The irony of her potshots at Barack Obama’s character has hardly gone unnoticed. Nor has the idiocy of her December 2 press release breathlessly revealing that "in kindergarten, Senator Obama wrote an essay titled ‘I Want to Become President.’ " (Emphasis added.) This, the Clinton release explained, gives the lie to Obama’s claim that he is "not running to fulfill some long-held plans" to become president. Hillary was not, it appears, joking.

At a campaign stop the same day, Clinton added: "I have been, for months, on the receiving end of rather consistent attacks. Well, now the fun part starts." Indeed.

I will not excavate Clinton’s own kindergarten confessions. Nor will I compare the honesty quotient of her campaign-trail spin with the dreadful drivel dutifully uttered by Obama and other candidates to pander to their fevered primary electorates.

Instead, let’s take a trip down memory lane — from the tawdriness of the 1992 presidential campaign through the mendacity of the ensuing years — to revisit a sampling of why so many of us came to think that Hillary’s first instinct when in an embarrassing spot is to lie.

Gennifer and Monica. Former lounge singer Gennifer Flowers surfaced in early 1992 with claims — corroborated by tapes of phone calls — that she had had a long affair with then-Arkansas Gov. Bill Clinton, who had arranged a state job for her. Bill Clinton told the media, falsely, that the woman’s "story is untrue."

Although well aware of her husband’s philandering history, Hillary backed his squishy denials, famously asserting on 60 Minutes that she was not "some little woman standing by her man like Tammy Wynette." More deceptively, she suggested to ABC’s Sam Donaldson that Bill’s contacts with Flowers were just an example of how he loved to "help people who are in trouble" and "listen to their problems."

"Hillary’s words uncannily foreshadowed her insistence six years later to … a White House aide that Bill had ‘ministered’ to [Monica] Lewinsky because she was a troubled young woman," Sally Bedell Smith writes in her fine new book about the Clintons, For Love of Politics. Hillary has continued to insist that she believed what she said about Lewinsky. But friends and former aides have told Smith and others that she knew her husband was lying all along.

Travelgate. The first Clinton scandal after Bill became president started in May 1993, when Chief of Staff Mack McLarty fired the seven employees in the White House office that arranges travel for the press corps. The White House cited gross financial mismanagement. (The charge was never substantiated.) The sudden firings created a media uproar, especially when the dismissed employees were quickly replaced by friends and relatives of the Clintons.

Hillary later told the General Accounting Office, in a document prepared by her attorney, that she had no role in the decision to fire the employees, did not know the "origin of the decision," and "did not direct that any action be taken by anyone" other than keeping her informed.

But her statements were contradicted by evidence, including a long-concealed memo to McLarty and a written chronology prepared by White House aide David Watkins that came to light years later. Hillary, Watkins wrote, had said that "we need those people out and we need our people in" and had made it clear that "there would be hell to pay" unless she got "immediate action." Another aide wrote that Hillary intimate Susan Thomases had said, "Hillary wants these people fired."

While saying that no provable crime had been committed, Robert Ray, who had succeeded Kenneth Starr as independent counsel, reported in October 2000 that Hillary’s statements had been "factually false" and that there was "overwhelming evidence that she in fact did have a role in the decision to fire the employees."

Cattle futures. The New York Times revealed in March 1994 that in 1978, just before her husband became governor, Hillary had made a $100,000 profit on a $1,000 investment in highly speculative cattle-futures contracts in only nine months. Hillary’s first explanation (through aides) of this extraordinary windfall was that she had made the investment after "reading The Wall Street Journal" and placed all the trades herself after seeking advice from "numerous people." It was so preposterous that she soon had to abandon it. Eventually, she had to admit that longtime Clinton friend James Blair had executed 30 of her 32 trades directly with an Arkansas broker.

In an April 1994 press conference, Hillary denied knowing of "any favorable treatment" by Blair. But the astronomical odds against any financial novice making a 10,000 percent profit without the game being rigged led many to believe that Blair, the outside counsel to Arkansas-based poultry giant Tyson Foods, must have put only profitable trades in Hillary’s account and absorbed her losses. The heavily regulated Tyson needed friends in high places, and Bill Clinton helped it pass a 1983 state law raising weight limits on chicken trucks.

Removal of Vince Foster documents. During the same press conference, Hillary was asked why her then-chief of staff, Maggie Williams, had been involved in removing documents from the office of Deputy White House Counsel Vince Foster after his suicide. Foster had been a partner of Hillary’s at the Rose Law Firm in Little Rock, Ark. "I don’t know that she did remove any documents," Hillary said. But it was reported three months later that Hillary had instructed Williams to remove the Foster documents to the White House residence. Then they were turned over to Clinton attorney Bob Barnett.

Castle Grande. In the summer of 1995, the Resolution Trust Corp. reported that Hillary had been one of 11 Rose Law Firm lawyers who had done work in the mid-1980s on an Arkansas real estate development, widely known as Castle Grande, promoted by James McDougal and Seth Ward. McDougal headed a troubled thrift, Madison Guaranty Savings & Loan, and had given Hillary legal business as a favor to Bill. McDougal and his wife, Susan, were the Clintons’ partners in their Whitewater real estate investment. Ward was father-in-law to Webb Hubbell, another former Rose Law Firm partner, who was briefly Clinton’s associate attorney general in 1993. Later, Hubbell went to prison for fraud, as did James McDougal.

Castle Grande was a sewer of sham transactions, some used to funnel cash into Madison Guaranty. Castle Grande’s ultimate collapse contributed to that of the thrift, which cost taxpayers millions. Hillary told federal investigators that she knew nothing about Castle Grande. When it turned out that more than 30 of her 60 hours of legal work for Madison Guaranty involved Castle Grande, she said she had known the project under a different name. A 1996 Federal Deposit Insurance Corp. report said that she had drafted documents that Castle Grande used to "deceive federal bank examiners."

Prosecutors later came to believe that Hillary had padded her bills; she "wasn’t guilty of [knowingly] facilitating nefarious transactions — she was guilty of doing less work than she took credit for," Jeff Gerth and Don Van Natta Jr. explain in their 2007 biography, Her Way. Hillary herself never took refuge in this explanation.

Billing records. Hillary’s billing records for Castle Grande were in a 116-page, 5-inch-thick computer printout that came to light under mysterious circumstances on January 4, 1996 — 19 months after Starr’s investigators had subpoenaed it and amid prosecutorial pressure on Clinton aides who had been strikingly forgetful. For most of that time, Hillary claimed that the billing records had vanished. But a longtime Hillary assistant named Carolyn Huber later admitted coming across the printout in August 1995 on a table in a storage area next to Hillary’s office; Huber said she had put it into a box in her own office, without realizing for five more months that these were the subpoenaed billing records.

This implausible tale, on top of other deceptions, prompted New York Times columnist William Safire to write on January 8, 1996, that "our first lady … is a congenital liar."

The next day, the White House press secretary said that the president wanted to punch Safire in the nose for insulting his wife. Five days later, the president invited Monica Lewinsky to the Oval Office for what turned out to be one of their 10 oral-sex sessions. Two years and 13 days after that, Hillary was on the Today show suggesting that her husband’s Lewinsky affair was a lie concocted by "this vast right-wing conspiracy."

And now she is citing Barack Obama’s supposed kindergarten "essay" as evidence of dishonesty. Astonishing.

The post Opening Argument – Honesty: Hillary’s Glass House appeared first on Stuart Taylor, Jr..

I now recognize … that certain of my responses to questions about Ms. Lewinsky were false.-Statement by President Clinton, same day

Whoever corruptly … influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished [by] imprisonment for not more than 10 years, a fine … or both.-U.S. Code, Title 18, Section 1503

Bill Clinton has not quite admitted that his false, misleading, and evasive testimony under oath was perjury. He insisted in his Jan. 19 statement that he "tried to walk a line between acting lawfully and testifying falsely" during his deposition in the Paula Jones case. And he claimed that it took him quite awhile thereafter to figure out that his assertions-for example, that he had never been alone with Monica Lewinsky-were false. Did he admit lying under oath? That depends on what the meaning of the word lying is.

Clinton has now essentially admitted, on the other hand, that his deposition testimony obstructed justice-"interfered with the conduct of the Jones case." But the truth is that if this false deposition testimony had been the only way for Clinton to avoid admitting his affair with Lewinsky, as is widely believed, it would have been a pardonable, almost trivial offense, warranting neither prosecution nor impeachment.

Indeed, it is hard to imagine a more honorable lie than one designed to avoid inflicting anguish and humiliation upon one’s spouse, child, and lover (as well as oneself), by deflecting questions that nobody should be required to answer, questions demanding intimate information without enough relevance to the Jones sexual harassment lawsuit to warrant the invasion of privacy.

Let me pause for a moment to acknowledge that faithful readers of this column can be forgiven for wondering whether I’ve suddenly gone soft on lying about sex. Actually, I’ve always been soft on lying about sex. But I haven’t always made myself clear. So I’d like to revise and extend my remarks by stressing three points that you might want to keep in your medicine cabinet as antidotes to further eruptions of the outlandish Clinton fantasy that he "saved the Constitution."

First, Clinton’s lies about Lewinsky during the deposition were not the only way to shield his private life. Second, those lies were the least of this incorrigibly dishonest man’s cover-up crimes, which continued for more than 13 months. Third, all of Clinton’s crimes combined have done less damage to the integrity of the legal process than his contemptible (if noncriminal) assault-while serving as the nation’s chief law enforcement officer-on truth-seekers and truth-tellers, as well as on the rule of law and the very idea that truthfulness is an important value.

Clinton had known since Dec. 6, 1997, six weeks before his Jan. 17, 1998, deposition, that Lewinsky was on Paula Jones’ witness list, and thus that Jones’ attorneys must have known enough to inquire into the relationship. He could have acted then to avoid giving any testimony at all.

One option was to settle the Jones case-which Clinton ended up doing in November 1998, for $850,000. Another was to appeal Judge Wright’s order that he answer questions about consensual affairs, on the ground that the Constitution implicitly bars courts either from requiring a sitting President to testify in a civil case or from requiring a sexual harassment defendant to testify about a consensual intimate relationship. Clinton might well have won the ensuing court battle, and could at the very least have spent a year or two appealing all the way to the Supreme Court.

Why did Clinton pass up these perfectly legal and proper options for protecting his privacy? Why did he choose instead to lie under oath, while encouraging Lewinsky (in a 2 a.m. phone call and thereafter) to lie? Apparently because either settling early with Jones or refusing to testify would have carried a political cost. It would have been especially awkward for a President who had championed a privacy-destroying provision of the 1993 Violence Against Women Act-which empowers plaintiffs to rummage through defendants’ sex lives by compelling testimony from them and their suspected lovers-to claim it could not be used in his own case.

So the bottom line is that Clinton lied under oath not in order to protect anyone’s privacy, but to keep his approval ratings high. The same is true of his broader pattern of cover-up crimes, the scope of which were well summarized by Chief Justice Richard A. Posner of the U.S. Court of Appeals in Chicago in his 1999 book, An Affair of State:

It is clear beyond a reasonable doubt, on the basis of the public record as it exists today, that President Clinton obstructed justice, in violation of federal criminal law, by 1) perjuring himself repeatedly in his deposition in the Paula Jones case, in his testimony before the grand jury, and in his responses to the questions put to him by the House Judiciary Committee; 2) tampering with witness Lewinsky by encouraging her to file a false affidavit in lieu of having to be deposed, and to secrete the gifts that she had received from him; and 3) suborning perjury by suggesting to Lewinsky that she include in her affidavit a false explanation for the reason that she had been transferred from the White House to the Pentagon. He may also have tampered with potential witness [Betty] Currie, conspired to bribe Lewinsky with a job that would secure her favorable testimony, and suborned perjury by Lewinsky … but these offenses cannot be proved with the degree of confidence required for a criminal conviction.

