More Transcripts From the Hearings

By Federal News Service
Tuesday, December 8, 1998

REP. JAMES ROGAN (R-CA): Mr. Chairman, parliamentary inquiry, please.

REP. HYDE: Please state your inquiry.

REP. ROGAN: Mr. Chairman, will the written statements of the respective witnesses be provided to the members of the committee?

REP. HYDE: That's a good question. I'm not sure.

Mr. Craig, do you have a written statement?

MR. CRAIG: This is my only written statement. I'll be happy to copy it right now, sir, and distribute it among the members right away.

REP. HYDE: Will one of our staff get Mr. Craig's -- we can do that, if you don't mind.

MR. CRAIG: That's fine.

REP. HYDE: (To staff.) Jim, would you a copy?

MR. CRAIG: Pay no attention to my edits.

(Off-mike cross talk.)

REP. HYDE: Will the other witnesses have written statements that we can avail ourselves of? It's helpful for the record and for our edification.

Mr. Katzenbach?

MR. KATZENBACH: I do, Mr. Chairman. But I would appreciate it if I could have the written statement until I've completed reading it. (Laughter.)

REP. HYDE: Well, that gives you a considerable advantage, but go ahead! (Laughter.)

MR. KATZENBACH: I think with this committee I need it, Mr. Chairman! (Laughter.)

REP. HYDE: (Laughs) Touche! Touche!

MR. KATZENBACH: Do you wish me to proceed?

REP. HYDE: Please.

MR. KATZENBACH: Mr. Chairman, and members of the committee, let me first say, Mr. Chairman, that I thought your introduction was very fulsome and I appreciate it.

REP. HYDE: Good.

MR. KATZENBACH: I also appreciate the opportunity to testify before this once-familiar-to-me committee on the important constitutional question of impeachment of the president of the United States which is before this committee.

A great deal has been written and spoken on the subject of impeachment by the media, by members of Congress, by witnesses testifying before this committee, by academics and others -- so much, in fact, that it seems to me we're in danger of losing sight and understanding the fundamentals. So in the hope of simplifying a complex issue, I'd like to begin with some fundamentals that are not, I believe, controversial.

The process of impeachment is simply to remove from office upon conviction, not to otherwise punish the person involved. The Constitution provides the legislative branch, the Congress, with this means of removing from office the president, the vice president, and all civil officers upon conviction of treason, bribery, or other high crimes and misdemeanors. The threshold problem for the committee is, of course to determine what constitutes high crimes and misdemeanors which would justify removal from office of an elected president.

The phrase "high crimes and misdemeanors" is not a familiar one in modern American jurisprudence. At common law, it constituted the category of political crimes against the state, and neither high crime nor high misdemeanor have ever been terms used in the criminal law. In the United States, one of the Founders, James Wilson, made essentially that point when he wrote that, quote, "Impeachments are confined to political characters, to political crimes and misdemeanors, to political punishments."

Or, as Justice Story observed, impeachment is, quote, "a proceeding, purely of a political nature, is not so much designed to punish an offender as to secure the state against gross political misdemeanors. It touches neither his person nor his property, but simply divests him of his political capacity." End quote.

The problem which the founders faced was how to adapt this process from a parliamentary system in which there was no separation of powers to one in which separation of powers was of great importance. In Great Britain, the impeachment process was aimed at officers appointed by the crown in circumstances historically where the king himself could not be removed from office except, perhaps, by revolution, such as Oliver Cromwell's.

As the British system has evolved and the prime minister become essentially a legislatively elected official, where he or she could be forced to a mid-term election by a parliamentary vote of no confidence, impeachment has lost its punch. But in the United States, where the president is elected for a fixed term of office different from the legislative terms, the Founders thought it essential to have some means of removing him or her before the expiration of his term if he is guilty of high crimes and misdemeanors.

Now whatever that term may be found to mean, it's clear that the Founders intended it to be a limited power. Because in their debates the Founders dealt virtually exclusively with the president -- civil officers, as you know, were added later in the process -- and because for most of the convention the impeachment clause was confined to treason and bribery, they equated other high crimes and misdemeanors with, in the debates, great offenses, when that term was added.

Now, I appreciate that this brief history doesn't resolve in any decisive fashion the threshold problem the committee is facing in determining what conduct by a president justifies impeachment. But I do think it tends to provide some parameters which should be useful and which should not, at least when phrased generally, be very controversial. It's a serious matter for the Congress to remove a president who has been elected in a democratic process for a term of four years, raising fundamental issues about the separation of powers.

If that power is not limited, as it clearly is, then any president could be removed if a sufficient number of members of the House and Senate simply disagreed with his policies, thus converting impeachment into a parliamentary vote of no confidence.

Whatever its merits, that isn't our constitutional system.

Because impeachment is a political process, it's always had a strong partisan quality element and strong partisan motivation. It still does, and in a democratic political system, probably always will. But that fact simply increases the risk of subverting the constitutional system. To appreciate those risks, you need only consider the impeachment of Andrew Johnson, the president who came close to being convicted in the process, as unfair as it was partisan, which should be an object lesson for all.

The job of this committee is to weigh the facts of President Clinton's alleged conduct against the limiting provision of the Constitution: "other high crimes and misdemeanors." The job may seemingly be made more difficult because of the application of that term to judges as well as the president and vice president. But judges are appointed during good behavior, a term which significantly does not apply to the four year -- to limit the four-year term of the president. By removing one of several hundred federal judges from office, it doesn't have the same constitutional significance as removing the president. Even removal of a Supreme Court justice would raise different considerations from removing the president. And the standard is far higher than for judges, as Congressman, as he was then, Gerald Ford recognized when he proposed impeachment of Justice Douglas.

To come to the same conclusions on the same facts in such different situations would make a mockery of the Constitution and the intentions of the Founding Fathers. Only if one takes the view articulated by Senator Fessenden (sp) in the Johnson impeachment that impeachment is a power, quote, "to be exercised with extreme caution in extreme cases," can the same standard apply to both presidents and judges? One simply needs to take into consideration the different roles and responsibilities of the officers involved.

The proper way to resolve these problems, which are made more difficult by unfamiliar language than they are by clear purpose, is simply to return to the reasons for the provision. If we think of it in political, not partisan -- political terms, impeachment is designed to provide the legislative branch with a method of removing a person from office whose conduct is so egregious as to justify reversing the process by which he was appointed or elected.

It seems to me clear that in our system of separation of powers, this cannot mean simply disagreement, however sincere, however strongly felt, with either the decisions of judges or the policies of the president. It must be some conduct, some acts which are so serious as to bring into question the capacity of the person involved to carry out his role with the confidence of the public.

If I am correct, then it seems to me the fundamental question is simply whether the president has done something which has destroyed public confidence in his ability to continue in that office. If the public doesn't believe that what he has done seriously affects his ability to perform his public duties as president, should the committee conclude that his acts have destroyed public confidence essential to that office? The only question, after all, is removal of office from an elected official. Is it proper? Is it a proper role of a partisan majority in Congress to conclude that the offenses are so serious as to warrant removal even if the public believes otherwise?

I don't find the arguments for this position persuasive. First, there's an argument that perjury -- and for the purposes of this analysis, I take it to be correct -- is always so serious, irrespective of circumstance, as to warrant removal of a president. I suggest that some perjury is more serious than others. If, for example, the president were to swear falsely that he had no knowledge of a CIA plot to assassinate the speaker --

REP. HYDE: Mr. Katzenbach, could you wind up, because your 10 minutes has expired.

MR. KATZENBACH: Are you sure, Mr. President -- Mr. Chairman?

REP. HYDE: Yes. That big red light tells me so.

MR. KATZENBACH: Could I have one more minute?

REP. HYDE: Surely. But --

MR. KATZENBACH: All right.

REP. HYDE: -- I just wanted you to know.

MR. KATZENBACH: Okay. The point is simply that all perjury may be reprehensible, but it's still not of similar import when the ultimate issue is public confidence to perform the duties of office.

If the argument is made that the public's view as to what does or does not constitute a cause for impeachment is irrelevant because of the duty of the House to determine whether or not the president has committed a high crime or misdemeanor, I would agree if it were a criminal case. I would agree if the president was extremely unpopular, because I could not then separate that popularity from the acts causing the impeachment. In those circumstances, the Congress would have a particularly difficult job. But this Congress and this committee are faced with a totally new impeachment problem. Due to the existence of the independent counsel, the facts are publicly known, the areas of factual dispute relatively minor. Members of Congress have expressed concern over the evils of perjury and other alleged offenses and their serious nature. For whatever reason, the public remains unpersuaded.

Finally, I can't see any constitutional basis for impeachment.

To remove a popularly elected president requires, in my judgment, showing a great offense against the public weal sufficient to bring into the question of reasonable people whether or not he should be removed.

The threshold constitutional question, Mr. Chairman, for each member of Congress is that he must -- which he must decide, or her, can be simply stated: "Is the conduct of the president such that he should be removed from office because, as a consequence of that conduct, the public no longer has confidence that he can perform the duties of that high office?"

Remember, impeachment is a political process, a political remedy, to preserve confidence in that political process, not to punish a perpetrator.

Thank you, Mr. Chairman.

REP. HYDE: Thank you very much, Mr. Katzenbach.

Professor Bruce Ackerman of Yale.

REP./MR. : I think it's Mr. Wilentz.

MR. WILENTZ: I think I am going to go next.

REP. HYDE: All right. I think -- we have had a substitution -- (laughter) -- temporary; Professor Sean Wilentz of Princeton.

MR. WILENTZ: Thank you.

REP. HYDE: Professor Wilentz.

MR. WILENTZ: Thank you.

Can you hear me all right?

REP. HYDE: Turn the --

MR. WILENTZ: The mike?

REP. HYDE: -- switch on.

MR. WILENTZ: I believe it is on.

REP. HYDE: No. (Cross talk.)

MR. WILENTZ: Oh, there it is. Okay. Wilentz in for Ackerman.

Mr. Chairman and members of the Judiciary Committee, it is a high honor to address you today on the grave and momentous matter of presidential impeachment.

