing, wilfully
Summary
    An indictment charging an attorney with violating the federal 
perjury statute (18 U.S.C. 1621) by making a wilfully false statement 
of a material fact in a hearing under oath, held pursuant to a local 
rule of a Federal District Court in which it was sought to determine 
the attorney's fitness to practice before the court, was dismissed by 
the U.S. District Court for the Northern District of Iowa, Central 
Division. The dismissal was based upon the District Court's holding 
that the local rule under which the attorney took his oath was not a 
law of the United States for purposes of the perjury statute's 
provision that perjury is committed by one who, having taken an oath 
before a competent tribunal, officer, or person, in any case in which a 
law of the United States authorizes an oath to be administered, that he 
will testify truly, wilfully and contrary to such oath states any 
material matter which he does not believe to be true.
    On appeal, the U.S. Supreme Court reversed the judgment below. 
Eight members of the Court, in an opinion by Whittaker, J., after 
ruling that the Supreme Court had jurisdiction of the appeal under the 
statute dealing with direct appeals by the government in criminal cases 
since the District Court's dismissal of the indictment was based upon 
its construction of the perjury statute, stated that, because federal 
statutes as well as the Federal Rules of Civil Procedure authorize 
federal courts to establish rules for the conduct of their business, 
the hearing at which the attorney testified under oath was a ``case in 
which a law of the United States authorizes an oath to be 
administered,'' within the meaning of that clause as used in the 
perjury statute.
    Douglas, J., agreed that the Court had jurisdiction of the appeal, 
but dissented on the merits, taking the view that a judge-made rule is 
not ``a law of the United States'' within the meaning of the perjury 
statute.
    When a Federal District Court holds that an indictment, not merely 
because of some deficiency in pleading but with respect to the 
substance of the charge, does not allege a violation of the statute 
upon which the indictment is founded, there necessarily occurs a 
construction of that statute, within the meaning of the federal law (18 
U.S.C. 3731) permitting direct appeal by the government to the Supreme 
Court from a District Court's decision or judgment dismissing any 
indictment where such decision or judgment is based upon the 
construction of the statute upon which the indictment is founded.
    Under the federal statute (18 U.S.C. 3731) providing that an appeal 
may be taken by the United States direct to the Supreme Court of the 
United States from a District Court decision or judgment dismissing an 
indictment where such decision or judgment is based upon the invalidity 
or construction of the statute upon which the indictment is founded, 
the U.S. Supreme Court has jurisdiction, on appeal by the government, 
to review a District Court's dismissal of an indictment charging that 
wilfully false statements of material facts were made by an attorney in 
proceedings, conducted under a local rule of a Federal District Court, 
to determine his fitness to practice before it, where the ground for 
the dismissal was that the local rule was not a law of the United 
States within the meaning of the federal statute specifying that 
whoever, having taken an oath before a competent tribunal, officer, or 
person, in any case in which a law of the United States authorizes an 
oath to be administered, that he will testify truly, wilfully and 
contrary to such oath states any material matter which he does not 
believe to be true, is guilty of perjury.
    On an appeal by the government from a District Court's dismissal of 
an indictment in a criminal case, under the statute (18 U.S.C. 3731) 
permitting such appeals where the District Court's dismissal is 
grounded upon the construction of the statute underlying the 
indictment, the U.S. Supreme Court is not at liberty to go beyond the 
question of the correctness of that construction and consider other 
objections to the indictment; the government's appeal does not open the 
whole case.
    The essential elements of the crime of perjury, as defined in 18 
U.S.C. 1621, are: (1) an oath authorized by the law of the United 
States, (2) taken before a competent tribunal, officer, or person, and 
(3) a false statement wilfully made as to facts material to the 
hearing.
    The phrase ``a law of the United States,'' as used in the federal 
perjury statute's (18 U.S.C. 1621) provision respecting cases ``in 
which a law of the United States authorizes an oath to be 
administered,'' is not limited to statutes but includes as well Rules 
and Regulations which have been lawfully authorized and have a clear 
legislative base.
    Under the statutes (28 U.S.C. 2071, 1654, respectively) authorizing 
the federal courts to prescribe rules for the conduct of their 
business, and authorizing parties to plead and conduct their own cases 
personally or by counsel as, by the rules of such courts, are permitted 
to manage and conduct causes therein, and under Rule 83 of the Federal 
Rules of Civil Procedure which provides that each District Court may 
from time to time make and amend rules governing its practice, a 
District Court is lawfully authorized to prescribe its local rules, and 
such rules have a clear legislative base.
    The federal perjury statute (18 U.S.C. 1621) covers ex parte 
proceedings or investigations as well as ordinary adversary suits and 
proceedings.
    A hearing under oath, held pursuant to a local rule of a Federal 
District Court, in which it is sought to determine an attorney's 
fitness to practice before that court, is a ``case in which a law of 
the United States authorizes an oath to be administered,'' within the 
meaning of that clause as used in the federal statute (18 U.S.C. 1621) 
providing that whoever, having taken an oath before a competent 
tribunal, officer, or person, ``in any case in which a law of the 
United States authorizes an oath to be administered,'' that he will 
testify truly, wilfully and contrary to such oath states any material 
matter which he does not believe to be true, is guilty of perjury.
Syllabus
    1. When a Federal District Court dismisses an indictment on the 
ground that it does not allege a violation of the statute upon which it 
was founded, not merely because of some deficiency in pleading but with 
respect to the substance of the charge, that is necessarily a 
construction of the statute, and a direct appeal to this Court lies 
under 18 U.S.C. Sec. 3731. Pp. 573-574.
    2. A willfully false statement of a material fact, made by an 
attorney under oath during a Federal District Court's examination into 
his fitness to practice before it constitutes perjury within the 
meaning of 18 U.S.C. Sec. 1621, when the examination was made under a 
local rule of the District Court specifically authorizing such 
examination under oath; since such an examination is a ``case in which 
a law of the United States authorizes an oath to be administered,'' 
within the meaning of the statute. Pp. 574-577.
    (a) The phrase ``a law of the United States,'' as used in the 
perjury statute, is not limited to statutes, but includes as well rules 
and regulations which have been lawfully authorized and have a clear 
legislative base, and also decisional law. P. 575.
    (b) There can be no doubt that the District Court was lawfully 
authorized to prescribe its local rules and that they have a clear 
legislative base. Pp. 575-577.
Counsel
    Ralph S. Spritzer argued the cause for the United States. On the 
brief were Solicitor General Rankin, Warren Olney, III, then Assistant 
Attorney General, and Beatrice Rosenberg.
    Warren B. King argued the cause for appellee. With him on the brief 
was Charles Alan Wright.
Judges
     Warren, Black, Frankfurter, Douglas, Burton, Clark, Harlan, 
Brennan, Whittaker
Opinion
    MR. JUSTICE WHITTAKER delivered the opinion of the Court.
    The question for decision is whether a willfully false statement of 
a material fact, made by an attorney under oath during the District 
Court's examination, under its local rule, into his fitness to practice 
before it. constitutes perjury within the meaning of 18 U.S.C. 
Sec. 1621.\1\
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    \1\ That section, in pertinent part, provides: ``Whoever, having 
taken an oath before a competent tribunal, officer, or person, in any 
case in which a law of the United States authorizes an oath to be 
administered, that he will testify, declare, depose, or certify truly, 
. . . willfully and contrary to such oath states . . . any material 
matter which he does not believe to be true, is guilty of perjury. . . 
.''
---------------------------------------------------------------------------
    Acting under 28 U.S.C. Sec. Sec. 1654, 2071, and Rule 83 of Federal 
Rules of Civil Procedure, authorizing federal courts to prescribe rules 
for the conduct of their business, the District Courts for the Northern 
and Southern Districts of Iowa promulgated local rules governing 
practice in those courts. Their Rule 3, in pertinent part, provides:

          ``All attorneys residing outside of the State of Iowa and 
        having civil matters in the court shall associate with them a 
        resident attorney on whom notice may be served and who shall 
        have the authority to act for and on behalf of the client in 
        all matters . . . . Non-resident attorneys who have so 
        associated with them a resident attorney shall be permitted to 
        participate in a particular case upon satisfactory showing of 
        good moral character.
          ``Provided further that where the action is one to recover 
        damages for personal injuries sustained in Iowa by one who at 
        the time was a resident of Iowa . . ., the Court may on its own 
        motion, or on motion of a member of the bar of either District, 
        before permitting a nonresident attorney to participate in the 
        case, require a satisfactory showing that the connection of the 
        said attorney [with the case] was not occasioned or brought 
        about in violation of the standards of conduct specified in 
        Rule 8 hereof.\2\ The Court as a part of said showing may 
        require the plaintiff and the said attorney to appear and be 
        examined under oath.''
---------------------------------------------------------------------------
    \2\ Rule 8 is a substantial adoption of the Canons of Professional 
Ethics of the American Bar Association.

    Appellee, an attorney residing and maintaining his office in 
Minneapolis, Minnesota, had instituted two actions in the District 
Court for the Northern District of Iowa, as counsel for citizens of 
Iowa, seeking damages for bodily injuries which they had sustained in 
that State. On October 3, 1955, the court, acting under its Rule 3, 
entered an order scheduling a hearing to be held by the court on 
October 12, 1955, for the purpose of affording an opportunity to 
appellee to show that his connection with the two damage suits was not 
brought about in violation of the standards of conduct specified in its 
Rule 8, and directing appellee to appear at that time and to submit to 
an examination under oath, if he wished further to participate as 
counsel in those actions. Appellee appeared at the hearing and, after 
being sworn by the Clerk, was examined by the District Attorney on 
matters deemed relevant to the hearing. On November 1, 1955, the court 
entered an order finding that ``the applicant [had] not made 
satisfactory showing of the matters which must be satisfactorily shown 
under said Local Rule 3,'' and it struck his appearance as counsel in 
the two damage actions from the record.
    On March 20, 1956, a four-count indictment was returned against 
appellee in the same District Court. Each count charged that appellee, 
while under oath as a witness at the hearing of October 12, 1955, 
``unlawfully, wilfully, and knowingly, and contrary to [his] oath, 
[stated] material matters which he did not believe to be true'' (in 
particulars set forth in each count), ``in violation of Section 1621, 
Title 18, United States Code.'' Appellee moved to dismiss the 
indictment for failure of any of the counts to state an offense against 
the United States. The court,\3\ after full hearing upon the motion, 
concluded ``that Rule 3, under which the defendant took his oath, is 
not such a law of the United States as was intended by Congress to 
support an indictment for perjury,'' and, on that ground, dismissed the 
indictment. 147 F.Supp. 594. The Government brought the case here by 
direct appeal under the Criminal Appeals Act, 18 U.S.C. Sec. 3731. We 
postponed further consideration of the question of jurisdiction to the 
hearing on the merits, 353 U.S. 980.
---------------------------------------------------------------------------
    \3\ The court was then being presided over by a district judge from 
another district, sitting by designation.
---------------------------------------------------------------------------
    At the threshold we are met with appellee's contention that we do 
not have jurisdiction of this appeal. We think the contention is 
unsound. 18 U.S.C. Sec. 3731, in pertinent part, provides that: ``An 
appeal may be taken by and on behalf of the United States from the 
district courts direct to the Supreme Court of the United States . . . 
from a decision or judgment . . . dismissing any indictment . . . where 
such decision or judgment is based upon the invalidity or construction 
of the statute upon which the indictment . . . is founded.'' This 
indictment was founded on the federal perjury statute, 18 U.S.C. 
Sec. 1621. The District Court dismissed the indictment not because of 
any deficiency in pleading or procedure but solely because it held that 
Rule 3 ``is not such a law of the United States as was intended by 
Congress to support an indictment for perjury.'' It thus dismissed the 
indictment upon its construction of the federal perjury statute. In 
these circumstances, the question of our jurisdiction is settled by 
United States v. Borden Co., 308 U.S. 188, 193:

          ``When the District Court holds that the indictment, not 
        merely because of some deficiency in pleading but with respect 
        to the substance of the charge, does not allege a violation of 
        the statute upon which the indictment is founded, that is 
        necessarily a construction of that statute.''

Such is the case here, and the result is that we have jurisdiction of 
this appeal.
    This brings us to the merits. The scope of this appeal is very 
limited. No question concerning the validity of the District Court's 
Rule 3 is properly before us. Nor are we at liberty to consider any 
question other than the single one decided by the District Court, for 
when, as here, ``the District Court has rested its decision upon the 
construction of the underlying statute this Court is not at liberty to 
go beyond the question of the correctness of that construction and 
consider other objections to the indictment. The Government's appeal 
does not open the whole case.'' United States v. Borden Co., supra, at 
193.
    ``The essential elements of the crime of perjury as defined in 18 
U.S.C. Sec. 1621 are (1) an oath authorized by a law of the United 
States, (2) taken before a competent tribunal, officer or person, and 
(3) a false statement wilfully made as to facts material to the 
hearing.'' United States v. Debrow, 346 U.S. 374, 376. Only the first 
element of perjury is involved here because the District Court's 
dismissal of the indictment was upon the sole ground that ``Rule 3 . . 
. is not such a law of the United States as was intended by Congress to 
support an indictment for perjury.'' Therefore, the only question open 
here is whether the admission hearing, held under the District Court's 
Rule 3, and at which appellee testified under oath, was a ``case in 
which a law of the United States authorizes an oath to be 
administered,'' within the meaning of that clause as used in the 
perjury statute. We think it was. The phrase ``a law of the United 
States,'' as used in the perjury statute, is not limited to statutes, 
but includes as well Rules and Regulations which have been lawfully 
authorized and have a clear legislative base (United States v. Smull, 
236 U.S. 405; Caha v. United States, 152 U.S. 211; Viereck v. United 
States, 318 U.S. 236; Lilly v. Grand Trunk R. Co., 317 U.S. 481), and 
also decisional law. Glickstein v. United States, 222 U.S. 139. And see 
Wigmore, Evidence (3d ed.), Sec. Sec. 1815, 1816, 1824.\4\
---------------------------------------------------------------------------
    \4\ The author there shows that the requirement that a witness must 
take an oath before giving testimony goes back to early civilizations 
and has a long history at common law (Sec. 1815), and that for 
centuries Anglo-American law has remained faithful to the precept that 
``for all testimonial statements made in court the oath is a 
requisite.'' Sec. 1824.
---------------------------------------------------------------------------
    28 U.S.C. Sec. 2071 provides: ``The Supreme Court and all courts 
established by Act of Congress may from time to time prescribe rules 
for the conduct of their business. Such rules shall be consistent with 
Acts of Congress and rules of practice and procedure prescribed by the 
Supreme Court.'' And 28 U.S.C.A. Sec. 1654 provides: ``In all courts of 
the United States the parties may plead and conduct their own cases 
personally or by counsel as, by the rules of such courts, respectively, 
are permitted to manage and conduct causes therein.'' (Emphasis 
supplied.) Consistently, Rule 83 of Federal Rules of Civil Procedure, 
in pertinent part, provides: ``Each district court by action of a 
majority of the judges thereof may from time to time make and amend 
rules governing its practice not inconsistent with these rules. . . .'' 
These statutes and Rule 83 leave no room to doubt that the District 
Court was lawfully authorized to prescribe its local rules and that 
they have a clear legislative base. Whether or not its Rule 3 is 
invalid for any reason--which, as stated, is a question not before us--
it was prescribed pursuant to statutory authority, and expressly 
provides that, under the conditions specified, the court may require 
the ``attorney to appear and be examined under oath.''
    Rule 3 had at least as clear a legislative base as did the 
Regulations involved in Caha v. United States, supra, and United States 
v. Smull, supra. In the Caha case defendant was indicted under the 
federal perjury statute--then in precisely the same terms as it is 
now--and charged with perjury through the making of a false affidavit 
to officials of the Land Office of the Department of the Interior in 
respect of a contest, then pending in the Land Office, over the 
validity of a homestead entry. The defendant was convicted and on 
appeal contended that no statute authorized such a contest and that 
therefore it could not ``be said that the oath was taken in a `case in 
which a law of the United States authorizes an oath to be 
administered.' '' By statute Congress had authorized the Commissioner 
of the General Land Office, under the direction of the Secretary of the 
Interior, ``to enforce and carry into execution, by appropriate 
regulations, every part of the [laws relating to public lands].'' 
Pursuant to that authority the Commissioner adopted rules of practice 
including an express provision ``for a contest before the local land 
officers in respect to homestead as well as preemption entries, and for 
the taking of testimony before such officers . . . .'' This Court, in 
denying defendant's contention and in sustaining the conviction, said:

          ``We have, therefore, a general grant of authority to the 
        Land Department to prescribe appropriate regulations for the 
        disposition of the public land. . . . Clearly then . . . the 
        local land officers in hearing and deciding upon a contest with 
        respect to a homestead entry constituted a competent tribunal, 
        and the contest so pending before them was a case in which the 
        laws of the United States authorized an oath to be 
        administered.''

Id., at 218. (Emphasis supplied.)
    The Smull case involved very similar facts. The District Court 
sustained a demurrer to the indictment, ``ruling that the affidavit was 
not within the statute defining perjury.'' The Government brought the 
case here under the Criminal Appeals Act. This Court reversed, saying:

          ``The charge of crime must have clear legislative basis. . . 
        . This statute [the perjury statute, in precisely the same 
        terms as the present one] takes the place of the similar 
        provision of Sec. 5392 of the Revised Statutes, which in turn 
        was a substitute for a number of statutes in regard to perjury 
        and was phrased so as to embrace all cases of false swearing 
        whether in a court of justice or before administrative officers 
        acting within their powers. . . . It cannot be doubted that a 
        charge of perjury may be based upon [the perjury statute] where 
        the affidavit is required either expressly by an act of 
        Congress or by an authorized regulation of the General Land 
        Office, and is known by the affiant to be false in a material 
        statement. . . . When by a valid regulation the Department 
        requires that an affidavit shall be made before an officer 
        otherwise competent, that officer is authorized to administer 
        the oath within the meaning of [the perjury statute]. The false 
        swearing is made a crime, not by the Department, but by 
        Congress; the statute, not the Department, fixes the penalty.'' 
        \5\
---------------------------------------------------------------------------
    \5\ These cases, as well as United States v. Morehead, 243 U.S. 
607, show that the perjury statute covers ex parte proceedings or 
investigations as well as ordinary adversary suits and proceedings.

Id., at 408-409.
    It follows that the admission hearing, held under the District 
Court's Rule 3, and at which appellee testified under oath, was a 
``case in which a law of the United States authorizes an oath to be 
administered,'' within the meaning of that clause as used in the 
perjury statute.
    The judgment of the District Court is reversed and the case is 
remanded to that court for further proceedings not inconsistent with 
this opinion.
            Reversed.
    MR. JUSTICE DOUGLAS agrees that the Court has jurisdiction of the 
appeal; but he dissents on the merits. In his view this judge-made rule 
is not ``a law of the United States'' within the meaning of the perjury 
statute, 18 U.S.C. Sec. 1621.
                                 ______
                                 

                        UNITED STATES v. DEBROW

                                 No. 51

                   SUPREME COURT OF THE UNITED STATES

                        october 20, 1953, argued
                       november 16, 1953, decided
Prior history
    Certiorari to the U.S. Court of Appeals for the Fifth Circuit.\1\
---------------------------------------------------------------------------
    \1\ Together with No. 52, United States v. Wilkinson; No. 53, 
United States v. Brashier; No. 54, United States v. Rogers; and No. 55, 
United States v. Jackson, all on certiorari to the same court.
---------------------------------------------------------------------------
    The District Court dismissed indictments of the respondents for 
perjury. The Court of Appeals affirmed. 203 F.2d 699. This Court 
granted certiorari. 345 U.S. 991. Reversed, p. 378.
Disposition
    203 F.2d 699, reversed.
Core terms
    Oath, indictment, administered, perjury, subcommittee, competent 
tribunal, repealed, revision, definite, authorizes, wilfully, 
administer oaths, plead, material matter, willfully
Summary
    An indictment charging perjury committed before a subcommittee of 
the Senate alleged that the subcommittee was a competent tribunal, 
pursuing matters properly before it, that in such proceeding it was 
authorized by a law of the United States to administer oaths, and that 
each defendant had ``duly taken an oath.'' The defendants filed motions 
to dismiss, which were sustained below on the ground that the 
indictments did not allege the name of the person who administered the 
oath nor his authority to do so.
    In an opinion by Minton, J., the Supreme Court unanimously 
reversed, holding that the indictment sufficiently set forth the 
elements of the offense sought to be charged. In particular, the 
requirement in the perjury statute that the oath administered must be 
authorized by law was held met by allegations in the indictments that 
the defendants had ``duly taken'' an oath.
    Reed, J., did not participate.
    An indictment is required to set forth the elements of the offense 
sought to be charged.
    The true test of the sufficiency of an indictment is not whether it 
could have been made more definite and certain, but whether it contains 
the elements of the offense intended to be charged, and sufficiently 
apprises the defendant of what he must be prepared to meet, and, in 
case any other proceedings are taken against him for a similar offense, 
whether the record shows with accuracy to what extent he may plead a 
former acquittal or conviction.
    The Federal Rules of Criminal Procedure are designed to eliminate 
technicalities in criminal pleading and are to be construed to secure 
simplicity in procedure.
    The essential elements of the crime of perjury, as defined in 18 
U.S.C. 1621, are (1) an oath authorized by the law of the United 
States, (2) taken before a competent tribunal, officer, or person, and 
(3) a false statement wilfully made as to facts material to the 
hearing.
    The requirement that an indictment for perjury, as defined in 18 
U.S.C. 1621, allege that the oath administered must be authorized by a 
law of the United States is met by allegations in the indictment that 
the defendant had ``duly taken an oath.''
    An oath ``duly taken'' means an oath taken according to a law which 
authorizes such oath.
    The name of the person who administers the oath is not an essential 
element of the crime of perjury. The identity of such person goes only 
to the proof of whether the defendants were duly sworn.
    An indictment for perjury, as defined in 18 U.S.C. 1621, clearly 
informs the defendant of that with which he is accused, so as to enable 
him to prepare his defense and to plead the judgment in bar of any 
further prosecution for the same offense, when it alleges that a 
subcommittee of the Senate was a competent tribunal, pursuing matters 
properly before it, that in such proceeding it was authorized by a law 
of the United States to administer oaths, and that each defendant duly 
took an oath before such competent tribunal and wilfully testified 
falsely as to material facts.
    The sufficiency of an indictment is not a question of whether it 
could have been more definite and certain in describing the offense. If 
a defendant wants more definite information as necessary, he may obtain 
it by requesting a bill of particulars under Rule 7 (f) of the Federal 
Rules of Criminal Procedure.
Syllabus
    The indictments of respondents under 18 U.S.C. Sec. 1621 for 
perjury in wilfully testifying falsely to material facts, after each 
had ``duly taken an oath,'' before a Senatorial subcommittee duly 
created and duly authorized to administer oaths, complied with Rule 7 
(c) of the Federal Rules of Criminal Procedure; and they should not 
have been dismissed for failure to allege the name of the person who 
administered the oaths or his authority to do so. Pp. 375-378.
    (a) The name of the person who administered the oath is not an 
essential element of the crime of perjury. Pp. 376-377.
    (b) R.S. Sec. 5396, which required that an indictment for perjury 
aver the name and authority of the person who administered the oath, 
was repealed by the Act of June 25, 1948, 62 Stat. 862, revising the 
Criminal Code. P. 377.
Counsel
    John F. Davis argued the cause for the United States. With him on 
the brief were Acting Solicitor General Stern, Assistant Attorney 
General Olney, Beatrice Rosenberg and Felicia H. Dubrovsky.
    Ben F. Cameron argued the cause for respondents. With him on the 
brief were W.S. Henley, R.W. Thompson, Jr., Albert Sidney Johnston, 
Jr., W.W. Dent and T.J. Wills.
Judges
    Vinson, Warren, Black, Frankfurter, Douglas, Jackson, Burton, 
Clark, Minton; Mr. Justice Reed took no part in the decision of this 
case.
    The District Court dismissed indictments of the respondents for 
perjury. The Court of Appeals affirmed. 203 F. 2d 699. This Court 
granted certiorari. 345 U.S. 991. Reversed, p. 378.
Opinion
    MR. JUSTICE MINTON delivered the opinion of the Court.
    The respondents here, defendants below, were charged by separate 
indictments with the crime of perjury, as defined in 18 U.S.C. 
Sec. 1621.\2\ Each indictment read in material part as follows:
---------------------------------------------------------------------------
    \2\ ``Perjury generally.
    ``Whoever, having taken an oath before a competent tribunal, 
officer, or person, in any case in which a law of the United States 
authorizes an oath to be administered, that he will testify, declare, 
depose, or certify truly, or that any written testimony, declaration, 
deposition, or certificate by him subscribed, is true, willfully and 
contrary to such oath states or subscribes any material matter which he 
does not believe to be true, is guilty of perjury, and shall, except as 
otherwise expressly provided by law, be fined not more than $2,000 or 
imprisoned not more than five years, or both.''

          ``The defendant herein, having duly taken an oath before a 
        competent tribunal, to wit: a subcommittee of the Senate 
        Committee on Expenditures in the Executive Departments known as 
        the Subcommittee on Investigations, a duly created and 
        authorized subcommittee of the U.S. Senate conducting official 
        hearings in the Southern District of Mississippi, and inquiring 
        in a matter then and there pending before the said subcommittee 
        in which a law of the United States authorizes that an oath be 
        administered, that he would testify truly, did unlawfully, 
        knowingly and wilfully, and contrary to said oath, state a 
---------------------------------------------------------------------------
        material matter which he did not believe to be true. . . .''