This from a judge who may also be the nation’s pre-eminent legal scholar, and whom even James Carville would have trouble smearing as obsessed with sex or partisan bias. Posner disdains "sexual Puritanism" and those conservatives who have "a morbidly exaggerated fear of moral laxity"; he takes a benign view both of Clinton’s "trivial sexual escapade" and of his "irresistible human impulse to conceal" it; he suggests that Clinton has been a good President (cover-ups aside); and he faults Kenneth Starr for prosecutorial overkill. All this lends credibility to Posner’s dismissal of the widespread portrayals of Starr as "a sex-obsessed religious nut, an extreme right-winger, and a Clinton-hater," and to his assertion that "Clinton was guilty of serious crimes, and [that] the behavior of the independent counsel’s office, Linda Tripp, and Paula Jones’ backers did not excuse or mitigate that guilt."

Even more damaging than these crimes were Clinton’s succession of lies to the American people; his abuse of the powers and privileges of his office to promote his lies; his vicious attacks (mostly through subordinates and surrogates) on truth-seekers such as Starr and truth-tellers such as Linda Tripp; and his efforts-aided and abetted by media apologists and by political propagandists posing as professors-to devalue the long-established principle that lying under oath is a serious crime. And he won’t stop lying.

Clinton’s crimes would have brought a less powerful malefactor a prison term of some 30-37 months under the Federal Sentencing Guidelines, according to Posner’s "conservative estimate." This column nonetheless welcomes the Jan. 19 deal that ended both Independent Counsel Robert W. Ray’s investigation and the Arkansas proceeding to disbar Clinton. (He instead agreed to a five-year suspension of his law license.) Our new President surely didn’t need to spend his honeymoon mired in the Clinton mess. And who would want to watch more reruns of this tedious show?

It is time to move on. Clinton, happily, already has-to New York. He’ll fit right in. "Here we’re used to executives with a weakness for young women," observes New York Times columnist John Tierney. "We don’t expect them to tell the truth all the time. If one executive in need of money for his organization is willing to overlook the crimes of a fugitive financier named Rich, we can admire it as a smart business deal…. [And] perhaps the Sexgate scandal truly changed him. He did, after all, receive counseling from the Rev. Jesse Jackson."

Washington’s loss is your gain, Manhattanites. It is with varying degrees of regret that we provincials part with "our lovable rogue prince of prosperity," in the words of Newsweek’s Jonathan Alter. But you can keep him.

The post Legal Affairs – How Clinton Trashed the Constitution to Save It appeared first on Stuart Taylor, Jr..

-Sen. Herb Kohl, D-Wis., in arguing last year that President Clinton should not be removed from office.

Independent Counsel Robert W. Ray is a serious man with much to be serious about. Soon after Jan. 20, 2001, when President Clinton leaves office, Ray will have to decide whether to seek the first criminal indictment ever of a former President.

The alternative would be to close up shop, amid continuing claims by Clinton that his only sin had been having an affair with Monica Lewinsky, and that "I am honored … that I had the opportunity to defend the Constitution" (as Clinton said to Dan Rather in an interview on March 31, 1999) against an "indefensible" impeachment trumped up by politically motivated Republicans.

What Clinton brazenly calls defending the Constitution was the same conduct that Kenneth W. Starr (whom Ray succeeded as independent counsel last October) proved to be a criminal cover-up. It was the same conduct that Kohl and many other congressional Democrats had said should be dealt with in court, through the criminal process, rather than through impeachment.

"There is a principle to be vindicated, and that principle is that no person is above the law, even the President of the United States," Ray told The Washington Post on April 10. That sounds pretty serious. He had said essentially the same thing in a March 19 television interview. And although Ray says he has not yet decided whether to prosecute, he has been beefing up his team of lawyers and investigators.

But hasn’t Ray already had more than enough time to decide? The sprawling, $55 million criminal investigation into a smorgasbord of allegations against the President and Hillary Rodham Clinton has dragged on more than six years since its start under Robert Fiske, whom Starr replaced in mid-1994. The essential evidence about the Clinton-Lewinsky cover-up was made public back in September 1998 with the release of Starr’s report suggesting that Clinton be impeached and detailing the (essentially undisputed) evidence of multiple perjuries and obstructions of justice. The Senate declined to convict Clinton of "high crimes and misdemeanors," by a 50-50 vote on Feb. 12, 1999. The press, public, and politicians have long been sick of the whole mess.

Ray won’t say why he needs until next year to make the big decision. But if he doubted Clinton’s guilt, or had decided not to prosecute, there would be no good reason to delay the announcement. So Ray (like Starr) evidently believes that Clinton committed one or more cover-up crimes. And it would make sense to defer any indictment until after Jan. 20, to avoid having to litigate over whether the Constitution bars prosecution of a sitting President. (It does not bar indictment of a former President who has already been tried by the Senate.)

Does this mean that Ray will seek an indictment as soon as Clinton vacates the White House? Not necessarily. Ray has emphasized that even if crimes have been committed, he must decide whether "it is appropriate to bring a case" as a matter of prosecutorial discretion. A key factor in that calculus is whether he could win.

There has been no indication that Ray is hoping to clinch the case with some stunning new revelation. It seems more likely that he is hoping that Clinton may be less popular-and Ray’s own office more credible-after the presidential campaign, and after the expected filing this summer or fall of Ray’s reports detailing the Clintons’ unpretty (if unindictable) conduct in the two other matters. Those are the White House travel office firings and the Clintons’ convoluted dealings with Madison Guaranty Savings and Loan Association, including their Whitewater land investment.

As a legal matter, there is ample proof of Clinton’s guilt with regard to perjury and obstruction of justice. Even Sen. Charles E. Schumer, D-N.Y., an ardent Clinton supporter, has said, "It is clear that the President lied" to Starr’s grand jury in August 1998. U.S. District Judge Susan Webber Wright of Little Rock, Ark., who presided over the Paula Jones lawsuit, held Clinton in contempt of court last April for giving false testimony under oath "designed to obstruct the judicial process" during his Jan. 17, 1998, deposition in the case. Chief Judge Richard A. Posner of the federal appeals court in Chicago, one of the nation’s most respected legal scholars, went further in a 1999 book titled An Affair of State. He concluded that "Clinton was guilty of serious crimes," including obstructing justice by coaching Lewinsky to file a false affidavit and "perjuring himself repeatedly in his deposition in the Paula Jones case, in his testimony before the grand jury, and in his responses to questions put to him by the House Judiciary Committee."

Covering up what the same Posner calls a "trivial sexual escapade" ain’t Watergate, and there is "something a little crazy about turning the White House upside down in order to pin down the details of Clinton’s extramarital sexual activities so that Paula Jones might have a shot at winning her long-shot suit." But still, Clinton’s own Attorney General, Janet Reno, decided that the matter was serious enough to require a criminal investigation of Clinton under the now-defunct independent-counsel statute.

And as the case developed, Clinton’s calculated lawlessness far transcended lying about sex. He did not face a Hobson’s choice between lying and telling the truth. He knew more than a month before his deposition that he might face questions about his relationships with women, including Lewinsky, and he could have avoided testifying by settling the Jones case or appealing Judge Wright’s ruling that he must answer such questions. Instead, he encouraged Lewinsky to file a false affidavit; used his friend Vernon Jordan to help her find a job; told lie after lie in the deposition; coached his secretary Betty Currie to lie for him; lied to the American people; got his Secretary of State and other Cabinet members to repeat the lies; used White House aides to demonize truth-tellers and truth-seekers, including Starr; lied to the grand jury; and lied to the House and Senate. If Clinton had been "the president of a corporation, university, or foundation, or the mayor of a medium-sized city," as Posner notes, his "lengthy string of crimes would invite prosecution," and would likely lead to a prison term of two or three years.

But while the stunningly shameless Clinton may deserve an indictment, Ray should not seek one. The most obvious reason is the extreme unlikelihood that Ray could persuade 12 jurors to convict-especially jurors in Washington, D.C., where Clinton remained immensely popular even as Starr and others were laying out the evidence of his crimes for all to see. (Any effort to indict Clinton in Arkansas would be blatant jury shopping and almost as futile.)

This is not to impugn D.C. jurors. Although the evidence against Clinton is logically compelling, it is tediously familiar and lacking in jury appeal. The three major witnesses-Lewinsky, Jordan, and Currie-are sympathetic to Clinton and hostile to Ray. The President would be a formidable witness for himself-charming, nimble-witted, adept at obfuscation. That’s why his videotaped grand jury testimony generated far more public sympathy than outrage. And the Lewinsky matter has become so politicized that it would be unrealistic to expect any juror, anywhere, to weigh the evidence with a completely open mind, or to convict a former President whom he or she admires.

Prosecutors are not supposed to bring cases they know they will probably lose. And an indictment ending in acquittal would only lend unwarranted credibility to Clinton’s campaign to delegitimize his impeachment.

More fundamentally, a prosecution that could possibly lead to imprisonment of any former President-unless for crimes more grave than those of Clinton-would set a disturbing precedent, and could polarize and traumatize the nation even more than impeachment did.

It’s true that nobody should be above the law. That’s why I saw impeachment as a painful but healthy effort to purge the nation of a President who had debased his office. But most of the nation and 50 Senators disagreed. The rule of law is not a fetish. Even House Judiciary Chairman Henry J. Hyde, R-Ill., who had led the crusade for impeachment under the "rule of law" banner, said after the Senate vote that Clinton had not gone unpunished and should not be indicted. It’s over.

If this means that Clinton can keep characterizing his brazen subversion of the truth and the law as a noble defense of the Constitution, so be it. In his heart, he knows he’s still lying. Don’t we all?

The post Legal Affairs – Why Bill Clinton Should Not Be Indicted appeared first on Stuart Taylor, Jr..

MARGARET WARNER: As the senate winds up its impeachment trial of the president, Independent Counsel Kenneth Starr is coming under investigation on a growing number of fronts. Today’s "New York Times" reported the Justice Department has decided to open an inquiry into whether Starr’s prosecutors misled Attorney General Janet Reno about possible conflicts of interest when they obtained permission to investigate the Lewinsky matter in January 1998. At issue, the "Times" said, is whether Starr’s "prosecutors should have disclosed the contacts between Mr. Starr’s office and the Paula Jones legal team" in the weeks leading up to Starr’s request to expand his inquiry into the Lewinsky affair. According to the "Times," Starr’s prosecutors denied any such contacts at the time, but subsequent news stories have reported otherwise. Starr spokesman Charles Bakaly would not comment to the "Times" about whether the Department was opening an inquiry. But Bakaly insisted, "there was no misleading of justice." Democratic Senator Tom Harkin of Iowa jumped on the "Times" story this morning.

SEN. TOM HARKIN, (D) Iowa: And if you believe the rule of law applies not only to the defendant– the president, in this case– but also to the prosecutors and those sworn to uphold that rule of law, then it is important to look at how this case got here. It’s interesting to note that in today’s February 10th "New York Times," "the conduct of the independent counsel is so suspect and potentially violative of Justice Department policy and law that now he is under investigation for a number of reasons."