Although I appear at the invitation of the White House, I wish to make it clear from the start that I have no intention of defending the president over his confessed and alleged misdeeds. Lawyers with a far greater familiarity with the evidence than I are far better equipped to do that. Certainly, I do not think that the president is blameless in these matters, something that I have noted many times over the years in my writings.

Instead, I wish to defend the institution of the presidency, the Constitution and the rule of law from what I see as the attacks upon them that have accompanied the continuing inquiry into the president's misconduct. In time, we will learn how much these attacks have been calculated and how much they have been unwitting. Either way, they are extremely dangerous.

It is no exaggeration to say that upon this impeachment inquiry, as upon all presidential impeachment inquiries, hinges the fate of our American political institutions. It is that important.

As a historian, it is clear to me that the impeachment of President Clinton would do greater damage -- great damage to those institutions and to the rule of law, much greater damage than the crimes of which President Clinton has been accused.

More important, it is clear to me that any representative who votes in favor of impeachment, but who is not absolutely convinced that the president may have committed impeachable offenses -- not merely crimes or misdemeanors, but high crimes or misdemeanors -- will be fairly accused of gross dereliction of duty and earn the condemnation of history.

I'd like to address three basic points of historical relevance: the grounds for impeachment as envisaged by the framers of the Constitution and our understanding of them; the dangers of politicizing the impeachment process; and the relation between impeachment and the rule of law.

First, regarding the framers. The scholarly testimony on November 9th before the subcommittee regarding the Constitution showed -- alas, at mind-numbing length -- that there is disagreement over what constitutes grounds for presidential impeachment as envisaged by the framers. Yet the testimony also showed that there is substantial common ground. Above all, the scholars agreed that not all criminal acts are necessarily impeachable acts, only, quote, "treason, bribery, and other high crimes and misdemeanors" committed -- in George Mason's explicit original language, quote, "against the state," unquote, would seem to qualify, at least if we were to go by what the framers actually said and wrote. Or, according to James Wilson of Pennsylvania, impeachment is restricted to, quote, "political characters, to political crimes and misdemeanors, and to political punishments."

Now, a great deal of the disagreement among historians stems from a small but fateful decision taken by the Constitutional Convention's Committee on Style. Before the Constitution reached that committee, Mason's original wording on impeachment was changed from "against the state" to "high crimes and misdemeanors against the United States." The committee was charged with polishing the document's language, but with instructions that the meaning not be changed at all.

Yet by removing, in Article I, Section 4, the words "against the United States," the committee created a Pandora's box, which we have opened 211 years later.

The absence of the wording "against the state" or "against the United States" in the final document has persuaded some historians and constitutional scholars that the Constitution embraces all sorts of private crimes as impeachable. Yet many, if not most, American historians, including the nearly 500 who have now endorsed the widely publicized statement imploring the impeachment drive, hold to the view that Mason's wording and Wilson's observation best express the letter and the spirit of what the Framers had in mind. By that standard, the current charges against President Clinton do not, we American historians believe, rise to the level of impeachable offenses.

As further historical evidence, I would point to the fact that the only other occasions when presidential impeachment was pursued -- against Presidents Andrew Johnson and Richard Nixon -- plainly involved allegations of grievous public crimes that directly assaulted our political system.

Another pivotal piece of evidence has to do with the Nixon impeachment. In 1974 the Judiciary Committee declined to approve a bill of impeachment, an article of impeachment, connected to serious allegations that President Nixon had defrauded a federal agency, the Internal Revenue Service.

Now without question, an occasion could arise when it would be necessary to expand on the Framers' language, to cover circumstances they may have never contemplated, including truly monstrous private crimes. I would hope, for example, that any president accused of murder, even in the most private circumstances, would be impeached and removed from office. But not even the president's harshest critics, as far as I know, have claimed that the current allegations are on a par with murder.

Various representatives, scholars, and commentators have offered technically plausible though, I think, deeply mistaken and misleading arguments contending that the allegations against President Clinton rise to an impeachable standard under the definitions of crimes against the state. There has been talk of a concerted attack on one of the coordinate branches of government, of a calculated presidential abuse of power, namely, that he raised issues of executive privilege and because he lied to his aides.

But these assertions rightly sound overwrought, exaggerated and suspicious to ordinary Americans, let alone to professional historians when matched against the facts of the case.

Similar magisterial language was used in the impeachment proceedings against President Johnson and had impact in the Congress. Johnson, too, after all, had violated a federal law much more definitively than President Clinton has. Since then, though, historians have looked behind the language at the actual facts of the case as well as at the political context of the time. And in general they have concluded that the impeachment effort against Johnson was a drastic departure from what the framers intended, one that badly weakened the presidency for decades, the reason that very few of us can remember the names of all those presidents between Ulysses S. Grant and Theodore Roosevelt.

So, too, later generations of historians will judge these proceedings. I strongly believe that the weight of the evidence runs counter to impeachment. What each of you on the committee and your fellow members of the House must decide, each for him or herself, is whether the actual facts alleged against the president -- the actual facts and not the sonorous formal charges -- truly rise to the level of impeachable offenses. If you believe they do rise to that level, you will vote for impeachment and take your risk at going down in history with the zealots and the fanatics. If you understand that the charges do not rise to the level of impeachment, or if you are at all unsure, and yet you vote in favor of impeachment anyway for some other reason, history will track you down and condemn you for your cravenness. Alternatively, you could muster the courage of your convictions. The choice is yours.

Second, on impeachment and politicalization, many commentators have noted, including Attorney General Katzenbach, correctly, that presidential impeachment is, strictly speaking, a political and not a judicial matter. Yet there is all the difference in the world between a political procedure and a politicized one. A political proceeding is a deliberative, bipartisan, evenhanded effort to assess possible political offenses under the Constitution. A politicized procedure, however, overlooks constitutional standards and heeds other considerations, be they political favors, anger at the president, or pressure from party leaders. On the basis of recent press reports, I fear that these proceedings are on the brink of becoming irretrievably politicized, more so than even the notorious drive to remove Andrew Johnson from office 130 years ago.

I'd like to be able to share with you the story of that impeachment of Johnson and its relevance to our current distempers. The light has, however, turned to orange, and I don't have much time, so I'll skip over that. Perhaps we'll be able to do that in questioning.

The point that I wanted to make is that it seems to me that unlike then, when members of the House of Representatives were firmly convinced that President Johnson had committed a high misdemeanor, today it seems that other considerations are coming into play, that perhaps something else will be going on.

Indeed, compared to 1868, a perverse logic has taken hold. Some have said that we should impeach a president because we do not think the Senate will remove him, and this perverted logic turns the impeachment vote into a thoroughly politicized and a reckless move. I see the red light, Mr. Chairman, and I will wrap up.

REP. HYDE: Thank you.

MR. WILENTZ: Forget about constitutional standards and duties and do the short term political thing, sailing the ship of state into dangerous waters, uncharted in this century. Such willingness to pass the buck on so grave and indelible a matter of impeachment is a feeble evasion of responsibility and a degradation of conscience.

Finally, on the question of the rule of law, what I say in my written statement is basically that it is a greater threat to the rule of law to actually go ahead with this impeachment than not to go ahead with this impeachment. The argument that, somehow, allowing the president to get away with a suspected perjury and obstruction of justice will countenance an irreparable tear in the seamless web of American justice; that if we impeach the president, the rule of law will be vindicated if only in a symbolic way, proving forcefully that no American is above the law and that the ladder of the law has no top and no bottom. This argument, I believe, is nonsense, logically and historically, with all due respects. Rather, I believe, and we can talk about this later on, the impeachment process itself poses a far greater risk to the rule of law.

A final comment. I began by discussing President Clinton's accountability for the current impeachment mess. By equivocating before the American people and before a federal grand jury, not to mention before his family and friends, he has disgraced the presidency and badly scarred his reputation. He has apologized and asked for forgiveness. But now, as mandated by the Constitution, the matter rests with you, the members of the House of Representatives.

You may decide as a body to go through with impeachment, disregarding the letter as well as the spirit, of the Constitution, defying the deliberate judgment of the people, whom you are supposed to represent and in some cases, deciding to do so out of anger and expedience.

But if you decide to do this, you will have done far more to subvert respect for the framers, for representative government and for the rule of law than any crime that has been alleged against President Clinton. And your reputations will be darkened for as long as there are Americans who can tell the difference between the rule of law and the rule of politics.

REP. HYDE: Thank you, Professor, very much.

Now the question of the day is, is it Professor Ackerman or Professor Beer?

Professor Beer, you're next. Thank you.

MR. BEER: Thank you, Mr. Chairman, and the committee.

It's appropriate in a way I should be here for this committee, this formidable committee, since just last week I was in London advising some of my friends in the House of Commons and at a conference on the American view of the constitutional forms being proposed there; the one, and I particularly stressed, was the need for them to beef up their legislative committees. And I am sure my experience here won't change my mind on that point.

That shows you in a way what my real concern here is; mainly -- mainly -- the political and constitutional consequences of impeachment, rather than the legal and judicial aspects. The process is judicial in form, impeachment by the House being like indictment by a grand jury; and trial and conviction by the Senate, like a trial and conviction by a court.

In fact, however, the consequences of successful impeachment do not resemble the usual consequences of a judicial trial; for instance, punishment by a fine or imprisonment, as Article 1, Section 3, Paragraph 7 provides. Punishment of that kind would be invoked after the president had become a private citizen by resignation, removal or expiration of his term of office.

Removal from office -- and, see, I am emphasizing what my colleague Nicholas Katzenbach -- (inaudible) -- removal from office, that grand and forbidding consequence of a successful impeachment, distinguishes this process radically from the judgment of a court. It resembles rather a vote of no confidence in a legislature such as the British Parliament. By such a vote, the House of Commons can bring to an end the life of a government.

In 1841, Sir Robert Peel summed up this fundamental convention of the British Constitution when, in what became a classic formulation, he successfully moved that, "Her Majesty's ministers do not sufficiently possess the confidence of the House of Commons to enable them to carry through the House measures which they deem of essential importance to the public welfare."