    The defendants filed motions to dismiss, which were sustained on 
the ground that the indictments did not allege the name of the person 
who administered the oath nor his authority to do so.\3\ The Court of 
Appeals affirmed, one judge dissenting, 203 F.2d 699, and we granted 
certiorari, 345 U.S. 991, because of the importance of the question in 
the administration of federal criminal law.
---------------------------------------------------------------------------
    \3\ United States v. Debrow et al., U.S.D.C.S.D. Miss., Feb. 11, 
1952 (unreported).
---------------------------------------------------------------------------
    An indictment is required to set forth the elements of the offense 
sought to be charged.

          ``The true test of the sufficiency of an indictment is not 
        whether it could have been made more definite and certain, but 
        whether it contains the elements of the offense intended to be 
        charged, `and sufficiently apprises the defendant of what he 
        must be prepared to meet, and, in case any other proceedings 
        are taken against him for a similar offence, whether the record 
        shows with accuracy to what extent he may plead a former 
        acquittal or conviction.' Cochran and Sayre v. United States, 
        157 U.S. 286, 290; Rosen v. United States, 161 U.S. 29, 34.''

Hagner v. United States, 285 U.S. 427, 431.
    The Federal Rules of Criminal Procedure were designed to eliminate 
technicalities in criminal pleading and are to be construed to secure 
simplicity in procedure. Rule 2, F. R. Crim. Proc. Rule 7 (c) provides 
in pertinent part as follows:

          ``The indictment . . . shall be a plain, concise and definite 
        written statement of the essential facts constituting the 
        offense charged. . . . It need not contain . . . any other 
        matter not necessary to such statement. . . .''

The essential elements of the crime of perjury as defined in 18 U.S.C. 
Sec. 1621 are (1) an oath authorized by a law of the United States, (2) 
taken before a competent tribunal, officer or person, and (3) a false 
statement willfully made as to facts material to the hearing. The 
indictments allege that the subcommittee of the Senate was a competent 
tribunal, pursuing matters properly before it, that in such proceeding 
it was authorized by a law of the United States to administer oaths, 
and that each defendant duly took an oath before such competent 
tribunal and wilfully testified falsely as to material facts. The oath 
administered must be authorized by a law of the United States. This 
requirement is met by the allegations in the indictments that the 
defendants had ``duly taken an oath.'' ``Duly taken'' means an oath 
taken according to a law which authorizes such oath. See Robertson v. 
Perkins, 129 U.S. 233, 236. The name of the person who administered the 
oath is not an essential element of the crime of perjury; the identity 
of such person goes only to the proof of whether the defendants were 
duly sworn. Therefore, all the essential elements of the offense of 
perjury were alleged.
    The source of the requirement that an indictment for perjury must 
aver the name and authority of the person who administered the oath is 
to be found in R.S. Sec. 5396, 18 U.S.C. (1940 ed.) Sec. 558. It may be 
worthy of note that this provision was expressly repealed by Congress 
in 1948, 62 Stat. 862, in the revision and recodification of Title 18. 
The House Committee on Revision of the Laws had the assistance of two 
special consultants who were members of the Advisory Committee on the 
Federal Rules of Criminal Procedure and who ``rendered invaluable 
service in the technical task of singling out for repeal or revision 
the statutory provisions made obsolete by the new Federal Rules of 
Criminal Procedure.'' H.R. Rep. No. 304, 80th Cong., 1st Sess., p. 4. 
In the tabulation of laws omitted and repealed by the revision, it is 
stated that R.S. Sec. 5396 was repealed because ``Covered by rule 7 of 
the Federal Rules of Criminal Procedure.'' Id., at A214. The charges of 
the indictments followed substantially the wording of the statute, 
which embodies all the elements of the crime, and such charges clearly 
informed the defendants of that with which they were accused, so as to 
enable them to prepare their defense and to plead the judgment in bar 
of any further prosecutions for the same offense. It is inconceivable 
to us how the defendants could possibly be misled as to the offense 
with which they stood charged. The sufficiency of the indictment is not 
a question of whether it could have been more definite and certain. If 
the defendants wanted more definite information as to the name of the 
person who administered the oath to them, they could have obtained it 
by requesting a bill of particulars. Rule 7 (f), F. R. Crim. Proc.
    The indictments were sufficient, and the dismissal thereof was 
error. The judgments are
    Reversed.
    MR. JUSTICE REED took no part in the consideration or decision of 
these cases.