MARGARET WARNER: In a related matter, the "Washington Post" reported yesterday that the Justice Department is asking "Starr to respond to allegations that his prosecutors violated department procedures when they first confronted Monica Lewinsky last year." Among the issues, according to the "Post," is whether Starr’s prosecutors acted improperly when they discussed a potential immunity deal with Lewinsky without her lawyer being present. Starr has repeatedly denied any impropriety in the way his office handled Lewinsky. The Justice Department has only limited authority over an independent counsel. The law says an attorney general may remove an independent counsel for cause, subject to review by a judicial panel, if the attorney general finds the independent counsel has been guilty of prosecutorial misconduct. No other disciplinary action is authorized. Last week, Independent Counsel Starr drew fire on yet another matter. The "New York Times" reported that "Starr has concluded that he has the constitutional authority to seek a grand jury indictment of President Clinton before he leaves the White House in January 2001." The article cited as its sources "several associates of Mr. Starr." The next day, the president’s lawyer, David Kendall, announced he would ask a federal judge to hold Starr and his staff in contempt for leaking grand jury information to the "Times."

DAVID KENDALL, President Clinton’s Lawyer: The office of independent counsel has once again engaged in illegal and partisan leaking as manifested by yesterday’s page-one story in the "New York Times" headline: "Starr is weighing whether to indict sitting president." We’re filing today in the United States District Court for the District of Columbia a motion to show cause why independent Starr and members of his staff should not be held in contempt for improper violations of grand jury secrecy.

MARGARET WARNER: Starr spokesman Charles Bakaly responded on ABC’s "Good Morning America."

CHARLES BAKALY: We did not leak this information and that’s all I can say about that.

MARGARET WARNER: Separately, a special master appointed by federal Judge Norma Hollaway Johnson last fall is believed to be still investigating whether Starr or his deputies improperly leaked grand jury material about the Lewinsky probe to the press.

JIM LEHRER: Now the perspective of two columnists who feel very differently about Kenneth Starr and have expressed those differences in print and on this program before — Anthony Lewis of the "New York Times" and Stuart Taylor of the "National Journal" and "Newsweek." Gentlemen, let’s begin with the last question and work back. Should Attorney General Reno remove Ken Starr, Tony Lewis?

ANTHONY LEWIS: I think it’s a little soon to answer that question, but I think that the reasons for removing him are adding up. I think it’s quite clear that he leaked, Steve Brill’s magazine "Content" showed, I thought, conclusively that Starr’s deputy, Jackie Bennett, Jr., leaked wholesale when all this began a year ago, just limiting it to that. I think it’s absolutely clear that his deputies and FBI agents violated Monica Lewinsky’s rights and specific — a specific Justice Department rule against making an immunity deal with a person who has a lawyer unless that lawyer is present. And, of course, they did all they could to keep Monica from talking to her lawyer. That was a clear violation, I think. And now we have this ethical question, the fact is that between November and January a year ago, at least one lawyer in Mr. Starr’s office was in communication with a lawyer who was advising the Paula Jones lawyers and had been for years and that contact was not disclosed to Janet Reno’s deputy, Eric Holder, when permission was granted by the Justice Department for Starr to extend his inquiry from Watergate into the Monica matter. And, you know, the rules simply bar that kind of ethical violation. It’s not just that there’s a conflict of interest, the rules bar something that would have the appearance of a conflict and that certainly had that appearance.

JIM LEHRER: Stuart, let’s take that specific one, today’s and work back to the general question. Do you read it the same way Tony Lewis does, this contact between the lawyers, et cetera?

STUART TAYLOR: Let me rewind the clock. I think if he did all these things that Tony says, he should be removed but I think there’s no evidence that he’s done any of them or at least certainly not substantiated. To start with the last, what we have are charges in the "New York Times," which I think has been very free in making unsubstantiated charges against Starr, now being investigated by the Justice Department, which probably should investigate them, that Starr, in essence, was colluding through his subordinate, Paul Rosenzweig with Paula Jones’ lawyers. Now today Jackie Bennett, Jr., who Tony mentioned a moment ago — after I pounded on them to respond to this – said –

JIM LEHRER: Just by phone, you called him on the phone?

STUART TAYLOR: Yes. And I said, "come on, this has been floating around for a long time, what have you got to say?" He said, "we neither lied to nor misled the Justice Department and they know it." And where this fits in is that the whole charge is that they were (a) engaged in collusion with the Paula Jones lawyers from November to January of — November of 1997 and (b), that they hid it from the Justice Department. Well, they certainly didn’t tell the Justice Department we’ve been in collusion with Paula Jones’s lawyers; they said they hadn’t. So the question is were there? If they were in collusion with Paula Jones’s lawyers, then I would agree with Tony that they misled the Justice Department and that’s serious. But I think there’s no strong evidence that they were in collusion and I’ll detail that if you’d like.

JIM LEHRER: Why is that important — that if, in fact, there was this contact ahead of time before Starr went to Janet Reno and one of his lawyers had, in fact, been in contact with a lawyer for Paula Jones, why is that a big deal?

STUART TAYLOR: I think it’s initially at least troubling because it raises the specter– if it happened and I don’t think it did –

JIM LEHRER: Okay. If it happened.

STUART TAYLOR: — and if it happened in a substantial way — well, were they sort of plotting to trap the president somehow? Let’s get Paula Jones’ lawyers and Linda Tripp and Starr together and see how we can get a trap. That’s sort of been the underlying suspicion that’s fueled this conspiracy theorizing, and that would be troublesome and it would be especially troublesome because now, since Starr never disclosed to the Justice Department, has forthrightly denied it, the question would be, if they had such contacts and there were nothing wrong with them, why didn’t they just admit it? So the real question is, if they had substantive collusive contacts with Paula Jones’ lawyers, I agree with Tony that it would be possibly cause for removal. I don’t think there’s any substantial evidence that they did and I can run through the details.

JIM LEHRER: I’m going to ask you to do that in a moment. Your point, Tony Lewis, is that based on at least what your newspaper reported on the front page today that there may be evidence of that, right, or is it still an unresolved issue for you as well?

ANTHONY LEWIS: Well, there’s no doubt that it isn’t just a collusive or conspiratorial contact, as Stuart said. Starr’s deputy, Jackie Bennett, according to one of his own colleague’s notes quoted in the "Times" today said at that meeting, "We’ve had no contact with the plaintiff’s attorneys. We’re concerned about appearances, so if it had any contact, that statement was false and misled the Justice Department. Thousand, I can’t prove they had a contact, that’s a matter for the investigation. But it’s been quite fully reported by a number of people with the names.

JIM LEHRER: You’ve looked at it and you don’t think the case has been made yet?

STUART TAYLOR: Well, let’s talk about what happened. Paul Rosenzweig was a close friend of Jerome Marcus. Jerome Marcus, we now know, was secretly working with the Paula Jones lawyers. Paul Rosenzweig in November of ’97 went to work in Starr’s office. I believe there’s no — I have heard it said –although I haven’t talked to Rosenzweig — that he denies having discussions with Jerome Marcus about the Paula Jones case – after – during the relevant period of time — with the exception of one on January 8th, just before Linda Tripp showed up. He may have talked to him, they’re friends, friends talk. But he — my impression is that, according to Rosenzweig’s story, they didn’t talk about the Paula Jones case. And the other point, and as Tony points out, Jackie Bennett said we had no conversations with the Paula Jones lawyers. Well, they did have a conversation with these lawyers on January 8th. How do you square that? One way you might square sit that it was a secret at the time from the world that this fellow, Marcus, was working with Paula Jones. Maybe Rosenzweig didn’t know he was. Maybe if Rosenzweig knew, he didn’t tell anyone else in his office.

ANTHONY LEWIS: Can I – Jim –

JIM LEHRER: Yes.

ANTHONY LEWIS: I’d like to say something a little broader on why this is important because if, in fact, the ethical rules barred Kenneth Starr from taking on that case a year ago January, I don’t think we’d be where we are for a simple reason: In my judgment, a professional prosecutor would never have taken on this matter — would never have responded to Linda Tripp’s tapes by saying we’re going to investigate the president. He’d have told Linda Tripp to go peddle her tapes. I’ve said in a column and this I — it’s a bit awkward quoting myself but I have a reason.

JIM LEHRER: It’s all right.

ANTHONY LEWIS: Last October, I said that in a column. And I used an example. I said, I didn’t believe, for example, that Robert Morgenthau, the district attorney of New York County and one of the most respected prosecutors in the country, would have investigated such a case after Linda Tripp brought the tapes — would have regarded it as beneath investigation. And I hadn’t talked to Morgenthau. The next day I got a phone call and the secretary said Mr. Morgenthau wants to talk to you. And I thought, oh, dear, I got it wrong. He got on the phone and said, "you’re right."

STUART TAYLOR: May I offer a counter example?

JIM LEHRER: Sure.

STUART TAYLOR: Henry Ruth. Henry Ruth, who is a deputy to Archibald Cox, that’s Watergate’s special prosecutor, he took over the office after the Saturday night massacre, he became the deputy to Leon Jaworski and then he became the Watergate special prosecutor. He’s a liberal to moderate Democrat, who wrote a series of articles in the past year taking very seriously the need — I don’t know if he specifically said yeah, if I’d been Starr I would have investigated this. But he certainly said that he thinks there’s very serious evidence that crimes were committed, serious crimes, Watergate-type crimes. So there’s one. I’ve talked to others. Just to double back to one point since Tony accused Jackie Bennett of illegal grand jury leaks. That’s been denied, it’s never been proven. There’s lots of allegations, never any proof. I would be surprised if it ever turns out when the litigation is finished if that’s what the courts hold, but we don’t know. Tony also said that they clearly violated Monica Lewinsky’s rights, by which I assume he may have been referring to her constitutional rights. Judge Norma Holloway Johnson had that case litigated before her, she held that they very clearly did not violate Monica Lewinsky’s rights.

ANTHONY LEWIS: But, Stuart, at the time that Judge Johnson made that ruling –

JIM LEHRER: Let him finish.

ANTHONY LEWIS: — it was on a collateral matter and she didn’t have facts before her and, in fact, she expressed concern about the matter that I mentioned before, the trying to get Monica to sign an immunity agreements which is specifically forbidden by Justice Department rules.

STUART TAYLOR: Let me address that. Judge Johnson did say she’s troubled by that. That’s not a matter of Monica Lewinsky’s constitutional rights.

ANTHONY LEWIS: No. I agree, that’s the rules.

JIM LEHRER: Hold on, Tony. Let him finish here.

ANTHONY LEWIS: Sorry.

STUART TAYLOR: My understanding of the facts is there may have been a mention in the course of this long conversation with Monica Lewinsky on January 16th that, well, maybe we could have an immunity agreement. It didn’t go anywhere, they didn’t agree to immunity, she got a lawyer, it took many months before they actually had an immunity agreement. If there is a technical violation there, it was not a very serious one and no harm came of it.

JIM LEHRER: Look, we’re not going to be able to resolve all of these individual issues tonight but I want to get — go to the broader – back to the broader issue. Is it time, Tony, for whatever — however he got there and all of that, that will all be sorted out somewhere, is it time now for Kenneth Starr to go one way or another, either on his own, step aside, or for Janet Reno to remove him, get out of the picture? What’s your view of that as an individual?

ANTHONY LEWIS: I think it would be in Kenneth Starr’s interest to go, but I believe for a long time that he will not go because he is determined to criminally prosecute this president if not before he leaves office, which is what our story last week said he was considering, then the day he leaves office or soon afterward. I’ve always thought that Mr. Starr would stay in that job until January 20 or 21, 2001, so he could indict Bill Clinton. Now, I hope I’m wrong because I think it would be in Mr. Starr’s interest and certainly in the country’s interest to get rid of this thing.

JIM LEHRER: How do you read Kenneth Starr’s desires and intentions at this point, Stuart?