Now to the relevance. Like a vote of no confidence, impeachment brings to an end a president's administration. Like a vote of no confidence, it relates not merely to some specific failure but is a judgment on his record and promise as a whole with regard to those -- to adapt Peel's phrases -- those measures which he deems of essential importance to the public welfare. Because of these broad and weighty consequences, impeachment is primarily a political, not a judicial, act.

As a political act, impeachment, like a vote of no confidence, passes judgment on and enforces responsibility on the executive power. In the British system, that responsibility runs directly to the legislature. In the American system, on the contrary, that responsibility runs to the legislature only secondarily and in special circumstances. For us, the responsibility of the president is essentially and directly to the voters. The legislature, as a separate office, separately elected, likewise is held accountable by the voters. This separation of powers is fundamental in our constitutional design and is a main point of distinction from the British system. The direct responsibility of both branches to the voters expresses the sovereignty of the people -- popular sovereignty, that doctrine unique with us in this time -- sovereignty of the people as the ultimate authority of our Constitution and of the government established under it.

Now, as the framers struggled to give expression to that principle, they ran into a problem: How were our liberties to be protected against misuse of power by the executive between quadrennial elections?

At the Philadelphia convention during the summer of 1787, they explored various possibilities -- an appeal to the Supreme Court, the concoction of other bodies of that kind -- and discarded them. The states similarly, thinking of their systems of governors and legislatures, were experimenting in theory and practice with a variety of methods of bridging the same gap.

At the last moment, the Framers incorporated a structure almost exactly in the form then being used in England in the impeachment of Warren Hastings. This device, although it had its ancient roots, had come to special prominence in the 17th and 18th centuries, when Great Britain also for a time displayed a certain separation of powers, as a still powerful and independent monarch faced off against the rising assertions of the Parliament. In those circumstances, impeachment was adopted by the parliamentarians as a means of enforcing responsibility on the monarch through action against his ministers.

When finally the monarch was eased out of politics, the old fusion of executive and legislative powers was taken over by a committee of the Parliament, the Cabinet. Now the interim method of impeachment, of holding on -- of getting a hold on the executive was dropped in favor of a vote of confidence, which performed more effectively in those circumstances the function of enforcing responsibility on Parliament.

At the same time that impeachment was dying out in Britain, it was picked up, taken up by Americans, who found in it a way of supplementing the principal mechanism of democratic responsibility by quadrennial elections. And this is the point: The broad scope of impeachment was embodied in a very different system. Where the ultimate sovereign is the people, the interference of one power, the legislature, in its exercise of such a dire responsibility as removal of a popularly elected president imposes severe duties on the legislators. The Congress itself, not the primary source of authority, but only a creature of the people, is acting in lieu of the people between quadrennial elections. At their best, the legislators will do what the people at their best would do, weighing the pluses and minuses of the record and the promise as a whole -- and I'm repeating what Nick Katzenbach said -- asking this central question: Does the national interest require the removal from office of this president?

It's not a little detailed question, it's a great big broad question.

In the case of President Clinton, the American people have twice answered that question by electing him to the American presidency. And if we seek further light on the present American mind, surveys of opinion continue to confirm that answer, which also in no way is disturbed by the outcome of the recent mid-term elections.

I conclude, the failure to consider the whole record of Clinton's presidency in foreign and domestic affairs could have severe long-run costs. The removal of a president, thanks to such a neglective judgment, could substantially damage our democratic system. Consider the temptations which this precedent would excite in a Congress of a different party against a future president of a different party. As a great historian, Henry Adams, said when commenting on the failed attempt of the Jeffersonians to remove Justice Chase, impeachment is not a suitable activity for party politics.

Thank you.

REP. HYDE: Thank you very much, Professor Beer.

And now, by process of elimination, we see you, Professor Ackerman.

MR. ACKERMAN: Good morning, Mr. Chairman and the distinguished members of this committee. My name is Bruce Ackerman, and I'm Sterling professor of law and political science at Yale. I request the chair's permission to revise and extend these remarks.

REP. HYDE: Do, indeed. (Laughter.)

MR. ACKERMAN: Since you have already heard so much on the subject of constitutional standards, I thought I would concentrate on two big mistakes that have characterized the discussion up to now.

The first big mistake centers on the power of this committee and the present House of Representatives to send a case to trial in the Senate. People seem to be assuming that once the present committee and the full House vote for a bill of impeachment, the stage will be set for trial in the Senate in the upcoming year. Nothing could be further from the truth. As a constitutional matter, the House of Representatives is not a continuing body. When the 105th House dies on January 3rd, all its unfinished business dies with it.

To begin with, the most obvious example, a bill passed by the 105th House that is still pending in the 105th Senate on January 3rd cannot be enacted into law unless it once again is approved by the 106th House of Representatives. This is as it should be. Otherwise lame duck Congresses would have a field day in situations like the present, where the old House majority has a setbacks in the polls.

Recognizing that its political power is on the wane, the dominate party will predictably use its lame duck months to pass lots of controversial legislation onto the Senate in defiance of the judgment made by the voters.

This abuse was very common during the first 150 years of this republic. Until the 20th Amendment was passed in 1933, a newly elected Congress ordinarily waited 13 months before it began its first meeting in Washington, D.C. In the meantime, lame ducks did the nation's business for a full session, often in ways that ran against the grain of the last election. This might have been an acceptable price to pay in the 18th century when roads were terrible and it took time for former representatives to arrange their business affairs. But over the passage of centuries, the operation of lame duck congresses proved to be an intolerable violation of democratic principles, and they were basically abolished by the 20th Amendment to the Constitution of the United States in 1933.

This amendment aims to have the new Congress begin meeting as soon as possible after the elections. The text itself specifies January 3rd. In enacting this amendment into our fundamental law, Americans believed they were reducing the lame duck problem to vestigial proportions. Perhaps some grave national emergency might require decisive action, but the old Congress was expected simply to fade away as the nation enjoyed a respite from politics between Thanksgiving and New Year's Day.

Generally, speaking, lame duck congresses have proved faithful to this expectation. For example, during the 65 years since the 20th Amendment became part of our higher law, no lame duck House has ever impeached an errant federal judge, much less a sitting president of the United States. Such matters have been rightfully left to the congresses that were not full of members who had been repudiated at the polls, and who were retiring from office.

These proceedings, then, are absolutely unprecedented in the post-lame duck era. Despite this fact, I don't question the raw constitutional power of the current lame duck House to vote on a bill of impeachment, but I do respectfully submit that the Constitution treats a lame duck bill of impeachment in precisely the same way it treats any other House bill that remains pending in the Senate on January 3rd.

Like all other bills, a lame duck bill of impeachment loses its constitutional force with the death of the House that passed it.

This point was rightly ignored before the election, since everybody expected the new Congress to be more Republican than its predecessor. On this assumption, it was perfectly plausible for this distinguished committee to proceed in earnest. If the 105th House voted to impeach, there was every reason to suppose that the 106th House would quickly reaffirm its judgment and send the matter on its way to the Senate, so it was perfectly reasonable. But now that the voters have spoken, the constitutional status of lame duck impeachment deserves far more attention than it has thus far been given.

Worse yet, we can't rely much on the past for guidance. The closest precedent comes from the 1988 impeachment of federal district Judge Alcee Hastings. The 100th House had impeached Hastings, but both sides wanted to delay the Senate trial to the 101st session, and the Senate Rules Committee granted their request. The committee's perfunctory six-page report, however, does not resolve any of the key issues raised by the present case. Hastings was a judge, not a president, and he was impeached during a normal session of Congress, not by a Congress of lame ducks.

As a consequence, the Senate report does not even pause to consider the implications of the fact that the people themselves have decisively sought to limit the capacity of lame duck Congresses by solemnly enacting the 20th Amendment. If we take this amendment seriously, it means that a lame duck House should not be allowed to relieve its freshly elected successor of the most solemn obligation it could have, to pass upon an impeachment resolution.

Moreover, if the next House of Representatives seeks to duck this responsibility, the Senate will not be free to dispense with the problem of lame duck impeachment by a simple reference to the 1988 decision in Judge Hastings' case. Instead, the Constitutionality of a lame duck impeachment will be the first question confronting Chief Justice Rehnquist, the designated presiding officer at the Senate trial.

Following the precedent established by Chief Justice Chase before and during the trial of Andrew Johnson, the chief justice will rightly assert his authority to rule on all procedural issues and the first of these should undoubtedly be a motion by the president's lawyers to quash the lame duck impeachment as constitutionally invalid unless reaffirmed by the 106th House.

Now, Chief Justice Rehnquist is in fact a scholar of the impeachment process, having written an entire book on this subject. I am sure that he will be fully aware of the historical importance of his conduct of this proceeding and will quickly grasp the obvious dangers of lame-duck impeachment.

Moreover, there are many strands in the chief justice's jurisprudence, which will lead him to give great weight to the idea that it is only a truly democratic House, and not a collection of lame ducks, that has the constitutional authority to proceed against a man who has been fairly elected to the presidency by the people of the United States. Without any hint of partisanship, he would be well within his rights to quash the lame-duck impeachment and remand the matter back to the new House of Representatives.

Since the status of lame-duck impeachment has never been briefed and argued in the modern era inaugurated by the Twentieth Amendment, it's impossible to make a firm guess as to the way the chief justice will rule on this matter. Only one thing is clear; it would be far better for the country and the Constitution if the chief justice is never put to this test.

As Alexander Bickell (sp), my great predecessor in the Sterling Chair at Yale, frequently reminded us: "The health of our constitutional system is not measured by the number of hard cases that have been resolved by clear rulings. It is measured instead by the number of statesmen in our history who, seeing hard cases on the horizon, act in sensible ways so as to avoid ever precipitating a constitutional crisis." And that's what we are going into.

If this committee and the present House choose to go forward and vote in favor of a Bill of Impeachment, I respectfully urge the new speaker of the 106th Congress to do the right thing and remit the matter once again for consideration by the new House.