    Mr. Scott. I have asked Judge--excuse me--Mr. Starr to 
comment on this, and I am awaiting his response.
    [See the December 11, 1998 letter from Judge Starr to the 
Committee reprinted in the Appendix, page 176, responding to 
Mr. Scott's argument.]
    Mr. Chairman, I have raised questions of fairness and the 
need for the first order of business to be designating what the 
charges are that we are actually pursuing.
    I was interested to see earlier today that, when challenged 
by the gentleman from Massachusetts as to one of three of the 
perjury charges, maybe I misunderstood you, but I thought I 
understood you to say that one was not particularly serious, 
which would mean that we wouldn't have to respond to that one. 
We have also today expanded the focus of the inquiry. So 
without a designation of what charges we are actually 
investigating, it seems absurd to me to ask anyone to respond 
to the charges before they know what the charges are.
    Another point I want to make, Mr. Chairman, is that we keep 
hearing that if we don't impeach the President, we condone his 
actions. As my colleague from Virginia, Mr. Boucher, has 
mentioned, we are limited in our constitutional ability to do 
anything unless the allegation is treason, bribery or other 
high crimes or misdemeanors.
    We heard at our constitutional hearing that the term 
treason, bribery and other high crimes or misdemeanors does not 
cover all felonies. And, therefore, it is conceivable that the 
President could commit a felony and we would have no legal 
authority under the rule of law to do anything about it. My 
colleague from Virginia noted, however, that the President 
would be subject to indictment, prosecution and punishment for 
violation--for commission of a felony, but that would obviously 
wait until after he is out of office.
    Judge Wiggins, you mentioned perjury as, of course, an 
impeachable offense. Could you cite any person impeached in 
United States history or English history, for that matter, 
going back to 1300, where the underlying behavior was personal 
in nature and not an abuse of power?
    Mr. Wiggins. I am unable to cite specific instances with 
it, but I will be pleased to respond to your question in 
writing.
    Mr. Scott. If you find one, you will be the only person to 
have provided a positive answer to that question.
    Mr. Wiggins. Well, I believe I already found one.
    Mr. Scott. The Congressional Research Service has looked 
back to 1300 and has not found one.
    Mr. Wiggins. You are advising me that the Congressional 
Research Service has determined that no public official subject 
to impeachment has been impeached for perjury; is that right?
    Mr. Scott. No, for perjury involving personal behavior, not 
an abuse of power.
    Mr. Wiggins. Well, what is that?
    Mr. Scott. What Richard Nixon did.
    Mr. Wiggins. I am not sure. Say again? I am eager to 
respond to some of these outrageous comments about Richard 
Nixon, but I have held my breath, but I will be pleased to do 
so.
    Mr. Scott. Let me try to get in one question to Judge 
Higginbotham.
    We have heard that all perjury is the same. In your 
comments, you indicated that the sentencing guidelines 
differentiate different kinds of perjury and punishments, 
depending on what kind of perjury it was. Could you comment on 
all perjuries being the same?
    Mr. Higginbotham. Well, it is clear that all perjury is not 
the same, just like all people are not the same size. You are 
much brighter than I am, but I am taller than you.
    On page 5, I spend a considerable amount of time going over 
the U.S. Sentencing Guidelines, and I spell out a whole series 
of those sections where there are significantly varying 
penalties. And as you, of course, know, that when the Founding 
Fathers created the Constitution, they didn't put the word 
``perjury'' in, they put the word ``treason.'' So you have 
necessarily an ambiguity. And if they felt that all perjury 
should be included, they would have at least put perjury.
    So I am persuaded by the historians who have studied this, 
from my having read Farrand, from my having read Elliot, that 
certain types of perjury clearly involving a private activity 
would not reach the impeachment criteria.
    Mr. Scott. Mr. Chairman, the----
    Mr. Hyde. The gentleman's--yes.
    Mr. Scott. I would like to, first of all, apologize to 
Judge Wiggins. I didn't mean to be abrupt. The point I was 
making was that the Congressional Research Service has not 
found a person's personal behavior as the subject of 
impeachment. I apologize for the reference to President Nixon. 
I didn't mean to be abrupt, but I was trying to get in one last 
question, so I want to apologize for being short with him.
    Mr. Wiggins. You need not apologize for comments about 
Richard Nixon. I lived with Richard Nixon literally all of my 
life because people are making adverse comments about him, but 
I don't understand where they get their facts. They probably 
read them in the newspaper. And I sat up here next to your 
Ranking Minority Member, Mr. Conyers, and heard evidence; and I 
didn't come away with that conclusion.
    You know, that was a massive investigation of the Nixon 
administration, and the press convinced the American people 
that the Nixon administration had to be replaced. But the Nixon 
administration wasn't subject to impeachment. It was one 
individual, and Richard Nixon was the target. And if he didn't 
participate and had no knowledge or didn't conspire with others 
to violate the law, he is being unjustly accused. But he did 
conspire briefly with others to violate the law back in 1972, 
and he was punished for that. But it was a very brief period of 
time.
    Mr. Scott. Mr. Chairman, I am glad I gave him an 
opportunity to respond. Thank you.
    Mr. Hyde. The gentleman's time has expired.
    The gentleman from Tennessee seeks recognition to go out of 
order.
    Mr. Bryant. Mr. Chairman, I do ask unanimous consent. I 
need to catch a very important plane, and I would like the 
opportunity to examine the two professors who have to leave.
    Mr. Hyde. Very well.
    Mr. Bryant. Thank you, Mr. Chairman.
    I thank the distinguished panel for your testimony. I think 
about four of you showed up about a week late, I think. You 
missed the panel where we had the law professors and historians 
testifying, but I still appreciate your opinions, and I take 
them just as they are, opinions. I certainly think in some 
instances the slips were showing in terms of partisanship, but 
we will overlook some of that because we are used to having 
that said about us, too.
    Let me ask the two professors on the end who have to leave, 
Professor Saltzburg and Professor Rosen, a question that has 
come up. I am one of those people who believes that, because of 
the separation of powers, we have to be very careful that the 
fence among the three branches is very tall, and we have to be 
very careful when we talk about such things as censure and 
reprimand. I oppose that. I feel strongly that our obligation 
is to pursue the articles of impeachment if the proof leads us 
that way.
    But since I do have your availability and the expertise 
that you bring to this table, and because it seems to be 
floating around in the newspapers and on all the talk shows, I 
wanted to ask you, Mr. Richardson, our very distinguished 
former Attorney General, made the comment about being limited 
to, if we impeach, if we send it to the Senate, they would be 
limited to simply removing the President from office and/or 
limiting his ability to serve for other Federal office, to hold 
office.
    As I read that part of the Constitution, and I want to get 
the exact language, because I think this is important, under 
section 7 of that, it says, ``Judgment in cases of impeachment 
shall not extend further than to removal of office'' and so 
forth, which seems to me to set a maximum, a ceiling, if you 
will, which if one wanted to argue that censure or reprimand 
was appropriate, you could say, well, that's the ceiling, and 
you could do less than that if you wanted to.
    And that is a position I am coming around to, but I feel 
very strongly, and I want to get your opinion on this, that--
and the position I am coming around to, if there is censure or 
reprimand available, it is through the Senate only and that is 
their decision.
    I would say that we as a House have only the constitutional 
requirement to charge, to impeach, if you will, not to punish. 
And to get to the point where the Senate could consider some 
type of punishment, they first have to have these articles of 
impeachment. We have to vote these out in order to get a 
censure, in effect, a reprimand, opportunity.
    I would like to have your comments from you two.
    Mr. Rosen. I very much respect the seriousness with which 
you are struggling with this important constitutional issue, 
and it is a delicate and hard one.
    Let's think of a range of options that you have available 
to you. I think no scholar would say that if you were to pass 
concurrent resolutions in the House and the Senate expressing 
your deep condemnation of the President's behavior that that 
would raise any constitutional difficulty at all. It wouldn't 
be part of the impeachment process and, therefore, it wouldn't 
derogate from it nor would it have the force of law that would 
be presented to the President for his signature and therefore 
couldn't be considered a bill of attainder.
    Mr. Bryant. Let me ask you this. Wouldn't that--in the 
interest of trying to invent something here, wouldn't that, and 
in the interest of expediency, wouldn't that be a terrible, 
terrible precedent? I mean, I know folks like me that get very 
upset with a President who maybe vetoes a bill that I feel we 
need, and wouldn't I now have that possibility if we do it here 
that I could say, well, let's start a move to reprimand the 
President over this?
    I think what we have to have is a two-step process, if you 
are going to get to that point. The first is the indictment, so 
to speak, by the House; and then it goes to the Senate to let 
them consider it. But I don't think either House ought to be 
able to independently pass a resolution to reprimand the 
President.
    Mr. Rosen. But then that would exacerbate the very 
constitutional problem you are worried about.
    If the censure were part of the impeachment process, then 
it would derogate from the process set out in the Constitution. 
By contrast, a concurrent resolution wouldn't be a troubling 
process, because it would have no more weight than a citizen 
saying that the President is a bad person. Surely you have the 
same right to express your opinion of the President in any form 
you please.
    You may want to go further and pass a bill presented to the 
President for his signature, and in that case I think you have 
to be very careful to make sure that it is not presented as a 
threat. It is not a lesser punishment, as you put it, but 
instead is a conditional amnesty. In other words, Mr. 
President, if you do X, Y and Z, then you will be censured and 
granted immunity. But that requires you to give him some 
benefit in return, and this you may not be willing to do.
    Mr. Hyde. The gentleman's time has expired.
    The gentleman----
    Mr. Conyers. Mr. Chairman, Professor Saltzburg had a very 
brief comment.
    Mr. Saltzburg. I thought that question was also directed to 
me, Mr. Chairman.
    I disagree with my colleague in part. I agree in part. 
Congressman Bryant, let me see if I can explain this to you.
    First, the language that you read that the punishment shall 
not exceed removal from office, the history of that, I am sure 
you heard on November 9th, was, in England, it was common when 
they had impeachments to prescribe punishment that included 
death, and the framers wanted to make sure what the limits of 
punishment were.
    If you decide to vote articles of impeachment and they pass 
the House and if the Senate convicts, I believe the 
Constitution requires removal as a minimum. The Senate wouldn't 
have to convict. The Senate could acquit, and then they could 
propose a resolution of censure. That could happen.
    The stomach for a censure resolution or anything after you 
went through that process I think would be unlikely that 
anybody would want to go forward. It is--as I said I think 
before, it is absolutely consistent with the Constitution for 
you to reach the judgment if this is what you think is right.
    If you say, on balance, we don't like this conduct, but we 
don't think that we will vote impeachment, we don't think it 
rises to that level, so we have answered our question, we are 
not going to charge, then I agree with Jeffrey that you have 
every right under the Constitution to pass a resolution just as 
you would condemning Saddam Hussein, praising Turkey, you know, 
creating National Mother's Day, whatever you want to do you can 
do.
    The thing I think he is wrong about, and I think it is not 
unimportant, is a joint resolution of both Houses I think must 
be sent to the President, and that is a significant thing. 
Because his signing it could be, when you talk about bringing 
us together, it seems to me that that is something that might 
work.
    Mr. Bryant. Okay.
    Mr. Hyde. The gentleman's time has again expired.
    Mr. Delahunt is being recognized out of order with the 
permission of those people disadvantaged by this maneuver.
    Mr. Delahunt. Thank you, Mr. Chairman.
    I appreciate my colleague's--I have a meeting that I have 
to attend to, and I appreciate my friend, Mr. Bryant, raising 
the issue of censure, because it is my intention to bring a 
resolution of censure up when we go to markup on this 
committee.
    And I am really struck by the testimony of Judge Wiggins. I 
have a memory, Judge Wiggins, of watching you as a member of 
the minority during the Watergate hearings. I had dark hair at 
that point in time, and I am sure you can empathize with my 
position as a member of the minority.
    But you said something just recently or just a moment ago 
regarding President Nixon, and you made the statement that you 
heard evidence. And I would ask you to refresh your memory as 
to the witnesses you actually heard from, whom you took 
testimony from, if you can remember.
    Mr. Wiggins. Well, yes. We heard testimony from H.R. 
Haldeman, from Ehrlichman, John Ehrlichman, from John Dean, 
from a guy named Parker, I think his name was.
    Mr. Delahunt. That's fine. I simply wanted to make the 
point that during the Watergate hearings--and you were, as I 
indicated, a minority member, you are a Republican--the process 
at that particular juncture in our history was to take evidence 
from individuals who had firsthand knowledge of the events that 
occurred and which led to a vote on articles of impeachment. Is 
that a fair statement?
    Mr. Wiggins. I think so. But there is a difference, and I 
think you should recognize that difference. The President of 
the United States has literally admitted----
    Mr. Delahunt. I am sorry?
    Mr. Wiggins  [continuing]. Admitted to telling a falsehood.
    Mr. Delahunt. I might disagree with you. In fact, I do 
disagree with you on that particular point, but I respect your 
opinion.
    I just want to move to another subject, and that is the 
discussion surrounding censure. Because, again, I want to read 
from your written testimony, which I found interesting, and I 
am quoting: ``I don't mind confessing that if I had a vote on 
this committee, I would vote to impeach the President''----
    Mr. Wiggins. Yes.
    Mr. Delahunt  [continuing]. ``But before the full House of 
Representatives, I certainly am not sure. I am presently of the 
opinion that the misconduct immediately occurring by the 
President is not of the gravity to remove him from office.''
    Mr. Wiggins. That's the remedy.
    Mr. Delahunt. Would you then support a resolution to 
censure or sanction or rebuke or condemn?
    Mr. Wiggins. Oh, yes. You should read on in my testimony. I 
recommended that the President be sanctioned monetarily, and I 
bounced a figure of $1 million off of you, and that he be 
personally brought to account by the resolution of probably 
both Houses.
    Mr. Delahunt. So you as a former member of this committee 
who sat as a member of the Watergate proceedings feel 
comfortable with the concept of censure?
    Mr. Wiggins. Well, yes. There is some historical precedent 
for it. The person of Andrew Jackson is clear, although it was 
reversed subsequently.
    Mr. Delahunt. I also just want to make a point, too, in 
terms of your testimony, you used the concept of probable 
cause, and I respectfully take issue with that particular 
standard, because from everything that I have been able to 
discern from the precedents and the literature, the standard is 
clear and compelling evidence, or clear and convincing 
evidence.
    Mr. Wiggins. Well, it has been articulated in many ways, 
and I think you will probably find the use of the term beyond a 
reasonable doubt in the Nixon impeachment process.
    Mr. Delahunt. In--my time is running out, and again, I 
don't mean to interrupt you----
    Mr. Wiggins. The proper analogy is the grand jury analogy.
    Mr. Delahunt. Fine. Let me just conclude by asking this 
particular question. Do you think it is the responsibility of 
this committee to hear evidence as you did during the Watergate 
hearings from witnesses who had firsthand knowledge? By doing 
that, I believe--and I will give you my opinion--I believe we 
meet our constitutional responsibility, rather than simply 
accept a report from a prosecutor which clearly creates in many 
areas disparate inferences and can lead to varying conclusions. 
Do you feel that we have that constitutional responsibility?
    Mr. Wiggins. Well, I am not sure. I am not sure. I think 
your responsibility is to get at the truth and to resolve the 
legal question of whether the offenses alleged are high crimes 
and misdemeanors.
    Mr. Delahunt. I note my time is up, and I want to thank you 
very much. I would also just note for a matter of record that--
while I don't want to get into the nuances of perjury, there 
are gradations.
    Mr. Wiggins. Oh, yes indeed.
    Mr. Delahunt. In Massachusetts, for example, if you commit 
perjury in a capital case, the sanction, the penalty is life 
imprisonment. If you commit perjury in a civil deposition, 
clearly the court I presume would entertain something less than 
life imprisonment.
    Mr. Hyde. The gentleman's time has expired.
    Mr. Delahunt. Thank you, Mr. Chairman.
    Mr. Hyde. The gentleman from Florida, Mr. Canady.
    Mr. Canady. Thank you, Mr. Chairman.
    I want to thank all of the members of this panel for being 
with us here today. We appreciate your testimony, which I think 
has been helpful to the work of the committee.
    I want to go back to a question that was raised by Mr. 
Scott on the issue of whether any official has ever been 
impeached for personal misconduct as opposed to abuse of 
office.
    I can't give an exhaustive answer to that, but one clear 
example of an official recently being impeached for personal 
misconduct as opposed to abuse of office is the case of Judge 
Harry Claiborne, a district court judge from the State of 
Nevada. In that case, Judge Claiborne was impeached by the 
House and removed from office because he signed an income tax 
return that was false. Basically, he was removed because he 
made a false statement about his personal income. I think that 
example is very clear, it is relatively recent, and I think 
that should be noted.
    Now, on this issue about perjury and gradations of perjury, 
I think all of us would recognize that any offense, depending 
on the context, may be more serious than that same offense in 
another context. That is not really contested. What I object to 
is the argument that any acts of perjury that the President may 
have committed would fall into the category of less serious 
offenses of perjury.
    Now, I agree that we should not apply a per se rule that 
any perjury automatically, regardless of the context, would 
result in impeachment. But I think we have to look at several 
factors in the evidence before us which go to the seriousness 
of the offenses that the evidence shows the President 
committed. And I haven't reached a final conclusion on that, 
but so far we are seeing no effort to really rebut the facts.
    And the facts show that this was a pattern of conduct. It 
shows that there were multiple instances of perjury. There was 
a false affidavit. There were multiple lies, which Mr. 
Goodlatte recounted in his statement earlier today, in the 
President's deposition. There was perjury before a grand jury. 
And, finally, I believe that there were false and misleading 
answers to the questions that the Chairman of this committee 
propounded to the President very recently.
    Beyond that, the perjury was calculated. This is not a case 
of a witness being surprised and reacting instinctively and 
understandably to cover up an embarrassing situation. Instead, 
this is the case of a witness who went in with a plan to lie. 
This was calculated. And I think that goes to the seriousness 
of the offense. And, to state the obvious, the perjury was 
sustained. The evidence points to the conclusion that the 
President has been lying for nearly a year.
    Now, I suggest to you that all of this points to the 
conclusion that the President has been guilty of an egregious 
disregard for the oath that he took to tell the truth, the 
whole truth and nothing but the truth. Now, we can have 
differences of opinion on that, but I think we need--if we look 
at this in context, we are pushed toward the conclusion that 
this is, indeed, not a trivial instance of perjury, but a 
serious matter.
    Now, I would again refer the members of the committee to 
something I read earlier. Now, this is a statement that was 
prepared, a report prepared by the Association of the Bar of 
the City of New York on the law of presidential impeachment. I 
think this is important, because this was prepared long ago in 
the context of the Nixon impeachment. This was not aimed at 
anybody who is before us today. This wasn't framed with a view 
toward getting at President Clinton. But what the lawyers of 
the bar association of New York said is this. This is their 
conclusion:
    ``We believe that acts which undermine the integrity of 
government are appropriate grounds for impeachment, whether or 
not they happen to constitute offenses under the general 
criminal law. In our view, the essential nexus to damaging the 
integrity of government may be found in acts which constitute 
corruption in or flagrant abuse of the powers of official 
position. It may also be found in acts which, without directly 
affecting governmental processes, undermine that degree of 
public confidence and the probity of executive and judicial 
officers which is essential to the effectiveness of government 
in a free society.''
    I believe that this is a reasonable interpretation of the 
impeachment power, and I believe that the course of conduct 
which the evidence points to here undermines the integrity of 
government. I don't know how else you could interpret that.
    So I would just ask that the members step back and look at 
all of the evidence, look at this in a dispassionate way, and I 
think if we do that, we are going to understand that we have a 
very, very serious matter before us.
    Mr. Dershowitz, I just want to respond to what you said 
about the motives of the members of the committee. None of us 
are enjoying this. This is not to the political advantage of 
anyone, and you don't have to be very smart to figure that out. 
But we have a serious matter before us, and we are trying to 
deal with it in a responsible way, and I think that is the duty 
that we have under the oath that we have taken under the 
Constitution.
    I yield back the time which I don't have remaining.
    Mr. Hyde. The gentleman's time has expired.
    Once more, we leap out of turn for Mr. Barrett.
    Mr. Barrett. Thank you, Mr. Chairman.
    First, I would yield to Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    The gentleman from Florida mentioned the Claiborne case. 
First, I would like to clarify the question that I asked Judge 
Wiggins was whether he knew of any individual impeached for 
personal activity involving perjury. It wasn't any impeachment; 
it was just perjury. But since----
    Mr. Canady. If the gentleman would yield.
    Mr. Barrett. No, no.
    Mr. Scott. But since the gentleman mentioned the Claiborne 
case, I just want to say 727 F.2d at page 42, where it says 
that count 1 of the indictment alleged Claiborne solicited and 
received $30,000 in return for being influenced in his 
performance of official acts, and footnote one said that counts 
4, 5 and 6 charge that Claiborne failed to report bribes as 
income on his tax returns, which I think associates it, and it 
was still doing research on this.
    Mr. Barrett. I yield to Mr. Conyers.
    Mr. Conyers. Professor Dershowitz, do you happen to have a 
response to my friend from Florida's reference to the New York 
bar evaluation in 1974? About this pattern of lies and so forth 
that, to him, creates a case. I just wanted to see if there was 
a brief response from you.
    Mr. Dershowitz. I appreciate that. I think the Association 
of the Bar of the City of New York report is regarded very well 
by people, historians and legal scholars. It was talking 
largely about impeachment in general of judges and not singling 
out the President. I think many scholars now agree that the 
criteria for impeaching and removing a President must be 
different from the criteria for removing a single member of the 
judiciary. A member of the judiciary, for example, serves 
during good behavior, and any failure of good behavior might 
constitute an impeachable offense or removable offense. The 
President is the executive branch of government----
    Mr. Barrett. If I could, I would reclaim my time.
    Mr. Dershowitz. I am sorry--so I think it is quite 
different.
    Mr. Barrett. We have had a good afternoon. We have heard 
from 9 gentleman who are very good. Last week, we heard from 9 
or 10 gentleman who are experts on impeachment, and one woman. 
I think the time is now to bring in 10 mothers or 10 grade 
school teachers to talk about what we do when someone has done 
something wrong, because that is what has occurred here. We 
need again to move forward.
    I hear my colleagues from the other side who say that 
perjury is a serious offense, and I agree with that. People 
should not perjure. It is that simple. People should tell the 
truth when they are under oath.
    But the question that we face is if we want this principle 
to be held in high regard, what do we do? And I have yet to 
talk to one single person who thinks that the U.S. Senate would 
ever have a two-thirds vote to convict the President and remove 
him from office. So if we are going to go down that route, at 
the end of the day, those people who say that he must be held 
accountable are going to be as angry then as they are now. The 
only difference is we are going to drag this country through a 
year of hearings, and I don't think that that is going to 
increase respect for the rule of law. I think the longer we 
drag this thing out, the worse it is going to get.
    This whole incident, escapade, reminds me of a problem in a 
family: Uncle Harry did something wrong, and I think the 
question we have to decide is are we going to continue to flog 
ourselves for 9 months, 10 months a year as a family, as a 
national family, or are we going to deal with it?
    The American people have said over and over and over again, 
we want you to deal with it. And I think that the censure 
resolution shows the gravity of the offense and allows us to do 
it in a way that does not drag this on. We should move on to 
something else. We should move on to the Nation's business.
    If in the end we are going to have an impeachment without a 
conviction, it is really no different in effect than a censure, 
because an impeachment without a conviction is also just a slap 
in the face. Some might argue it is a stronger slap in the face 
or it is a constitutionally created slap in the face, but it is 
a slap in the face, nothing more.
    President Clinton is going to carry this with his legacy, 
and when he gets to heaven or wherever he goes and all the ex-
presidents are standing there, and they are going to say what 
was the biggest event in your last 23 years, his legacy is 
going to be: I either escaped impeachment or I didn't. If I 
were President of the United States, that is not something I 
would be proud of. So I think he is carrying a scar with him, 
and it is a scar that he can't escape, regardless of what this 
committee does.
    But I think it is time for us to move forward. I think that 
the Chairman should get together three Republicans and three 
Democrats, or four Republicans and four Democrats, on a 
bipartisan basis. It would be just like we did when Speaker 
Gingrich got in trouble. We had people from both parties sit 
down, iron out what the language should be, and then we bring 
it to the floor. And we move on.
    We should be acting like the Ethics Committee in that 
matter where the Speaker had lied. We can do that, and we 
should do that. If we do, I think this committee will be 
remembered as doing something great, Mr. Dershowitz. I think we 
will be remembered as a committee that fought bitterly, but in 
the end decided that, for the sake of this country, it was more 
important for us to say that perjury is wrong, to say that 
lying under oath is wrong, and to say this is what the 
condemnation will be: a public reprimand.
    And that is not something that is taken lightly. The last 
time it happened was 150 years ago. I don't think that there is 
a danger that you are going to have every Congress applying the 
same remedy simply because they disagree for political reasons.
    I yield back the balance of my time.
    Mr. Hyde. I thank the gentleman.
    I would announce that it is almost 5 o'clock, and some of 
the panel have expressed a desire to leave because of 
commitments, and we sure understand that. So I want you to 
know, none of us will be offended if you should head towards 
the door, but we will try to wind up as quickly as we possibly 
can if the questions are crisp and the answers are crisper.
    So the gentleman from South Carolina, Mr. Inglis.
    Mr. Inglis. Thank you, Mr. Chairman.
    We have heard the other view. You know, it is interesting. 
Apparently, no matter what, particularly you, Mr. Chairman, do, 
you will be criticized, because now we hear that we need to 
move along and not I assume have any witnesses. That was the 
import of the last discussion, no witnesses, move along. So I 
really understand the challenge that the Chairman has. He has 
really got to figure out these sort of conflicting arguments 
that we are hearing.
    Another point that I would make, Mr. Chairman, is Mr. Frank 
mentioned earlier something that I dare say that neither 
Admiral Edney or General Carney would probably be comfortable 
speaking of, but, if I may, I will not speak on your behalf but 
on behalf of many South Carolinians who have said this to me, 
is that they and military families are severely affected by 
what is going on in the White House and that morale is 
dangerously low and dangerously affected by what they perceive 
is a clear lie by the commander in chief.
    Again, I won't put the folks in uniform or formerly in 
uniform on the spot there, but that is what I am hearing. It is 
the same thing that I hear from my 8 year old who said to me 
recently, Daddy, the President is lying, isn't he? I said, yes, 
he has admitted to lying, admitted to lying under oath.
    Now, he would say it is not technically perjury, and maybe 
Professor Dershowitz has a new client here because he says that 
his clients commit the crime and then they compound their 
problem by lying about it. So he may have a new client here 
down at the White House. William Jefferson Clinton would be 
available as a good client to fit that MO.
    But there is something that I would particularly like to 
take up with my evidence professor, Professor Saltzburg. There 
is something that I do find that I agree with Professor 
Dershowitz about, and I would disagree with what you were 
saying, and that is, I think Professor Dershowitz is right. The 
prospect of this President being prosecuted after leaving 
office is really a nonstarter.
    I mean, I would love it if it weren't, because I think that 
is, as you said earlier, a way of vindicating the rule of law. 
If we don't impeach and if the President has committed the 
crimes that he is accused of and if we don't impeach, then 
prosecuting him upon leaving office is one way to vindicate the 
rule of law.
    And in response to some questions from Mr. Boucher earlier, 
there was some discussion from Professor Dershowitz about how 
that is really a nonstarter.
    So I would ask you, Professor Saltzburg, the prospect of 
this President entering the east front of the Capitol, walking 
over to the west front to swear in a new President in 2001 and 
then walking back to the east front and being handcuffed upon 
descending the stairs is probably not a picture that any 
President who succeeds him would want to be part of.
    So is that really a nonstarter in what we are talking about 
here? Your suggestion that he might be prosecuted and that 
would be a way of vindicating the rule of law, is that really a 
nonstarter? Do you disagree with Professor Dershowitz on that?
    Mr. Saltzburg. I disagree with him in part.
    By the way, it is quite an honor to have a former student 
hold your position. It makes me very proud. That is why we 
teach. I had hoped that you would put a question to me, and I 
would try my best to answer it.
    Mr. Inglis. Let me put a hypothetical to you. That would be 
a better way, and then I could call on you: Mr. Saltzburg, 
answer this question.
    Mr. Saltzburg. I think the--what I would say is, I don't 
want to repeat myself, but, immediately, I think if you make a 
decision or the House makes a decision not to proceed further, 
I think that the President, like any person who deceived a 
Federal court as a litigant, can be punished by the court 
without any doubt, and I think that will happen. I think that 
is a starter. I think that is required if this system is going 
to make any sense.
    Now, as to whether he will be prosecuted, I have my doubts. 
I have my doubts. Because I tell you what I really think will 
happen. I believe that when this process ends, and I believe it 
will end, I think the Republican candidate for President, 
whoever that person is, will say, I would pardon him if 
somebody would try to prosecute him because this process has 
punished him.
    Every punishment comes in very, very different ways. We all 
know that. No other American would be put through anything like 
this process. No other American would be censured as he might 
be.
    And I think that if I were Judge Wright and the case were 
before me rather than before you, the punishment I would impose 
in terms of a sanction on him would be so much higher than I 
would impose on any other citizen to send a message that what I 
believe is not only that honesty and integrity in the courts 
matter, for the reasons Judge Tjoflat said, but that 
responsibility does increase with the office that you hold. And 
the lessons we teach are important. I just tried to say, you 
don't need to impeach a President to teach those lessons. There 
are better ways to do it.
    Mr. Hyde. The gentleman's time has expired.
    The gentlelady from Texas.
    Ms. Jackson Lee. I think you are aware, Mr. Chairman, that 
I am not taking anyone's place out of order.
    Mr. Hyde. No, ma'am.
    Ms. Jackson Lee. Let me--as Professor Saltzburg has to go, 
let me thank him for his presence and thank every one of the 
panelists for what has been an eloquent presentation of a very 
difficult question. Each of you have acknowledged the task and 
the charge that we have before us. And excluding the military 
witnesses and I believe Judge Tjoflat, I think collectively 
witnesses on both the minority and majority side seem to 
conclude that there is a major question as to whether or not we 
have in these fact situations impeachable offenses. And I 
think, frankly, surprisingly for all of us, on December 1, 
1998, we may have some form of consensus.
    I think it is also good that many of us are discussing 
censure in this committee. Several of us, including myself, 
have drafted resolutions on censure and expect to offer them. 
So maybe we have come further than we thought we would have 
come.
    So I would like to just pose some questions and make some 
comments, in particular to Judge Higginbotham and General 
Richardson.
    I think that our Republican friends are splitting hairs, if 
you will. Royalty of many years ago stated, let them eat cake. 
And for some reason, I think my colleagues are attempting to 
have their cake and eat it, too. And the reason I say that is 
because impeachment is decidedly a constitutional process.
    But yet my colleagues today have been reminding us 
constantly of the rule of law, and I would simply bring to the 
panelists' attention as to whether or not we have actually had 
the rule of law in these proceedings. Was it the rule of law 
when due process was denied the President by way of no notice 
and the lack of the opportunity of his lawyers to make a 
presentation for more than 30 minutes until raised in the 
committee? Was the rule of law followed when attorney-client 
privilege was obliterated and ignored? Was the rule of law 
followed when grand jury testimony was released not to the 
Nation or to the House of Representatives but to the world?
    And, frankly, do we have the rule of law when we ignore the 
rights that are given to any American who might defend 
themselves against perjury on the grounds that they thought 
they were telling the truth, or whether or not the issue was 
material?
    So I think that as we discuss this very somber process we 
have to consider what we have done to the rule of law and 
realize that we are standing more grounded in the basis of 
constitutional premises as we decide really the decision that 
will warrant one of conscience and understanding of the 
Constitution.
    Let me, before I ask a question, just simply say to the 
gentlemen representing the military, I have the highest degree 
of respect for you and your service and the men and women who 
have served us and are serving us in this Nation. In fact, it 
saddens me that this week in Texas we lost Roy Benvedes, a 
Medal of Honor winner, who rose time and time again, wounded in 
Vietnam, to save several of his comrades, to participate in 
reconnaissance. And when they wanted to applaud him, he simply 
said, it was my duty.
    So I would take issue with you about any suggestion of the 
demoralizing of the outstanding military personnel that we have 
for the bad acts, of the commander in chief, or any other 
commander in chief, such as President Reagan, who did not 
remember the Iran Contra Affair: selling weapons for drugs or 
vice versa. I respect you for your presence.
    But let me ask Judge Higginbotham and the General these 
questions. Judge Higginbotham, I would ask the questions, if 
you would answer it. Would you help me understand the 
distinction between the criteria for a presidential and 
judicial impeachment? That has been raised about an impeachment 
of a judge, and we keep talking about double standards around 
here and why the President is privileged, and I think the 
American people should not have a distorted perspective. I am 
going to finish my question, and then I would like you to 
answer it.
    General Richardson, let me thank you for being a great 
American. You were actually in the midst of the proceeding, the 
activities of 1974. You resigned rather than be fired by the 
President of the United States because you refused to fire, I 
believe, Archibald Cox, if I have it accurately, who refused to 
accept the compromise of President Nixon. Do you think at that 
time there was abuse of power, and do you feel that we would be 
in a comfortable position if we offered to resolve these 
matters with a censure by this body, by this House?
    Mr. Richardson. I would say very clearly that the 
distinction is sharp and wide because of the pattern of some 
actions undertaken by Richard Nixon, all of which were 
antecedent to, or separate from, any false statement by him. He 
was, in addition, charged with false statements, the so-called 
cover-up of the burglary. But there was a pattern shown in 
Watergate which involved abuses of executive power, the 
deliberate undercutting of the procedures of various 
institutions of government, and the condoning, indeed, of a 
second burglary, that of the psychiatrist Elsburg, a man who 
had written a critical analysis of the conduct of the Vietnam 
War.
    To put it briefly, there is no comparison between the 
aggregate of the things for which this committee voted articles 
of impeachment in 1974 and the conduct of the President in a 
sexual relationship with a White House intern. So if you put 
the conduct on one side and look at the conduct of President 
Clinton and compare it with the conduct of President Nixon, the 
contrast is marked and dramatic.
    On the other side, the elements of concealment primarily 
noted in the Nixon case are with regard to the burglary. But a 
long series of attempts to conceal, avoid, deny, and deceive 
goes back to the very existence of the sexual relationship with 
Monica Lewinsky.
    So the issue before the committee is how seriously should 
we regard that cumulative series of efforts to hide the 
relationship. There is a lot of it, but there is only one 
underlying situation, and that one underlying situation did not 
in any respect involve matters of state or the powers of the 
president per se.
    So it is against that background one addresses the 
question--was this aggregate set of misleading statements--
lies, whether or not technically perjury, sufficient to be 
regarded as a high crime or misdemeanor?
    Now, what I have suggested and I would submit to this 
committee--and I am glad I have the opportunity to restate it--
is that there are only three possible outcomes of this matter. 
One is removal from office. If the President is impeached by 
the House, it automatically then and there goes to the Senate. 
The Senate is then required to hold a trial. A trial can only 
have two possible outcomes: acquittal or conviction. If the 
President is convicted, there is only one penalty permitted by 
the Constitution, and that is removal from office.
    Now, this committee can right now, as I have tried to 
emphasize, address the question of whether everything you know, 
assuming the worst--with great respect to the members of the 
committee who have said, well, we haven't heard the witnesses, 
I would say, yes, if the question of whether or not to impeach 
might be tipped one way or the other, by all means, hear the 
witnesses. But if you assume the worst of everything that has 
been said and ask yourselves the question, do we believe that 
because of this issue of lies the President of the United 
States should be removed or not? You know everything you need 
to know to answer that question. Why not address it?
    If the answer is, yes, he should be removed, then you vote 
the articles of impeachment that would get submitted to the 
House and if approved by the House, it would go to Senate. But 
if you think that is too much--and, by the way, as a law clerk 
for judges, I learned that all the hard questions are questions 
of degree. You can't divide the outcome into a series of 
graduated responses, no matter how close the call may be. You 
only, as a practical matter, have one choice, to impeach or 
not, censure or not.
    Mr. Hyde. The time of the gentlelady has expired.
    Mr. Conyers. Judge Higginbotham was asked a question, sir.
    Ms. Jackson Lee. I would appreciate it if he could answer 
the question.
    Mr. Cannon. Mr. Chairman, the lady's time has far since 
expired.
    Mr. Conyers. We weren't questioning that, sir. We were just 
pointing out that Judge Higginbotham had been asked the first 
question and had not responded.
    Mr. Hyde. Certainly. We will hear from Judge Higginbotham.
    Ms. Jackson Lee. Thank you, Mr. Chairman. Thank you, Mr. 
Conyers.
    Mr. Higginbotham. Well, Mr. Chairman, keep the light on. I 
won't be long.
    Mr. Hyde. Sounds like a commercial for a motel, doesn't it? 
We will keep the light on for you.
    Ms. Jackson Lee. I will be there.
    Mr. Higginbotham. There is a Brahman expression, if you 
don't know where you are going, any road will take you there. 
And the importance of a civilized society is that you have due 
process so that you do have a road map which describes the 
journey which one must take to get justice.
    I think that there are more profound injustices which are 
cause by procedural unfairness than by substantive 
adjudication. So in terms of what this group should do, you, I 
submit respectfully, should be the models of fairness from an 
analytical way in terms of how you probe evidence.
    More than 60 years ago, a governor of Mississippi pled 
before the U.S. Supreme Court in behalf of black prisoners who 
had received capital punishment; and he said to Chief Justice 
Hughes, help us save my State, because they have been denied 
due process. And that was the first case where the U.S. Supreme 
Court ever held that a confession which had been extracted 
involuntarily with brutality and cruelty was not admissible, 
and that is a gloried day in the history of the Supreme Court.
    It seems to me that you have the same kind of obligation 
that Chief Justice Hughes recognized the Nation must have in 
terms of procedural fairness, and the questions you raised fit 
within that.
    Mr. Hyde. The gentlelady's time--are you through, Judge? I 
am sorry.
    Mr. Higginbotham. I will waive the rest of what I was going 
to say.
    Ms. Jackson Lee. Mr. Chairman, he had a question on 
comparing.
    Mr. Hyde. Ma'am, really----
    Ms. Jackson Lee. May I just ask him to put it in writing 
for me, please?
    Mr. Hyde. Yes.
    Ms. Jackson Lee. Judge Higginbotham, I will await your 
answer in writing on the difference between presidential and 
judicial impeachments.
    I thank you. I know that you answered several questions at 
once.
    Mr. Higginbotham. And I have it on page 10 and 11 of the 
document I submitted to you, because I think it is one of 
profound difference.
    Ms. Jackson Lee. Thank you.
    Mr. Hyde. Mr. Goodlatte.
    Mr. Frank. Mr. Chairman, could I just for a second thank 
you for your forbearance? This has been a tough day, and you 
have really gone out of your way to keep this in the best 
possible light. I want to express my appreciation.
    Mr. Hyde. I owe you a very good cigar.
    Ms. Jackson Lee. I echo that, Mr. Chairman. Do I get one as 
well?
    Mr. Hyde. I plead the fifth.
    Mr. Frank. Not from me.
    Ms. Jackson Lee. Mr. Chairman, we are an aboveboard 
committee here.
    Mr. Hyde. Yes, we are, indeed.
    The gentleman from Virginia.
    Mr. Goodlatte. Thank you, Mr. Chairman.
    Mr. Chairman, all afternoon we have been treated to 
diatribes by Professor Dershowitz regarding the motivation of 
the members of this committee regarding the issue of perjury 
and his assertion that we don't care to address it except when 
it amounts to what he considers to be the lowest level of 
perjury, which is somebody lying to conceal something--their 
embarrassment about their personal indiscretions.
    First, I reject both of the premises. I agree with the 
gentleman from Florida that no one on this committee on either 
side of the aisle has asked to have this burden placed upon us, 
and it is incumbent upon us to deal with the facts that we have 
before us. But most especially I reject the second assertion, 
and that is that this is simply about lying to cover up 
personal indiscretions.
    First, with regard to the testimony before the grand jury, 
at the end of the process, I would like to read something 
written on August 20th of this year: ``If the President's 
public speech is any guide to what he swore behind closed 
doors, it may be possible to discern his new battle plan, to 
admit to private sexual indiscretions, which are provable but 
not impeachable, and to deny obstruction of justice and 
subornation of perjury, which would be impeachable but are not 
provable.''
    You wrote that, Professor Dershowitz----
    Mr. Dershowitz. That is right.
    Mr. Goodlatte  [continuing]. In the Boston Herald on August 
20th under your byline, and it seems to me that on August 20th, 
you hit the nail on the head. The reason for the President 
testifying falsely under oath, if indeed he did, before that 
grand jury was not to cover up personal indiscretions, because 
he went on national television moments after that testimony and 
admitted those personal indiscretions. The reason he lied, if 
the evidence supports that conclusion, is because he wanted to 
evade criminal prosecution for his previous efforts to obstruct 
justice, suborn perjury, and commit perjury in the Paula Jones 
lawsuit.
    So now we go back to the Paula Jones lawsuit, and we say, 
well, did the President of the United States lie under oath in 
that case for the purpose of avoiding personal indiscretions? 
Well, I suggest not, because in those very depositions he 
admitted to other personal embarrassing indiscretions that he 
had committed.
    No, I would suggest to you that the evidence would suggest 
that he did so for the purpose of defeating that lawsuit, of 
winning the case, which, I might add, is exactly the same 
reason why you have criticized and rightly criticized police 
officers and others for committing perjury and lying under oath 
in cases involving your clients that you have defended and 
others, to win the case. It is exactly wrong for them to do it 
and exactly wrong for the President to do it, and we certainly 
should take a strong stand against perjury, including perjury 
by law enforcement officers.
    And recently a Boston police officer--you may be familiar 
since you are from the Boston area--was recently sentenced in 
Federal court to 2 years and 10 months in prison for being 
convicted of one count of perjury before a Federal grand jury 
and one count of obstruction of justice for giving evasive and 
misleading testimony and withholding information from the grand 
jury. The officer lied about his observations of events where a 
plainclothed officer mistaken for a suspect was beaten by other 
Boston police officers.
    I agree with you. I was going to ask you the question 
before we ever got your testimony at the outset, and I agree 
with you, though, that lying under oath by law enforcement 
officials is particularly egregious. But what about lying under 
oath by the chief law enforcement officer in the country, the 
President of the United States, and not simply to cover up 
personal indiscretions but to defeat a lawsuit and to avoid 
criminal prosecution because of previous violations under the 
law? That, it seems to me, is the heart of what this matter is 
about before this committee, not lying to cover up personal 
indiscretions.
    I will give you an opportunity to respond. Briefly, since I 
have very little time.
    Mr. Dershowitz. I appreciate it. Thank you very much.
    First of all, I did not engage in diatribes against this 
committee. I responded to a point made by the Chairman 
characterizing my remarks which he did not hear, and I 
responded to a specific allegation made in a single instance, 
and I stick by what I said. If I offended anybody, I am sorry. 
I certainly don't want to attack the----
    Mr. Goodlatte. Apology accepted.
    Mr. Dershowitz. Well, I don't want to attack the 
motivations of any individual on this committee, and I intend 
to--what I have looked at is the votes of the committee on a 
partisan basis. That is upsetting. The issue that you have put 
is a very good one. In a book that I have written analyzing the 
case, I don't completely disagree with your analysis. I think 
that the problem began with an attempt to keep from the 
President's family a matter of personal interest. It then may 
have evolved and evolved and evolved. I take it very, very 
seriously. And I am very critical of the President's actions, I 
am critical of the actions of his lawyer Robert Bennett for 
allowing him to get into this situation rather than settling 
the case, and I don't mean in any way to trivialize the 
President's misbehavior. I do very strongly take the position, 
though, that there is a difference between an impeachable crime 
of perjury and condemnable but not impeachable allegations of 
perjury.
    Mr. Goodlatte. Since my time is very brief and may have 
already expired, let me recall my time that is remaining and 
serve you some more of your words, because I think that is the 
heart of the question there, divining between whether or not 
this is an impeachable offense or not, because you do agree 
with us that certain types of perjury would be an impeachable 
offense.
    Mr. Dershowitz. Of course.
    Mr. Goodlatte. Well, on July 29, 1998, you appeared on the 
show Hardball with Chris Matthews. During that show you said, I 
think his lawyers and he are in a very difficult dilemma, 
referring to the President, precisely because it is what he 
does from now on, and your comments were prescient because this 
was in July before he ever appeared before the grand jury. If 
he were now to go in front of a grand jury and he were to 
repeat his apparently categorical denial of any sexual contact 
and get himself into a swearing contest with a bought witness, 
Monica Lewinsky, that could cause a very serious problem. If 
the prosecutor could prove that he committed perjury in front 
of a grand jury, he would, I believe, be impeached.
    Mr. Dershowitz. I stick by that position.
    Mr. Goodlatte. That is what we are going to decide in this 
committee, Mr. Chairman. I yield back.
    Mr. Dershowitz. Let me please finish the answer because you 
have taken my answer out of context. I was very prescient. 
Before he ever testified in front of the Paula Jones case, I 
urged settlement or default. I wish he had taken that advice. I 
also urged that he be completely forthright in his grand jury 
testimony. I don't believe he was completely forthright in his 
grand jury testimony. But I don't believe that he committed 
perjury in his grand jury testimony.
    And there is a big difference. He did not categorically 
deny any sexual contact. He admitted sexual contact. And then 
he refused to answer questions, and the committee--I'm sorry, 
and the Starr people didn't press him, as perhaps they should 
have and might have. And so I think we have a record that is 
not--does not demonstrate perjury in front of a grand jury. If 
it did, or if there were evidence of subornation of perjury, of 
the kind of cover-up that you describe, I think it would be a 
very, very different matter. Even though the origin was an 
offense of sexual conduct, if it eventually escalates to the 
point of obstructing and suborning and compounding the perjury 
in front of a grand jury, that escalates the matter very 
considerably.
    Mr. Hyde. The gentleman's time has expired.
    The gentleman from Massachusetts Mr. Meehan.
    Mr. Meehan. Thank you, Mr. Chairman.
    The hour is getting late. It has been a long day. I guess 
we do impeachment by news cycles. I guess the news cycle today 
is going to be that the impeachment matter is going from the 
Lewinsky matter to campaign finance. We are going to have a 
reprise of Dan Burton's greatest hits. That will be the news 
cycle tomorrow.
    I always find it interesting to hear many of the 
committee's Republican members expounding on the campaign 
finance abuses. It seems that many of them didn't appear the 
slightest bit interested in closing the soft money loophole, 
which is the root of many of our campaign finance abuses, at 
the time when we debated the issue on the floor of the House, 
when we had a bipartisan bill that 51 Republicans voted for, 
but the vast majority of members of the committee didn't vote 
to close that loophole at that time. Nonetheless, we were able 
to pass a bill through the House.
    I am interested in many of the comments. I associate myself 
with the comments of Mr. Barrett, my colleague from Wisconsin, 
when he talks about the need for bipartisanship, and wouldn't 
it be great if we could get three Republicans and three 
Democrats to get together and work out some kind of a censure 
or some kind of a reasonable middle ground. But it isn't going 
to happen. Every Republican member of this committee will vote 
to impeach the President. It is a vote that is going to take 
place next week, because the week after that, we need to have 
the full House come in to vote on it. So as much as it would be 
nice if we could listen to the witnesses and determine whether 
there is a reasonable middle ground, this is a done deal. The 
die has been cast. We are going to vote; a majority of the 
members of the committee are going to vote to impeach the 
President of the United States sometime next week, regardless 
of who is subpoenaed, regardless of who is or isn't called as 
witnesses, and whether they are material or not.
    I was interested to hear Attorney General Richardson talk 
about the gravity of what we face, because I hear a lot of 
Republican Members say, ``Well, we are going to vote to impeach 
the President, but we are just like a grand jury. We are a 
grand jury here. We just determine whether we send it over to 
the U.S. Senate for trial. The trial would be over there. This 
is the same standard that any grand jury would have to meet.''
    Well, that is fine. But any of us who have been around 
grand juries clearly recognize that the old saying that a grand 
jury would indict a ham sandwich if a prosecutor suggested they 
should is true. I call this, by the way, the ``Ham Sandwich 
Theory of Impeachment.'' ``We are just a grand jury, we are 
going to send it over to the Senate. Let them decide whether 
the President should be removed.''
    I was interested, Attorney General Richardson, on your 
perspective on that. I am wondering, what do you think about a 
lax level of scrutiny, and is it appropriate for the Judiciary 
Committee or the full House to use this grand jury ``ham 
sandwich'' level of scrutiny to impeach the President?
    Mr. Richardson. Obviously my answer is clearly no. When I 
was U.S. Attorney for the District of Massachusetts, my 
instruction to my assistants was that they should never seek an 
indictment unless, if they were the trial judge, they would 
reject a motion for a directed verdict of acquittal at the end 
of the government's case. And I think that is the standard that 
this committee ought to have. But I have to reiterate that in 
the criminal process, in the criminal courts, the sentence can 
be very precisely adjusted to the relative seriousness of the 
offense.
    I don't yield to anybody at this table, including my 
military colleagues, as to the seriousness of the offense of 
perjury or misrepresentation of the truth in any government 
context. But unlike the Federal district court, the Senate has 
no choice in deciding what the appropriate sentence should be. 
That is why, as I say, from my point of view, I say 
respectfully, you could address any old time the issue of 
whether or not removal would be the correct result. A vote to 
impeach is a vote to remove. If Members of the committee 
believe that should be the outcome, they should vote to 
impeach. If they think that is an excessive sentence, they 
should not vote to impeach, because if they do vote to impeach, 
the matter is out of their hands and, if the Senate convicts, 
out of its hands.
    Mr. Meehan. Thank you.
    Mr. Hyde. The gentleman's time has expired.
    The gentleman from Indiana Mr. Buyer.
    Mr. Buyer. Thank you very much.
    I have with me here testimony of Admiral Thomas H. Moorer, 
U.S. Navy, retired, a former Chairman of the Joint Chiefs of 
Staff and would ask unanimous consent that his written 
testimony here be placed in the record, Mr. Chairman.
    Mr. Hyde. Without objection, so ordered.
    [The prepared statement of Mr. Moorer follows:]
  Prepared Statement of Thomas H. Moorer, Admiral, USN (Ret.), Former 
                 Chairman of the Joint Chiefs of Staff
    I appreciate the Judiciary Committee's invitation to submit these 
comments on the corrosive effects on the military's code of honor of 
having a Commander in Chief who has admitted misleading the nation. The 
President, by his own poor choices, has created a crisis of 
constitutional proportion within the same Armed Forces he is duty-bound 
to lead. It is now up to Congress to solve this crisis by holding the 
President accountable.
    When I had the honor to serve as Chairman of the Joint Chiefs of 
Staff in the early 1970's, I was the senior uniformed member of the 
U.S. Armed Forces. As such, like every other commissioned officer, I 
served ``during the pleasure of the President.'' Like every other 
officer, I also swore to ``support and defend the Constitution of the 
United States against all enemies foreign and domestic,'' and to ``bear 
true faith and allegiance to the same. . . . So help me God.''
    The Committee is addressing today a critical problem within the 
Armed Forces that many civilians do not fully appreciate. The President 
is the Commander in Chief. Although he does not wear a military 
uniform, he is a military leader. In this regard, I urge the Committee 
to address two fundamental issues of military leadership: honor and 
accountability. Within the leadership of the U.S. Armed Forces, these 
virtues are indispensable. Without them, soldiers, sailors, airmen, 
marines, and civilians die unnecessarily.
    If the Committee finds that the Commander in Chief has engaged in 
conduct that undermines the standards Congress has set for military 
leadership--to which the President has already indisputably admitted--I 
urge Congress to hold the Commander in Chief accountable not only for 
the good order and discipline of the U.S. Armed Forces, but also, more 
fundamentally, for the survival of the American Rule of Law.
    When a military leader chooses to engage in dishonorable conduct, 
he either resigns or is removed from any position of responsibility, 
i.e. cashiered, by those to whom he is accountable. In any event, 
military leaders are accountable for poor choices. Military leaders 
also serve as role models for honorable and virtuous conduct. Their 
troops expect no less. When the troops know a leader is not being held 
accountable for dishonorable conduct, the ``corrosive effect'' is 
devastating on the good order and discipline of the Armed Forces.
    President Theodore Roosevelt, who served as Assistant Secretary of 
the Navy, leader of the ``Rough Riders'' in the Spanish-American War of 
1898, as Vice President, and then as President and Commander in Chief, 
said this about American national greatness and leadership:

          The stream will not permanently rise higher than the main 
        source; and the main source of national power and national 
        greatness is found in the average citizenship of the nation. 
        Therefore it behooves us to do our best to see that the 
        standard of the average citizen is kept high; and the average 
        cannot be kept high unless the standard of the leaders is very 
        much higher.

    Congress is responsible for setting these ``very much higher'' 
standards of leadership for the U.S. Armed Services. Section 8 of 
Article I empowers Congress to ``make Rules for the Government and 
Regulation of the land and naval Forces.'' Congress is also responsible 
for holding the Commander in Chief accountable for ``high Crimes and 
Misdemeanors.''
    Technical legal arguments that the Uniform Code of Military Justice 
may not apply to the Commander in Chief miss the point. At issue are 
some of the first principles upon which our colonial forefathers 
pledged their ``sacred honor.''
    The First Article of the 1775 ``Rules for the Regulation of the 
Navy of the United Colonies of North-America,'' which is still public 
law (10 U.S.C. 5947), mandates that: ``All commanding officers and 
others in authority in the naval service are required to show in 
themselves a good example of virtue, honor, patriotism, and 
subordination; . . . to guard against and suppress all dissolute and 
immoral practices, and to correct, according to the laws and 
regulations of the Navy, all persons who are guilty of them.'' 
Likewise, the current congressional mandate that all commissioned 
officers comport to a higher standard of personal behavior--both on and 
off duty--traces to the 1775 ``American Articles of War,'' which 
forbade officers from ``behaving in a scandalous, infamous manner,'' 
and required that any officer found guilty ``of any fraud . . . be ipso 
facto cashiered, and deemed unfit for further service as an officer.''
    A crisis of military discipline looms if any commander, by his 
words and actions, promotes an adage that ``you can engage in whatever 
behavior you get away with, and even if you're caught, it's OK to evade 
accountability if you can get away with that''; a constitutional crisis 
looms if Congress does not hold all officers with full responsibility 
to a standard of full accountability. Responsibility without 
accountability ``according to law'' undermines the core foundation of 
the Constitution, the principle known as the Rule of Law (as opposed to 
the rule of men), without which our Constitution is no more than a 
piece of paper. By definition, the Rule of Law cannot be influenced by 
public opinion, whether through public opinion polls or otherwise.
    The U.S. Armed Forces now have a more fundamental challenge to 
leadership training than simply instilling character traits adverse to 
lying, cheating, and stealing: How do we instill in young leaders the 
moral courage to admit when they are wrong and to accept accountability 
for poor choices? Personal example by senior leaders, up to and 
including the Commander in Chief, is an essential starting point--and 
risk to personal ambitions is no excuse for any officer of the U.S. 
Armed Forces to fail in this regard.
    I urge Congress to consider the high standards of personal conduct 
it has set for leaders of the American military, and to hold the 
Commander in Chief accountable to at least those standards--for the 
good order and discipline of the U.S. Armed Forces and for the survival 
of the American Rule of Law.