STUART TAYLOR: You know, I’m not a mind reader and I haven’t any idea what his intention is. I tell you – I wrote a year ago this month that he should resign because he had lost credibility — fairly or unfairly. And the investigation would be more credible headed by someone else. He didn’t do that. I frankly don’t think it would make sense for him to resign right now while people are accusing him of being a criminal. It would look like he’s cutting and running. If the president — if the attorney general finds solid evidence that he has committed gross prosecutorial misconduct, she should fire him. If she doesn’t and this peters out, I think it would be — it would make sense for him to resign when the dust settles and hand this off to someone else who can make the important decisions still to be made on whether to prosecute President Clinton to someone who can make it without being instantly attacked as –

JIM LEHRER: You would agree, though, that Kenneth Starr shouldn’t be the one to make that decision on whether to prosecute the president?

STUART TAYLOR: That’s my personal opinion.

JIM LEHRER: And you agree with that, Tony you just said that.

ANTHONY LEWIS: I do.

JIM LEHRER: Okay, gentlemen, thank you both very much.

STUART TAYLOR: Thank you.

The post NewsHour: Investigating The Investigator – February 10, 1999 appeared first on Stuart Taylor, Jr..

MARGARET WARNER: Tom, the Senate is behind closed doors debating this. Why has this witness dispute become such a big issue in these proceedings?

TOM OLIPHANT: Because I think, Margaret, it is a metaphor for how long is this trial going to last. I don’t think witnesses per se have importance. I think the claims on both sides today made it clear that no one is saying that somebody is going to come forward and say something dramatic. But rather than argue about the specific length of the trial, witnesses have in a sense become the metaphor. What’s happening now I think has been arranged inside the senate Republican family. It appears to be working in the sense that it will have a majority. But it makes the House managers livid.

MARGARET WARNER: Why does it make them livid?

TOM OLIPHANT: Because they feel that their opportunity to put on the kind of trial that could have persuaded the senate, that could have persuaded public opinion has been limited to the point of ineffectiveness. And their expressions of frustration on the floor today and yesterday, but particularly yesterday, I think are just the surface of a genuinely deep fury at having the rug pulled out from under them.

MARGARET WARNER: Do you agree, Stuart? I mean, they made an incredibly passionate case for these three but they’re livid about it and they feel they need more.

STUART TAYLOR: I think that’s true. I think they might be satisfied if they got what they’re asking for now. I’m not sure they’d still be livid, frankly. But one dramatic factor here is if they don’t get the witnesses vote, this will be over by Friday and they will lose, and the president will be acquitted and he will have a victory party rather quickly. And they will slink back with their tails between – well, maybe not with their tails between their legs. So not only do they feel that in fairness they deserve this, but they know they will lose and be humiliated if they don’t get it. And they’re arguing that this is — it’s going to take a week or two. Why not do it right?

MARGARET WARNER: Do they think they can change enough votes to win the conviction of the president with witnesses?

STUART TAYLOR: I very much doubt that any of them would bet money on that happening. Some of them probably haven’t entirely given up on something dramatic happening. But I think really what they want to do is make a record, try and affect public opinion and move maybe some votes. I think they probably do hope and realistically hope that they can get more votes against the president with witnesses than they can without. I doubt that many of them think they can get to the two-thirds needed to remove him.

MARGARET WARNER: All right. Flip this around. Why is the White House so concerned about having these — as Henry Hyde called them — "pitiful three witnesses"?

TOM OLIPHANT: Maybe I’m wrong about them but my sense during the course of yesterday and today, Margaret has been that public White House opposition or expressions of peak or anger or even threat, i.e., David Kendall, dissipate with every hour that passes, and that, in fact, if one could try to describe a consensus White House view, I would stick my neck out and say it is that if we hear this right, this is a scenario for ending this trial sometime next week, it seems very cut and dried, sharply limited, boundaries constructed around these three witnesses, what’s the problem, let’s go through, it we see an end, no big deal.

STUART TAYLOR: Although that’s not what David Kendall seems to be suggesting on the senate floor today when he talked about discovery, thousands of documents, dozens of people, months and months.

MARGARET WARNER: Explain briefly for non-lawyers, what’s discovery?

STUART TAYLOR: Discovery is the use of legal compulsion to get information for one side in a legal fight. In this case he’s claiming he needs to see everything in Kenneth Starr’s files. In a normal criminal case there’s a very limited right of the defendant to have anything that the prosecution has that exculpates him, that suggests he’s innocent. I’m sure the House managers and Starr would say in this case the president already has all of that and more.

MARGARET WARNER: Are you saying this is a bluff?

TOM OLIPHANT: Not a bluff. I mean, he is trying to preserve the president’s rights as they go forward and there are contingencies and you have to be prepared. But remember you’ve been talking a little bit about the Senate Republican House manager relationship. There is a Senate Democrat White House relationship. And I think as this unfolds in an end game, you will see the senate Democrats acting somewhat to restrain the more truculent impulses of the White House lawyers. It hasn’t really popped into public view yet but I think if David Kendall submitted a discovery request on Friday, Stuart, that was this high, you would see Tom Daschle saying something about it.

MARGARET WARNER: So, Stuart, let’s turn now to the political calculation for the Senators. Very, very tough?

STUART TAYLOR: Well, it looked tougher, I think, at a distance than it may coming up close for the moderate Republicans, for the ones who are in play here. When the managers were talking about in a way that made them think sex, salacious stuff on the floor, Monica Lewinsky, days and days, it’s going to go on and on, lots and lots of witnesses –

TOM OLIPHANT: Sounds great.

MARGARET WARNER: High TV ratings.

STUART TAYLOR: Now the managers came in today and they’ve been backed into a corner and they’re saying three witnesses, a couple affidavits, three or four days, no sex, no sweat, over. Think of the Republican senators running for reelection in 20 months. Is this going to make a difference saying okay, let’s do that? I doubt it. I think it’s getting easier politically.

TOM OLIPHANT: Fairness, you know, has been a word that works on both sides of this battle. And we’re familiar with the White House claims with regard to what happened in the House of Representatives in November and December. But there are — if you think about it — analytically anyway, there are concerns on the House managers’ side about fairness that seemed quite legitimate to me. And that to, you know, Henry Hyde did those synonyms for dismissal yesterday. He used the normal English instead of the legal point about putting a case aside. But he’s right if it looks like you took this thing and threw it in the waste basket, is that respectful of the constitutional process? Of course not. So, they have a point, too.

MARGARET WARNER: So, when Tom Daschle said today, as he did during one of the breaks, that he thought on the witness issue it was going to be a party line vote and then one reporter said what about those soft Republicans you were talking about earlier? He said "I think they’ve gotten hard." How do you explain that? Do you think he’s right? And how do you explain it?

STUART TAYLOR: I would never think of second guessing the minority leader on the vote count. I assume he’s right. I assume they’ve gotten hard because maybe they see the balance of political advantage differently than they did before. Now it is a concrete, limited proposal. I think one interesting question is whether some Democrats vote for witnesses because the same Tom Daschle two or three weeks ago said that Democrats were universally unanimously opposed to any witness, one witness. Well, if one or two or three Democrats vote for witnesses, that’s sort of interesting.

TOM OLIPHANT: And, of course, there may be one or two or three Republicans who vote the other way, not in a way that affects the outcome, only at the margins. And I think it’s important to underline that. The fundamental position is still Democrats against Republicans for.

MARGARET WARNER: Is there any way, Tom, in which if you’re a Republican and maybe thinking of not voting for conviction, that you would want to vote for witnesses?

TOM OLIPHANT: See, this is the way I want to know what happened when the doors closed last night and I want to know what’s going on with the doors closed now because I think that is the easiest point for Trent Lott to make to these people until the world. We’re going to let you go on the final vote. It’s your conscience completely. But help us out here. We’ve tightened this boundary around the witnesses, we’ve done everything we can to keep it from going crazy so come on, give us a vote. I think what’s happening is that nearly all of them are finding that a very easy thing to do.

STUART TAYLOR: You know, one thing that happened in the House and that the Senate, I think, doesn’t want to happen, they don’t want the American people mad at them for a long trial, is that if either side goes away saying we didn’t get a fair trial, this was not fair, we were not given a chance to prove our case, if either the White House or the House goes away saying that, the Senate has failed. And the House will go away saying that if the senate doesn’t give them some witnesses.

MARGARET WARNER: And we should point out that the vote tomorrow to depose witnesses doesn’t even necessarily mean live witnesses.

TOM OLIPHANT: Not at all. And, in fact, the introduction of one idea into these negotiations within the senate Republican family, namely videotaping them, appears to be part of what the conservatives would call a plot to keep these witnesses off the floor if all you have to do is sit back and watch videotapes once the process is done. So absolutely.

STUART TAYLOR: With the videotape coming to the floor, I think it would. And, frankly, from the House manager’s standpoint or any standpoint, if they can use excerpts of videotape as a floor presentation, that’s just as good as having a live witness and in some ways better.

TOM OLIPHANT: Because if you’re really telling me that this is over Tuesday or Wednesday, no harm, no foul.

MARGARET WARNER: So are you both predicting that we will have witnesses?

STUART TAYLOR: I’m predicting that the Minority Leader Daschle will probably be right again on vote counts and he thinks we will.

TOM OLIPHANT: Yes, of course. He counts well.

MARGARET WARNER: Well, thank you, Tom and Stuart.

STUART TAYLOR: Thank you.

MARGARET WARNER: Thanks very much.

The post NewsHour: Debating Witnesses – January 26, 1999 appeared first on Stuart Taylor, Jr..

STUART TAYLOR: Well, you cover it pretty well. I think the top of it is – he’s a very smart man – he’s no nonsense – as Jeff recently wrote in the New Yorker. He runs a poker game that includes some interesting players, and the idea is let’s play the poker, no nonsense. The one quibble I might have with what we just heard was the word "stern task master." Yes, he runs the court on tight schedule but he is liked and regarded as very fair in dealing with that by his colleagues.

I well remember Justice William Brennan, the late justice, one of the great liberals and the polar opposite ideologically of Rehnquist. I went to him after a bitterly, bitterly divided partisan ideological debate that led to Rehnquist’s confirmation as chief justice in 1986, and I asked Justice Brennan, what do you think of it? "I’m just delighted. He’s such a wonderful guy. He’ll be fair." Now, Brennan wasn’t particularly going to miswarrant Berger either. That might have been part of it. But I think he’s in a very different forum than he’s ever been in before because although when he brings down the gavel in the court and says counsel, your time is up, they salute, and they march away, and the other justices don’t challenge him on things like that. But in the Senate he can be overruled by 51 Senators on anything he does. And the most interesting thing for me watching him will be this. Will he try and set an aggressive tone in ruling, for example, if somebody wants censure, if there’s an argument over what evidence should come in, will he say in a clear and forceful way, well, here’s what I think and hope they don’t overrule him at the risk of

(a) being repeatedly overruled or

(b) say winning by party-line votes, and looking like he’s on one side, or will he just sit back, take a passing deferential – and kick everything to the Senators for resolution in the first instance? I’m not sure what he’ll do.

MARGARET WARNER: Jeffrey, either answer that question or give us your sense of how much of his style and his background is going to transfer to this very unusual proceeding for him.

JEFFREY ROSEN: Stuart’s question does seem like the interesting one, and in some sense his own views on impeachment may not matter that much. We learn from his books that he seems to think that impeachable offenses look very much like what the president’s lawyers suggest. They have to be crimes against the state. And he’s quite critical of the Johnson impeachment for actually lowering the bar and for threatening to remove a president from office for partisan reasons. On the other hand, everything in his juris prudence suggest that he won’t impose this view on the Senate. He’s written that impeachment is primarily a political matter that should be decided by the Senate and shouldn’t be second guessed by judges. He embodies a judicial revolution dedicated to the principle that political bodies – not courts – should make law and that at every turn judges should separate their political instincts from their judicial inclusions, and defer to the political branches. So if all this is correct, then the answer to Stuart’s question may be that he will not impose himself. He’ll resist the urge to make controversial rulings on evidence and ask the Senate to decide in the first instance. I was struck in the course of doing some reporting for this piece that in the one trial over which he presided in 1984 –

MARGARET WARNER: That’s important to point out. He’s never been a trial judge, but he once just took a flyer at it.