Suppose, however, he doesn't do so. Suppose further that if pressed, the chief justice upholds the continuing validity of the lame-duck impeachment despite the expiration of the 105th Congress, even then the new House of Representatives will not be able to escape the need to consider whether a majority of the members newly elected continue to favor the impeachment of the president.

To see why, consider that the House must elect a group of members, called impeachment managers, to present its case against the president at the Senate trial. Without the energetic prosecution of the case by the managers, the Senate trial -- (receiving a cue that the time has expired) -- I'm sorry, I'll end up here -- the Senate trial cannot go forward. No managers, no trial. But only the new House can appoint managers. This was done in Judge Hastings' case, and it certainly should be required in the case of a sitting president facing a lame-duck impeachment.

Thus, even if a new House leadership chooses to rely on a lame- duck impeachment and refuses to allow another vote on a fresh bill before sending the matter to the Senate, there is no way it can avoid the need to test the majority sentiment of the new House. By voting against the slate of managers, a majority of the new House will be in a position to stop the impeachment process dead in its tracks. It is a big mistake, then --

REP. SENSENBRENNER: (Acting as chair.) Professor Ackerman, do you think you could wrap up?

MR. ACKERMAN: This is the last paragraph here.

It is a big mistake, then, for the distinguished members of this committee and this House to suppose that they are the final judges of this bill of impeachment. To be sure, the recommendation of this committee and the vote of the entire House deserves serious consideration by the members taking office next month. But so do the judgments of the voters as expressed at the elections in November.

I respectfully urge you to consider this point as you determine your present course. To put my point in operational terms, if you don't believe that a bill of impeachment or that the election of impeachment managers will gain the majority support of the next House, the wise thing to do is to stop the process now. While it may be embarrassing to reverse gears after so much momentum has been generated in favor of a bill of impeachment, the leadership of the next House will confront a much more embarrassing --

REP. SENSENBRENNER: Professor Ackerman, I do think you are abusing the committee's time.

MR. ACKERMAN: -- situation if it becomes evident --

REP. SENSENBRENNER: You have gone much further than --

MR. ACKERMAN: -- that its slender pro-impeachment majority has vanished --

REP. SENSENBRENNER: (Bangs gavel.) Professor Ackerman, could --

MR. ACKERMAN: -- over the Christmas recess.

REP. SENSENBRENNER: -- you please wrap it up. The red light's been on for about three minutes now.

MR. ACKERMAN: Thank you very much.

REP. SENSENBRENNER: And everybody else has been a little bit better in terms of watching the red light.

MR. ACKERMAN: Thank you very much.

REP. SENSENBRENNER: Are you done?

MR. ACKERMAN: Yes, I am.

REP. ASA HUTCHINSON (R-AR): Mr. Chairman?

REP. SENSENBRENNER: Yes?

REP. HUTCHINSON: I have a unanimous consent request.

REP. SENSENBRENNER: Will the gentleman from Arkansas please state the unanimous consent request.

REP. HUTCHINSON: It appears that this would be an appropriate time for a unanimous consent request. I have a Congressional Research Service memorandum discussing that impeachment proceedings may be continued from one Congress to the next. And I ask unanimous consent that this be entered into the record as a part of this proceeding and distributed to the members.

REP. SENSENBRENNER: Without objection.

REP. GEKAS (?): Mr. Chairman, could a copy be given to the witness so that he can respond to it?

REP. SENSENBRENNER: The first copy out of the Xerox machine will be given to Professor Ackerman.

MR. ACKERMAN: I have -- I've read it, sir.

REP. THOMAS BARRETT (D-WI): Mr. Chairman? Mr. Chairman?

REP. SENSENBRENNER: Is there any objection to the request of the gentleman from Arkansas?

REP. BARRETT: Mr. Chairman, reserving the right to object, I just -- I want to make sure that those -- that that CRS report comes to us before we get to questioning, so that if those can be distributed -- I realize the witness should have the first copy, but I think it's important for us to have that.

REP. SENSENBRENNER: We will see how fast the Xerox machine can make copies.

REP. BARRETT: Thank you very much.

REP. SENSENBRENNER: Is there --

REP. : Parliamentary inquiry, Mr. Chairman --

REP. SENSENBRENNER: Well, there -- is anybody reserving the right to object to the --

REP. MAXINE WATERS (D-CA): I reserve the right to object.

REP. SENSENBRENNER: The gentlewoman from California, on a reservation.

REP. WATERS: Mr. Chairman, I reserve the right to object because I think we have hit upon an extremely important point that's being made by Professor Ackerman. And if the gentleman would like to -- if he has different information, if he is in receipt of information that suggests otherwise, I think it deserves discussion in this committee, rather than simply the submission of the information to us.

REP. SENSENBRENNER: If the chair may interrupt, the request is that the CRS report referred to by the gentleman from Arkansas, in his unanimous consent request, become a part of the record. Once it becomes a part of the record, then anybody can discuss it as they would like. But it seems to me we've been very liberal in putting statements and materials in the record since the beginning of this inquiry. And the gentleman from Arkansas has something that he thinks is relevant.

Is there objection to including the CRS report referred to by the gentleman from Arkansas in the record? (Pause.) Hearing none, so ordered.

REP. STEVE CHABOT (R-OH): Mr. Chairman, parliamentary inquiry.

REP. SENSENBRENNER: The gentleman from Ohio will state his parliamentary inquiry.

REP. CHABOT: Is it not the practice of this committee that when witnesses testify here, we should have the statements of the witnesses in writing prior to their testifying, so we can follow it as they're going through their --

REP. SENSENBRENNER: That is in the rules of the committee, yes.

REP. CHABOT: Could we ask that any other witnesses that come today or tomorrow -- that we could get their statements ahead of time, so that we can follow that?

REP. SENSENBRENNER: That is in the rules, and that is certainly a legitimate request, and I will direct that request to Counsel Craig, who is responsible for orchestrating the witnesses in defense of the president.

REP. CHABOT: I thank the chairman.

REP. GEORGE GEKAS (R-PA): Mr. Chairman?

REP. SENSENBRENNER: The gentleman from Pennsylvania.

REP. GEKAS: In response partially to the gentleman from Ohio, I believe that we had decided in advance, or someone did, to which we acceded, that because of the late start, as it were, for the witnesses to appear before this committee that we, in effect, waived the necessity of their providing statements before the hearing. So I would let the -- I would allow the record to show, as far as my statement is concerned, that I believe that that was waived with respect to this panel.

REP. SENSENBRENNER: Mr. Craig, do you think that it would be possible to give committee members advance statements for future witnesses today and tomorrow?

MR. CRAIG: We'll do our very best to do that, Mr. Chairman.

REP. SENSENBRENNER: Okay, thank you.

Mr. Hyde will be out of the room for a bit, and we will begin the questioning. I will begin with myself. And again, I will reiterate Mr. Hyde's admonition that the questions will be limited to five minutes, and when the red light goes on for each questioner we will state that the time has expired and go on to the next questioner. So I yield myself five minutes.

Mr. Craig, in your opening statement you asked members of the committee to open their hearts and open their minds and to look at the record. And I think since the 9th of September, committee members have spent a lot of time looking at the record, first in executive session and then in the public meetings that this committee has had pursuant to the resolution that the House of Representatives directed us to conduct an impeachment inquiry.

We've heard an awful lot of academic discourse and discourse and discussion on what constitutes an impeachable offense, what constitutes perjury, but we've heard nothing from the president contradicting the fact witnesses and the grand jury testimony that Judge Starr sent over to us in 18 boxes worth of evidence. I'm disappointed that there are no fact witnesses rebutting any of the evidence that was contained in the 18 boxes and your presentation today and tomorrow.

Are you disputing any of the facts? And if so, why are you not bringing forth witnesses that can provide direct-fact testimony, rather than opinion or argument disputing the facts?

MR. CRAIG: Congressman, let me respond to that this way.

We have submitted in writing, three different responses to the referral that was presented to the House of Representatives by Mr. Starr and the Office of Independent Counsel. And -- in those responses, we take issue with many of the facts laid out by Mr. Starr in that referral.

We do dispute representations and characterizations that the independent counsel has made, and we do dispute some of the testimony that has been presented in the grand jury. And we in particular urged the committee not necessarily to take at face value the characterizations of that testimony, or the president's testimony, that are to be found in the referral by Mr. Starr.

We find that frequently he mischaracterizes that testimony, or the Office of Independent Counsel in the referral has mischaracterized the testimony of the president, in order to construct a perjury allegation.

REP. SENSENBRENNER: Well, let me get to the heart of this case: Did Monica Lewinsky provide false testimony to the grand jury, in your opinion?

MR. CRAIG: We think in some areas she provided erroneous testimony that is in disagreement with the president's testimony, and particularly in specific areas having to do with the grand jury.

Now you are going to have to make a determination as to how important the divergence, the disagreement or the disagreement on the testimony is. We are not --

REP. SENSENBRENNER: Well, there have been complaints by the president's counsel and by the minority Democrats on this committee, that grand jury testimony is not subject to cross-examination and that Ms. Lewinsky and the other witnesses that came before the grand jury were not cross-examined. How come you are not bringing any of these people before this committee to provide the cross-examination that the grand jury procedure denied you?

MR. CRAIG: We have found, Mr. Chairman, many inconsistent statements in the grand jury testimony itself that we believe we can use to support our case.

We believe that the president should be given a presumption of innocence, and that the burden should be on the committee to call fact witnesses and determine whether the credibility of the fact witnesses is such that -- (inaudible word) -- can draw the conclusion --

REP. SENSENBRENNER: Well, the investigation was done pursuant to the independent counsel statute, and I would just observe, Mr. Craig, that if the president had told the truth in January, there would have been no independent counsel investigation of this whole matter, and we wouldn't be sitting here today.

My time has expired. The gentleman from Michigan, Mr. Conyers.

REP. CONYERS: Well, let me begin by reminding my acting chairman that it wouldn't have affected whether there would have been an independent counsel appointed at all.

One of the -- well, let me put all three of these together, Mr. Craig. Mr. Starr alleged that the president lied about sexual relations before the Paula Jones deposition and in grand jury. He -- it is also alleged that the president obstructed justice by assisting Miss Lewinsky with a job search, and that he further obstructed justice in conversations with Betty Currie after his January 17 deposition. Could you put those in context for us, please?