    Mr. Buyer. I note that Admiral Moorer, the former Chairman 
of the Joint Chiefs, wrote, ``The President is the Commander in 
Chief. Although he does not wear a military uniform, he is a 
military leader.'' He also goes on to say, ``I urge Congress to 
hold the Commander in Chief accountable not only for the good 
order and discipline of the U.S. Armed Forces, but also more 
fundamentally for the survival of the American rule of law. 
When a military leader chooses to engage''--I suppose when he 
said ``military leader,'' he is also meaning the Commander in 
Chief. ``When a military leader chooses to engage in 
dishonorable conduct, he should either resign or is removed 
from any position of responsibility, i.e. cashiered by those to 
whom he is accountable.'' He goes on to say, ``When troops know 
a leader is not being held accountable for dishonorable 
conduct, the coercive effect is devastating on the good order 
and discipline of the Armed Forces.''
    I have some questions I would like to ask of you, Admiral 
and General, and I appreciate your testimony here and your 
candor. You have made a contribution.
    Admiral, at the Naval Academy--and these would be yes or no 
questions--at the Naval Academy, do midshipmen learn that the 
President is the Commander in Chief of the military and that 
the President's picture is present on every ship stationed 
throughout the military in that capacity of the chain of 
command?
    Mr. Edney. That is correct.
    Mr. Buyer. Admiral, do you agree that integrity, honesty 
and ethics are required traits of a military leader?
    Mr. Edney. That is correct.
    Mr. Buyer. Admiral, as the ethics professor at the Naval 
Academy, do you teach your midshipmen that they must have a 
strong moral character in order to be an effective military 
leader?
    Mr. Edney. That is correct.
    Mr. Buyer. Admiral, is it for that reason that the Naval 
Academy and all the service academies, to include the service 
of the military colleges, have honor codes that state 
individuals in essence will not lie, cheat or steal, nor 
tolerate those who do?
    Mr. Edney. That is correct. We have a different toleration 
clause, but the purpose is the same in our concept that the 
Academy says you must identify all truth, act on the truth and 
do what is right. But you are right.
    Mr. Buyer. Admiral, do you also teach the midshipmen at the 
Naval Academy that good leaders must set the example for the 
sailors and marines under their command?
    Mr. Edney. That is correct.
    Mr. Buyer. Admiral, would you say that it is essential that 
those sailors and marines trust those in the chain of command 
in order for a unit to be effective?
    Mr. Edney. That is correct. Trust and confidence is earned. 
But you are right.
    Mr. Buyer. It is earned. Isn't it also true, though, that 
trust and confidence is reposed in the commission that is 
granted unto an officer by the President of the United States?
    Mr. Edney. That is correct. It is in the oath of office.
    Mr. Buyer. It is reposed.
    Mr. Edney. It is reposed. That is correct.
    Mr. Buyer. General, would you agree with that?
    Mr. Carney. The President reposes special trust and 
confidence in the patriotism, valor and fidelity of the officer 
he is commissioning.
    Mr. Buyer. So the President does that in the commissioning 
oath. So he grants that repose authority under the 
commissioning?
    Mr. Carney. That is true.
    Mr. Buyer. So it comes from the President as the Commander 
in Chief?
    Mr. Carney. Correct.
    Mr. Buyer. General Carney, is it not true that those at the 
top of the chain of command, in particular commanders, set the 
tone of the military organization?
    Mr. Carney. Yes, sir.
    Mr. Buyer. General, is it true that if the commander sets a 
poor example, there is a detrimental effect on the morale and 
discipline of the force?
    Mr. Carney. Yes, sir.
    Mr. Buyer. Regardless of the size of that force, whether it 
is a division commander all the way down to a platoon 
commander?
    Mr. Carney. The lower the commander, the more visible is 
the impact, but high-level commanders are also impactful.
    Mr. Buyer. General, would you say that it would be 
devastating to a unit's morale if the commander disciplined an 
individual for an action that the commander himself was accused 
of?
    Mr. Carney. Yes, sir.
    Mr. Buyer. General, although the President is not a member 
of the armed services, do the President's actions constitute 
the appearance of a double standard between the Commander in 
Chief and his military forces?
    Mr. Carney. The President is held accountable to the 
Constitution and to the very difficult challenges which you 
face to remove him by the law of impeachment. That is different 
than the law that Congress gave the military in the form of the 
Uniform Code of Military Justice.
    Mr. Hyde. The gentleman's time has expired.
    The gentleman from New Jersey Mr. Rothman.
    Mr. Rothman. Thank you, Mr. Chairman, and I appreciate the 
answer of the last witness. It is a constitutional decision 
that we have to make here on the Judiciary Committee whether 
the President committed an act of treason, bribery or other 
high crime or misdemeanor; not whether the President's behavior 
was deceitful, wrongful, immoral, but whether he engaged in 
treason, bribery or other high crimes and misdemeanors.
    Some have talked about our upholding the rule of law. 
Throughout my lifetime--as an adult lawyer and a former 
Surrogate Court judge, I believe in the rule of law. But this 
President will not get any double standard. He can always be 
sued criminally for his conduct. So that would uphold the rule 
of law and show that the President is not above any other 
American. He can be prosecuted criminally and held criminally 
responsible for his conduct.
    I am the father of two kids, and I tell my kids that lying 
violates the Ten Commandments. Adultery by the President 
violated the Ten Commandments. It is wrong, it is morally 
wrong, and I have said publicly it should be condemned. It was 
wrong when the President waved his finger and didn't tell the 
truth about his relationship with Ms. Lewinsky, and he should 
be punished, let alone for his having an affair with an intern 
in the White House. So he can be censured, rebuked, reprimanded 
for his not telling the truth to the American people, and we 
can teach our kids that lying has negative consequences, and we 
can uphold the rule of law.
    What we have to decide, though, is whether the President, 
according to Mr. Starr, committed perjury, obstruction of 
justice or abuse of power. That is our job. Now, the charges by 
Mr. Starr, he talked about them, he wrote us a 450-page report, 
17 boxes of information, and gave a speech before us for 2\1/2\ 
hours. The President's counsel responded with two rebuttals. So 
we have the prosecutor, if you will, giving his opening 
statement twice, in writing and orally, and then we had the 
President's counsel filing two written responses addressing 
every one of the charges of perjury, obstruction of justice, or 
abuse of power.
    So how do we decide who is telling the truth? How do we 
decide where is the clear and convincing evidence that one side 
is right or not? Who bears the burden of proof? I always 
thought as an American familiar with our notion of fairness and 
due process, it was the prosecution that bore the burden of 
proof, to prove before the defendant had to defend and prove 
his or her innocence, if you will.
    Professor Dershowitz, you say that there was no perjury 
before the grand jury. Why do you feel that the President did 
not commit perjury before the grand jury?
    Mr. Dershowitz. Perjury is a very technical and difficult 
offense to prove, and it ought to be. The difference between 
the rule of law and the rule of human beings is precisely the 
technicalities of the rules. The President was advised by an 
excellent lawyer, David Kendall. At this point, unlike in the 
previous situation, he told his attorney everything presumably. 
There were no secrets, and the answers were carefully crafted. 
I have looked at the answers. They seem at certain points to be 
less than completely and totally forthcoming, and the President 
acknowledged that he was not going to be forthcoming about the 
details and specifics of his sexual conduct.
    Mr. Rothman. Why isn't it perjury?
    Mr. Dershowitz. Because it was not literally false, at 
least not literally false in any way that I have seen evidence 
to demonstrate beyond a reasonable doubt.
    Mr. Rothman. Professor, if I may, now we have got a 
distinguished legal scholar saying there was no perjury, we 
have got Mr. Starr making charges, the President's lawyer 
responding, everything in writing. We don't have a single 
solitary fact witness upon whom Mr. Starr relied in making his 
case. Not a single solitary fact witness has been brought 
before this committee, and we are left with dueling papers and 
professors, the majority of whom say either don't impeach or 
there was no perjury, or if there was perjury, perhaps it is 
too much to threaten the security of the Nation to have an 
impeachment. So who bears the burden of proof?
    Mr. Dershowitz. I think on impeachment there is a very 
heavy burden on the proponents of impeachment. It is not like 
indictment.
    And there is another thing that is very wrong. You hear 
from people both on this committee and elsewhere that the 
President has acknowledged this, has conceded this. I heard 
today the President admitted he lied. I challenge anybody to 
find any statement where the President concedes he lied. Indeed 
that is one of the criticisms made of the President, that he 
never conceded he lied. One cannot take this case as a nolo 
contendere or on the pleadings take every statement made by the 
President and his lawyers and say, aha, there is a concession 
of impeachable conduct.
    Mr. Rothman. In the Kendall report, Kendall refutes every 
single charge by Mr. Starr, so I don't see how there could be 
an admission. I for one am looking forward to finding out what 
the truth is. Since I have heard from all the lawyers, I want 
to hear from witnesses.
    Mr. Hyde. The gentleman's time has expired.
    Mr. Chabot. Mr. Chabot, would you defer questioning?
    Mr. Chabot. I would be happy to.
    Mr. Hyde. Would you think--try to think maybe over the 
dinner hour how you can mislead without lying? Maybe body 
language. Anyway, thank you.
    Mr. Chabot. Thank you, Mr. Chairman. The gentleman from 
Wisconsin----
    Mr. Rothman. Point of inquiry, Mr. Chairman.
    Mr. Chabot. Let me finish.
    Mr. Rothman. Were you addressing the question to one of the 
panelists?
    Mr. Hyde. To Mr. Chabot. I do that occasionally. We talk.
    Mr. Rothman. Because I thought if you were asking the 
panelists, you would give them the opportunity to respond. Mr. 
Chairman, I thought if you were addressing the panelists, you 
would give them an opportunity to respond.
    Mr. Chabot. I assume we will be getting the full 5 minutes, 
Mr. Chairman?
    Mr. Hyde. Yes.
    Mr. Chabot. Thank you, Mr. Chairman.
    The gentleman from Wisconsin, and he is not with us now, 
but early on he mentioned something to the effect that he 
thought the President had carried on behavior which was 
inappropriate and deserved to be punished, but not necessarily 
impeached, because he said that impeachment, if it went over to 
the Senate, would drag out for a year, and the country couldn't 
stand that turmoil, or something to that effect.
    And that is exactly what they said about this committee. 
They said if we took this up, we had to limit the scope of this 
impeachment, the matters that we took up, and also the time, 
because they said this would drag on for a year or perhaps even 
2 years. The Chairman was determined not to let that happen, to 
move forward in an expeditious manner, which we have done, and 
it is quite likely that this matter will be wrapped up this 
year.
    I think that if the Senate carried this forward in an 
appropriate and expeditious manner, they could wrap it up one 
way or the other in a relatively short period of time. So I 
don't think this would necessarily drag on for a year or 2 
years as some have alleged.
    In addition to that, there are many, particularly on the 
other side of the aisle and a few on ours, although not on this 
committee, I don't think, that are looking for censure as a way 
out. They believe that the President should be punished, but 
they don't think that he should be impeached or removed from 
office. As we all know, constitutionally if the House 
impeaches, it goes to the Senate, and they ultimately don't 
have to remove the President from office. That is for the 
Senate to determine.
    A lot of folks look at the polls. I don't look at the 
polls, but a lot of folks do look at the polls. They say that 
the public doesn't want this President to be impeached, 
although they do want him to be punished. Now, if the President 
is impeached and not removed from office, that will certainly 
be a mark on his record and one justifiably received, assuming 
that the facts alleged against this President are true. So I 
think moving toward censure at this juncture is inappropriate 
and not for the House to determine. If the Senate wants to 
consider censure, then that is up to them to determine.
    We have also heard it said by a panelist this afternoon, in 
fact a couple of panelists, that perjury happens in courtrooms 
all the time, police commit perjury. It has been compared to a 
traffic offense. It was also said that people are never really 
charged or punished in this country for the type of perjury 
that the President allegedly carried out. Yet we had two women 
before us this morning on an earlier panel who clearly showed 
that perjury oftentimes is punished, and punished very severely 
in this country. Those two women certainly were. In addition to 
that, there are 113 other Americans who are behind bars or on 
some sort of home release or whatever, but being punished by 
the Federal courts because they committed perjury--they 
committed perjury in a Federal courtroom. And we have thousands 
of people in this country who are suffering criminal penalties 
because they committed perjury in a State courtroom. So people 
are punished for it.
    I wanted to--Judge Tjoflat is now gone for the day, I 
assume. Let me shift over to General Carney and Admiral Edney, 
if I could ask you a quick question here.
    At one point in the Jones case, the President had argued 
that he was immune from suit because he was Commander in Chief 
and should in effect be considered an Active Duty officer and 
should not be subject to suit at that time. If that particular 
argument had carried the day and the President were now subject 
to the Military Code of Justice, what types of penalties could 
he face for the charges of perjury or adultery or obstruction 
of justice? Either the admiral or the general?
    General Carney. The Uniform Code of Military Justice, for 
which he is not subject, has a perjury article and a false 
official statement article, and it has what is called a general 
article, 133, conduct unbecoming an officer, from which an 
officer will be charged with lying whether it is under oath or 
not. So there would be a number--if I were in the similar 
situation and, say, commanding the 82nd Airborne Division, 
there would probably be five specifications to the various 
charges against me.
    Mr. Chabot. Thank you, General.
    Mr. Hyde. The gentleman's time has expired.
    The gentleman from North Carolina----
    Mr. Chabot. I think the admiral also, Mr. Chairman----
    Mr. Hyde. I am sorry, Admiral.
    Mr. Edney. I just wanted to make the point, first of all, I 
don't agree that you can make that assumption, that the 
President is under a different law and he doesn't come under 
UCMJ, but when you come under UCMJ, because of the importance 
of command and trust and confidence in command, the first act 
under UCMJ is to remove the officer from the position of 
command because you have lost that trust and confidence, 
because you cannot leave that person suspect out there in 
command. Then you do the investigation.
    So the process is totally different, and the requirement 
for speed and action to maintain trust and confidence is 
essential to the military. That is why we act the way we do.
    Mr. Hyde. The gentleman from North Carolina, Mr. Watt.
    Mr. Watt. Thank you, Mr. Chairman. I will start by just 
assuring all the witnesses that I am not being punished by 
going last on this side. And the Chairman is not punishing me. 
It was actually at my request that I went last. For those who 
might be worried, I wanted to make sure that the Chairman got 
the benefit of that, also.
    I actually had intended to ask a couple of questions to 
Judge Tjoflat, but since he has left, perhaps I can ask these 
questions to Judge Higginbotham and Mr. Rosen.
    Is there a difference between lying under oath and perjury?
    Mr. Higginbotham. Yes.
    Mr. Watt. If so, could you tell me what that difference is?
    Mr. Higginbotham. It is my recollection that Congress 
amended the statute because they thought that there were some 
issues which were not incorporated in the perjury standard. I 
would be pleased to send you a note on it. But for an 
impeachment proceeding, unless you tell me that someone was 
lying and did not take the oath, it would not make a difference 
whether it would be lying under oath or perjury in terms of 
your making a judgment on impeachment.
    Mr. Watt. Mr. Rosen.
    Mr. Rosen. There is a clear difference between lying under 
oath and perjury. All sorts of things that all of us would 
acknowledge are lies don't rise to the level of perjury unless 
they are both intentional and material. And the President 
claims in regard to all of the allegations against him that 
although he may have engaged in what we might call a lie or we 
might call a misstatement, none of his lies rise to the 
technical level of perjury because they were not intentional; 
that is to say, he believed they were true when he told them, 
and they were not material to the cases at hand.
    Mr. Watt. Let me go to the second part of that, not the 
knowledge that he was lying, but the materiality of the 
misstatement. Can you tell me a little bit about what 
materiality means in the definition of perjury?
    Mr. Rosen. Materiality means that the lie had to have been 
important enough that there was some possibility that it had a 
chance of affecting the proceeding in which it was told. That 
is to say, an irrelevant lie, a question that was asked about 
some embarrassing matter that couldn't possibly have affected 
the proceeding, wouldn't have been material.
    Reasonable people can certainly disagree about whether the 
misstatement or lie told in the Jones deposition was or was not 
material. The judge, when she ruled the evidence inadmissible, 
said it didn't go to the core issue of the case. At the same 
time she did say that it might be relevant. So one could argue 
the case either way.
    It is important, though, to stress that in convicting 
people of perjury, jurors tend to give people the benefit of 
the doubt and don't convict in close cases where the 
materiality is open to question.
    Mr. Watt. Thank you, Mr. Chairman. I yield back the balance 
of my time.
    Mr. Hyde. I thank the gentleman.
    The gentleman from Georgia, Mr. Barr.
    Mr. Barr. Thank you, Mr. Chairman.
    Mr. Chairman, I have been taking some time this afternoon 
during some of the other questioning and testimony and 
refreshing my recollection, which in this instance is 
remarkably good, of certain provisions of the U.S. Criminal 
Code, title 18. I have looked over the various provisions on 
obstruction, false declarations before a grand jury, perjury, 
and frankly, Mr. Chairman, I don't find any gradations there. I 
don't find any context there. I find Federal criminal statutes 
that the American public and the two witnesses here earlier 
today who have been convicted of those offenses understand a 
lot better than some of the folks on this panel.
    When I first heard from this panel, other than beginning 
with Judge Tjoflat, I was somewhat depressed, because what we 
seem to be hearing from many of the witnesses is perjury may be 
perjury, obstruction may be obstruction, but you have to look 
at the context. You have to look at whether it was really a 
serious offense. You have to look at whether or not a person 
won an election by 49.3 percent or 49.2 to determine whether or 
not it is really--that was one of the points, Professor 
Dershowitz, that was made by one of the other witnesses. They 
harkened back to the percentage by which the President had won 
the election, not a majority, but a plurality, as if that 
apparently figures in whether or not it is impeachable to 
commit perjury or not.
    But I am not depressed, Mr. Chairman, and the reason I am 
not depressed is there really are, I think, two Americas, and 
there is a real America out there, and I think our military 
witnesses understand that, and the two witnesses earlier today 
understood that, and Judge Tjoflat understands that. It is that 
America that I have great faith in, because it is that America 
that understands what perjury is. It is that America that 
understands that there are not gradations of perjury when we 
are talking about the President of the United States of America 
going before a Federal judge or a Federal grand jury. They 
understand, for example, that indeed, as reflected in the 
sentencing guidelines themselves, it is indeed more serious for 
sentencing purposes if you have a person in a position of 
public trust than if you have an average citizen. Now, some on 
this panel may argue that the President is not in a position of 
public trust. I think that clearly the sentencing guidelines 
contemplate that.
    And here again, the American public, the real America out 
there, understands that there ought to be a very high standard 
for our public officials. The same America out there that 
understood when I was called upon as a U.S. attorney to 
prosecute a sitting Republican Member of Congress who served on 
this very panel back in the 1980's for doing precisely what the 
President of the United States now has done, and that is to 
impede, obstruct and lie before a Federal grand jury, I 
prosecuted him, because down in Georgia, in the Northern 
District of Georgia, we understand that there are not 
gradations of perjury, there are not gradations of obstruction 
of justice, there are not gradations in contextual concerns 
that come into play whether or not to prosecute a Member of 
Congress or the President of the United States for committing 
those acts.
    Also the reason I am not depressed, Mr. Chairman, is in the 
real world out there, people understand the Constitution, and 
they understand--not like some of our law professors today--
they understand that the primary focus of the Constitution as 
given to us by our Founding Fathers for abuse of office, which 
is not so vague a term as to be unintelligible to any President 
despite some of the testimony here today, they understand that 
the way the Constitution is crafted, the primary mechanism for 
dealing with abuse of office is impeachment. It is not 
prosecution for a criminal offense. That is precisely why the 
first point at which abuse of office by a President and a Vice 
President and other high officials comes up is in the context 
of impeachment, and then the Constitution goes on to provide 
that that shall not prohibit essentially prosecution.
    So despite the fact that some of our law professors here 
today think that this matter should all be handled by the 
courts, and the Constitution should just be shoved aside, real 
America understands that the Constitution is there for a 
reason, that it does mean something, the same as our title 18 
of the Criminal Code means something in terms of defining with 
tremendous clarity perjury, obstruction of justice and 
tampering with and interfering with the work of a grand jury.
    Mr. Chairman, even though at the beginning of this panel I 
was somewhat depressed at what we were hearing, I am heartened 
by the fact that I don't think these views represent the 
clarity and the rationality and the common sense with which the 
real America views these matters.
    Mr. Dershowitz. May I respond 30 seconds to what I perceive 
to have been a personal attack? First of all, whenever I hear 
the word ``real Americans,'' that sounds to me like a code word 
for racism, a code word for bigotry and a code word for anti-
Semitism.
    Mr. Barr. That is absurd. He ought to be ashamed. That is 
the silliest thing I have ever heard.
    Mr. Dershowitz. When I hear you describe me as something 
other than a real American, shame on you. We may have a 
disagreement about the merits of these issues, but I would no 
more impugn your Americanism than you should impugn mine, sir.
    Mr. Barr. You are being silly, Professor. You are being 
absolutely silly.
    Mr. Higginbotham. May I respond, Mr. Chairman?
    Mr. Hyde. Yes, indeed. Far be it from me to not have anyone 
respond. Go right ahead.
    Mr. Higginbotham. I take profound disagreement with 
Congressman Barr's categorization of the real America, which he 
apparently understands with such fine discernment, and to which 
those of us who teach at universities are oblivious. You know, 
we have students, and they teach us something. My father was a 
laborer. My mother was a domestic. And I climbed up the ladder. 
And I did not come to where I am through some magical wand, so 
that I am willing to match you any hour any day in terms of the 
perception of the real America.
    Now, let me put this in perspective, because I cited some 
statistics, and apparently that is not relevant to the real 
America. On page 7, I gave the fact that President Clinton got 
379 electoral votes and 47,401,054 popular votes. I cited that 
because when you do an impeachment, when you do an impeachment, 
you remove someone, Congressman Barr, who got elected by the 
real America. And it is the pernicious consequences on which 
that could happen.
    Let me give you an example as a Federal judge. In the Sixth 
Circuit, Tennessee, Michigan, Ohio, Kentucky, from the day when 
President Reagan got in to President Bush's last day, there was 
never one African American appointed to those courts. And 
before them President Carter appointed blacks; after them 
President Clinton appointed blacks. Now, when you remove a 
President, you will be removing someone who may have some 
values which are as important as what you call perjury, and 
that is pluralism, the opportunity for people who are black to 
get into the system. There is still conflict whether some 
people accept what Roger Brooks Taney said in the Dred Scott 
case, that a black man had no rights which the white was bound 
to respect. That was values, and that was a real America. But 
Justice McLean and Justice Curtis dissented, so that we have in 
this country, when Dred Scott was decided, when Plessy was 
decided and in recent cases, a profound division in terms of 
pluralism and inclusion. And I think that there is a real 
America which President Clinton took in terms of fairness, and 
I would be delighted to debate this issue with you in far 
greater detail.
    Mr. Hyde. Does the gentleman from Georgia wish 2 minutes to 
respond?
    Mr. Barr. Thank you, Mr. Chairman.
    My point would be, you know, all of that is fine and good. 
It is utterly irrelevant, the same as the silliness that 
Professor Dershowitz thinks that talking about a real America 
in terms of understanding certain concepts of the law, the 
Constitution, military discipline, he thinks that, what was it, 
a racial issue or something, I don't know, it was so silly.
    Mr. Dershowitz. A code word.
    Mr. Barr. But I think my concern, Mr. Chairman, is when we 
bring these sorts of things up and say simply because we have a 
President that we might remove from office for violating his 
oath of office or otherwise committing high crimes and 
misdemeanors, simply because of certain policies, then we get 
into constitutional and legal relativism that I would certainly 
think that a learned member of the bar and former member of the 
Federal judiciary would not stray into. Using as an excuse for 
not upholding the rule of law or the constitutional standards 
that we have simply because we have a President that might do 
certain things politically that we like I think is a very, very 
slippery slope, Mr. Chairman, and I thank you for letting me go 
into that.
    Mr. Hyde. The gentleman from Florida, Mr. Wexler.
    Mr. Wexler. Thank you, Mr. Chairman.
    I would just like to ask some short questions of General 
Carney, if I could, and then give the remainder of my time to 
Professor Dershowitz if he chooses to respond to the Chairman's 
question of Mr. Chabot.
    General, I find as a part of this debate not just today, 
but the ongoing debate over the last year, the issue of morale 
in the military. While it may not be directly related to 
impeachment or directly related to the issues that this 
committee concerns itself with, I find that to be one of the 
most concerning issues, and the allegations that some make that 
the President's conduct has in some way, significant or 
otherwise, lowered the morale in the military. My experience in 
terms of speaking with people in the military in Florida, when 
you get right down to it, if there is, in fact, a morale 
problem, it seems to me from my conversations to stem more from 
budgetary shortfalls, more from a perceived--and I would 
agree--a perceived lack of increases in pay, things that really 
matter to the members of the military more than a specific 
reference to the behavior of the President.
    I was wondering, one, if you might comment on that, and, 
two, what I also hear from admittedly junior officers and the 
enlisted personnel in terms of this portrayed double standard 
of law, what I hear from enlisted personnel regarding the 
adultery policy is--and I don't know if this is quantifiably 
correct, but they certainly seem to suggest, at least a number 
of them that I have talked to, that there is a double standard; 
that the court-martial program is much more quickly used with 
respect to enlisted personnel as it is with respect to, and I 
think the word is red flag officers.
    I was wondering if you might speak to that. How many red 
flag officers have been court-martialed for adultery, say, in 
the last 40 years? The people in the military that I have 
talked to, admittedly, again, not the high officers, but the 
personnel people, seem to think there is a double standard.
    Mr. Carney. Congressman, I was the deputy chief of staff of 
personnel. I never heard the term ``red flag officers.'' But I 
do understand your meaning. I am not aware of a double standard 
by any stretch of the imagination. What the enlisted people 
that you are talking to probably don't understand is what 
happens to senior officers is not very well known to them.
    Secondly, to your first point, yes, indeed, there is a 
morale problem. I know Congressman Buyer knows it well. There 
is a 13 to 15 percent gap in military pay. There is a 
retirement system change that was voted in in 1986 that 
midcareer officers and enlisted soldiers find to be obnoxious. 
There is an increase in deployments that have occurred in these 
past 6 years in the face of a 40 percent reduction of force 
structure, and a whole bunch of other problems.
    Now, is there a problem caused by the President's conduct? 
I don't have any idea. It would, in my view, be a violation of 
Article 88 if the military were to even conceive of taking such 
a poll. And so I doubt seriously that anybody can really 
respond to what you have said.
    Mr. Wexler. Thank you. I appreciate that.
    If I could, Mr. Chairman, I would like to give Professor 
Dershowitz an opportunity to respond to your earlier question.
    Mr. Dershowitz. Chairman Hyde, you asked what the 
difference is between perjury and misleading testimony. The 
answer is Bronston v. United States.
    Mr. Hyde. That isn't what I asked.
    Mr. Dershowitz. What was the question?
    Mr. Hyde. I asked how you can mislead without lying.
    Mr. Dershowitz. How you can mislead without lying?
    Mr. Hyde. Yes.
    Mr. Dershowitz. The Supreme Court took the following case. 
A Mr. Bronston was asked whether or not he has ever had a Swiss 
bank account. He responded by misleading, by saying the company 
had an account there. In fact, he had an account there.
    The Supreme Court said that petitioner's answers were 
shrewdly calculated to evade. Yet they were not lies. They were 
literally the truth with a clear subjective intent to mislead.
    Now, you and I wouldn't deal with our families that way. I 
wouldn't deal with my students that way. It is wrong to do it 
that way. But the difference between lying and perjury is 
whether or not something is a literal truth. A misleading 
literal truth is not perjury. The President acknowledged in his 
testimony that he intended to deny information to the Paula 
Jones lawyers, but he did not intend to commit perjury.
    Mr. Hyde. I am not talking to upbraid you. He says he 
misled people, but he didn't lie.
    Mr. Dershowitz. That is right.
    Mr. Hyde. I am having trouble reconciling how you mislead 
without lying.
    Mr. Dershowitz. If you tell a literal truth that you 
understand will mislead, that is misleading without literally 
lying.
    Mr. Hyde. I can see that if you want to soften it around 
the edges, but the person who continues to evade telling you 
the whole truth and nothing but the truth I would call a liar.
    Mr. Dershowitz. I think that is a fair assessment. I think 
it is a fair appraisal to say in colloquial talk a person who 
continually misleads is somebody that we would generally regard 
as a liar. But there is a difference between moral talk and 
legal talk, and that is the difference between the rule of law 
and the rule of people. Under the rule of law, that does not 
constitute technical lying. It does not constitute the crime of 
perjury.
    Mr. Hyde. Thank you.
    Who is next? Mr. Hutchinson.
    Mr. Hutchinson. Thank you, Mr. Chairman.
    Professor Dershowitz, if I understand your testimony, you 
have concluded that if the President lied under oath in the 
Paula Jones deposition, that would not be an impeachable 
offense. Is that correct?
    Mr. Dershowitz. That is right.
    Mr. Hutchinson. These aren't complicated questions. They 
aren't trick questions. But then you got to the grand jury 
testimony. I believe you concluded in your judgment that he did 
not commit perjury----
    Mr. Dershowitz. That is right.
    Mr. Hutchinson  [continuing]. In the grand jury testimony. 
But if one were to conclude that the President committed 
perjury in the grand jury testimony, would you agree that it is 
a fair consideration and a fair debate as to whether that rises 
to the level of an impeachable offense?
    Mr. Dershowitz. I think that is a very fair question. I 
think reasonable people could disagree about that if the 
origins of it were an attempt to prevent embarrassing questions 
from coming up. I think if you had a President that clearly sat 
down and made a deliberate, calculated decision to try to 
commit perjury to a grand jury that was investigating his 
criminal conduct, you could reasonably include that within the 
category of impeachable offenses.
    Mr. Hutchinson. Thank you, Professor. I appreciate that. 
And I think that is consistent with the essays that you wrote 
contemporaneously and really preceding the President's grand 
jury testimony. You along with others were sounding alarms to 
the President, ``Make sure you tell the truth.''
    Mr. Dershowitz. No, no, make sure you don't commit perjury 
is what we said. I obviously would have preferred for him to 
tell the truth, the whole truth.
    Mr. Hutchinson. I just want to read some of the language 
that you used at the time in July of 1998. You stated that his 
testimony promises to be the single most important act in his 
Presidency. He must tell the truth, whatever the truth may be.
    Mr. Dershowitz. That is right.
    Mr. Hutchinson. And then continuing on, you also wrote in 
August of 1998, again preceding the President's testimony 
before the grand jury, that there is nothing the President had 
done so far, that would get him impeached because it all 
occurred in the context of a civil suit that has been 
dismissed. But if he were now to deny any sexual involvement 
with Lewinsky during his grand jury testimony, and if that 
testimony were to be proved false, you remember what you said 
then?
    Mr. Dershowitz. He would be impeached.
    Mr. Hutchinson. You said, he might well lose his 
Presidency.
    Mr. Dershowitz. And I think if, in fact, he had denied any 
sexual contact with Monica Lewinsky at that point and the DNA 
evidence had then come forth afterward and proved that he was 
categorically lying about something which was then the subject 
of a grand jury investigation, and lied in so dramatic a way, 
yes, I agree with that. But he didn't do that.
    Mr. Hutchinson. Reclaiming the time, I think your testimony 
is that if he perjured himself before the grand jury, that 
might well constitute an impeachable offense.
    Let me move on to Professor Rosen. You talked about the 
criminal sanction. A number of people have made the point that 
the President could face sanctions and accountability because 
he is subject to criminal prosecution. Is this really something 
that you think is an option? First of all, would it not be the 
independent counsel, Kenneth Starr, that would pursue a 
prosecution of the President of the United States for perjury?
    Mr. Rosen. It might well be. The independent counsel has 
shown an imperviousness to public opinion before, so it is 
quite conceivable that he might bring a perjury prosecution if 
you decide not to impeach.
    Mr. Hutchinson. But it is his call. What you are saying and 
others are saying, Mr. Rosen, is that the President should be 
punished. If we really want accountability, what are the best 
odds here? What is best for the country? Should he be punished 
by Kenneth Starr, waiting 2 years for him to be prosecuted 
until the year 2001? Or is it better for the Congress of the 
United States to deal with this issue now?
    Mr. Rosen. Congressman, the crucial question, the wonderful 
question that you have posed to the country in these hearings 
is how can we subject the President of the United States to the 
same rule of law that was imposed on those witnesses that we 
heard from this morning? The answer is the ordinary rule of 
law. It should be up to a prosecutor, like Kenneth Starr, to 
decide to prosecute or not, and he would be subject to the same 
constraints of prosecutorial discretion.
    Mr. Hutchinson. Which is really an escape hatch because as 
Professor Dershowitz said, he will not be indicted after he 
leaves office.
    That is your opinion, is it not, Professor?
    Mr. Dershowitz. Absolutely.
    Mr. Hutchinson. And is that your opinion, Professor Rosen?
    Mr. Rosen. It is not my opinion. I would not presume to 
predict the calculations of the independent counsel Kenneth 
Starr, who might well indict the President.
    Mr. Hutchinson. I think everybody in the country would say 
that we punted on this issue, it was a punt on third down, if 
we do not deal with the issue that is before this committee.
    Mr. Hyde. The gentleman's time has expired.
    The gentleman from Indiana, Mr. Pease.
    Mr. Pease. Thank you, Mr. Chairman.
    I find myself, as I often do at the end of the day, with 
all of the things that I intended to ask having been addressed 
by those who are brighter than I. I do want to thank the 
witnesses for being with us. I do want to express my regret 
that at times there were personal statements made by both 
members of this committee and by members of the panel. I find 
that unfortunate. But I am grateful for the information that 
was provided, the expertise that was shared and the time that 
you spent with us.
    Having said that, I want to yield the balance of my time to 
my colleague from Indiana Mr. Buyer.
    Mr. Buyer. I thank the gentleman for yielding to me.
    I wear another hat here in Congress. I chair the Military 
Personnel Subcommittee of the National Security Committee. And, 
General Carney, that is where you and I have had a good working 
relationship. I appreciate your candor here today.
    The message of military personnel is, I believe, that they 
do look to the Commander in Chief to set the high standard of 
moral and ethical behavior. They look all the way up that chain 
of command to the President as Commander in Chief. And the 
military--I think it is proper for the American people to 
demand of the military the highest standard and to lead by 
example. Adherence to high moral standards is the fabric of 
good order and discipline. Both of you have testified to that 
today, and I concur with you. When military leaders, to include 
the Commander in Chief, fall short of this idea, then there is 
confusion and disruption in the ranks. And today many do see a 
double standard.
    I am out there. I have been with the Marines. I have been 
with the Third Fleet before they sailed. There is a disruption. 
There is confusion. But the great thing is, the message I can 
say to America is that we have a professional military, and we 
do have an adherence to civilian control. And, General Carney, 
I agree with your answer to Mr. Wexler. They are professional, 
and they will respond, and they are the greatest military in 
the world.
    And it is very difficult for us to measure this issue about 
morale. I think Mr. Wexler asked very good questions about 
morale, because it is multifaceted at the moment, but it would 
be wrong for us not to ask that difficult question about what 
is the impact on the force, is it detrimental, what is its 
impact upon readiness when the force is disgruntled when the 
Commander in Chief is then held to a different standard or a 
lower standard than that which he demands of his own service.
    I want to be informative here to my colleagues about the 
issue of exemplary conduct. And that moves to this question 
about should the President as Commander in Chief be held to the 
same standards of those he leads within the military. You see, 
the Founding Fathers were concerned about the ethical standards 
of the military leaders. It was John Adams that included in the 
first naval regulations language that called for naval officers 
to have high moral and ethical standards. Admiral Moorer in his 
statement included that reference. This language was codified 
for naval officers by Congress in 1956.
    When I conducted the review after the Aberdeen sexual 
misconduct incidents, I learned so clearly about the importance 
of the chain of command because there are those that sought to 
weaken the chain of command. And when you look at the 
Goldwater-Nickles law, it goes from that lowly recruit all the 
way through the Secretary of Defense, the national command 
authority, it drops right at the Commander in Chief.
    So what did we do? We then said in 1997 if, in fact, the 
exemplary conduct language applies to the Navy, then we said 
apply it to the Air Force and the Army, and the Congress did 
that in 1997, and the President signed that into law. I then 
said, you know, but it is not done yet. We then need to say it 
applies to the national command authority as set out in law.
    That is what we have here. The Navy, Army and Air Force 
have exemplary conduct language. What I did is--what this says 
is that it calls for the officers to show themselves a good 
example of virtue, honor and patriotism, and to subordinate 
themselves to those ideals, and to guard against and to put an 
end to all dissolute and immoral practices, and to correct all 
persons who are guilty of them.
    You see, there is frustration and confusion in the 
military, because I have traveled to a number of the military 
installations both in the United States and overseas. I have 
heard the questions from the military personnel on the behavior 
of the Commander in Chief. As a Member of Congress and as a 
military officer myself, I find these questions disturbing.
    The services are recruiting young people across the Nation. 
At boot camp they are infusing the young people with moral 
values of honor, courage and commitment. They are teaching 
self-restraint, discipline and self-sacrifice. Our military 
leaders are required to provide a good example to these young 
recruits. Yet when they look up the chain of command, they see 
a double standard at the top.
    That is why I sought to include this exemplary conduct 
language to apply to the Secretary of Defense and the 
President, who is Commander in Chief. I have no interest in 
placing these two civilians under the Uniform Code of Military 
Justice. This was included in the defense bill, but the Senate 
would not go along with it. So what we have is a sense of the 
Congress resolution.
    See, the Congress has already spoken on this issue and said 
that we believe that the President as Commander in Chief should 
be held to this high exemplary conduct language that I read 
here.
    I thank the gentleman from Indiana for yielding to me on 
this point, because the language that we are asking the 
President to abide by is very simple, and that is that the 
President and the Secretary of Defense are to show themselves a 
good example of virtue, honor and patriotism, and to 
subordinate themselves to those ideals; to be vigilant in 
respecting the conduct of all persons who are placed under 
their command; to guard against and put an end to all dissolute 
and immoral practices; and to correct, according to laws and 
regulations in the Armed Forces, all persons who are guilty of 
them; and to take all necessary and proper measures under the 
laws, regulations and customs of the Armed Forces to promote, 
to safeguard the morale, the physical well-being and the 
general welfare of the officers and the enlisted persons under 
their command or charge.
    It is not in law, but I will come back in the next Congress 
to try to make this law so that everyone understands and will 
know what standard will everyone be applied to. Thank you.
    Mr. Hyde. I thank the gentleman.
    The distinguished gentleman from Utah, Mr. Cannon.
    Mr. Cannon. Thank you, Mr. Chairman.
    I would like to, first of all, apologize to the panel for 
having interrupted on a couple of occasions to try and keep the 
5-minute rule at least within the 20-minute parameters.
    Mr. Hyde. I accept the chastisement.
    Mr. Cannon. It was actually an apology. But we will see 
about the next hearing when the Minority has its time again.
    Let me just make a couple of points since I had some 
questions for the two judges who have left us, Judge Wiggins 
and Judge Tjoflat. In the first place let me point out that I 
think when we talk about gradations of perjury, we are often 
really talking about gradations of proof or evidence. And where 
we have clear proof, there should not be much reason not to 
proceed in any case of perjury.
    Secondly, Mr. Rosen pointed out that we don't know what the 
President's state of mind was, he hasn't told us what his 
intent was, but let me point out that all perjurers say that 
they were not intentionally lying or consciously lying. One of 
the remarkable things about our two witnesses earlier today was 
after having been caught, after having gone through the 
process, they appeared rather repentant.
    Now, let me turn to Judge Wiggins' idea of a million-dollar 
penalty. That million dollars, of course, is a great deal of 
money, and I suppose it is meant there to express something 
about the seriousness of the President's perjury. But it occurs 
to me that to impose such a penalty either becomes an ex post 
facto bill or a bill of attainder on the one hand, both 
contrary to the Constitution, or on the other hand the 
President comes forward and agrees that that kind of penalty 
should be imposed upon him. In doing so, it seems to me breaks 
down the barriers between the branches of government. I think 
it is a great constitutional sin, and that is why I am deeply 
opposed to the idea of censure or censure plus or censure with 
pain.
    Let me just point out that I have at this time a deep 
concern about our constitutional system. As part of that 
concern, I have great fear and concern for our military, and so 
I appreciate General Carney and Admiral Edney joining us today. 
If I might just ask the two of you a few questions.
    In the first place, does by his behavior, this President, 
pose a danger to our country?
    Mr. Carney. No, sir.
    Mr. Cannon. Admiral.
    Mr. Edney. No. Let me give you a specific. I just got a 
direct communication from the Chief of Naval Operations. He 
came back with the troops in the Gulf and the marines in the 
Gulf telling how highly committed they were.
    It goes to what Ms. Lee was talking about. It is not a 
single issue. Nobody should mistake that the morale of the 
Armed Forces of the United States is such that they will fight, 
and they will do their job better than anyone else. What we 
have said, which has been a little bit, is that all of this 
collectively, you are seeing indications in the American Armed 
Forces through recruitment and retention that says morale is 
not as high as it should be, and there are multiple factors, 
one of which is immeasurable but is out there, this conflict 
that Congressman Buyer was talking about.
    Mr. Cannon. Thank you. You actually answered really to the 
core of what I am concerned about. You have a large turnover 
every year, about a fifth or a quarter. If I understood, 
General, what you said earlier, 500,000 people need to be 
recruited per year. Over the next couple of years that means we 
are going to recruit 500,000, a million people. Do we have 
difficulty inculcating into those new recruits the value system 
when morale is a problem?
    Mr. Carney. We have all the time. They come from a variety 
of walks of life. The Army, for example, just added 1 full week 
of basic training, moving from 8 to 9 in order to free up some 
time to do, among other things, the inculcation of our value 
system and those seven Army values that I discussed.
    Now--and the people who are not joining us because of this 
controversy, I have no idea. I suspect that there are some--
there are bigger issues right now in the employment position 
that causes recruiting difficulties in the services.
    Mr. Cannon. You mentioned the controversy. I take it you 
mean the President's conduct.
    Mr. Carney. Yes, sir.
    Mr. Edney. Let me say, sir, that the issue is much more 
complex. We have been charged by the Congress to do a very 
difficult thing, and that is the total integration of men and 
women in our military who must live in very confined spaces 
while conducting very difficult missions with young 18- to 23-
year-olds. And so the standards are understood. What we are 
talking about is the growth and maturity of these young 
Americans under difficult living conditions. Of them I don't 
want anyone to think it is easy, and the challenge on the 
commanding officers out there is an extremely challenging one. 
So it is much broader than the one individual.
    Mr. Cannon. But in a very difficult environment, I take it 
from the thrust of your testimony that the President's actions 
have made that more difficult?
    Mr. Carney. It has not helped. Yes, that is correct.
    Mr. Cannon. Thank you, Mr. Chairman. I yield back the 
balance of my time.
    Mr. Hyde. I thank the gentleman.
    The gentleman from California, Mr. Rogan.
    Mr. Rogan. Thank you, Mr. Chairman.
    First, I want to commend all of the remaining members of 
our panel for their staying power, and I want to express to 
each and every one of you my profound appreciation and respect 
for all of your presentations and for what you have brought to 
this particular committee.
    I guess, in fairness, Professor Dershowitz, I have to 
single you out just for one moment, because I want to assure 
you that we have no hard feelings. I know that you raised a few 
hackles here with some of my Republican colleagues with 
controversial comments about their motivations, but I want you 
to know that I personally found them to be very therapeutic. 
Because up until you made that observation, the only reason I 
had for not having attended Harvard was my grade point average. 
[Laughter.]
    A couple of observations, if I may. I have to be candid. I 
was a little taken aback today by the constant references to 
Defense Secretary Weinberger, and I noted in all seriousness, 
Professor Dershowitz, your comment that if the committee was 
actually serious about pursuing perjury issues, we would be 
looking at the potential perjury of Defense Secretary 
Weinberger. I don't know if that was offered more for 
rhetorical flourish, but I will confess to you that I am 
certainly not an expert on that subject. I was not a Member of 
Congress at the time.
    I do know that the President of the United States, for 
right or for wrong, has the constitutional power to pardon an 
individual, and I don't think there would be any argument on 
that fact. I also know that a President has no constitutional 
prerogative to commit perjury.
    What I found interesting about the Weinberger suggestion 
was reviewing the Los Angeles Times article from December 25th, 
1992, that reported on Mr. Weinberger's pardon. The Los Angeles 
Times interviewed various people about how they felt over Mr. 
Weinberger's potential perjury being pardoned by President 
Bush. And one of the people they interviewed expressed his 
grave concern about that pardon, and when they asked him why, 
he said it signaled that if you are a high government official, 
then you are above the law.
    That quotation was from the President-elect of the United 
States, Bill Clinton. And so here we come full circle to this 
concept of the rule of law, the defense of which now haunts the 
members of this committee night and day.
    And I wish I were articulate enough to try to express my 
feelings on the subject appropriately. I am not. However, this 
very morning in the morning newspaper was a very commendable 
commentary by Paul Greenberg. If I may, I want to read a few 
passages from it.
    He said, ``In the end, the whole great structure of the law 
begins to totter when men come to see it not as a guide or 
restraint but just as a series of obstacles to evade. Remove 
the basis of law, like the search for truth that once made 
perjury a serious charge, and any individual law may be got 
around, too. Crimes are minimized, and if prosecutors cannot be 
ignored, they can always be demonized, one after the other. 
Whether they involve campaign contributions or obstruction of 
justice, great matters or small, individual laws are got 
around, and soon enough, the idea of law itself will be 
shrugged off or explained away. No wonder Americans come to 
assume that we are ruled by the polls, or the election results, 
or the spirit of the times, or the most persuasive 
personalities. The rule of law becomes a platitude reserved for 
ceremonial occasions, a quaint concept that all repeat, but no 
one may believe.''
    Mr. Chairman, in closing, that is the idea that troubles me 
the most, both as a member of this committee and, more 
importantly, as a citizen of this country: destroying the 
sanctity of the rule of law. I hope that will not be the legacy 
of this Congress, now or ever.
    I yield back the balance of my time.
    Mr. Hyde. I want to thank the gentleman, and I want to 
announce, as we are getting down to our very finest members, 
that some day soon we will have a hearing and I will start the 
questioning at that end, and that end, but don't hold me to 
when that will be, but I will. I will. I pledge I will.
    Mr. Lindsey Graham.
    Mr. Graham. Thank you, Mr. Chairman.
    One thing I have learned is that 5 minutes is not as short 
as it seems sometimes, and I will try not to abuse it.
    We have an Admiral and a General, an Army and a Navy guy, 
right? I don't mean to be disrespectful. I am an Air Force guy. 
We are going to read the Air Force Academy Honor Code to you. 
We will not lie, steal or cheat nor tolerate among us anyone 
who does. Furthermore, our resolve to do my duty honorably, so 
help me God.
    That is what Air Force Academy folks have to swear to. This 
tolerating among us anyone who does, is that true for the Army 
and Navy academies?
    Mr. Carney. That is true for West Point.
    Mr. Edney. The Naval Academy does not have a no toleration 
clause.
    Mr. Graham. Okay. It seems to me we are saying it is just 
as bad to go about it and do nothing as it is to do it 
yourself. That seems to be what they are saying. Do you agree 
with that concept?
    Mr. Edney. That is correct. A no toleration clause does not 
allow you to do nothing. It says that there are--each situation 
has a series of circumstances, you must evaluate it, but you 
must take action.
    Mr. Graham. And that is what I am trying to do. I am 
trying--I know about it, and I know I can't do nothing, but I 
don't know what to do. I have been here all day, and I feel 
guilty about suggesting that he tell the truth. Maybe it is my 
problem, not his. But I am trying to find a way so that we will 
be judged well 30 years from now.
    I really believe 25 years after the Richard Nixon case most 
people believe he got what he deserved, and I would like to 
think that if I had been in Congress then, no offense to the 
judge there, that if I had seen everything that transpired, as 
a Republican I would have said, you should lose your job, 
President Nixon, for covering up things that are probably far 
worse than the underlying event. And I am trying to make sure 
that I don't impose a standard on the President that is going 
to get us in trouble down the road, because he is not a 
military officer, per se.
    Let me just tell you this: As a junior officer probably in 
your command, that if you got stopped by the MP on the base and 
you lied about how fast you were going and you were doing 55 
and you said you were doing 49, you would lose your job. In 
that environment, as a former judge advocate who prosecuted 
people and defended people in the military, we really do take 
stuff very seriously that would be trivial anywhere else. But I 
don't want to put that standard on the President. I just don't 
think we need to do that in politics, whether it is right or 
wrong.
    My problem is I believe in my heart, Professor Dershowitz, 
that when you told him, be careful at the grand jury, this is 
getting really serious now, that he wasn't careful. And I 
really believe in my heart that when he was in the Paula Jones 
deposition, that he left the deposition and he went back to his 
office and he went to the Secretary and he planted in her mind 
several stories he knew to be false. And if I am setting--and I 
am a lawyer and I love the law, and I want to go back to the 
law, maybe sooner rather than later as long as this thing keeps 
going, but it would really bother me as a lawyer to know the 
other side was messing with the witnesses and was trying to 
hide the evidence to hurt my client. But now I have to judge 
whether or not the President should be subject to being 
impeached and losing his job for things like that.
    History is going to judge us one way or the other. All I 
can tell you is I can't articulate, as my friend from 
California said, well enough, but I know in my heart it is not 
right for me, Lindsey Graham, to believe the President 
committed grand jury perjury and not subject him to being able 
to lose his job through a trial in the Senate. I know that is 
not right for me, based on the way I was brought up and based 
on who I am. And I am a sinner, and I have made my fair share 
of mistakes. I can live with me, and that is the standard for 
all of us at the end of the day.
    Now, I have said something today that I could live with. If 
the President would do what I think is the right thing, and 
that is come forward and admit to the obvious--most people 
believe he lied under oath. If he would show the character 
traits to admit to what I think is clear from the record, I 
would treat him differently, knowing as a lawyer, now, that 
might subject him to some consequences down the road.
    But I believe in this situation, it is not about me, it is 
not about him, but it is about us, and we are political 
leaders. We are not military officers. Some would say we have a 
higher standard. I don't want to argue with you about that. But 
I know this: That the us, Bill Clinton and Lindsey Graham, need 
to set a tone that brings out the best in the American people, 
for they are basically very good.
    And when I said today that I wanted the President to come 
forward and do what I think is the right thing, I know there 
are some consequences to him, but they are minimal for the good 
it would do this Nation. And I appreciate all of you coming 
here today. At the end of the day, all your advice will be 
welcomed, but we have got to do what we can live with.
    Thank you very much, Mr. Chairman.
    Mr. Hyde. Thank you, Mr. Graham.
    And Mary Bono is our last questioner, and far from our 
least questioner. Ms. Bono.
    Ms. Bono. Thank you, Mr. Chairman.
    I would first like to thank all of the witnesses for 
appearing here today, for your insight and certainly most of 
all for your patience. As one who speaks last, I know how 
patience can be trying at times like this.
    But I am particularly interested in the statements of 
Admiral Edney and General Carney. I have great respect for the 
men and women of our Armed Forces who sacrifice so much to 
ensure our freedom.
    Admiral Edney mentioned how he spent Thanksgiving with his 
grandchildren at the parade. It made me think about my 
Thanksgiving, and I had the opportunity to spend it with my 
parents. My father was a waistgunner in a B-17. He flew 19 
missions over Germany, and I am very proud of that fact.
    It made me realize that, I guess, the admiration that I 
have not only for him but for all of our service members and 
have that instilled in me, the example set by my father. You 
know, he has a great sense of commitment, and he dutifully 
followed his oath to defend this Nation. I am hopeful my 
children will also gain the strong sense of commitment and 
honor from him. Sometimes I worry about the mixed message they 
are receiving based on the conduct of the President and his 
lack of faith to his oath of office and his oath before the 
court.
    Disillusionment with the President was certainly something 
that I was made aware of a great deal a little while ago back 
home on Veterans Day. I spent the day at a parade in Palm 
Springs, and I was lucky enough to have General Clifford 
Stanley from 29 Palms Marine Air Combat Center also in 
attendance.
    I think some of the concerns I heard that day, though, are 
nicely summed up by Admiral Thomas Moore, former Chairman of 
the Joint Chiefs of Staff, in testimony submitted to the 
committee today. I would simply appreciate it if Admiral Edney 
and General Carney would comment on the following statement of 
Admiral Moore.
    ``The U.S. Armed Forces now have a more fundamental 
challenge to leadership training than simply instilling 
character traits adverse to lying, cheating and stealing. How 
do we instill in young leaders the moral courage to admit when 
they are wrong and to accept accountability for poor choices? 
Personal example by senior leaders up to and including the 
commander in chief is an essential starting point, and a risk 
to personal ambitions is no excuse for any officer of the U.S. 
Armed Forces to fail in this regard.''
    Would either of you comment on that?
    Mr. Edney. My comment is that it is made more difficult 
when we have examples like we are discussing today, but there 
is no question that the young people coming into the military 
are being taught to do what is right to analyze and come up 
with the whole truth and act in accordance with the truth. They 
are being taught to avoid obfuscation. They are being taught to 
avoid litigious answers and do what is straight and right.
    Because it is the troops that you cannot blow smoke at. The 
troops understand what is right. They know right from wrong, 
and they know when they see their leaders do wrong and not be 
held accountable that there is something wrong.
    And so we are working on all of those issues, and I can say 
to you from my exposure to the young military, both officer and 
enlisted, that the future is in good hands because they have 
good quality, and you have every right to be proud of them, and 
they are analyzing the message, and they are understanding it.
    Does that mean it is not difficult? Does that mean that you 
will not get strong differences when you want to talk about it 
around the table? You will get some of the same swings that you 
have been talking here.
    Mr. Carney. I am not concerned about the troops. We teach 
integrity because it is good to be honorable men and women, but 
we also, as I stated in my opening remarks, we teach it because 
of the battlefield component, that false reports on the 
battlefield can cause lost battles and unnecessary casualties.
    Troops understand that. They also probably understand that 
the commander in chief was not committing us to battle when he 
allegedly made these errors. I think they can understand that. 
And I think that indeed, the way it is being taught today, the 
value system will be easily understood.
    Mrs. Bono. Thank you very much.
    Mr. Hyde. I thank the gentlelady.
    I wanted to say before I adjourn the committee how really 
grateful I am for you folks who have spent all day, and it has 
been a long one and a difficult one. Even when you disagreed 
with us, which is most of the time, you helped us. You are here 
because you are darn good citizens, and you want to contribute 
to this awful task we are grappling with, and you have made a 
great contribution. You are all heroic, and I thank you.
    This committee stands----
    Ms. Jackson Lee. Mr. Chairman, I have just a point of 
inquiry, please.
    Mr. Hyde. Yes.
    Ms. Jackson Lee. Might you give us some idea of the future 
hearings, oversight hearings or meetings of this committee? It 
might be very helpful to many of us.
    Mr. Hyde. I don't have that information, but as soon as it 
is formulated, you will be communicated with by the most direct 
route.
    Ms. Jackson Lee. Thank you, Mr. Chairman. You might expect 
to see us next week, I imagine.
    Mr. Hyde. I think next week will be a big week in our 
lives.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman.
    Mr. Hyde. Thank you. The committee stands adjourned.
    [Whereupon, at 6:45 p.m., the committee adjourned.]
                            A P P E N D I X