JEFFREY ROSEN: He did, and this is a historical event. It was routine during the 19th century but the tradition fell out of practice until 1984, and Rehnquist thought it would be refreshing to preside over a trial, much more three-dimensional, he said, than the Supreme Court, which can be very arid, so he went down to Richmond, and he did quite a good job. The lawyers for both sides told him was fair and efficient. He made a little glitch. He asked for the first witness to be called before the jury had returned to the box, but that was a small thing, but his every instinct to the lawyers’ surprise, to some degree, was to admit as much evidence as possible and let the jury decide. He resisted an effort to short-circuit the trial on a summary judgment and he really was insistent that the jury fulfill its responsibility. If he takes the same position in the Senate, then the president’s lawyers may be disappointed, as may be the Republicans, if they’re counting on Rehnquist to save them from the costs of a protected trial.

MARGARET WARNER: Do you answer your own question the same way that he’s more likely to be more of sort of a referee but not the presiding judge who just immediately rules on questions of evidence, rules on anything that comes up, that he’d be more likely to defer?

STUART TAYLOR: I’m not sure. I have a little different perspective than Jeff in two senses though. One is although clearly he doesn’t like political partisan impeachments, you get that from his book – he thought that if – and he didn’t like the Andrew Johnson impeachment. He thought that if that had succeeded, the presidency would have been weakened. It’s not at all clear to me that he would see this case as being in that category, this case where the allegations, after all, include, you know, federal crimes for which people go to prison for a long time. Andrew Johnson was accused of nothing of the kind. It was a clear, naked policy. There’s no policy debate at all underlying this. I mean, the other thing is – let’s separate substance from procedure. Whatever he might want to happen in the end, suppose the president’s side decides that they want to call Lucien Goldberg to talk on and on about which – and suppose that under a normal trial I believe this would be clearly irrelevant to the criminal proceeding. Will Rehnquist say, well, fine, you want her, you got her, or will he say, let’s set some limits here, or will he leave it to the Senate? That, to me, is where it gets most interesting.

MARGARET WARNER: But under the impeachment rules that have been laid out. Isn’t the Senate going to make those decisions anyway?

JEFFREY ROSEN: Rehnquist can in the first instance decide himself, or he can refer it to the Senate to decide without opposing his own view. He’s quite critical of the Johnson Senate. He said the reason that the trial took months longer than anyone expected was because the Senators insisted on their prerogative to argue about the contestability of every bit of evidence. Now here the personality of the chief justice may be quite important. It’s not hard to imagine Rehnquist’s rather grandiose predecessor. We saw before Warren Burger asserting himself and making contested rules of evidence and writing long memos designed to persuade the Senate to defer to his authority, and they will defer to the chief justice because he carries a lot of weight, but Rehnquist, by matter of temperament and also juris prudential conviction I would imagine on the controversial questions, not on everyone who make many rules of evidence, but on questions like who should be heard and ultimately what is an impeachable offense, I would assume he would defer to the Senate and not reveal his own views.

MARGARET WARNER: In his book, which you have right there, Stuart, does he write about what he thinks is the proper role for – or can you glean what he thinks is the proper role for the presiding officer in this – in a presidential impeachment?

STUART TAYLOR: I’ll answer quickly since I think Jeff knows the book better than I do. I’ve only skimmed it. I think he saw that Chief Justice Solomon Chase, if that’s how you pronounce it, was (a) tried to be forceful and (b) had it thrown back in his face, and the Senate kind of overruled him again and again. I don’t think he wanted that to happen. I think whatever else he wants to happen he doesn’t want in the end to look as though they didn’t take him seriously, they didn’t defer to him, or as though he clearly took sides. Within that limit I would think he would see the chief justice’s role as trying to add to the dignity and he likes things to happen fast. I don’t think he wants to be here trying this case in March.

JEFFREY ROSEN: I was so struck by the fact that he used the words when he entered the Senate chamber – they were nearly identical to those that he quotes Chase as using in the Johnson impeachment. I attend the Senate in obedience to your notice and am now ready to take the oath. This is a man who’s so conscious of the president — he also notes in his book that Chase – when he announced the acquittal of the president, after polling each Senator, used the very same words that Aaron Burr had used in announcing the acquittal of Justice Chase – this is a different justice.

MARGARET WARNER: Different justice.

JEFFREY ROSEN: In 1805 – 2/3 having not voted to convict but the impeachment articles are rejected, so – so conscious of president, so wonderful to see him actually attending to all that, and I can’t imagine, though, that he would tell us his substantive views on impeachment.

STUART TAYLOR: And I don’t think you’re going to see him saying case dismissed either.

MARGARET WARNER: No, not his role.

STUART TAYLOR: Unless there’s a vote and he says, well, they voted to dismiss it.

MARGARET WARNER: Let’s shift to what we can expect tomorrow. The House managers begin laying out their case. Stuart, what are the most telling points we should be looking for, we should be expecting?

STUART TAYLOR: I don’t think there will be anything new to people who followed their earlier presentations, except it’ll be more detailed, it’ll be more polished, and it’ll be the best chance they will ever have to do something they’ve failed to do so far, which is persuade the American people that maybe the president should actually be – there will be more people watching. Henry Hyde, the chairman, will lead off with the brief kind of theme setting how serious this is, how important it is, the rule of law, and then they divide it up into teams, and will spread over two or three days perhaps the first – first facts – a bunch – three or four of them emphasizing the chronology. I think they will try and get people into the story line. This isn’t just about an isolated event here, an isolated event there. Look what he did then and look why he did it.

Why did Vernon Jordan start working hard to get her a job on December 11th? Because that was the day the judge ruled he could question her. That’s why that sort of thing. Then they’ll go to the law of perjury and obstruction of justice to try and prove that the president has committed those crimes to try and disprove all the arguments we’ve heard from the president’s lawyers and others that nobody would ever get prosecuted for that, and then the law of impeachment and then a thematic closing – by Hyde perhaps and others.

MARGARET WARNER: And do the president’s lawyers – they’ll be sitting there tomorrow, correct? Do they have any role whatsoever? I’m not even sure if I know they’re going to be sitting there, but I assume they will.

JEFFREY ROSEN: They will be. The White House is so cagey on this matter that when I asked them this question a few hours ago, they would confirm that, indeed, there would be lawyers, probably Charles Ruff, Gregory Craig, and David Kendall, and maybe some others, who we wouldn’t learn about until tomorrow, but they wouldn’t say much more than that. And we know that under the rules of the Senate accepted the White House could have argued motions today. They chose not to do that, so one would assume that their role tomorrow would be largely silent. You can’t imagine them jumping up and objecting because it’s not really the time to talk about motions of evidence. Presumably they’ll be there, but they won’t have a central role until their presentation comes up after the 24 hours have elapsed.

MARGARET WARNER: Why didn’t the White House make motions or challenges based on many of the objections they raised today in their brief to the very constitutionality of these charges and the way they’re being put together?

STUART TAYLOR: I think they’ve telegraphed their major motions, which are throw the case out, it’s not impeachable, and it’s not – aside from that, the charges are drafted so poorly that we haven’t got adequate notice, and – but the Senate had made it clear when they voted for this elaborate procedure 24 hours for this-24 hours for that side – that the time for those motions to get seriously considered is after both sides have had their first 24 hours as much as they take, and then the White House it will be timely for them to make a motion to dismiss on whatever grounds they want and then simultaneously the House managers will make a motion for whatever witnesses they want and it’s set that the arguments over whether to have witnesses, the focused arguments, will come before the vote on whether to dismiss, which is a fairly ingenious procedure, I think, to sort of let everybody take their best shot at persuading before the Senate makes any important decisions and before they start the partisan brawl that will no doubt start sooner or later.

MARGARET WARNER: And it is telling that these procedures were all laid out either in Senate rules or the Senate compromise made by the Senators and not by the chief justices?

JEFFREY ROSEN: Indeed, and it – we can expect that when the important efforts to change a set of rules – for example – the resolution produced by Senator Harkin to open the proceedings and the deliberations, that too will be made by the Senate, and the chief justice won’t tell us what he thinks about that either.

MARGARET WARNER: And you’re talking here about the rule that actually says any debate must go on behind closed doors, and these are two Senators who want to open it up?

JEFFREY ROSEN: Adopted in the 19th century and perhaps not appropriate for today.

MARGARET WARNER: All right. Well, thank you both very much.

JEFFREY ROSEN: Thanks for having us.

STUART TAYLOR: Thank you.

The post NewsHour: A Look at the Chief Justice – January 13, 1999 appeared first on Stuart Taylor, Jr..

PAUL GIGOT: Oh, he has some personal contacts among senators, obviously. He was their leader for a time on the Republican side, and he has some moral authority as a former Republican candidate, well respected figure. So there may be people who heed him. I think it’s a little easier to have censure in the Senate because you’re now ñ than it was in the House ñ because you’re now in the punishment stage; you’re now in determining how the ñ how the case ultimately comes out. He has been impeached. And I think that in terms of heeding the Constitution, nobody doubts that the Senate can do what it wants. I mean, there was some debate about what the House could do, but nobody doubts the Senate can dismiss the case if it wants. It can agree to some kind of plea bargain, or it can go up to it and remove the president.

NORMAN ORNSTEIN: Margaret, this is where there are now two crucial figures who will come to the floor ñ Trent Lott, the Senate Majority Leader and Tom Daschle, Senate Democratic leader, who’s also very close to President Clinton. Trent Lott will have a major role in determining whether the Senate now moves to a trial and then after that point reaches a different stage, or whether something else can happen. And the events of the next week or ten days are going to be very important in determining whether or not he makes the political judgment that maybe we should not hold a trial or short circuit in some fashion and ñ or whether we orchestrate a way of getting through this.

MARK SHIELDS: First of all, Barney Frank ñ I think by consensus one of the smartest members of the House Judiciary Committee ñ seemed very upbeat.

MARGARET WARNER: Practically declaring victory.

MARK SHIELDS: Exactly. For having the House vote on the impeachment of the president. I think this becomes a test now of the sincerity of those on the other side. A vote for impeachment was a vote to convict Bill Clinton. I think that was the argument that was made; that was the argument that was agreed to. Now, if all of a sudden it becomes, well let the Senate do what it wants, then I think the motive of those who pushed so hard for impeachment are open to question and suspicion that they were really interested in impeaching Bill Clinton, to make him the first impeached president since Andrew Johnson, thus disabling, discrediting him, and this was a political, rather than a constitutional question. And I think that is open to doubt and resolution at this point. I thought when Chris John, the young Democrat from Louisiana, made the point today — you have lost two of your own ñ after Bob Livingston ñ referring to Newt Gingrich and to Bob Livingston ñ and we have lost the bipartisan spirit, and Chad Edwards, the Democrat, asked when will this mindless cannibalism end ñ Bob Livingston made a statement today, which very few Republicans have made recently, and that is ñ I’m proud to serve in this institution ñ we’ve had an awful lot of people ñ it was Democrats a generation ago ñ it’s been Republicans recently running against ñ the House of Representatives as ethical eunuchs and moral lepers ñ would steal a hot stove ñ they’re terrible people, and, you know, it’s an awful place. And Bob Livingston said, I love, I’m proud to serve in this institution, and I respect every member; it was an interesting valedictory from a man who is facing such an enormous personal and political crisis from the height of power. I mean, the only constitutional office described in the entire ñ for the legislature ñ for the Congress ñ I mean, number 3 ñ

MARGARET WARNER: The line of succession.