MR. CRAIG: Let me talk first about the president's testimony in the civil deposition. He denied, in the civil deposition, in accordance with the definition that he had been provided as to what a sexual relationship was, he denied having a sexual relationship as defined in the deposition -- by the Jones judge. There may be disagreement as to whether his testimony fell within or without that definition, but there is no disagreement that the president himself and, in fact, Monica Lewinsky, as she wrote her affidavit and testified in the grand jury, believed that what he was testifying was within the definition as given to him in front of the court.

The point I'm trying to make here is that there was an effort by the president to testify accurately but not to disclose information about his relationship. That may be blameworthy, it may be wrong, you may judge that he crossed the line, but in fact, there is no testimony, or no proof, that President Clinton knew he was wrong when he looked at that definition and intentionally lied.

I would say when it comes to the job search, Mr. Chairman, that there's a good deal of information. And this is why I so strongly argued that the committee should look at the record.

There's lot of information about the job search that is simply not included in the referral: the fact that Ms. Lewinsky's desire to leave Washington arose in July, long before her involvement in the Jones case; the fact that the president provided Ms. Lewinsky with only modest assistance, if any at all; the fact that the job assistance that was provided by friends and associates of the president was in no way unusual for Ms. Lewinsky as opposed to other people who were also receiving that kind of job assistance; the fact that there was absolutely no pressure applied to obtain Ms. Lewinsky a job; the fact that there was no timetable for Ms. Lewinsky's job search, let alone any timetable linked to her involvement in the Jones case; and the fact that all the people that participated in that job search testified that there was nothing linked to any testimony or affidavit. It is the testimony of Vernon Jordan, it is the testimony of Ms. Lewinsky, and it's the testimony of the president that there was no obstruction of justice involved in that job search.

Now, when it comes to the questions relating to Ms. Currie, Ms. Currie at the time she had this conversation with the president, was not a witness in any proceeding. Her name had not appeared on the Jones witness list. She had not been named as a witness in the Jones case. And the discovery period was down to its very final days. There was no reason to suspect that she would play any role in the Jones case as a witness. And the president did not know that the OIC at that point had embarked on an investigation of him.

To obstruct a proceeding or to tamper with a witness, Mr. Conyers, there must be both a proceeding and a witness. Here, as far as the president knew, there was neither.

And there's a second important point that is also deleted or left out or ignored in the presentation of the referral. Ms. Currie testified about this conversation with the president on numerous occasions and repeatedly testified that she felt absolutely no pressure to agree with the questions that the president asked her. Let me just cite one excerpt from the transcript of Ms. Currie's testimony. I'll be --

REP. SENSENBRENNER: The gentleman's time has expired.

Somebody else can bring that up if we're to keep on time.

REP. CONYERS: Mr. Chairman, might he finish the sentence? Could he finish the sentence?

MR. CRAIG: It's very quick --

REP. SENSENBRENNER: Finish the sentence.

MR. CRAIG: -- it's very quick, Mr. Sensenbrenner. She was asked, "Did you feel pressure when he told you those statements?" She said, "None whatsoever." She was asked, "Did you feel any pressure to agree with your boss?" She said, "None."

REP. SENSENBRENNER: Okay.

REP. CONYERS: Thank you very much, Mr. Craig.

REP. SENSENBRENNER: Thank you.

The gentleman from Florida, Mr. McCollum.

REP. BILL MCCOLLUM (R-FL): Thank you very much, Mr. Chairman.

Mr. Craig, I'm glad we're getting into facts. I think it's very important that we do that. And although I too am disappointed there are no fact witnesses, I think the discussion is important.

With respect to Betty Currie, the record I've read indicates that indeed the president numerous times in his deposition said, "You'll have to ask Betty about that," referred to her a lot of times in his deposition in the Jones case. And surely he would have expected that somebody would have called her as a witness, whether she was on a witness list at the time he had these conversations with her or not, and that therefore, it seems to me, it's immaterial whether she was on a witness list or she wasn't. But that's the type of thing we should be discussing. And again, it's long overdue.

I also would like to point out that as we look through these things, there are a lot of things in the record that you are obligated to tell us where we're wrong about, because -- or where the record may be different. And I'm looking forward to that.

The record I see with regard to the grand jury testimony indicates that the president swore that he did not know that his personal friend Vernon Jordan had met with Monica Lewinsky and had talked about the case. And I'd say the evidence indicates that he lied about that when he made that swearing.

The president in that deposition swore that he could not recall being alone with Monica Lewinsky. The evidence that I've read so far indicates he lied about that.

The president swore he could not recall ever being in the Oval hallway -- Oval Office hallway with Ms. Lewinsky, except perhaps when she was delivering a pizza. The evidence indicates he lied about that.

The president swore he couldn't recall gifts exchanged between Monica Lewinsky and himself. The evidence indicates he lied about that.

The president swore that he was not sure whether he had ever talked to Monica Lewinsky about the possibility that she might be asked to testify in the Jones case. The evidence indicates he lied about that.

The president swore he did not know whether Monica Lewinsky had been served a subpoena to testify in the Jones case the last time he saw her in December 1997. The evidence I've read indicates he lied about that.

The president swore that the last time he spoke to Monica Lewinsky was when she stopped -- was -- stopped by before Christmas 1997 to see Betty Currie at a Christmas party.

The evidence I have read indicates he lied about that.

The president swore the contents of an affidavit executed by Monica Lewinsky in the Jones case, in which she denied they had sexual relationships, were absolutely true. The evidence I have read indicates he lied about that.

And before the grand jury as well as in the deposition, the president swore that he did not have sexual relations with Monica Lewinsky. The evidence indicates that he lied even according to his own interpretation of the Jone(s) court definition of the term "sexual relations," because if you believe Monica Lewinsky, you have to conclude that indeed the president lied with respect to this, because she explicitly said they had certain relationships described in that definition.

And the president initiated an agreement with Monica Lewinsky in which she would lie in a sworn affidavit to be filed in the Jones case and in which each would lie under oath if called to testify in the case brought against the president. That's what I read the evidence as indicating.

I am curious to know if you find anything in any of the testimony, Mr. Craig, that we have before us -- from Vernon Jordan -- where Mr. Jordan lied? Is there anything in the record --

MR. CRAIG: Not that I am aware of. And this is a problem that we have run in -- throughout this proceeding -- is to identify precisely what kind of testimony you are talking about before we can have an accurate or a prepared response. I am not --

REP. MCCOLLUM: Well, I am curious about anything. You know, I have read the --

MR. CRAIG: Congressman, could I respond to your allegations about the civil deposition and about the grand jury, that you strung together?

REP. MCCOLLUM: Well, I strung those together only to give you illustrations with respect to where I see the evidence being.

MR. CRAIG: But I'd like just to make one point, if I could.

REP. MCCOLLUM: Let me ask you one other question -- as to the Vernon Jordan one -- is there anything in the record that you have seen where Betty Currie lied in the record before us?

REP. CONYERS: Mr. Chairman?

REP. FRANK (?): Mr. Chairman, regular order?

REP. CONYERS: The regular order.

REP. SENSENBRENNER: Could the witness be --

REP./MR. : The gentleman answers the question.

REP. CONYERS: Mr. Chairman?

REP. MCCOLLUM: I have asked the question about whether -- with all due respect, it was my time. I asked him whether there was anything in the record about Vernon Jordan lying. He said no. And I asked him a question of whether or not there was anything in the record about Betty Currie lying. And I would like an answer if I could --

REP. : Mr. Chairman, if I may, regular order.

REP. SENSENBRENNER: The gentleman from Florida has got the time. I would ask members of the committee not to interrupt other members of the committee during their own time.

The gentleman from Florida is recognized.

REP. MCCOLLUM: I would just like to know if there is anything you have seen in the record that would indicate that you believe Betty Currie lied in the testimony she gave that we have on the record?

MR. CRAIG: Congressman, the answer is that I am aware of nothing inside that testimony that Ms. --

REP. MCCOLLUM: -- Currie.

MR. CRAIG: -- Ms. Currie or Vernon Jordan lied.

REP. MCCOLLUM: Thank you.

REP. SENSENBRENNER: The gentleman's time has expired.

REP. : Parliamentary inquiry, Mr. Chairman.

REP. BARNEY FRANK (D-MA): Mr. Chairman -- no, it's my time. And I would now ask Mr. Craig if he would --

REP. SENSENBRENNER: No, it's not your time until I recognize you. The gentleman from Massachusetts, Mr. Frank.

REP. FRANK: Oh, thank you, Mr. Chairman. That was very important. (Laughter.)

Mr. Craig, I wonder if you might like to answer the accusations. Because I must say with Mr. McCollum I had trouble because it seemed to me there was a mixture of grand jury and deposition and it wasn't clear which was which. And while Mr. McCollum obviously did not want you to respond to that, understandably, I would like you to respond.

MR. CRAIG: I will try to be very quick, Congressman Frank --

REP. FRANK: Why? He wasn't. (Chuckles.)

MR. CRAIG: -- and thank you.

First let me say, Congressman McCollum, that we are going to file with the committee today a written response that I think will address every single one of those allegations that you just went through. You can find them consolidated on pages 18 and 19 of Mr. Starr's presentation before this committee.

And there are two things that I think are very important to get straight. One is that the characterization of the president's testimony in each one of those incidents is inaccurate. And the second thing is that you've mixed up grand jury testimony with civil deposition testimony in very dangerous and misleading ways.

And I hope -- I heard you answer questions over the weekend, and I was very pleased with your response, on the issue of separating allegations of perjury on the civil deposition from allegations of perjury on the -- having to do with the grand jury. And I hope we can have further conversation about that.

REP. FRANK: Thank you, Mr. Craig, because I think it is important to separate them out. There were some allegations of grand jury perjury which clearly went beyond anything Kenneth Starr charged the president with. And the notion that Kenneth Starr was too soft on the president is a new one to me, even this late in the proceedings.