                              ----------                              


                   Material Submitted for the Hearing

Statement of Sheila Jackson Lee, a Representative in Congress From the 
                             State of Texas

    I would like to thank Chairman Hyde and Ranking Member Conyers for 
this opportunity to speak on this important subject.
    Charles Dickens' Great Expectations offers guidance in these 
troubling times: ``Take nothing on its looks; take everything on 
evidence. There's no better rule.''
    Today, we will hear testimony from several individuals about 
perjury, the rule of law and the consequences of perjury on the 
judicial system. ``Equal justice under the law''; this proverb hangs 
above the entrance to our Nation's highest court. America is a nation 
of laws. The Constitution is the supreme law of the land and no one, 
including the President, is above the law nor beneath the law.
    Likewise, no one should be hailed before a tribunal to answer 
allegations that are not supported by substantial and credible evidence 
or threatened with a potential prosecution for perjury because of the 
questioner's deficiency.
    The United States Code Title 18 section 1621 defines perjury as

          Whoever having taken an oath before a competent tribunal, 
        officer, or person, in any case in which a law of the United 
        States authorizes an oath to be administered, that he will 
        testify, declare, depose, or certify truly, or that any written 
        testimony, declaration, deposition, or certificate by him 
        subscribed, is true, willfully and contrary to such oath states 
        or subscribes any material matter which he does not believe to 
        be true . . . is guilty of perjury.

18 U.S.C. 1621. The American Law Institute Model Penal Code, section 
241.1, states,

          A person is guilty of perjury if in any official proceeding 
        he makes a false statement under oath or equivalent 
        affirmation, or swears or affirms the truth of a statement 
        previously made, when the statement is material and he [the 
        declarant] does not believe it to be true.

Black's law dictionary defines perjury as

          . . . the willful assertion as to a matter of fact, opinion, 
        belief, or knowledge, made by a witness in a judicial 
        proceeding as part of his evidence, either upon oath or in any 
        form allowed by law to be substituted for an oath, whether such 
        evidence is given in open court, or in an affidavit, or 
        otherwise, such assertion being material to the issue or point 
        of inquiry and known to such witness to be false.

    It is axiomatic, that perjury requires a (1) volitional act on the 
part of the declarant (2) about a material matter in the case. Perjury 
is a specific intent crime. It requires that the declarant willfully 
and contrary to such oath subscribe to a material matter which the 
declarant does not believe to be true. More importantly, because 
perjury requires a specific intent on the part of the declarant, the 
law provides several defenses to perjury.
    Allow me to explain why truth is a defense to perjury. Assume, an 
individual believes that his next door neighbor has found his green 
vase. Rather than call the police he enters his friend's home and 
removes the green vase. Subsequently, he is charged with burglary. At 
the trial, the defendant testifies in his own defense. During cross-
examination, the prosecutor asks, ``Isn't it true that you broke into 
the victim's house and stolen his green vase?'' The defendant replies, 
``No, I did not steal his green vase.'' The prosecutor then asks, 
``Isn't true that the police found the victim's green vase in your 
possession?'' Again, the defendant replies, ``No, that is not true.'' 
Finally, the prosecutor states, ``You realize that you are under 
oath?'' The declarant states, ``Yes, I know that I am under oath.'' 
``More importantly, you are aware that you can be prosecuted for 
perjury?'' ``Yes, I am aware of that.''
    Assume that the jury finds the defendant not guilty. Nevertheless, 
the prosecutor elects to file charges against the defendant for perjury 
pursuant to 18 U.S.C. 1621.
    Under this scenario, the defendant cannot be prosecuted for 
perjury, if he truly believes that he ``spoke the truth'' about the 
green vase. The defendant is not guilty of perjury because although his 
testimony is freely and voluntarily given, he does not manifest the 
requisite mental state necessary for perjury, a specific intent crime. 
Restated, perjury requires that the defendant (1) set out to deceive 
and (2) know that statements he utters are untrue.
    It is a universally accepted truth in criminal law that an 
individual must have a guilty mind at the time the wrongful deed is 
committed. Therefore, the defendant's true belief about the ownership 
of the vase and his responses to the prosecutor's questions would not 
support a perjury conviction. The defendant's belief negates the intent 
element of perjury.
    Now we turn to the issue at hand, the President's statements to 
Paula Jones' lawyers during his January 17, 1998, deposition. According 
to the Starr Referral, the President committed perjury when he 
responded to specific questions from the Jones lawyers about sexual 
relations with Monica Lewinsky. Sexual relations was defined as, ``a 
person engages in `sexual relations' when the person knowingly engages 
in or causes (1) contact with the genitalia, anus, groin, breast, inner 
thigh, or buttocks of any person with an intent to arouse or gratify 
the sexual desire of any person.''
    Utilizing this definition for his responses from the Jones lawyers 
during his deposition, the President explained to the grand jury about 
why he honestly believed that oral sex was not covered by the Jones 
definition of sexual relations.
    Additionally, several of the questions asked by the Jones lawyers 
were vague, ambiguous and poorly drafted. As a result, the President 
answered the questions truthfully but without assisting the Jones 
lawyers.
    Consequently, like the fictitious defendant in the burglary 
scenario, the President's responses to the grand jury would not amount 
to perjury because he believed he ``spoke the truth'' about his 
relationship with Ms. Lewinsky within the context of the definition 
authorized by Judge Wright. Thus, a perjury charge should not stand nor 
go forward because the evidence is insufficient to support a valid 
perjury conviction.
    Although the President lied to the American people when he stated, 
``I did not have sex with that woman,'' this statement was not made 
under oath or in connection with a judicial proceeding. Certainly, we 
all agree that the President's conduct was morally reprehensible and 
should not be tolerated in a civilized society; however, impeachment is 
not the proper remedy for the President's behavior. Censure is an 
equitable solution because it allows the House to exercise its 
prosecutorial discretion and punish the President's behavior.
    More importantly and critical to my position is the fact that both 
Ms. Parsons and Ms. Battalino accepted guilty pleas in exchange for 
voluntary waivers of their Constitutional rights to confront witnesses 
and a jury trial. Additionally, Parsons and Battalino were both 
plaintiffs on the ``offensive'' and voluntarily seeking to shield the 
truth to further their own financial interest. Coach Parsons used 
perjurious testimony in her defamation suit against a periodical. 
Battalino falsified government documents in an effort to have her 
liability insurance extended to cover an impermissible event. President 
Clinton's case is distinguishable from Parsons and Battalino because he 
is the target of the Starr investigation. Also, there is no 
substantial, independent, competent evidence to establish that the 
President answered any questions under oath falsely.
    Another defense to perjury is materiality. The declarant's 
statement must be material to the matter before the tribunal. The third 
defense to perjury arises where the questioner's interrogatories are 
drafted in a manner that invites ambiguity. In the landmark case of 
Bronston v. United States, the U.S. Supreme Court stated,

          It is the responsibility of the lawyer to probe . . . if a 
        witness evades, it is the lawyer's responsibility to recognize 
        the evasion and to bring the witness back to the mark, to flush 
        out the whole truth with the tools of adversary examination. . 
        . . A potential prosecution for perjury is not the primary 
        safeguard against errant testimony.

    Under our adversarial system of jurisprudence, a defendant is not 
required to assist a plaintiff in bringing her suit to trial nor is a 
defendant required under the rules of civil procedure to volunteer 
specific information that the plaintiff has not requested. This is our 
system of jurisprudence that we have utilized for over 200 years. 
Although it has its flaws and disadvantages, it is the best system in 
free world because it provides a mechanism for an orderly settlement of 
disputes using a rule of law. What is a rule of law? Black's law 
dictionary defines it as:

          [A] legal principle, of general application, sanctioned by 
        the recognition of authorities, and usually expressed in the 
        form of a maxim or logical proposition. Called a ``rule,'' 
        because in doubtful or unforeseen cases it is a guide or norm 
        for their decision.

The rule of law, sometimes called ``the supremacy of law,'' provides 
that decisions should be made by the application of known principles or 
laws without the intervention of discretion in their application.
    Today, you will hear individuals suggest that we must follow the 
rule blindly and without discretion. In fact, some will suggest that we 
do not have the authority to seek an alternative solution to this 
national crisis. Others will sit and watch as our country's fabric 
continues to rip at the moral seam. It's time to rebuild. It's time to 
began the healing process and get back to the business of the American 
people.
    In January 1994 and again in 1996, I took the Congressional Oath of 
Office to support and defend the Constitution of the United States 
against all enemies, foreign and domestic. It was an obligation that I 
took freely and without any reservation. I am bound to faithfully 
discharge the duties of my office and uphold the Constitution. My oath 
to uphold the Constitution is not a theoretical affirmation but a real 
and palpable duty; it is not a partisan responsibility but an 
obligation to unify Americans throughout the country. It's time for 
unity; it's time for healing; and it's time to put America and her 
people first.
    Out of the charred ashes of trickery, deceit and deception, truth 
will rise, rise and rise. Today, I have come to seek the truth, hear 
the truth and remove all barriers to truth because it's time for 
healing, it's time to move on and it's time to rebuild.

                   Office of the Independent Counsel

    responses to questions posed by members of the committee on the 
                               judiciary
                         Office of the Independent Counsel,
                                 Washington, DC, December 11, 1998.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.

Hon. John Conyers, Jr.,
Ranking Minority Member,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Chairman Hyde and Representative Conyers: Thank you for your 
letter of December 8, which authorizes me to respond to certain written 
questions of individual Members. In preparing these answers I have, of 
necessity, relied upon the memory and work of many of my staff members. 
To a large degree these facts are outside my personal knowledge. Thus, 
to assist Congress as fully as this Office is capable, I have prepared 
these answers in consultation with every available attorney and 
investigator in the Office who has relevant information, and these 
answers represent the best collective understanding of the Office.
    As I said during my testimony, my role in the current proceeding is 
a limited one, circumscribed by statute. My staff and I, in the course 
of carrying out our mandate from the Special Division, came upon 
``substantial and credible information . . . that may constitute 
grounds for an impeachment.'' Accordingly, as the Ethics in Government 
Act requires, we transmitted such information to the House.
    While I am happy to explain the Referral and the investigative 
decisions that underlie it in response to questions, let me reiterate 
that I am not an advocate for any particular course of action. Congress 
alone must determine what action that evidence merits.
    With that introduction, let me turn to the specific questions 
posed:
Questions from Representative Lofgren
    1. When did you first hear any information to the effect that a 
tape recording existed of a woman--any woman--who claimed to have had a 
sexual contact with President Clinton?
    In 1992, during the Presidential primary season, I became aware 
through media reports that Gennifer Flowers claimed to have had an 
affair with then-Governor Clinton and to possess tape recordings that, 
she claimed, related to contacts she had with then-Governor Clinton.
    2. In or about November 1997, did you discuss with any person the 
possibility that a tape recording might exist on which a woman claimed 
to have had sexual contact with President Clinton?
    I do not remember any such incident and do not believe any such 
incident occurred. More specifically:

          A. To the extent your question might be taken as a reference 
        to casual conversation about the Gennifer Flowers tapes, it is 
        possible (though unlikely) that I had such discussions with 
        friends and acquaintances in the time period mentioned. I would 
        have no reason to and do not remember any such conversation.
          B. To the extent your question might be taken as asking about 
        tapes relating to some unidentified woman who was never 
        subsequently identified, or was subsequently identified as 
        someone other than Ms. Lewinsky, I do not remember any such 
        conversation in November 1997 and I do not believe such a 
        conversation occurred. In Spring 1998, the Office learned of, 
        and I had conversations concerning, the possible existence of a 
        tape recording in which a woman other than Monica Lewinsky 
        stated that she was sexually assaulted by then-Arkansas 
        Attorney General Clinton.
          C. One private citizen has alleged to the FBI that a 
        videotape exists of a dinner in McLean, Virginia sometime in 
        November or December 1997 which was allegedly attended by me, 
        my deputy Jackie M. Bennett Jr., Jonah Goldberg, Lucianne 
        Goldberg, and Dale Young. Mr. Bennett and I both deny that such 
        an event occurred.
          D. Finally, your question might be taken as asking when I 
        first learned of a tape recording of a woman who, though 
        unidentified at the time, I later came to understand was Monica 
        Lewinsky. I did not personally learn of the possible existence 
        of such a tape until on or about January 12. As my testimony 
        reflects, a staff member in our Office has told me that he had 
        heard of the possible existence of such a tape on January 8.