MARK SHIELDS: And to leave ñ and to leave that ñ I mean, that is truly a dramatic, profound event.

MARGARET WARNER: Stunning. Some further thoughts from Elizabeth and her panel.

ELIZABETH FARNSWORTH: From each my group briefly, your response to what you’ve just heard from Barney Frank, or what you just heard at the table, and then we’re going to talk about how you each see the consequences of this for the country. Yvonne.

YVONNE SCRUGGS-LEFTWICH: With Barney Frank I see the poignancy of the loss in spite of his ability to be balanced but Mark Shields makes an excellent point. When I came here this morning, I thought of meltdown, of the institutions that represent the public interest of this country. And it just became molten lava in the course of the day. And I think we all have a lot of reconstructing and analysis to do because this is our government and we’ve got to make sure that steps are taken to reinforce it as we go forward.

ELIZABETH FARNSWORTH: Stuart.

STUART TAYLOR: I think a big question as we go forward is: Do we have a crippled presidency, and does that play into everybody’s decision on what we should do about it, that public opinion ñ senior Democrats? Also, after all the talk of cannibalism, I saw some very impressive people out there today, both Democrats and Republicans in the House of Representatives. Speaker Livingston ñelect-Livingston ñ of course ñ Minority Leader Gephardt, Tom Campbell, Jim Rogan, Charles Schumer ñThese are first-rate public servants, a lot of them, and I think amid all of the talk of how we degraded ourselves and have gone into the sewer ñ let’s remember that ñ some of them are pretty impressive.

ELIZABETH FARNSWORTH: David.

DAVID GERGEN: Well, a couple of points. I hesitate to disagree with my friend, Mark Shields, but I do believe a number of Republicans, such as Henry Hyde and Bill McCollum, made the point that if the Senate decides on a censure, so be it; that’s not within the frame work for the House to decide, and they sent it to the Senate to resolve that issue. So if they now turn to censure in the Senate, I don’t think that, in effect, casts suspicions on what the House was up to on the House Republican side. In addition to all the other players we’ve said we need to keep an eye on, like the president in the next 24 to 48 hours, I think it will be very important to watch where Senate Democrats, such as Senator Lieberman, Senator, Moynihan, Senator Bob Kerrey from Nebraska, are. Do they wish to push forward for a trial, or do they wish to go to a compromise? They may hold the key to that question because they have spoken out, especially Senator Lieberman. We have heard less from Senator Moynihan, but I don’t think there’s any doubt about their body language, so we’ll have to wait and see where they come out, and that will have a great deal to do with where this goes.

ELIZABETH FARNSWORTH: Okay, Haynes, quickly on that, and then I want you to tell us what you think the consequences of this are.

HAYNES JOHNSON: I disagree with David. I agreed with you so much about that ñ those Democrats now hold the key. The House focuses on the moderate Republicans, so called, that was the key to whether Mr. Clinton was going to be impeached. Now whether he survives rests in the hands of the Senate Democrats, particularly those three you’ve just named. You said about consequences?

ELIZABETH FARNSWORTH: Yes. What do you think the consequences are for the people of the United States?

HAYNES JOHNSON: You know, we are at a weakened point in our politics right now. The political system has also been on trial here. The ability to reach compromised consensus ñ to move forward ñ this has been true for at least a generation. After the Civil War, we moved for a period of embittered politics where the Southerners were destitute and poor and angry at the Northerners for waving the bloody flag of that period, to say nothing of the racial relations and segregation that took its place in that period. That was a terrible period in our history, a period of scandal, by the way, and corruption, the Grant administration and so forth. This period ñ I agree with what Yvonne said earlier ñ and we’ve talked about before ñ the imprint on the public cynicism and disbelief in our political leaders ñ distrust in institutions ñ we vote less and less. We believe less and less. So this is a time where the whole American political system is on trial. And how all of them rise to that challenge, that’s our future.

ELIZABETH FARNSWORTH: Stuart.

STUART TAYLOR: I agree with that, and there are so many causes. One of them always seems key to me: trust. And that’s in a way what all of this is about. I don’t know whether it was different. I think it was with Abraham Lincoln, but politicians so often ñ and this goes against what I said a minute ago ñ just won’t tell the truth, or they’ll shade it. That’s why President Clinton stands impeached. But the arguments that I heard coming from the Democratic side in this case and coming from the Republican side ñ often in the Iran Contra case ñ when the going gets tough, the politicians start lying. And I think the public sees that, and I hope at least that the public will reward politicians who come across as straight arrows who tell the truth and look a little bit more to that and a little bit less to whether they come with the prescribed set of ideological beliefs that happen to match the voters’ immediate preferences.

ELIZABETH FARNSWORTH: And David. Go ahead, Yvonne. What do you think the consequences are?

YVONNE SCRUGGS-LEFTWICH: Well, there are ñ I think there are two dimensions to governance. One, of course, is the political side, and the other, of course, is the public servant side, the people who run the government between the elections, and I’m concerned that the cannibalization of public ñ people in the public arena overall is going to continue to lower the standards for people who enter public service and is going to take our best and our brightest to other venues.

ELIZABETH FARNSWORTH: Are you seeing that among your students?

YVONNE SCRUGGS-LEFTWICH: I’m seeing it among students. And I told the story of this class of 21 graduate students leaving the Fellow Center for Government, University of Pennsylvania, most of the Rhodes scholars or Fulbrights who ñ only one of whom was going into public service and who explained that by saying, we’re not going to expose our families and ourselves to this kind of unrelenting attack and this venomous intention to get us just to have jobs that don’t have good perks, bad hours, and low pay. And I think we’re going to continue to see that, and I hope not, because I’m reminded of a quote I always use with my students from Rousseau from the "Social Contract," where he says as soon as public service ceases to be the chief concern of citizens, the fall of the state is not far off. And I certainly think that at this point there is a feeling that things may have dissembled; we’re coming apart at the center; and there is some concern, like there was after the impeachment of Johnson, that we don’t enter a period of great disorganization and hostility and balkanization, and that we continue to get good people to come and govern us.

ELIZABETH FARNSWORTH: David.

DAVID GERGEN: Well, perhaps I could draw on history again, in this case Watergate. After the trauma of Watergate, two things happened which helped enormously: One was there was a sense in the country that for all the problems we’ve been through and all the divisions we’ve been through that the resolution of it was satisfying, that the court system worked, the Congress worked, even the press got kudos for that period. This so far has left us deeply polarized, so I think the question in the Senate in the next few weeks will be: Can the Senate help to bring closure to this in a way that leaves us all more satisfied with the outcome? That’s one. The second is that after Watergate, Gerald Ford came into office and was able in his early speeches, in his actions to begin a healing process. Here we’re going to be in a situation where we have the same president in office for probably two years. How do we heal with the same man in office in the aftermath of this? I think that’s going to be a real challenge for all of us.

ELIZABETH FARNSWORTH: Haynes, you’re writing a book about our period.

HAYNES JOHNSON: Yes.

ELIZABETH FARNSWORTH: And about the divisions, cultural, political and all the other kinds of divisions that have rent this country for the past ñ what ñ 20 years ñ is that what your book’s about?

HAYNES JOHNSON: Well, the ë90s and beyond but ñ it’s also what we’re seeing ñ this is part of the text right here, what we’re talking about right now.

ELIZABETH FARNSWORTH: Yes. In what way? I mean, is this sort of the ñ is this emblematic? Is this the symbolic moment that shows these ñ these divisions that you’re writing about?

HAYNES JOHNSON: I appreciate your opportunity to talk about my new book, but ñ

ELIZABETH FARNSWORTH: You’re not done with it yet, so we’re not selling.

HAYNES JOHNSON: I haven’t even started in that period, but ñ look, we’re ending this century at the best time of the United States in its history if you look at it objectively, economically, scientifically, technologically. We’re at peace; we have no wars. Nobody’s threatening us. Saddam Hussein is not Goebbels and Goering or Hitler ñ the Pans Allegiance and so forth ñ in all these areas we are the exemplar of the world. What’s been missing for a generation now ñ the hollowness and destructiveness of our public life ñ on both sides ñ including the rapaciousness of the press, the destructive ñ so it is the Dickensian best and worse. And this challenge we’re going through right now is exactly going to tell us whether we’re up to what you’re talking about for not only the short term but the long term. I’m an optimistic, I mean, I think Americans have always risen to challenges when they face it, but I must say this has given ñ this is the whole text of the public side of the equation, and that’s still in jeopardy.

YVONNE SCRUGGS-LEFTWICH: And the public’s participation in the culmination of this scenario I think is going to be critical. If the public feels foreclosed and if they feel that they’re being trivialized, then ñ

HAYNES JOHNSON: Or the idea you don’t need a government ñ we’d all like to have no government. I don’t want to pay taxes and so forth, but the fact is that’s why we ñ we need each other to our future.

ELIZABETH FARNSWORTH: Well, thank you all very much for being with us all day today and most of yesterday.

MARGARET WARNER: All right. Back now just for some concluding thoughts. First of all, the Republicans right now are meeting in their conference, in their caucus up on the Hill to decide what to do in the wake of Mr. Livingston’s decision. Meanwhile, the Democrats are reportedly on their way just about there at the White House to meet with President Clinton, the Democratic leadership and their members. Then the president, it is said, may come out and say something publicly. If he does, Paul, what tone does he have to strike?

PAUL GIGOT: I think he needs to strike a tone that can go to what Jim Leach called reclaiming the moral underpinnings of his presidency. The strategy the White House has tried ñ which has been to attack more often than not his opponents ñ blame it on Ken Starr ñ blame it on the Republicans ñ has not worked. It has now backfired and ended up in his impeachment. He has to show some respect for the institutions he’s going to be dealing with, particularly the Senate, and try to show some humility, and begin to work with members of both parties, Senators of both parties to see if we can get a resolution to this either short of trial, or in a trial.

NORMAN ORNSTEIN: Margaret, I think the president has to recognize the shifting political and moral ground here. The argument had been that we had to have this impeachment to have a trial in the Senate, and now it’s going to be a firestorm call for resignation, led by Republicans, but including many people who aren’t Republicans, many in the press probably doing the same thing, and I think that has to be stopped in a hurry. I think he has to meet that head on without defiance but with a certain resoluteness; I think he has to acknowledge that this is a serious situation, and he has to avoid partisanship, or any sense of partisanship, even though Democratic leaders are going to this meeting at the White House, and I think that’s the tone, that’s the mood that this is ñ he knows how serious it is ñ how brave it is ñ and he intends to meet the challenge head on and cooperate completely. You know, we had one very important chapter in American history closed today, the 19th of December. Another one will close on January 6th, when the new Congress comes back and the Senate formally takes this up. What happens in this chapter is very, very important. And that’s why what the president says today will set some part of the tone. What happens to him now as we move towards the trial, including the tremendous pressure that’ll be out there to resign. The tone he takes as it will affect the Joe Liebermans of the Senate and his own Democrats and the Republicans ñ how we frame this in terms of what the Senate might do between now and then ñ how the public reacts to what might be a prolonged period of uncertainty ñ all of these were crucial things. Then on January 6th, we start at least the beginnings of a very significant final chapter in this, or at least one of the final chapters.

MARK SHIELDS: This week we lost a gentle giant, Mo Udall of Arizona, a man who had laughter in his soul and steel in his character, and his candidacy for presidency was born in the aftermath of the 1974 impeachment because the public respect for the House as an institution made his candidacy for president plausible as a House leader. I ñ I’m sad to say I don’t see how any national candidacies being born from the process we just watched.

PAUL GIGOT: The biggest threat to the president right now is going to be the call for resignation. The people are going to argue that Richard Nixon spared the country a resignation by ñ and spared his party a trauma by resigning, and the president is ñ if he’s not going to resign himself, he’s going to have to try to go to the country and explain why he should stay in office and resist that call.