Before I get to that, I would like to say two procedural points. People have criticized you for not calling witnesses. Well the majority had the ability to call witnesses. And I must say, I take exception, I must tell my friend from Florida, to the suggestion that Vernon Jordan might have been lying. I think Mr. Jordan is a man of great integrity. His testimony, of course, completely supports the president's position and refutes the accusations. And if you think Vernon Jordan was lying -- I don't think so -- but have the courage to call him up here and let him defend himself. I think that kind of imputation, raising the issue about Vernon Jordan's integrity without calling him forward is a great error.

I understand why you don't want to call him forward, because I think he would make mincemeat of that accusation.

Now let me just say, Mr. Craig, with regard to grand jury perjury, as I understand it there were three accusations of grand jury perjury in Mr. Starr. One was -- am I correct? -- Ms. Lewinsky said that the sexual activity began in November of 1995, and the president said February of 1996? Is that correct, that that was one of the accusations of grand jury perjury?

MR. CRAIG: That's correct.

REP. FRANK: I wonder if anybody here, as a lawyer, would think that a charge would be brought -- this is more than two years after that has happened, and nothing turned on that. In other words, Ms. Lewinsky did not reach a certain age in the interim that would have made it more or less legal; is that correct?

MR. CRAIG: That's correct, yes.

REP. FRANK: The second question, the second charge of perjury is one that I had trouble understanding. Am I correct that it was -- and I think we ought to differentiate, because Mr. McCollum listed a number of things which he said were perjurious; Mr. Starr only had three. The second one was that when the president told the grand jury that he believed, in the deposition, that the definition excluded certain kinds of sexual activity, that he was lying, that he didn't really believe it. In other words, the accusation is that when he said in August that he believed in January that the definition excluded certain kinds of sex, that that was a lie. Is that correct, that that's the second one? (No audible response.)

Well, I ask that because people have said, "Where are the president's witnesses?" Well, what witness could he bring to show that the sexual activity began in February rather than November? He admitted trying to conceal it. What witness could he bring to show that he really believed this in January? Do people think there was a secret witness that he said, "Hey, I'm really kidding, I don't really believe this"? (Laughter.) I mean, the fact is that there were no witnesses you could have believed.

Last question, with regard to the obstruction. Is it the case that everybody who was supposedly involved in the obstruction -- Mr. Jordan, Ms. Currie, Ms. Lewinsky and the president all denied that any obstruction happened, and if you were, in fact, to prosecute this case, who would you bring as a witness to say there was an obstruction?

MR. CRAIG: That is the case. I wouldn't know how to prosecute this case.

May I make one comment, Mr. Frank, since I've still got time?

REP. FRANK: Yeah, you've got till the light goes off.

MR. CRAIG: I would urge the committee to remember that Mr. Ruff is coming. I'm perfectly happy to deal with the committee's questions, but the purpose of this panel, in addition just to my introductory comments, the purpose of this panel was to discuss some of the new ideas, I think, that these witnesses --

REP. FRANK: Mr. Craig, you have to finish your sentence without any dependent clauses, under the rules. (Laughter.) You have to finish your sentence. No clauses.

MR. CRAIG: I'm done.

REP. SENSENBRENNER: The gentleman from Massachusetts' time has expired.

The gentleman from Pennsylvania, Mr. Gekas.

REP. GEORGE W. GEKAS (R-PA): Mr. Chairman, I yield 10 seconds, I hope, to the gentleman from Florida. (Laughter.)

REP. MCCOLLUM: Thank you very much for yielding.

I just wanted to make a point. I was not impugning Vernon Jordan's integrity. In fact, I was trying to corroborate the fact he's been telling the truth that's, I think, damaging to the president.

REP. FRANK: Will the gentleman from Pennsylvania yield to me for five second?

REP. GEKAS: No, I cannot. I cannot, Barney.

REP. FRANK: You could if you wanted to.

REP. GEKAS: I cannot. I really cannot. (Laughter.)

REP. SENSENBRENNER: The gentleman from Pennsylvania.

REP. GEKAS: Professor Wilentz, your testimony has really astounded me. And I want to question you on one phase of it.

MR. WILENTZ: Sure.

REP. GEKAS: You seem to indicate that if any one of us, any member of Congress should vote for impeachment, there will always be the question in your mind as to whether we did it out of cravenness or under a resolution and study and analysis and conscience. And I hope that after this is over that you take a roll call of those who voted and then analyze for us -- it'll take you a hundred years -- to determine whether we did it out of cravenness or not. I think that's a despicable way to characterize in advance a possible vote on some serious note as this. That's number one.

General Katzenbach, you seem to have placed a great deal of emphasis on the difference between a criminal offense and a political offense that is couched in impeachment. And I agree with you that it is substantially if not totally a political process. If the President of the United States refused to grant requests to the Congress time and time again and the Congress felt that it should judge the president in contempt of Congress, you would consider that a political, not a criminal, offense, would you not?

MR. KATZENBACH: If it was an offense at all, it would be political, yes.

REP. GEKAS: Pardon me?

MR. KATZENBACH: If it was an offense at all, it would be political, not --

REP. GEKAS: Yes. Yes. And so the Congress, if it felt on a series of contempt instances that it would proceed, you would not automatically discount that as an impeachable offense, would you?

Would this not be a refutation or a knock in the eye to another branch of government that the president was indulging in?

MR. KATZENBACH: It might be that, sir, but I don't think that the Constitution provides, under "high crimes and misdemeanors", for refusal of the president to do what the Congress wants it to do. There are other ways in which the Congress deals with that problem and, frankly, sir, this is simply not one of them. No, I would not regard that as grounds for impeachment.

REP. GEKAS: So that you have no idea, as you are testifying here, what high crimes and misdemeanors might be?

MR. KATZENBACH: Oh, I have a good idea what they might be, yes, sir.

REP. GEKAS: And you're saying that perjury, which would be a direct affront to the judicial process, could not be considered fairly by any of us as being an impeachable offense. If indeed giving false statements under oath in a judicial proceeding can be fairly characterized by many of us who are analyzing this as an affront to the other branch of government, meaning the judiciary, the judicial branch of government, you think that the commission of a statutory crime, common law crime of false statements under oath, or just obstructing justice by giving false statements under oath would not arise to an impeachable offense; is that what you're saying to us?

MR. KATZENBACH: No, sir, that's not what I am saying. I am saying that all of those could be impeachable offenses if the effect of that was to destroy public confidence in the ability of the president to play his role in the government.

REP. GEKAS: And you say that the fact that he confronts the judiciary and attacks the judiciary by virtue of a perjury would not be an attack on the constitutional system, is what I hear you saying.

MR. KATZENBACH: That's not what I'm saying; it may be what you hear, but it is not what I am saying.

REP. GEKAS: Yeah, I'm not hearing right.

MR. KATZENBACH: That's correct, sir. Because if I can --

REP. GEKAS: Would you agree that we have a difference of opinion and that we would not be craven if we decided that perjury committed by the president of the United States, if so concluded, in a judicial proceeding involving the rights of a fellow American citizen would amount to an impeachable offense?

MR. KATZENBACH: If -- the red light is on, Mr. Chairman. How can I answer it?

REP. SENSENBRENNER: Oh. A quick answer.

MR. KATZENBACH: A quick yes? My answer is no.

REP. SENSENBRENNER: "A quick answer."

MR. KATZENBACH: Oh. It would be an impeachable offense, sir, only if the effect of that was regarded by the members of Congress as so serious that it destroyed public confidence in the ability of the president to play his role in government.

REP. JACKSON LEE: Mr. Chairman, I do have a parliamentary inquiry.

REP. SENSENBRENNER: The gentleman's time has expired.

State your parliamentary inquiry.

REP. JACKSON LEE: The inquiry, Mr. Chairman, is this is the only time that the president has the opportunity to present his case to the American people and to this committee. I noticed that Mr. Gekas asked the question or made a comment of Professor Wilentz. I do think it is important that we allow witnesses to respond to either comments or questions made to them.

REP. SENSENBRENNER: Well, that is not a proper parliamentary inquiry. And how the five minutes would be allocated and enforced was stated by Mr. Hyde when he was in the chair at the beginning of the meeting.

REP. JACKSON LEE: I appreciate that, Mr. Chairman. Is there any way for the professor to answer the question?

REP. SENSENBRENNER: Nobody objected at that point in time. A subsequent questioner, if they feel that it is important that a witness give an answer to a question that there was no time to answer, can decide in his or her best judgment whether to reiterate that question. That's what Mr. Frank did in response to some of the statements that Mr. McCollum made. I think that that's the way we will be able to allow the president to spend more time presenting witnesses, rather than responding to parliamentary inquiries.

REP. STEVE ROTHMAN (D-NJ): Mr. Chairman, parliamentary -- Mr. Chairman, a parliamentary inquiry.

REP. SENSENBRENNER: The gentleman from New York, Mr. Schumer.

REP. JACKSON LEE: Let me maintain a continuing objection, Mr. Chairman.

REP. ROTHMAN: Mr. Chairman, parliamentary inquiry.

REP. SENSENBRENNER: The gentleman from New Jersey.

REP. ROTHMAN: Thank you, Mr. Chairman. I want to point out -- inquire of the chair whether the procedures adopted by the chairman, Mr. Hyde, when he was sitting where you are, with regards to the panel called predominantly by the Republican majority will prevail in this panel, when the president's counsel has called this panel. In particular, Mr. -- Chairman Hyde chose, when the Democrats were asking questions of Republican experts and Democratic experts on the last panel, to allow each member of the panel to respond to our questions even when we didn't specifically ask them questions. And I wonder why today the present chair is changing that procedure and not allowing the panelists to respond.

REP. SENSENBRENNER: That is not a proper parliamentary inquiry. The chair will state that he is merely --

REP. ROTHMAN: It is an inquiry of fairness, Mr. Chairman.

REP. SENSENBRENNER: -- that he is merely enforcing the rules that were outlined by Mr. Hyde at the beginning of the hearing, which no one objected to.

The chair now recognizes the gentleman from New York, Mr. Schumer.