    3. You ``requested that [I] release the media'' by ``waiving any 
privilege or shield law'' and ``directing each and every member of [my] 
staff to waive any privilege.''
    As I said during my testimony, in response to a question from 
Representative Waters, I believe the course you suggest would be unwise 
in light of the ongoing litigation on the matter. The litigation is, as 
the Committee knows, under seal. Because of the strictures of Rule 6(e) 
and the decision of the U.S. Court of Appeals for the District of 
Columbia Circuit, see In re Sealed Case No. 98-3077, 151 F.3d 1059 
(D.C. Cir. 1998), it would be inappropriate to comment further except 
to reiterate my testimony that the allegations against our Office are 
groundless. We are confident that the ultimate resolution will 
demonstrate that our Office conducted itself lawfully and 
appropriately.
Questions from Representative Conyers
    1. . . . Please complete the process of ``checking,'' searching'' 
or ``double-checking'' your recollection and answer the questions to 
which you either were unable to respond or provide qualified answer. 
Please also let us know if you would like to amend or supplement any of 
the answers you gave during your appearance as a result of your 
``checked,'' ``double-checked'' or ``searched'' recollection.
    Most of these instances are addressed in my specific responses in 
this letter to the additional questions posed by Members. To the 
limited extent that they are not addressed in this letter, I have 
reviewed the transcript of my testimony and have nothing to add to my 
revised answers.
    2. (a) When did you first learn that Samuel Dash intended to resign 
his position as your office's ethics adviser if you testified as you 
did on November 19?
    Several weeks prior to my testimony before the Committee, Professor 
Dash informed me and another member of my staff that he intended to 
leave the Office by the end of the year because he thought the majority 
of the work of the Office had been completed and therefore his counsel 
was no longer needed.
    Later, in the days leading to my testimony, I was told that 
Professor Dash had expressed concern to a few members of our staff 
about the tenor of my draft opening statement solely with regard to our 
discussion of the Referral. Professor Dash, who supported our written 
Referral, stated that he believed it was inappropriate to repeat in my 
opening statement our conclusions in the Referral. Professor Dash said 
that I could answer any questions about our conclusions and support 
those conclusions, but he felt I should not do so in my opening 
statement. Rather, Professor Dash recommended that in my opening 
statement I strongly defend the actions and investigative strategy of 
our Office because he believed we had acted professionally and 
ethically and that the attacks were misguided and unfair. I understood 
the strength of his concern and the possibility that it might cause him 
to resign.
    We subsequently made several modifications to the opening statement 
that we believed were responsive to the thrust of Professor Dash's 
concerns. For example, I repeatedly told this Committee that Congress, 
and not our Office, was responsible for the ultimate evaluation of the 
information presented. I hoped that the modifications we had made 
adequately addressed Professor Dash's concerns.
    I did not learn of Professor Dash's actual resignation until I 
heard it on CNN on the morning of November 20. I was surprised by it. 
Later that morning, after the letter had already been made public, I 
received a copy of Professor Dash's resignation letter that had been 
delivered to the security kiosk in the public lobby of our office 
building.
    (b) If you learned of his intent to resign prior to the hearing, 
why did you fail to mention that fact when you invoked his name on 
several occasions during the hearing?
    I invoked Professor Dash's name in a wholly appropriate manner, 
reflecting his approval of how the Office has conducted itself. As 
Professor Dash himself emphasized in his letter of resignation, ``I 
found that you conducted yourself with integrity and professionalism as 
did your staff of experienced federal prosecutors.'' Thus, even as he 
left our Office over a principle he held strongly, Professor Dash 
endorsed the conduct of our Office--an endorsement I proudly invoked in 
my testimony.
    (c) Did Mr. Dash write any memoranda, letters, or opinions to you 
concerning: (i) how to prepare and present a Referral to Congress under 
28 U.S.C. 595(c); (ii) whether and how you should make any oral 
presentation to the Committee; and (iii) [t]he appropriateness of ``off 
the record'' or ``background'' contacts between members of your Office 
and the media?
    Professor Dash publicly released a letter responsive to your 
request on November 20. All other memoranda, letters, and opinions 
provided by Professor Dash are internal, deliberative documents which 
under Department of Justice policy should not be provided to Congress.
    3. You stated during your appearance that you would be willing to 
provide the Committee with a complete list of private clients that you 
have represented since accepting the position of Independent Counsel. 
Please provide such listing.
    The list follows:

Abbott Laboratories
Alliedsignal Inc.
Amer. Auto Mfg Assn/Assn Int'l
American Automobile Manufacturers Assn.
American Insurance Association
Amoco Corporation
Apple Computer Incorporated
Associated Insurance Companies
Bell Atlantic Corporation
Board of Trade, Chicago
Brown & Williamson Tobacco
Citisteel Inc.
CMC Heartland Partners
E.I. Dupont de Nemours & Co.
Eleanor M. Hesse
General Motors Corporation
GKN plc
Goodman Holdings/Anglo Irish
GTE Corporation
Hughes Space & Communications, Intl. Inc.
Lynde and Harry Bradley Foundation
Morgan Stanley, Dean Witter & Co.
Motorola, Inc.
Nathan Lewin, Esq.
News America, Inc.
Philip Morris Companies, Inc.
Ray Hays, G. Stokley, et al.
Raytheon Missile Systems Company
Ricky Andrews, Jim Bishop, et al.
Ronald S. Haft
Senate Select Committee on Ethics
Sisters of the Visitation of Georgetown
Southwestern Bell Telephone Co.
State of Wisconsin
Suzuki Motor Corporation
United Air Lines, Inc.
Victor Posner
Vista Paint Corporation
Wharf Cable Limited
Wind Point Partners II

    4. When did you first learn that Richard Mellon Scaife or any 
entity associated with him was involved with Pepperdine University and/
or the deanship offer that you previously accepted? Please describe the 
circumstances by which you were so appraised of his involvement.
    To my knowledge, Richard Mellon Scaife had no involvement 
whatsoever with Pepperdine University's offer of a deanship to me. My 
understanding is that Mr. Scaife and the Dean and Provost of Pepperdine 
University have all confirmed this fact. Mr. Scaife's financial 
contributions to Pepperdine have been a matter of public record, I 
believe, for many years. In January 1997, I received a large notebook 
from Pepperdine, which contained a March 1996 memorandum listing ``The 
Sarah Scaife Foundation'' as a benefactor of the Pepperdine School of 
Public Policy. It is perhaps worth noting that Mr. Scaife has 
reportedly funded groups that have published information highly 
critical of me and this Office for our work on the Vincent Foster 
investigation.
     5. . . . Did attorneys, agents or others working with or for your 
Office conduct interviews of Arkansas troopers or others in Arkansas in 
1997 in which any questions concerning the President's involvement with 
women were asked? If so, how did such questions (not the interviews, 
but the questions into that subject) relate to any jurisdiction you had 
at the time? Please send the Committee any interview memoranda or notes 
of any such interviews.
    During the course of our investigation we have interviewed various 
current and former Arkansas State Troopers. The allegation and 
inference that the trooper interviews were an effort to conduct an 
investigation into rumors of extramarital affairs involving the 
President are false. We denied this allegation when it was first raised 
in June 1997 and deny it again today. We sought to determine whether 
Governor Clinton or Mrs. Clinton had confided in any associates about 
their dealings with the McDougals, Rose Law Firm and others.
    At the end of May 1996, Jim and Susan McDougal and Governor Tucker 
were found guilty by a jury in Little Rock. Following his conviction, 
Jim McDougal began cooperating with this Office. In August 1996, he 
provided the Office with additional relevant facts and information. The 
Office sought to prove or disprove his testimony and information. In 
September 1996, Susan McDougal went into civil contempt rather than 
give testimony to the grand jury, thereby closing off one avenue of 
possible corroboration.
    In connection with the Madison Guaranty Savings and Loan, Capital 
Management Services, and Whitewater investigations, the Office and its 
agents analyzed Governor Clinton's telephone message slips, appointment 
books, and trooper logs during relevant time periods. As noted above, 
we sought to determine whether Governor Clinton or Mrs. Clinton had 
confided in any associates about their dealings with the McDougals, 
Rose Law Firm and others.
    Armed with the new evidence from Jim McDougal and the information 
from the message slips, appointment books, and trooper logs, career 
prosecutors and experienced investigators determined--in accordance 
with standard investigative practice--that certain Arkansas Troopers 
should be interviewed. Some had previously been interviewed in February 
1995 regarding matters within the Office's core jurisdiction, including 
contacts between the Clintons and the McDougals, as well as certain 
issues raised in the Resolution Trust Corporation's criminal referrals. 
Several experienced agents interviewed a number of troopers identified 
from the trooper logs for the relevant time frames. Between November 
1996 and March 1997, we conducted interviews of 12 troopers. They were 
questioned about their knowledge of the Clintons' contacts with the 
McDougals and other persons relating to the Madison, Whitewater, and 
Capital Management Services transactions.
    The troopers were also asked to identify persons (both men and 
women) whom President or Mrs. Clinton were close to and in whom they 
might have confided during the relevant time frames. The troopers who 
were interviewed identified persons whom they believed were close to 
either Governor Clinton or Mrs. Clinton.
    Many of the troopers identified both men and women who were close 
associates of Governor and Mrs. Clinton. For example, the two troopers 
quoted in the June 1997 Washington Post article, Roger Perry and Ronald 
Anderson, identified men and women whom then-Governor Clinton and Mrs. 
Clinton might have been close to and confided in. Roger Perry 
identified 10 individuals close to then-Governor Clinton, 4 of whom 
were women. Ronald Anderson identified 14 associates of then-Governor 
Clinton, including 5 women.
    Because the troopers interviewed were explicitly promised 
confidentiality, we must respectfully decline to furnish their 
interviews to the Committee. So too, consistent with Department of 
Justice policy, we must respectfully decline to make the rough notes of 
interviews available. We are prepared, of course, to discuss mechanisms 
by which the Committee can carry out its duties consistent with our 
pledges of confidentiality.
    6. (a) At Any time, have you talked to Richard Porter about any 
issues relating to the Paula Jones case?
    (b) If so, please identify the date(s) of each such conversation 
and the precise content of the conversations.
    I have not spoken with Mr. Porter about any issues relating to the 
Paula Jones case. This is consistent with Mr. Porter's recollection--he 
has publicly stated that he has never spoken with me about the Paula 
Jones case. The only contact we have had that is at all related to your 
question was a voice-mail message I received from Mr. Porter in Spring 
1998 in which he apologized to me that misinformation about his actions 
had been used unfairly to attack and embarrass me and the work of this 
Office.
    7. (a) . . . Please state whether anyone from, or working with, or 
associated with, your Office investigated (including asking any 
question. about or obtaining any document about) Ms. Steele's adoption 
of her child?
    (b) If the answer to the foregoing question is ``yes,'' please tell 
us what relevance that issue had to any issue under your jurisdiction; 
and
    (c) Please respond to Ms. Steele's allegation that the issue of the 
legality of her son's adoption was raised by your Office in an attempt 
to pressure her to cooperate with your investigation.
    The investigation concerning Ms. Steele's involvement in the 
Kathleen Willey matter is pending. Department of Justice policy 
generally prohibits providing Congress with confidential material 
relating to an ongoing investigation. Thus we are not in a position to 
directly answer question 7(a) or 7(b) at this time. Having said that, 
the Office has not attempted to investigate whether the adoption is 
proper and legal. We have not obtained or attempted to obtain any 
documents concerning the adoption of her son from anyone, including any 
state, local, national, or foreign government or agency. The suggestion 
that this Office or anyone working on our behalf has attempted in any 
way to use Ms. Steele's son's adoption to pressure her to change her 
testimony is absolutely false. Like many other groundless allegations 
made against the Office, this allegation is one which we cannot fully 
factually respond to because of the pendency of an investigation. Our 
Office and the investigators, agents, and attorneys working on our 
behalf have conducted and continue to conduct a proper, thorough, and 
professional investigation.
    8. . . . [D]o you admit or deny that during the day or night of 
January 16, 1998, your associates or agents:
    I was not, of course, present at the Ritz Carlton. Many of these 
questions appear to rely on Ms. Lewinsky's perception of events as they 
unfolded that day. It is my understanding, however, that Ms. Lewinsky 
was, understandably, upset and distraught when approached by this 
Office--not due to her treatment by this Office, but due to the gravity 
of the situation in which she had found herself. Ms. Lewinsky 
apparently interpreted this Office's actions from the perspective of a 
very difficult and emotional day. By contrast, Chief Judge Norma 
Holloway Johnson has ruled, among other things, that:
           our Office did not violate Ms. Lewinsky's right to 
        counsel, because the right had not yet attached;
           our Office did not violate District of Columbia 
        Rules of Professional Conduct by contacting Ms. Lewinsky 
        because the interview occurred prior to indictment in a non-
        custodial setting; and
           our Office did not disrupt Ms. Lewinsky's attorney-
        client relationship by preventing her from contacting Mr. 
        Carter because she was given several unsupervised opportunities 
        to contact anyone she chose, and an agent called Mr. Carter's 
        office to determine if he would be available if Ms. Lewinsky 
        decided she wished to contact him.
The opinion, of course, speaks for itself.
    (a) told Ms. Lewinsky that she could go to jail for 27 years (if 
you admit that they did, on what basis under what guidelines did they 
conclude that she could receive that type of sentence)
    Deny. I was not at the Ritz Carlton. I am advised by the Office 
staff that, during the course of the discussion with Ms. Lewinsky, she 
was advised of the nature of the possible charges against her and what 
the maximum penalty would be for each offense. At no time was Ms. 
Lewinsky told what her actual sentence would be. I note that all of the 
applicable federal offenses carry maximum penalties in 5-year 
increments and, consequently, no possible combination of charges could 
carry a 27-year maximum penalty.
    (b) threatened to prosecute Ms. Lewinsky' mother
    Deny. Again, I was not at the Ritz Carlton. I am advised that the 
Office did not threaten to prosecute Ms. Lewinsky's mother. The Office 
staff told Ms. Lewinsky some of the facts and evidence known to the 
Office, including a reference to her mother's apparent, though limited, 
knowledge of and involvement in the crimes under investigation.
    (c) told Ms. Lewinsky that she would be less likely to receive 
immunity if she contacted her attorney
    Deny. Once again, I was not at the Ritz Carlton. Ms. Lewinsky did 
not have an attorney for purposes of the criminal investigation. Our 
view was later confirmed when we learned of the terms of the 
``Engagement Agreement'' between Francis D. Carter and Ms. Lewinsky 
which clearly limited Mr. Carter's representation of Ms. Lewinsky to 
Ms. Lewinsky's Jones deposition. We did discuss with a Department 
official the fact that Frank Carter represented her in connection with 
the Jones deposition and not in the criminal investigation and our 
understanding that we could ethically approach her in connection with 
our criminal investigation. Subsequently, Chief Judge Norma Holloway 
Johnson held, among other things, that our Office did not disrupt Ms. 
Lewinsky's attorney-client relationship by preventing her from 
contacting Mr. Carter.
    Second, Ms. Lewinsky was told that she was free to contact Mr. 
Carter and when she asked about the possibility of doing so we called 
Mr. Carter's office on her behalf. Hotel records confirm this fact.
    Third, we provided Ms. Lewinsky with the phone number of a legal 
aid or the public defender's office and she was not told that she would 
risk jeopardizing a possible immunity agreement if she contacted an 
attorney there. She chose not to call that office. She later retained 
William Ginsburg to represent her in the criminal matter and we renewed 
the offer of immunity when he was retained. Ms. Lewinsky and Mr. 
Ginsburg declined the offer that evening, and we continued to discuss 
it with her attorneys over the course of the next several days. But the 
fact is that an immunity offer was made to her both before and after 
she had retained counsel.
    We invited Ms. Lewinsky to cooperate with our investigation. We 
warned her, though, that any cooperation could be less effective if 
others (including Mr. Carter) knew she was cooperating. We also told 
her that she would receive a greater benefit for more effective 
cooperation.
    (d) told Ms. Lewinsky that they wore not ``comfortable'' with 
William Ginsburg
    Deny. I was not present at the Ritz Carlton. This is an apparently 
mistaken reference to the FBI report of interview concerning the 
meeting with Ms. Lewinsky. That report states ``AIC Emmick . . . 
advised Ginsburg he was uncomfortable with the relationship between 
Ginsburg and Monica Lewinsky.'' House Doc. 105-311, at 1380 (emphasis 
supplied) (capitalization removed). Thus, nobody from the Office ever 
told Ms. Lewinsky he or she was not ``comfortable'' with Mr. Ginsburg.
    Mr. Emmick did advise Mr. Ginsburg that he was uncomfortable with 
the fact that, although Mr. Ginsburg claimed to represent Ms. Lewinsky, 
Mr. Ginsburg had never spoken to her at all on the subject; and that 
Mr. Ginsburg had, in fact, been hired by Ms. Lewinsky's father without 
consulting Ms. Lewinsky personally. Indeed, as the FBI report reflects, 
Ms. Lewinsky also was unsure initially if Mr. Ginsburg should represent 
her, because he was a medical malpractice attorney. Mr. Emmick 
therefore requested that Ms. Lewinsky and Mr. Ginsburg speak on the 
phone and that Ms. Lewinsky confirm that she was represented by Mr. 
Ginsburg. After speaking with Mr. Ginsburg, Ms. Lewinsky advised the 
Office that she had retained Mr. Ginsburg. Thereafter we conducted all 
further discussions with him or his associate and scrupulously honored 
their attorney-client relationship.
    (e) when Ms. Lewinsky asked to speak with her mother, said words to 
the effect that she was 24, she was smart, and she did not need to talk 
to her mommy
    Admit. Ms. Lewinsky was at all times treated courteously and 
professionally. According to my staff, Ms. Lewinsky was told that she 
was 24, she was smart, and she should not need to talk to her mother 
about cooperating with the investigation. Again, we advised Ms. 
Lewinsky that her cooperation with the Office, should she choose to 
cooperate, would be less beneficial to her if the fact of her 
cooperation became known. In the end, we waited more than 6 hours for 
Marcia Lewis to arrive from New York. When she arrived: we answered her 
question; Ms. Lewis and Ms. Lewinsky consulted privately; and they 
contacted Bernard Lewinsky to help Ms. Lewinsky find an attorney. When 
they left at the end of the evening both Ms. Lewinsky and her mother 
specifically thanked the Office staff for being so nice. See House Doc. 
105-311, at 1380 (FBI Report of Interview with Monica Lewinsky); 105-
316, at 2324 (testimony of Marcia Lewis).
    9. When your agents and attorneys confronted Monica Lewinsky on 
January 16, 1998, according to her grand jury testimony, they told her 
that she had committed a crime by signing a false affidavit.
    Our Office advised Ms. Lewinsky that, based on information 
available to us, we believed she had committed a number of offenses, 
including subornation of perjury, obstruction of justice, conspiracy, 
and perjury by signing a false affidavit. And, of course, as Ms. 
Lewinsky later admitted, the affidavit was false.
    (a) Did your Office have a copy of Ms. Lewinsky's signed affidavit 
at the time?
    Yes.
    (b) If so, how did your Office acquire it? . . .
    On January 15, we received a faxed copy from the business center 
located in the office building of James Moody, Linda Tripp's former 
attorney, which Mr. Moody routinely uses as his fax center. Mrs. Tripp 
told the Office on January 14 that she ``believ[ed] that Lewinsky's 
affidavit was signed, sealed and delivered yesterday [i.e. on January 
13].'' House Doc. 105-316, at 3773. Thus, when we received the 
affidavit, we understood that it had been provided to-us by Mr. Moody, 
who had received it in his capacity as Mrs. Tripp's attorney.
    10. (a) Regardless whether you believe that any statements made to 
the media by you, or anyone working in your Office, or under your 
supervision, violated Rule 6(e) of the Federal Rules of Criminal 
Procedure, do you admit or deny that you, or anyone working in your 
Office, or under your supervision, supplied any information cited in 
any of the 24 reports for which Chief Judge Norma Holloway Johnson 
found prima facie violations of Rule 6(e) in her order dated September 
24 [sic], 1998?
    (b) If you admit that you, or anyone working in your Office, or 
under your supervision, supplied any such information, please identify 
the particular media stories to which your admission relates.
    As I said in my testimony, this matter is under seal. With all 
respect, I believe it would be inappropriate to discuss the matter 
while the litigation is pending. Inasmuch as Representatives Conyers 
and Nadler have recently asked the Attorney General to remove me for 
cause for allegedly disclosing sealed materials, to now provide sealed 
information would be unwise.
    11. Please provide the name and title of the individual who drove 
Linda Tripp home from the Ritz Carlton on January 16, 1998.
    To my knowledge, no employee of the Office of Independent Counsel 
drove Linda Tripp home from the Ritz Carlton on January 16, 1998. One 
Office investigator recalls that Mrs. Tripp mentioned that her lawyer 
was going to pick her up at the Ritz Carlton, though we have no certain 
knowledge of who drove her home. Moreover, to my knowledge, no employee 
of the Office of Independent Counsel knew that she was going to meet 
that evening with the attorneys representing Paula Jones. Mrs. Tripp 
testified before the grand jury that she had not disclosed this to any 
Office employee:

          Q. [D]id anybody at the Office of Independent Counsel or 
        working for the Office of Independent Counsel know that you 
        were going to meet with Paula Jones' attorneys?
          A. No. It never came up. It was never addressed. It was never 
        shared.