MARK SHIELDS: Richard Nixon had six votes in the United States Senate when he resigned the presidency; Barry Goldwater, John Rhodes, Hugh Scott, the leaders of the Republican Party went to him and told him he was finis; it wasn’t an act of chivalry. He just got out before the moving company arrived.

MARGARET WARNER: All right. And our moving company has arrived. Thank you all three very much, Norm, and Mark, and Paul.

MARGARET WARNER: And this concludes our coverage of today’s historic proceedings in the House of Representatives. As I said, we’ll bring you the expected statement from the president later this afternoon, if it happens, and we’ll be back tonight on many public television stations with a one-hour summary of the debate. Please check your local listings for the time. Finally, we’ll see you online and on the NewsHour Monday evening with extensive reaction to and analysis of today’s impeachment of President Clinton. I’m Margaret Warner. Thank you and good afternoon.

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JIM LEHRER: Margaret, the plan for the day is what?

MARGARET WARNER: Well, as you said, Jim, first we’re going to hear a panel of five lawyers, former prosecutors or current prosecutors. And they’re going to – very much as yesterday – talk about the standards for prosecuting both obstruction of justice and perjury. The sort of star witness –

JIM LEHRER: In criminal – in a criminal –

MARGARET WARNER: In a criminal –

JIM LEHRER: If this was, in fact, a criminal case.

MARGARET WARNER: Exactly.

JIM LEHRER: That’s what they’re going to be talking about.

MARGARET WARNER: That’s right. And clearly, you know, they’re going to support the White House view that it would be very difficult to prosecute the President for either of these. The sort of start witness, if there is one, is going to be William Weld, the former governor of Massachusetts, who as a young law school graduate was on the Watergate impeachment committee staff. But I would say the main event is going to be the 1 o’clock presentation – the beginning of his presentation by Charles Ruff, the White House counsel. He’ll have three hours to really lay out the President’s case, both on legal grounds but also on factual grounds, trying to follow up on the report that they issued last night here on the rebuttal they issued last night, and then the committee –

JIM LEHRER: That’s the big 180 – why don’t you hold that up?

MARGARET WARNER: One hundred and eighty-four-page document that Henry Hyde has also said –

JIM LEHRER: Tom and Stuart have read and memorized every word of that.

MARGARET WARNER: Oh, good, good.

JIM LEHRER: So we’ll go through that with them in a moment.

MARGARET WARNER: Footnotes too, I hope.

JIM LEHRER: Right. Exactly.

MARGARET WARNER: Hyde has already said he thinks it has no new evidence and doesn’t challenge any assumptions, but the committee members will get to challenge Mr. Ruff for three and a half hours or so after that.

JIM LEHRER: Yes. Tom, you agree that Ruff this afternoon and this report is the guts of what the White House has on its mind?

TOM OLIPHANT: Not only the guts but I would say the heart, as well. The assertion will be made by Ruff orally — backed up by this – that in detail – in the actual detail of the grand jury testimony over the course of this year – you can construct a narrative that is the mirror image opposite of what Ken Starr did.

JIM LEHRER: Yes. We see Chairman Henry Hyde there talking to Congressman Barney Frank, one of the high-ranking Democrats on the committee. We have been told that there may be five, six, seven minutes before they’re ready to begin. But the presence of Chairman Hyde may change that slightly. But, yes, go ahead.

TOM OLIPHANT: You can almost pick your controversial topic as far as this case is concerned, whether it’s the gifts the President and Ms. Lewinsky exchanged and the circumstances of her filing her affidavit in the Paula Jones case. What the President’s lawyers have done and what Ruff will summarize is a narrative that in detail differs dramatically from the one that Starr constructed. I’m sure that – above all – David Schippers, the majority counsel for the committee, will want to go head-to-head with Ruff this afternoon on these points.

JIM LEHRER: And he can do that under the –

TOM OLIPHANT: That’s correct.

JIM LEHRER: — procedures –

TOM OLIPHANT: And at the end, the question will be, do you have a he said-he said argument, or do you have a clear-cut case?

JIM LEHRER: And that’s where it’s going to rest, right, Stuart?

STUART TAYLOR: Yes, except for, I guess, I lean a little bit toward the conclusion that if the President hasn’t said anything in the last three months that would dissuade people from the widespread view of even his own allies that he lied under oath to the grand jury, as well as to the judge and the lawyers in the civil deposition, I haven’t seen anything in this document so far that really lodges that. What there is, and there’s a question of emphasis – for example, one of the weaker points in the Starr allegations is that the President got Betty Currie to pick up gifts from Monica Lewinsky’s house on December 28th, and she went back and hid them under her bed. She did pick them up; she did take them back, hide them under her bed. She is his secretary.

The question is: Did the President tell her to do it? Well, Betty Currie doesn’t remember him saying that; neither does the President. And, therefore, the President in this document scores some points on suggesting that, well, maybe Starr’s conclusions aren’t warranted by the evidence. But keep your eye on the ball. That doesn’t touch the allegations that he tried to get Betty Currie to lie by coaching her on January 18th. It doesn’t touch the allegations that he perjured himself. And I think the Republicans will be hammering on the strengths and the strong points in Starr’s evidence; whereas, obviously, the President’s lawyers will be hammering on the weak ones.

JIM LEHRER: What about each of you all is reading, beginning with you, Stuart, on what the document and the White House approach is on the basic perjury thing, because that is clearly the one that this whole thing really revolves around, particularly before the grand jury, correct?

STUART TAYLOR: Yes. Well, the White House approach, as Greg Craig signaled yesterday, the President’s lawyer at this stage, is that he didn’t intend to lie. You may look at his answers and think that, gee, that’s not true, he was never alone in a room with her, that sort of thing, or he just didn’t remember being alone. But the President somehow thought he was just trying to be misleading but not trying to lie; that’s the essence of their argument. And another part of it – although they haven’t emphasized this – is it wasn’t material, the law of perjury requires that it be somewhat important to the proceeding.

JIM LEHRER: But state of mind is important, isn’t it, under the law?

STUART TAYLOR: State of mind is absolutely critical, and so on perjury, the question is how a bunch of smart lawyers can question the President for four hours about things and he can manage never to tell them the truth that they’re looking for and to say a lot of things that are false but he didn’t think he was – he didn’t really think he was lying. That’s the defense.

JIM LEHRER: Tom.

TOM OLIPHANT: Of course, the first bit of confusion that Mr. Ruff will face this afternoon, which is a very difficult position to be in, is that he does not know yet what statements by the President will be alleged by the committee to have been perjurious. We still have no charges. But to pick one example, the –

JIM LEHRER: You’re talking about the articles of impeachment.

TOM OLIPHANT: That’s right. And on the perjury ones, however they do it, with one article or two, the selection of statements that are supposedly perjurious has not been made by the committee yet. But what Mr. Ruff will do is guess. And to use the example, for example, of being alone with Monica Lewinsky, the document and Ruff’s testimony will present a much longer narrative of the President’s statements, both in deposition in January and in grand jury in August, that they say make quite clear that the President was not denying being alone with her, that he was not simply saying in one answer that he couldn’t remember whether he was ever alone with her, and that when you look at all of what he said in the grand jury as opposed to the one quote that was used in the referral, you get a completely different picture.

JIM LEHRER: Now, we talked yesterday, Margaret, about who the real audience for all of this is. Yes, there are the members of a – 37 members of the committee. Yes, there are members of the American public who are watching this on various television programs, most of them, of course, on PBS. But there are also twenty to thirty moderate Republicans who are the target audience. And I notice in the papers this morning, the daily newspapers, that’s all they talked about.

MARGARET WARNER: That’s right, because that is very much as both Marty Meehan, a member of the committee, and Chuck Schumer, another Democratic member of the committee, said yesterday, the vote in the committee is a foregone conclusion. So all of this is aimed at next week, and it’s worth remembering that today, in fact, is the last day that the President gets to make a case, at least in a congressional setting, to those members who are going to vote. So, there is one more New York Republican, who is going to announce today that he’s decided to vote against impeachment. There’s great focus on the New York delegation and on Northeastern self-styled moderate Republicans, in general. Outgoing New York Senator Alfonse D’Amato, who has not been a great friend of either Mr. or Mrs. Clinton, has, nonetheless, said publicly last night apparently at a party I think it was that he thought he should not be impeached. So there is definitely a full court press by the White House towards these mostly Northeastern and moderate Republicans.

JIM LEHRER: There was even a suggestion someplace I read this morning, Stuart, that eventually between now and the time this thing actually is voted on, on the floor of the House, which will probably be next week, toward the end of the week, that the President, himself, is going to have to get involved; it can’t just be lawyers, and it can’t just be experts, et cetera, that this thing is really going to come down to trying to get those final twenty/twenty-five votes, it’s going to get – it’s going to be trench warfare. Do you agree with that?

STUART TAYLOR: Yes. Well, it appears – and I read the same thing you did – that the White House, they’re going to watch very closely, going to keep counting noses; they’re going to hope that what they’re doing right now swings it for them. But if it looks like they’re losing, as it goes down to the wire, then the President may stop doing the business of the nation, which is the appearance he’s creating now, and starting lobbying people actively. Now, there’s also a lingering question whether he will change his defense at the last minute to give the kind of candor – not so much contrition and apologies – but candor that some people are calling for. For example, the New York Times editorial page, which has been critical of the President’s candor but has opposed impeachment, has been begging him for months to please come clean. And in this morning’s editorial they say in practical terms the President must free himself and his defenders from the paralyzing fiction that he did not lie under oath. They’ve looked at all this defense. They’ve looked at this document, and they’ve said, come on, he should just admit that he lied under oath. Now, he has never been willing to do that.

JIM LEHRER: He’s not going to do that, is he, Tom?

TOM OLIPHANT: No, I don’t believe so. And, as the strategy unfolds, I don’t –

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JIM LEHRER: Do you agree?

STUART TAYLOR: Yes. Of course, we haven’t seen the articles yet. The indictment hasn’t quite been – but we know the rough outlines of what it will be – perjury here, perjury there, grand jury – obstruction of justice, which really is in this case – boils down largely to witness tampering with Betty Currie and Monica Lewinsky. And obviously, the censure option is coming more and more into focus in this committee. We’ve seen reports that the chairman will allow a vote on censure after a vote on impeachment to give those who favor that an option. I think one thing that may be very difficult – lots of people say let’s just censure him – is okay, what is the censure motion going to say, and how do you get all the people who want to say he lied, he lied, he’s a criminal, prosecute him, together with all the people who want to say he was a naughty boy, and we don’t want to really look at it anymore, plus the people who say a fine would be an unconstitutional bill of attainder and those who like Governor Weld of Massachusetts – the former governor – say, oh, no, you can do that if he agrees to it – I think that’s going to be very tricky business.

JIM LEHRER: What about the audience beyond the committee, do – I mean, I’m talking here again about when it goes to the floor. Assuming that everything remains just the way it was before this all began, which is there’s going to be an article – at least one article of impeachment will be voted out – there may then be a vote on censure -probably not favorably – out of this committee, but it will go to the floor. How do you think what was said this morning might affect that?

TOM OLIPHANT: Well, the fact that censure keeps creeping into this more and more I think is at least a hint that it has more of a chance of coming up on the floor than it did until the last day or so. If it does, there are two theories about what’s going to happen. One is Tom Delay’s, who is the Republican whip, that if you structure the vote correctly or don’t permit its consideration on the floor, the President is going to be impeached on one count of probably perjury by a margin of five to ten votes. The other theory propounded by Rep. Peter King of New York, which is –

JIM LEHRER: A Republican.