REP. CHARLES SCHUMER (D-NY): Thank you, Mr. Chairman. And you know, as we come close to finishing these proceedings and going to a vote, I guess -- most people seem to regard it as an assured conclusion -- on the floor of the House, I am sort of befuddled by the direction in which we go and I'd like to direct some questions at all of the panelists in this regard.

We're ready, in this committee and maybe in the full House, for the second time in our history to pass articles of impeachment to the Senate. And there are maybe 20 or 30 people who haven't really committed; whose minds aren't made up. They tend to be the so-called "moderate Republicans." And, at least, to read from the newspaper statements of those moderate Republicans, what has pushed them in more of a direction to do the unthinkable, or what was unthinkable a few weeks ago and is still probably unthinkable to most of the American public, are two things: one, that the president didn't apologize in a fulsome way enough. I mean, one -- one of the swing votes is saying, please, Mr. President, apologize fully and then I won't have to vote for impeachment. The other is that the answers to the 81 questions submitted by this committee weren't direct enough.

And so what I worry about, I would say to this panel and to all of my colleagues in the full House, since I think this committee is already -- sort of, what we're doing is we're going through motions but it seems minds are made up -- but I say to my colleagues that we may, the American people may, wake up next week and find out that the Congress impeached the president for not being contrite enough to certain members of Congress.

I just don't get that, because it seems to me that the standard of what the president did and whether what he did reaches high crimes and misdemeanors should be totally irrelevant to a level of contrition. You may judge the president as what kind of man he is by the level of contrition, but not whether he should be impeached. Or by whether the president answered a series of questions here directly enough, unless someone wants to allege that in the answers to the questions perjury was committed, as well, and I haven't heard anybody allege that.

So I would like to ask each of the panelists -- and particularly the constitutional experts, the professors, but all of the panelists -- in your legal opinion, even in your political opinion, does the contrition of the president go to whether the president should be impeached?

Does the level of apology, the fulsomeness of apology, the sincerity of apology, should that be entering into one's mind as to whether the president should be impeached? And similarly, should the president's answers to a list of questions, assuming that no perjurious statements were made in answer to those questions -- and I guess -- I don't know if they're technically sworn under oath amid a standard to perjury. But just assuming that, should that go to whether we should impeach the president as well? So maybe Professor Wilentz or Ackerman or Beer first.

MR. WILENTZ: I can maybe reply to your question, too, Mr. Gekas, your comments --

REP. SCHUMER: Well, do that on his time, please.

MR. WILENTZ: Yes, I will. Okay.

REP. SCHUMER: Okay.

MR. WILENTZ: The answer is no, it should not. There is no constitutional standard for lack of contrition. The ways in which in my comments about cravenness, et cetera, were directed toward that process of getting those moderates, perhaps to get in line, if any standard other than the constitutional standard of high crimes and misdemeanors becomes the reason for a vote for impeachment, that vote is, to my mind, a dereliction of constitutional duty.

REP. SCHUMER: So level of contrition would not go to whether someone committed a high crime or misdemeanor by any stretch of the imagination.

MR. WILENTZ: Absolutely not. Absolutely not.

REP. SCHUMER: Do you agree with that, Professor Ackerman?

MR. ACKERMAN: Yes. Yes. The operational question is whether the conduct alleged represents a clear and present danger to the foundations of the republic. And contrition, it seems to me, does not enter into that --

REP. SCHUMER: Nor would the answer to these 81 questions --

MR. ACKERMAN: That's correct. That's correct.

REP. SCHUMER: -- which don't deal with the acts of the president for which we're examining impeachment.

MR. ACKERMAN: That's correct.

REP. SCHUMER: Do you agree with that, Professor Beer?

MR. BEER: Yes, I agree. They seem to be asking him to come and confess things which he didn't do and does not think he did. I wouldn't call that contrition, I would call that subservience.

REP. SCHUMER: Do you have any comments on this, Mr. Craig?

MR. CRAIG: I agree with you, Mr. Schumer. (Laughter.) You will not be surprised to know that I agree with you, congressman.

REP. SCHUMER: No. I mean, just, since there's a minute left, it seems to me people are looking to avoid the direct, bald, naked confrontation with whether we should impeach or not when they've coming up with these kinds of answers. You better be convinced in your own head that these actions either imperil the republic or at least meet a standard of high crimes and misdemeanors and not look for an excuse like the president didn't apologize enough, or he didn't answer someone's question directly enough. It's almost trivializing what ought to be a very sacred process.

REP. SENSENBRENNER: The gentleman's time has expired.

The gentleman from North Carolina Mr. Coble.

REP. HOWARD COBLE (R-NC): I thank the chairman.

Gentlemen, good to have you all with us.

President Clinton, then Candidate Clinton, assured us -- I think it was in '92 -- that he would bring to us an administration that was very ethical. In fact, he may have said the "most ethical administration in history." Well, the president has developed a pattern of being evasive and being deceptive, which has caused those words not to be prophetic.

Now, having said all that, Mr. Craig, let me put a question to you. And I am doing this from memory, so if my memory is faulted, don't be reluctant to correct me.

But after the deposition for the Paula Jones case, I recall having read, among my many notes here, that the president contacted Dick Morris, the political consultant, to get his spin on it. This has turned into a spin operation. And it appears that Mr. Morris, in response to that question, said, "Mr. President, the American public will tolerate adultery, but they will not tolerate perjury." Well at that point, the cow was out of the barn because he had already been deposed.

Now having said all that, Mr. Craig, Ms. Lewinsky -- strike that -- the president denied having involved himself with any intimate touching, under oath. Ms. Lewinsky consequently admits very forthrightly that there was in fact intimate touching. Now both these statements were given under sworn oath.

Do you have any opinion, Mr. Craig, as to who is lying? because it seems inevitably one of those parties is lying. And you may not have an opinion to that.

MR. CRAIG: Congressman, I represent the president of the United States, and the president of the United States has said and testified about that kind of activity. And I accept his word about that.

The problem for those of you who are here in a fact-finding capacity, is precisely that problem; there is no other way to determine or corroborate the testimony. It's an oath-on-oath "he says, she says" situation.

This is hardly, I think, the kind of issue that the House of Representatives should send to the Senate for a trial before the American people, to determine whether or not the president of the United States should be removed from office.

Let me just make one comment, if I might, Congressman.

REP. COBLE: Sure.

MR. CRAIG: We intend today to file a very, very complete brief dealing with the law and the facts, in greater detail and in greater systematic way than we have ever done before. And then you are going to have Mr. Ruff to go through these facts --

REP. COBLE: Right.

MR. CRAIG: -- when he is here all afternoon tomorrow.

REP. COBLE: And I thank you for that, Mr. Craig.

And of course the Senate will be the ultimate fact-finders in this operation, assuming it passes that far.

Gentlemen, put on your alternative hats. I want to talk about censure. And I'll excuse Mr. Craig. I'll let one of you other four, if you will, come forward. Not that you're not capable, Mr. Craig, but I've already given you time.

There's a balloon being floated on this Hill labeled censure, and some are suggesting that attached to that would be a financial forfeiture or penalty. Now, my constitutional anxiety becomes activated at this point; I think that would be vulnerable, I think it would probably amount to a bill of attainder. Can you all confirm or reject my anxiety process?

MR. ACKERMAN: Congressman, I think you're completely correct. Any financial sanction against a named individual by this Congress is a bill of attainder, and it doesn't matter whether it's Bruce Ackerman or Bill Clinton.

REP. COBLE: Yeah, and I thank you for that.

And, Mr. Chairman, I want you to know it can be done before the red light illuminates, and I would yield back the balance of my time.

REP. SENSENBRENNER: That is appreciated.

The gentleman from California, Mr. Berman.

REP. HOWARD BERMAN (D-CA): Well thank you very much, Mr. Chairman.

Mr. Craig represents the president. I'd like you to put aside his points and the points made before with respect to the factual allegations, and I'd like you to assume that the narrative in the Starr report is true, and for this purpose, take the conclusions he draws from that narrative. And then -- each of you have touched on it in your testimony, but I'd like you just very concisely to tell us why you don't think the sum total of those conclusions he draws from his narrative are not impeachable. I realize, again, you've talked about this, but I'd like you to do it particularly in the context of the argument that is frequently made by those who have come to the conclusion that the president should be impeached, that particularly lying under oath has repercussions and consequences that do deal with our constitutional system of government and respect for the judicial process and these kinds of issues. However you want to do it.

MR. KATZENBACH: Let me be brief, Congressman. I am perfectly willing to take everything that Mr. Starr says and still conclude that that does not reach the level of high crimes and misdemeanors in this situation. I reach that because the purpose is to remove the president. The reason you have high crimes and misdemeanors as grounds for removing the president is that there's no confidence left by the public in his ability to conduct that office, and I do not believe -- if you came to that conclusion, you would have to explain why it is that the public seems to still have confidence in the president.

MR. ACKERMAN: This committee does not sit as a grand jury of the District of Columbia. There is probably no person in the United States today who runs a greater risk in the year 2000 of an indictment for perjury than William Jefferson Clinton. The question for you, as -- you are the grand inquest of the nation -- and the question is whether the conduct alleged represents an assault on the fundamental principles of government.

If this conduct represents that, our history over the last two centuries would be littered with bills of impeachment. Congress has taken its -- taken this quest in a very restrained way. The most important fact is that over two centuries, only twice has serious conduct gone up to this level. And so I think that this is simply, on the state of the evidence, just not nearly the kind of conduct that you, as opposed to the grand jury sitting in the District of Columbia, should consider.

MR. WILENTZ: Yes. I do not think that unless these -- this misconduct raises (sic) to the level of an assault on our fundamental political system that they're impeachable, even if every one of them is true. I think, however, that the argument that we must impeach the president for symbolic reasons, that somehow this misconduct represents a breach in the seamless web of justice is, too, nonsense.

What it does is to confuse the process of impeachment with what our law -- legal system is for, our system of courts. We try crimes in courts. We do not impeach people over mere crimes. That is a fundamental constitutional principle. It has been lost amidst all of this talk of symbolism.