House Doc. 105-316, at 4356.
    12. . . . Isn't it true that your agents or attorneys discussed 
with Ms. Lewinsky that cooperating would include the possibility of 
taping conversations with Mr. Jordan, Ms. Currie or the President? If 
you claim those names were not discussed, is it your position that when 
Ms. Lewinsky testified about this matter, she was not being truthful?
    At no time during the meeting with Ms. Lewinsky was she asked to 
tape record a conversation with President Clinton or Vernon Jordan. Ms. 
Lewinsky was asked to cooperate. We described to her the investigation 
and identified some of the witnesses and subjects of the investigation, 
including President Clinton, Mr. Jordan, and Ms. Currie, and their 
roles. Ms. Lewinsky was told that cooperation would include debriefing, 
testimony, and, possibly, tape recording conversations with some 
witnesses and subjects. Ms. Lewinsky was told that we wanted to debrief 
her before deciding with whom, if anyone, she would be asked to tape 
record conversations. Although we hoped, when we approached Ms. 
Lewinsky, that the situation might eventually permit us to have Ms. 
Lewinsky tape record conversations with some individuals, including 
possibly Ms. Currie, we did not have any plan to have her tape record 
conversations with Mr. Jordan or President Clinton. Ms. Lewinsky may 
have reached an incorrect inference as to this Office's intentions 
based upon our general discussion of the possibility of tape recording 
conversations and our other general discussions about the nature of our 
investigation.
    13. . . . For each of the procedures that Ms. Lewinsky testified 
were used, please indicate whether your agents or attorneys advised any 
official of the Department of Justice, before hand, about each of the 
following:
    Generally, our discussions with the Department of Justice did not 
approach the high level of specificity suggested by your questions. 
Moreover, the factual and legal premises of many of the questions are 
wrong. With that introduction:
    (a) That Ms. Lewinsky would be taken to a hotel room
    We discussed with a Department official the plan that Ms. Lewinsky 
would be met, taken to a private location, spoken to by Office staff, 
and asked to cooperate. We are uncertain whether the specific location 
of a hotel room was mentioned.
    (b) That Ms. Lewinsky would be read her Miranda rights
    We believe we informed a Department official that we intended to 
advise Ms. Lewinsky of her rights, and to tell her that she was free to 
leave at any time. Miranda warnings were not required because, as Chief 
Judge Johnson found, Ms. Lewinsky was not in custody. At the Ritz 
Carlton, FBI agents assigned to the Office approached Ms. Lewinsky in 
the lobby, asked her to go upstairs, and told her she was not under 
arrest and was free to leave at any time. Later, in the hotel room, she 
was again told she was free to leave at any time. At one point, an 
agent attempted to read from a standard FBI Advice of Rights form, but 
Ms. Lewinsky became upset and the reading was discontinued.
    (c) That Ms. Lewinsky would be in that room or with your agents or 
attorneys for 10 or more hours
    No. As the FBI report of interview (and the recently unsealed 
documents from the litigation relating to the subpoena to Mr. Carter) 
make clear, the bulk of the time spent with Ms. Lewinsky was 
attributable to her own insistence that her mother be present; her 
mother's unwillingness to fly from New York to Washington; and her 
mother's unavoidable delay in arriving due to a train delay. Indeed, 6 
hours passed between Ms. Lewinsky's call to her mother and Marcia 
Lewis's arrival. Over 2 more hours passed as our Office talked with Ms. 
Lewinsky, Ms. Lewis, Bernard Lewinsky, and Mr. Ginsburg, all with Ms. 
Lewinsky's approval. During the entire evening, Ms. Lewinsky was never 
questioned about her involvement in the matters under investigation. 
When they left at the end of the evening both Ms. Lewinsky and her 
mother specifically thanked the Office staff for being so nice. See 
House Doc. 105-311, at 1380 (FBI Report of Interview with Monica 
Lewinsky); 105-316, at 2324 (testimony of Marcia Lewis).
    Thus, the specific amount of time that would be spent with Ms. 
Lewinsky was not discussed with the Department because it was unknown, 
and it was not anticipated that the meeting would extend for the length 
of time it did. Moreover, the factual premise of your question is 
incorrect as Ms. Lewinsky entered and exited the room on occasion 
unaccompanied.
    (d) That your agents or attorneys would tell Ms. Lewinsky that she 
could go to jail for 27 years
    No. The factual premise of your question is incorrect as discussed 
in my answer to question 8(a), which says: ``[D]uring the course of the 
discussion with Ms. Lewinsky, she was advised of the nature of the 
possible charges against her and what the maximum penalty would be for 
each offense. At no time was Ms. Lewinsky told what her actual sentence 
would be.'' Consequently, this issue was never discussed with the 
Department.
    (e) That your agents or attorneys would discourage Ms. Lewinsky 
from talking with her attorney, Frank Carter
    The factual premise of your question is incorrect, as discussed in 
my answer to question 8(c), which says: ``Ms. Lewinsky did not have an 
attorney for purposes of the criminal investigation. Our view was later 
confirmed when we learned of the terms of the `Engagement Agreement' 
between Francis D. Carter and Ms. Lewinsky which clearly limited Mr. 
Carter's representation of Ms. Lewinsky to Ms. Lewinsky's Jones 
deposition.'' Subsequently, Chief Judge Norma Holloway Johnson held, 
among other things, that our Office did not disrupt Ms. Lewinsky's 
attorney-client relationship by preventing her from contacting Mr. 
Carter.
    As I also noted in my answer to question 8(c): ``We invited Ms. 
Lewinsky to cooperate with our investigation. We warned her, though, 
that any cooperation could be less effective if others (including Mr. 
Carter) knew she was cooperating. We also told her that she would 
receive a greater benefit for more effective cooperation.''
    We did discuss with a Department official the fact that Frank 
Carter represented her in connection with the Jones deposition and not 
in the criminal investigation; our understanding that we could 
ethically approach her in connection with our criminal investigation; 
and our concern that if information regarding our contact with Ms. 
Lewinsky became known, her ability to assist the investigation would be 
compromised.
    (f) That if Mr. Lewinsky secured the representation of another 
attorney, your agents or attorneys would tell her that they were 
``uncomfortable'' with that attorney
    No. The factual premise of your question is incorrect as discussed 
in my answer to question 8(d), which says: ``[T]his is an apparently 
mistaken reference to the FBI report of interview concerning the 
meeting with Ms. Lewinsky. That report states `AIC Emmick . . . advised 
Ginsburg he was uncomfortable with the relationship between Ginsburg 
and Monica Lewinsky.' House Doc. 105-311, at 1380 (emphasis supplied) 
(capitalization removed). Thus, nobody from the Office ever told Ms. 
Lewinsky he or she was not `comfortable' with Mr. Ginsburg.
    ``Mr. Emmick did advise Mr. Ginsburg that he was uncomfortable with 
the fact that, although Mr. Ginsburg claimed to represent Ms. Lewinsky, 
Mr. Ginsburg had never spoken to her at all on the subject; and that 
Mr. Ginsburg had, in fact, been hired by Ms. Lewinsky's father without 
consulting Ms. Lewinsky personally. Indeed, as the FBI report reflects, 
Ms. Lewinsky also was unsure initially if Mr. Ginsburg should represent 
her, because he was a medical malpractice attorney. Mr. Emmick 
therefore requested that Ms. Lewinsky and Mr. Ginsburg speak on the 
phone and that Ms. Lewinsky confirm that she was represented by Mr. 
Ginsburg. After speaking with Mr. Ginsburg, Ms. Lewinsky advised the 
Office that she had retained Mr. Ginsburg. Thereafter we conducted all 
further discussions with him or his associate and scrupulously honored 
their attorney-client relationship.''
    Consequently this issue was never discussed with the Department.
    (g) That your agents or attorneys would discourage her from calling 
her mother
    Not specifically. We discussed with the Department our concern 
that, if information regarding Ms. Lewinsky's cooperation became known, 
her ability to assist the investigation would be compromised. We did 
not specifically address the possibility that disclosure to Ms. Lewis 
could harm the investigation.
    (h) That your agents or attorneys would raise the issue of immunity 
without having Ms. Lewinsky's attorney present
    As noted in our response to questions 8(c) and 13(e), Mr. Carter 
was not Ms. Lewinsky's attorney for purposes of the criminal 
investigation. We discussed with the Department the propriety of 
approaching Ms. Lewinsky, notwithstanding Mr. Carter's representation 
in the Jones matter. And the Department knew we would be seeking Ms. 
Lewinsky's voluntary cooperation. We are uncertain whether the specific 
topic of immunity was discussed.
    (i) That your agents or attorneys would raise the possibility of 
Ms. Lewinsky becoming a cooperating witness and explain to her that 
such cooperation included the possibility that she would be used to 
tape record conversations with other people, including possibly Ms. 
Currie, Mr. Jordan or the President
    We did discuss with a Department attorney the Office's decision to 
seek Ms. Lewinsky's participation as a cooperating witness, including 
the possibility of tape recording generally. The factual premise is 
incorrect, as discussed in my answer to question 12, which says: ``At 
no time during the meeting with Ms. Lewinsky was she asked to tape 
record a conversation with President Clinton or Vernon Jordan. Ms. 
Lewinsky was asked to cooperate. We described to her the investigation 
and identified some of the witnesses and subjects of the investigation, 
including President Clinton, Mr. Jordan, and Ms. Currie, and their 
roles. Ms. Lewinsky was told that cooperation would include debriefing, 
testimony, and, possibly, tape recording conversations with some 
witnesses and subjects. Ms. Lewinsky was told that we wanted to debrief 
her before deciding with whom, if anyone, she would be asked to tape 
record conversations. Although we hoped, when we approached Ms. 
Lewinsky, that the situation might eventually permit us to have Ms. 
Lewinsky tape record conversations with some individuals, including 
possibly Ms. Currie, we did not have any plan to have her tape record 
conversations with Mr. Jordan or President Clinton. Ms. Lewinsky may 
have reached an incorrect inference as to this Office's intentions 
based upon our general discussion of the possibility of tape recording 
conversations and our other general discussions about the nature of our 
investigation.''
    14. . . . Putting aside your personal opinion or position, isn't it 
true that:

          (a) ``materiality'' is a jury question

    Yes. Materiality is a jury question. United States v. Gaudin, 515 
U.S. 506 (1995).

          (b) a reasonable juror could vote against a conviction for 
        perjury because he or she did not believe that the statements 
        were material

    The question has been addressed, in part, by prior court rulings. 
On December 11, 1997 Judge Susan Webber Wright entered an order 
requiring President Clinton to answer certain questions relating to 
women such as Ms. Lewinsky, reflecting Judge Wright's views on the 
materiality of President Clinton's statements. The U.S. Court of 
Appeals for the District of Columbia Circuit has also ruled on the 
materiality of Ms. Lewinsky's affidavit in its opinion affirming the 
enforcement of the subpoena issued to Mr. Carter, holding that the 
statements in it were material.
    15. Please provide the date that your Office concluded that there 
was ``no evidence that anyone higher than Mr. Livingstone or Mr. 
Marceca was in any way involved in ordering the files from the FBI.'' 
Please provide the Committee any declination or closing memoranda or 
other document which includes this conclusion.
    The question seems to imply that our assigned criminal jurisdiction 
in the FBI files matter focused on the President himself and that we at 
some point thereafter became aware that certain initial allegations 
against the President had been found to be untrue. But that is not an 
accurate description of the assigned jurisdiction or the progress of 
the subsequent investigation. The jurisdiction assigned to us by the 
Special Division, at the request of the Attorney General, focused on 
whether Anthony Marceca had violated federal criminal law. Unlike the 
Whitewater investigation (with respect to David Hale's allegation) or 
the Lewinsky investigation (with respect to evidence concerning Monica 
Lewinsky and the President), our initial jurisdiction in the FBI files 
matter did not arise out of any specific allegation against the 
President himself. At no point in the investigation did this Office 
receive evidence demonstrating that anyone higher than Mr. Livingstone 
or Mr. Marceca was involved.
    After the impeachment inquiry began in the House of 
Representatives, we became aware that the Judiciary Committee was 
interested in whether this Office possessed additional evidence that 
``may constitute grounds for an impeachment'' against the President. 
Our investigation into Mr. Marceca and related matters, including our 
understanding of the handling of the FBI files, had not produced any 
such evidence. As explained in my answer to question 17, it was 
appropriate to inform the Congress of that fact during my testimony on 
November 19. Providing any decisional memoranda relating to an ongoing 
criminal investigation would violate Department of Justice policy.
    16. Please provide the date that your office concluded that ``We do 
not anticipate that any evidence gathered in that [Travel Office] 
investigation will be relevant to the Committee's current task. The 
President was not involved in our Travel Office investigation.'' Please 
provide the Committee any declination or closing memoranda or other 
document which includes this conclusion.
    As to the Travel Office matter, it is again important to understand 
the events that prompted the criminal investigation. The question 
implies that our initial criminal jurisdiction focused on the President 
himself and that we at some point thereafter became aware that certain 
initial allegations against the President had been found to be untrue. 
In fact, the jurisdiction assigned to us by the Special Division, at 
the request of the Attorney General, focused on whether David Watkins 
had made criminal false statements to the General Accounting Office. 
Statements made by Mrs. Clinton also became the subject of the criminal 
investigation. Our initial jurisdiction in the Travel Office matter, 
unlike certain other investigations conducted by this Office, did not 
arise out of any specific allegation against the President himself. At 
no point in the investigation did this Office receive evidence showing 
that President Clinton was involved.
    After the impeachment inquiry began in the House of 
Representatives, we became aware that the Judiciary Committee was 
interested in whether this Office possessed additional evidence that 
``may constitute grounds for an impeachment'' against the President. 
Our investigation into statements made by Mr. Watkins and Mrs. Clinton, 
and into related matters, had not produced any such evidence. As 
explained in my answer to question 17, it was appropriate to inform the 
Congress of that fact during my testimony on November 19. Providing any 
decisional memoranda relating to an ongoing criminal investigation 
would violate Department of Justice policy.
    17. Please identify the statutory authority which authorized you to 
make disclosures to the Committee concerning the status of the 
``Filegate'' and ``Travelgate'' investigations in advance of the filing 
of a final report on these matters?
    On July 7, 1998, the Special Division of the U.S. Court of Appeals 
for the District of Columbia Circuit issued an order authorizing 
disclosure of information to the House of Representatives that may 
constitute grounds for an impeachment. That order was issued pursuant 
to Section 595(c) of Title 28, which requires an independent counsel to 
provide information that ``may constitute grounds for an impeachment'' 
to the House of Representatives. House Resolution 581 authorized the 
impeachment inquiry. On October 2, 1998, the Committee had inquired of 
this Office whether we possessed information other than that contained 
in our September 9 Referral that ``may constitute grounds for an 
impeachment.''
    Finally, it bears note that on November 19 I did not reveal any 
particular testimony or the contents of any particular documents 
gathered during the FBI Files or Travel Office investigation. I was 
mindful of the need to try to protect the reputations of unindicted 
individuals and not to go into details of those investigations.
    18. Please send the Committee all documents requested in Rep. 
Conyers' November 16, 1998, document requests addressed to the 
custodian of records of your office.
    As you know, we have already produced some documents responsive to 
Representative Conyers' request dated November 16. We have previously 
expressed our concern with providing sensitive investigative documents 
to the Committee in violation of Department of Justice policy. In 
addition, the Committee's December 8 request appears to only authorize 
answering questions. Nonetheless, we are prepared to discuss mechanisms 
by which the Committee can obtain non-sensitive documents and carry out 
its duties consistent with our responsibility to follow Department of 
Justice policies and to maintain the integrity of our investigation.
    19. Please describe the status of any previous or ongoing 
investigations, actions or inquiries into possible misconduct, 
including conflicts of interest, leaking, and prosecutorial misconduct, 
by you, your office or any current or former employee or agent of your 
office in connection with the various investigations you have or are 
conducting as Independent Counsel. In your answer, identify which 
office or person is conducting the inquiry, when you first learned of 
its existence, and any conclusion reached. Please include any private 
or public actions as well as any ethics or state or local bar 
inquiries.
    No court or ethics body has ever made a final determination that 
this Office, or any of its employees, has ever engaged in misconduct. 
To the extent ongoing and completed investigations have been made 
public, they are discussed below. To the extent they are not yet 
public--because of legal or ethical restrictions on their 
dissemination--I am obliged not to provide them to you. We are not 
interpreting your question to include the various allegations by 
criminal defendants and grand jury witnesses that have not resulted in 
investigations.
Francis A. Mandanici
    According to Judge Susan Webber Wright, ``[n]o one who has 
objectively considered the matter seriously disputes that Mr. Mandanici 
is on a personal crusade to discredit the Independent Counsel.'' In re 
Starr, 986 F. Supp. 1159, 1161 (E.D. Ark. 1997) (Starr II); accord id. 
(`` `Mr. Mandanici's vendetta against conservative forces and his 
objections to Mr. Starr's involvement in the Whitewater investigation 
are many and long standing' . . . .'') (quoting Judge Eisele). In 
carrying out his ``vendetta,'' Mr. Mandanici has filed numerous 
complaints against me.
    In August 1996, Mr. Mandanici filed complaints against me in the 
U.S. Court of Appeals for the Eighth Circuit and the Supreme Court of 
the United States. Both alleged conflicts of interest on my part. The 
Supreme Court returned Mr. Mandanici's papers as inadequate to support 
action by the Court. The Eighth Circuit took no action, see In re 
Starr, 986 F. Supp. 1144, 1146 (E.D. Ark. 1997) (Starr I), and denied a 
petition for rehearing en banc. Our Office learned of both complaints 
at or near the time they were filed.
    In September 1996, Mr. Mandanici filed a complaint alleging 
conflicts of interest with the U.S. District Court for the Eastern 
District of Arkansas. The court forwarded the complaint to Attorney 
General Janet Reno. In October 1996, Mr. Mandanici filed a similar 
complaint with the Attorney General directly.\1\ On February 7, 1997, 
Michael E. Shaheen, Jr., Counsel with the Office of Professional 
Responsibility of the Department of Justice, stated that the Department 
would take no action because the allegations, even if true, would not 
warrant my removal from office. See id. I believe that our Office 
learned of these complaints at or near the time they were filed.
---------------------------------------------------------------------------
    \1\ Mr. Mandanici had filed a similar complaint with the Attorney 
General in April 1996.
---------------------------------------------------------------------------
    In January 1997, Mr. Mandanici stated that he had filed a complaint 
with the U.S. District Court for the District of Columbia and that the 
court had taken no action. Our Office has found no record of this 
complaint, other than this reference. I do not remember having 
knowledge of the District Court complaint before January 1997 and am 
unsure if any such complaint was, in fact, filed.
    In February 1997, Mr. Mandanici filed another complaint with the 
Attorney General, requesting that I be removed as Independent Counsel 
for conflicts of interest. On March 25, 1997, Mr. Shaheen again stated 
that the Department would take no action. I believe that our Office 
learned of this complaint at or near the time it was filed.
    In March 1997, Mr. Mandanici renewed his conflicts of interest 
allegations with the Eastern District of Arkansas. In June 1997, Mr. 
Mandanici filed a complaint with the court alleging that our Office was 
guilty of grand jury leaks and prejudicial public statements. See Starr 
II, 986 F. Supp. at 1160. The district court dismissed both of these 
complaints, citing the Department's decisions, the absence of specific 
evidence, and Mr. Mandanici's ``vendetta.'' Id. at 1161-62. The Eighth 
Circuit dismissed Mr. Mandanici's appeal for lack of jurisdiction. See 
United States Debit of Justice v. Mandanici (In re Starr), 152 F.3d 741 
(8th Cir. 1998). I believe that our Office learned of these complaints 
at or near the time they were filed.
    In April 1998, Mr. Mandanici filed yet another conflicts of 
interest complaint with the Eastern District of Arkansas, this time 
concerning the investigation of the David Hale matters. In May 1998, 
the court dismissed this complaint as premature. Our Office learned of 
this complaint at or near the time it was filed.
Private Actions
    In March 1996, Stephen A. Smith filed a lawsuit, Smith v. Starr, 
No. EIJ96-1557, in the Chancery Court of Pulaski County, Arkansas, for 
making an allegedly false statement about his guilty plea. I removed 
this case to the U.S. District Court for the Eastern District of 
Arkansas on April 4. On May 16, Mr. Smith voluntarily dismissed the 
lawsuit. My Office learned of this lawsuit at or near the time it was 
filed.
    In February 1998, James Forman filed a lawsuit, Forman v. Starr, 
Civ. No. 98-270, in the U.S. District Court for the District of 
Columbia, alleging that our Office used illegally created tapes. On 
February 4, 1998, Judge Hogan sua sponte dismissed the case for failure 
to state a claim on which relief can be granted. The U.S. Court of 
Appeals for the District of Columbia Circuit affirmed the decision of 
the district court on April 30, 1998. See Forman v. Starr, No. 98-5029, 
1998 WL 316137 (D.C. Cir. Apr. 30, 1998) (per curiam) (unpublished). 
Our Office was ably represented by U.S. Attorney Wilma A. Lewis and her 
staff in this matter. Our Office learned of this lawsuit at or near the 
time it was filed.
    Also in February 1998, David E. Kendall, acting on behalf of 
President Clinton, filed a motion in the U.S. District Court for the 
District of Columbia requesting that the court issue an order to show 
cause why our Office should not be held in contempt for leaking grand 
jury material. This motion was followed by two similar motions, and was 
joined by several other persons and entities. (Misc. Nos. 98-55, 98-
177, 98-228). On June 19, 1998, Chief Judge Norma Holloway Johnson 
found that news reports presented by the movants established a prime 
facie violation of Federal Rule of Criminal Procedure 6(e), thus 
requiring our Office to come forward with evidence that we were not 
responsible for the alleged leaks of grand jury material. The finding 
of a prima facie violation is not a finding of misconduct, as the 
District of Columbia Circuit has adopted a broad approach, requiring 
the court to accept the words of each news report as true. On August 3, 
1998, on writ of mandamus, the District of Columbia Circuit unanimously 
ordered that further proceedings by the district court or a Special 
Master be conducted ex parte and in camera. See In re Sealed Case No. 
98-3077, 151 F.3d 1059 (D.C. Cir. 1998). On September 25, Judge Johnson 
referred this matter to a Special Master.\2\ We are cooperating with 
the Special Master's investigation and demonstrating that we did not 
violate Rule 6(e). That investigation is still pending. Our Office 
learned of Mr. Kendall's complaint at the time it was filed.
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    \2\ Judge Johnson has sealed the name of the Special Master and, 
therefore, we are not permitted to reveal it to this Committee.
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    In August 1998, H.L. Watkins, Jr. filed a lawsuit, Watkins v. 
Starr, Civ. No. 98-2054, in the U.S. District Court for the District of 
Columbia, suing the Attorney General, Senator Orrin Hatch, and me for 
$40 million for investigating the President. Judge Emmet G. Sullivan 
sua sponte dismissed the case with prejudice on October 1, 1998. Our 
Office learned of this lawsuit at or near the time it was filed.
    In September 1998, Joseph Fischer filed a lawsuit, Fisher v. Starr, 
Civ. No. 98-2295, in the U.S. District Court for the District of 
Columbia, alleging that the Referral was improper and contrary to law 
and that the House of Representatives violated the law in releasing the 
Referral to the public. Our Office is ably represented by U.S. Attorney 
Lewis and her staff in this matter, which still is pending. Our Office 
learned of this lawsuit at or near the time it was filed.
    In October 1998, Betty Muka filed a lawsuit, Muka v. Rutherford 
Institute, Civ. No. 98-2470, in the U.S. District Court for the 
District of Columbia, suing a vast number of persons, including all 
Members of Congress, for $40 million. Among other things, she alleges 
that the Ethics in Government Act is unconstitutional and that our 
Office has committed various misdeeds. This action is still pending. 
Our Office learned of this lawsuit at or near the time it was filed.
    In November 1998, Harold Beck filed a complaint with the Supreme 
Court alleging conflicts of interest on my part. The Supreme Court 
returned this complaint as inadequate to support action by the Court. 
Our Office learned of this complaint at or near the time it was filed.
    Also in November 1998, Barry Weinstein filed a lawsuit, Weinstein 
v. Hatch, Civ. No. 98-8119, in the U.S. District Court for the Southern 
District of New York suing all lawyers who are Members of Congress and 
me, alleging that it is unconstitutional for lawyers to be Members of 
Congress. This lawsuit remains pending. Our Office learned of this 
lawsuit at or near the time it was filed.\3\
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    \3\ It appears that Mr. Weinstein attempted to file this lawsuit in 
July but refused to pay the required filing fees. On November 9, 1998, 
the Supreme Court of the United States denied an application for 
injunctive relief allowing Mr. Weinstein to proceed without paying the 
fees. See Weinstein v. Starr, 119 S. Ct. 442 (1998) (mem.). Our Office 
was not aware of this aspect of the litigation until the Supreme Court 
ruled.
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Other Matters
    In April 1996, Senator J. Bennett Johnston asked the Special 
Division of the U.S. Court of Appeals for the District of Columbia 
Circuit to remove me for conflicts of interest. On April 30, 1996, the 
Special Division advised Senator Johnston that it lacked the power to 
remove independent counsels. Our Office learned of this complaint at or 
near the time it was filed.
    Beginning in February 1998, this Office was engaged in litigation 
in the U.S. District Court for the District of Columbia over a grand 
jury subpoena issued to Francis D. Carter. (Misc. No. 98-68) In the 
course of this litigation, Mr. Carter and Monica S. Lewinsky made 
several allegations of misconduct by our Office. On April 28, 1998, 
Chief Judge Norma Holloway Johnson issued an opinion thoroughly 
addressing a variety of issues. The opinion speaks for itself. Our 
Office learned of Mr. Carter's and Ms. Lewinsky's allegations at the 
time they filed the pleadings containing those allegations.
    It should be evident that there has been a great volume of 
unfounded complaints against our Office. We have searched this Office's 
records and I have searched my recollection. It is always possible, 
however, that some investigations, actions, or inquiries have escaped 
our attention.
Questions from Representative Hutchinson
    Do you believe John Huang is a relevant witness to the referral you 
submitted to Congress on the issue of a pattern of conduct described in 
Pages 4-9 of the Referral?
    It is my understanding that the Committee has decided not to pursue 
this line of inquiry. For that reason, and because of the sensitivity 
of this matter and out of deference to the Department of Justice's 
ongoing criminal investigation, we believe it would be unwise to 
express an opinion on this matter.
Questions from Representative Barr
    [C]oncerning the applicability of 18 U.S.C. 201 [does this] 
constitute [] . . . substantial and credible evidence of impeachable 
offenses?
    I believe that this question is now moot because the four articles 
of impeachment that are currently before the Committee do not include 
charges directly relating to bribery or 18 U.S.C. Sec. 201.
    [C]oncerning the Filegate case [have] any of the following persons 
. . . been interviewed by the Independent Counsel's Office and/or 
testified before a grand jury . . .: Mac McLarty, Terry Good, Linda 
Tripp, William Kennedy, and James Carville?
    In connection with our FBI Files investigation, this Office 
questioned Mr. Good, Ms. Tripp, and Mr. Kennedy. We have questioned Mr. 
McLarty on matters unrelated to our FBI Files investigation and 
reviewed his civil testimony on the FBI Files matter. We have never 
interviewed Mr. Carville.
    [W]hether or not . . . the Filegate matter involved any violation 
of the federal Privacy Act?
    The jurisdiction of this Office does not extend to the prosecution 
of Class B or C misdemeanors or infractions. Therefore, violations of 
the Privacy Act, standing alone, are not within the jurisdiction 
assigned to this Office, as violations of the Act are misdemeanor 
infractions of federal law.
Questions from Representative Scott
    Earlier today, at the Committee's request, we submitted a response 
to Representative Scott's questions. We now supplement that response:
    Considering that the Federal Rules of Criminal Procedure authorize 
only the grand jury foreperson (or in his absence, the deputy 
foreperson) to swear a grand jury witness, under what authority, if 
any, do you assert that President Clinton was duly sworn by a Mr. 
Bernard J. Apperson of your office (Mr. Apperson was not a member of 
the grand jury) since Mr. Apperson had no authority to swear the 
witness?
    The factual and legal premises of the question are both inaccurate. 
First, as reflected in both the official transcript and on videotape, 
the oath was administered by Elizabeth Eastman, Notary Public for the 
District of Columbia, a certified court reporter, duly authorized to 
administer oaths. 5 U.S.C. Sec. 2903(c)(2). Second, although Rule 6(e) 
authorizes the foreperson of the grand jury to administer oaths, 
stating that they ``shall have the power'' to do so, the Rule does not 
restrict that authority to administer oaths to the foreperson.
    We understand that the unofficial transcript published by the 
Washington Post, which erroneously reflected that the oath was 
administered by an employee of this Office, has since been corrected on 
the Post's website.
    Since initially responding, I have been told of Representative 
Scott's statement during the hearings that Congress did not receive the 
``official'' transcript of the President's testimony. Congress did 
receive the official transcript of the President's testimony on August 
17, and that transcript clearly reflects that the oath was administered 
by Ms. Eastman. House Doc. 105-311, at 659 (``I, Elizabeth A. Eastman, 
the officer before whom the foregoing proceedings were taken, do hereby 
certify that the witness whose testimony appears in the forgoing was 
duly sworn by me . . . .'').
    Representative Scott also mentioned United States v. Prior, 546 
F.2d 1254 (5th Cir. 1977), but I believe he misconstrues the case, 
equating the argument of the defendant with the holding of the Court. 
The Court found that, as a factual matter, the jury was entitled to 
conclude that the defendant had been sworn in by the grand jury 
foreman. The Court nowhere addressed the legal issue raised by 
Representative Scott.
    Moreover, the law is clear that ``[n]o particular formalities are 
required for there to be a valid oath. It is sufficient that, in the 
presence of a person authorized to administer an oath, as was the 
notary herein, the affiant by an unequivocal act consciously takes on 
himself the obligation of an oath, and the person undertaking the oath 
understood that what was done is proper for the administration of the 
oath and all that is necessary to complete the act of swearing.'' 
United States v. Yoshida, 727 F.2d 822, 823 (9th Cir. 1983); accord 
United Stated v. Chu, 5 F.3d 1244, 1247-48 (9th Cir. 1993). Any 
suggestion that the oath administered to President Clinton was somehow 
invalid is, with all respect, simply wrong.
            Respectfully,
                                          Kenneth W. Starr,
                                               Independent Counsel.