TOM OLIPHANT: A Republican – is that if you allow this lame-duck House to vote on a resolution of censure, number one, it will pass, and number two, the article of impeachment will then be defeated also by five to ten votes.

JIM LEHRER: But you’d have to vote on censure first?

TOM OLIPHANT: That’s correct.

JIM LEHRER: Now, you see it that way too, Stuart?

STUART TAYLOR: Well, my guess is the Republican leadership will want an arraignment so that the censure vote comes after the impeachment vote. I think they want as a matter of fairness – it would look very bad if they said, no, no, nobody can get a vote on censure but as a matter of tactics, I think they want to hold people’s feet to the fire to face the impeachment up or down issue before they give them the lollipop.

JIM LEHRER: But if they vote article of impeachment, isn’t censure then irrelevant?

STUART TAYLOR: Of course, it is, but the idea is if an article of impeachment is voted down, then presumably censure would be –

JIM LEHRER: I see.

STUART TAYLOR: — appropriate. The Democrats will want to have the opportunity to choose that first, and that could lead to parliamentary wrangling.

JIM LEHRER: Now, Margaret, Stuart and Tom have both declared this thing essentially over at this point, and I’ve just assisted them in that, but we still have this afternoon, when we come back, Charles Ruff. That is a climactic moment for the president at least and the defense. He’s the president’s counsel. Tell us about Charles Ruff and what he’s likely to do.

MARGARET WARNER: Well, he’s the fourth White House counsel this president has had. He came in about 18 months ago and he’s very much known for being – in his past he’s combined, first of all, prosecutorial experience like many people in this case – Watergate prosecutorial experience – with kind of blue chip Washington law firm experience with a lot of high-priced clients. He’s also got a history of getting Democrats out of trouble. He represented John Glenn in the Keating Five Savings & Loan scandal case. He represented Chuck Robb when Robb was questioned whether he was involved in tapping an opponent. In the White House, he was at least blamed by the political side, proving the architect of the strategy of playing very much hardball with Ken Starr, saying nothing publicly. So he’s not a known quantity to, you know, the television audience, or I would say most people on the committee.

JIM LEHRER: He’s done very little television.

MARGARET WARNER: Very little television.

JIM LEHRER: And given – granted very few interviews not only in this carnation but in previous ones, am I right about that?

TOM OLIPHANT: That’s true, yes.

MARGARET WARNER: One little personal note people will notice, he’s in a wheelchair. I was interested to read recently he was not – this is not a birth defect or something that happened at birth. He went to teach law in Africa after graduating from Columbia Law School and he got some sort of mysterious polio-like disease, and he’s been in a wheelchair ever since.

JIM LEHRER: Well, we’ll talk about him some more when we come back. We’ll be back at 1:15 Eastern Time for the afternoon session of the House Judiciary Committee. We expect to hear – as we just said – the conclusion of the president’s legal defense presented by Mr. Ruff. I’m Jim Lehrer. Thank you and good afternoon.

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MARGARET WARNER: Well, this is the big moment that everyone’s been waiting for, I think the President’s detractors, as well as his supporters. This is when Charles Ruff, the White House counsel, lays out the president’s defense both factually and on the law. And he –

JIM LEHRER: And there he is, sitting. He’s already at the witness table, waiting for the committee members, and the man directly behind him is David Kendall, who is the president’s personal lawyer, now being obstructed by a – there you go – there, you can see him – just to Mr. Ruff’s left. That is David Kendall, the president’s personal lawyer, who is not scheduled to participate in this, this afternoon, correct?

MARGARET WARNER: That’s correct. He did the questioning of Kenneth Starr when Kenneth Starr appeared before the committee. But he has been kept out of a public role in these hearings this week.

JIM LEHRER: And Mr. Ruff will – will obviously be speaking – what he says will be based on the 182-page paper that the White House has offered, correct?

MARGARET WARNER: That’s correct. And, you know, we heard a lot of the Republicans say there are no new facts in it, and I think the White House might acknowledge there are no new facts. What they try to do is take other facts that were in the records amassed by Kenneth Starr and put them in a new light or arrange them in a new way, and I think that’s what we’ll hear Ruff do. Then, of course, there will be at least three hours’ of questioning by the members of the committee. They each again will get five minutes. Then –

JIM LEHRER: And that takes roughly – there are 37 members – it takes roughly three minutes –

MARGARET WARNER: It’s another three hours.

JIM LEHRER: Yes. Three hours, right.

MARGARET WARNER: It’s very clear Ruff will take his full three hours to make his original presentation, but after that, we heard Chairman Hyde suggest that David Schippers, the majority counsel, may question Mr. Ruff, and it’s unclear how long that would go for.

JIM LEHRER: Yes. Now, that’s in addition to – Schippers and Abbe Lowell, who is his counterpart of the Democratic side – they will make summary presentations of their own tomorrow, but they could both –

MARGARET WARNER: Yes.

JIM LEHRER: — be allowed to question or particularly Mr. Schippers – to question Mr. Ruff this afternoon. Tom, tell us a little bit – we talked before the break a little bit about Charles Ruff. Tell us a little bit more about him.

TOM OLIPHANT: Okay. In this case he has turned out to be a very important figure because he has advised the president throughout to aggressively defend his office, when aides were subpoenaed and assertions of executive privilege were made, it was often on his very vigorous recommendation that this happen. When other privileges were asserted, often unsuccessfully, again, Mr. Ruff was in the background. I mean, it’s interesting because in one of the charges in this case abuse of power that was in Mr. Starr’s referral, these very aggressive assertions of presidential privilege were cited as a ground for impeachment. So, on an intellectual basis as opposed to a political basis, this is an extremely vigorous advocate for the office of the presidency.

JIM LEHRER: Stuart, where do those matters stand now? What is your reading of the abuse of power, that particular element to the charges against the president, are they likely to be part of an impeachment article?

STUART TAYLOR: I really don’t know. We heard that a couple of Republicans on the committee, Representatives Pease and I think Gekas – don’t like the idea of including in an article of impeachment, the idea that someone claim privilege – executive privilege – trying to claim it – and it was bogus and therefore, we’re going to impeach him. And from the start, those – that particular charge, particularly insofar as it hinges on claiming privileges, has been widely derided by – at least by the President’s side as particularly weak, and the courts did not reject the privileges out of hand. Kenneth Starr won those fights, but not – not slam dunk. On the other hand, the abuse of power charges, as I read them, are not solely based on claiming privileges. It’s sort of where Starr tries to take the entire course of conduct beginning with the alleged perjuries in the Paula Jones deposition – even before – with the alleged suborning of perjury by Monica Lewinsky and continuing through sending the Secretary of State out to repeat the lies, repeating them to other people, stonewalling the grand jury for six months – the whole seven month spectacle. And I think Starr tries to weave the privilege claims as part of a general picture that the president was using his office – this is where he tries to take it out of just being about his private life – using his office to stonewall a criminal investigation.

JIM LEHRER: And, Tom, in the – right before the break it was actually Congressman Wexler of Florida who re-raised the issue that this was really about sex, and it had to do – the questioning of Mr. Sullivan, one of the panel of lawyers who was there – that it had to do with whether or not the president – where and how the president touched Monica Lewinsky, and it really is – that’s what this case is all about. Republicans immediately, of course, countered that. Where do you think that argument rests at this moment?

TOM OLIPHANT: It is very important to this case substantively and politically how you come out on this. We’re still – as we wait for these charges to be made public – there are many members of the House who do not want to vote for just an article of impeachment about perjury. I think that’s really –

JIM LEHRER: Meaning that he lied about some element of what he did or didn’t do with Monica Lewinsky?

TOM OLIPHANT: But sooner or later, when you peel the layers of law, you get to sex.

JIM LEHRER: Right.

TOM OLIPHANT: But that – the question then becomes: Can you frame a charge or write one about an alleged obstruction of justice or an alleged abuse of power that is capable of getting a majority even in the committee, much less on the floor, so there’s a delicate dance going on within the Republican majority really about how to frame this case. There are people who would support an article based on perjury that might oppose it if that’s all there was to the case, and then they’re having a problem coming up with a charge that can carry the committee on abuse of power or obstruction. I think they’re likely to settle, I think, on the relationship with Betty Currie in the days after the civil deposition to come up with a tampering allegation, and that may fly in the committee.

JIM LEHRER: Yes. What do you think, Stuart, on this argument it’s been there from the very beginning, when this case broke 10 months ago or 11 months ago, actually it’s almost a year now – 11 months ago – about whether it was about this or whether it was about that – and it always comes back to the two camps – this was about lying under oath, et cetera, et cetera, et cetera – no, it’s about sex.

STUART TAYLOR: One reason we can’t ever completely resolve that is of course it’s about both. It is utterly clear that if the president had told the truth about sex in that deposition, no one would have proposed that he be impeached, or at least no one would be taken seriously. And so what gave this whole – and nobody would have criminally investigated him either. So what got this into criminal impeachment terrain is the lying and the alleged obstruction of justice. And I think you can argue endlessly as to what’s really at the heart of it, and I think they’ll be arguing that on the floor, and they’ll be arguing it in the history books 100 years from now.

MARGARET WARNER: One thing I thought was interesting this morning, for months we’ve all said neither side wants to talk about the actual sexual aspects of the case, you know, who touched who and where and so on. The last couple of days we’ve seen particularly Democrats being willing to bring it up, to actually discuss it. I mean, is that a strategy?

TOM OLIPHANT: Of course, because this is how you begin to prepare the way, at least toward a possible solution. The Democrats have lie or you know, something more than mislead to give. The Republicans have this willingness to consider something short of impeachment. But I am struck – to pick up on your point, Margaret, how on each side there’s kind of a don’t go into this zone, almost a conspiracy of silence. On the one hand, the Democrats have called no fact witnesses, the Republicans are right. Why? They want to have the case decided on summary judgment. Let’s just say it’s not impeachable, get rid of it. But over on the other side, the Republicans have called no fact witnesses. The Democrats are right. Why? Because some of the witnesses conflict with each other, because it gets into sex, and it’s grimy, so that almost by mutual agreement the two sides have given a case that had no witnesses.

JIM LEHRER: Is the public perception, the perception that the public does not want to hear about the sex part, that that’s tawdry, they’re sick of that, is that what’s also influencing both sides?

TOM OLIPHANT: Bones just burned up the minute the referral went over there.

MARGARET WARNER: Then why are the Democrats starting to bring it up more and more, is it because to re-arouse the sort of public –

STUART TAYLOR: I think their objective is to trivialize the perjury; it’s just about sex – what did the president touch and when did the president touch it – that sort of thing. And it’s hard to do that, to try and get the message across as to what the perjury is about without saying what it’s about. But one thing that I think is worth emphasizing – the grand jury perjury allegation is really what I would call lying about lying about sex. By the time it was in the grand jury they had his DNA on her dress. The fact that sex, as most of us would define it – you know-had happened – was no longer in dispute, and he admitted it in the grand jury, and it’s quite clear, if you parse it, that the reason we’re arguing about did he touch her here, did he touch her there, is that the president went into the grand jury and would not admit that he had lied about sex earlier –

JIM LEHRER: In the Paula Jones case.

STUART TAYLOR: Yes.

JIM LEHRER: Right.

STUART TAYLOR: And Starr’s argument is in order to avoid admitting that he lied about sex earlier, he lied again about sex in the grand jury in terms of the details. Now it gets a little finer tuned, but that’s the essence of it.

TOM OLIPHANT: That is central. You’ve got to have – in order to keep that Republican majority together – Lindsey Graham, for example – you must have a charge of grand jury perjury, so however tortured it may be, it is essential to the Republican initiative.

JIM LEHRER: There is the chairman, Mr. Hyde. He is gaveling for order. And we’re about to launch the afternoon.

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