MR. BEER: I couldn't improve on what my colleagues have said, but I will say it again: The thing to focus on is that word "impeach" means "remove from office." It tends to float around and be --

REP. BERMAN: Professor Beer, could you please turn the mike on so the court reporter can catch your words?

MR. BEER: Oh. Right. I couldn't improve on what my colleagues have said; I will repeat it and say that the thing to do is to focus on the meaning of the word "impeach," which means "remove from office." It tends -- it's said so much, it tends to lose its power. But when you say, "Did these things even" -- as Nick Katzenbach has said, even the charge -- Starr charges are true, they don't begin to outweigh the enormous damage of removing a president.

REP. SENSENBRENNER: The gentleman's time has expired.

The gentleman from Texas, Mr. Smith.

REP. LAMAR SMITH (R-TX): Thank you, Mr. Chairman. Mr. Chairman, under this process of ours, we inevitably have, I think, two sides, and each side feels strongly about representing their client. In this case, we have individuals who feel strongly that the president did not commit an impeachable offense. We have other individuals that feel just as strongly that his wrongful actions did reach that level. If the system is functional -- and I believe that it is -- what we all hope is that the truth is going to shake out.

Mr. Craig, my first question is this: that you've admitted in your statement that the president did make -- you called them, I think, "evasive and misleading statements." Have you ever counseled the president to go before the American people and tell the whole truth and nothing but the truth, which is to say, "Forget about the polls" -- in fact, it's likely that the White House conducted a poll to find out generally what you ought to say today -- but "forget the polls, forget the partisan politics, and no matter how much it hurts, level with the American people and tell the whole truth"?

MR. CRAIG: Well, Congressman, let me just say that he has acknowledged the wrongdoing. He has himself acknowledged that he was evasive, that he misled people, and that he went out of his way to conceal.

And on the issue --

REP. SMITH: Right. And let me follow up --

MR. CRAIG: Could I just finish this?

REP. SMITH: -- let me follow up by asking you this question, then. Does the president intend to specifically correct any of those evasive and misleading statements that you have acknowledged that he has made?

MR. CRAIG: Well, I think he has gone a long way, congressman, when he gave that statement on August 17th in which he made the painful admission and acknowledgement that he did, in fact, have a --

REP. SMITH: Right. And, Mr. Craig, he also said he regretted it. It's very easy to say you've regretted something after you've been caught, but my question was specifically is he going to go back and correct the record and correct any of those misleading and evasive statements?

MR. CRAIG: Congressman, I think he has, in fact, corrected the most central element of what he testified evasively about.

REP. SMITH: Okay, Mr. Craig, let's --

MR. CRAIG: And that had to do with the relationship that he denied --

REP. SMITH: I appreciate your answer --

MR. CRAIG: -- and that he has now acknowledged and he's told everybody that he was wrong in denying it --

REP. SMITH: Right. Mr. Craig, I understand all of that. But you have answered my question, and that is I gather there are no plans to go back and correct those false and misleading statements.

Mr. Katzenbach, may I address my next question to you. I'd like to read a statement by Leon Jaworski, who was the special prosecutor during the Nixon proceeding. And he wrote this:

"The president, a lawyer, coached Haldeman on how to testify untruthfully and yet not commit perjury. It amounted to subordination of perjury. For the number one law enforcement officer of the country, it was, in my opinion, as demeaning an act as could be imagined."

Wouldn't you agree with that statement, at least as it pertained to the situation in 1974?

MR. KATZENBACH: I'm not sure, congressman, that I heard everything that you said. I'm inclined to think that I would agree with what Mr. Jaworski said because I think he was saying you can have an impeachable offense whether or not it amounts to perjury.

REP. SMITH: Right. Let me read a couple of more statements. This is a quotation from the Lewinsky proffer:

"At some point in the relationship between Ms. Lewinsky and the president, the president told Ms. Lewinsky to deny a relationship if ever asked. He said something to the effect of `If the two people who are involved said it didn't happen, it didn't happen.'"

And in this as well, Ms. Lewinsky has testified that on December 17th, 1997, when she and the president discussed her possible appearance in the Jones case, the president told her, quote, "You know you can always say you were coming to see Betty or that you were bringing me letters."

In your judgment, didn't the president's actions amount to coaching a witness to testify falsely?

MR. KATZENBACH: As you've quoted them, Congressman, I wouldn't think so. But I'm not trying to trivialize that. If that is true, that was the wrong thing --

REP. SMITH: My time is up. Let me just --

MR. KATZENBACH: -- that was the wrong thing to say, but it does not amount to grounds for impeachment.

REP. SMITH: I heard your answer is no. But let me say to you that I think 90 percent of the American people would consider this to be tampering with a witness, which is a serious felony and might well be an impeachable offense.

REP. SENSENBRENNER: The gentleman's time has expired.

The gentleman from Virginia, Mr. Boucher.

REP. RICK BOUCHER (D-VA): Thank you very much, Chairman. I share the view that this morning was very eloquently expressed by General Katzenbach, that the impeachment power was not intended for the punishment of an individual for his conduct. He can be punished, even if he's president, in the same manner as any other citizen, in our criminal courts. The impeachment power is designed to advance the national interest and to remove from office an official whose conduct is so severe that he threatens the nation.

This committee, in its 1974 report in the Watergate inquiry, on a broad bipartisan basis concluded that the impeachment power can only be used for conduct that is seriously incompatible with our constitutional form of government or the performance of the constitutional duties of the office of the president. Any other use of the impeachment power falls short of that high standard.

I am concerned that some members of the House may view the application of a lesser standard as appropriate; that they may think that the House should simply send to the Senate for trial any charges for which there may be probable cause that an offense may have been committed, and then leave to the Senate, as the trier of fact, the resolution of the matter.

I would like to ask for your opinions of that view of the impeachment standard, and I would also welcome your thoughts on the gravity of the act of the House alone approving articles of impeachment. In considering whether to apply a higher or a lower standard of what conduct is impeachable, should the members of the House consider the harm to the nation that House approval of Articles of Impeachment will cause?

Should members consider the divisiveness and the polarization that will occur pending a Senate trial and during the trial in the Senate? Should they consider the fact that for months, the Congress and the president will be diverted from the real business of this nation?

So there are three questions that I would pose to you:

First, should the House view its standard as probable cause or something higher?

Second, what harms will occur to the nation based on the House approval alone of the Articles of Impeachment?

And third, should those harms be considered by the members of the House in deciding the proper course on approving Articles of Impeachment, given that the protection of the nation is the ultimate test?

And I would like to begin with Professor Ackerman.

MR. ACKERMAN: I think that the standard, so far as the evidence is concerned, should be clear and convincing evidence.

This is not a normal grand jury indictment. You are indeed correct, Congressman Boucher, that what you are doing is deciding whether the nation's political attention will be diverted for a year. A normal grand jury, there is no great public interest in preventing an indictment; here there is a great public interest -- against diverting attention.

So you are absolutely right that the standard has to be high. The evidentiary standard should be clear and convincing. And it's, therefore, very difficult to evaluate little snippets of testimony without understanding the much larger context.

The second crucial point is that a vote of impeachment is itself a terrible political precedent for the next generation or two. If this dramatic lowering of the standard from the historic examples is tolerated, every time we have one party -- let's call them the Democrats in control of Congress and a Republican president in the year 2001 -- there is going to be an overwhelming political temptation to exploit a moment of political vulnerability for the president to, once again, use a low standard for "high crimes and misdemeanors."

REP. BOUCHER: Professor Wilentz, let me just ask you, if I might in the time remaining, would you care to comment on the harm to the nation that the mere act of the House passing Articles of Impeachment might cause?

MR. WILENTZ: I have little really to add. I mean, it's true that it will open up the possibility for future presidents to be subject to harassment by a Congress's caprices, if it so desires.

But also, I should add, that as representatives of the people you should be well aware that the public has shown again and again and again that it has no stomach to watch this nauseating spectacle continue. And to ignore that, I think, is something that no Congressman ought to do.

Thank you, Mr. Chairman.

REP. SENSENBRUNNER: The gentleman's time is expired. The gentleman from California, Mr. Gallegly.

REP. ELTON GALLEGLY (R-CA): Thank you very much, Mr. Chairman. Mr. Craig and other members on the witness panel today, thank you for being here.

Mr. Craig, do you believe our legal system is dependent on telling the truth?

MR. CRAIG: Absolutely. I think it's very important.

REP. GALLEGLY: Thank you, Mr. Craig. Do you believe that perjury represents an attack on the integrity of our judicial system?

MR. CRAIG: It certainly is not consistent with the highest standards of the judicial system.

REP. GALLEGLY: Thank you, Mr. Craig. Mr. Craig, on Meet the Press on Sunday, November the 22nd of this year, just a couple of weeks ago, Tim Russert asked you, do you believe the president, President Clinton, ever lied under oath? And your statement was no. Do you stand by that?

MR. CRAIG: Yes, sir.

REP. GALLEGLY: Mr. Craig, you concede that the president's testimony in the Jones case was evasive, incomplete, misleading and even maddening. How could this testimony be those things and -- without being a lie?

MR. CRAIG: There is one element that's absolutely central to the perjury elements of an offense, and that is an absolute intent and knowledge that what you --

REP. GALLEGLY: Pardon, Mr. Craig. Are you saying that all lies are perjurious, then?

MR. CRAIG: No, I'm not. I'm talking about the elements of the --

MR. CRAIG: Well, we're dealing with lying and now you're bringing in the issue of perjury, so --

MR. CRAIG: It's specific intent. He did not intend to help, he did not intend to volunteer. He tried, I think, to answer accurately in a very narrow way. You may conclude, Congressman, that he did not succeed. I can understand what he was trying to do and how he read that definition. He may not have been successful. I think we could defend that in any court in this country.

REP. GALLEGLY: Mr. Craig, I appreciate your assessment as a very capable lawyer and as someone who has studied the law, I imagine, the majority of your life. Could you please give me, in as succinct manner as humanly possible, your definition of what it means when you hold up your right hand and you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?

MR. CRAIG: It means what the words of the oath are clearly intended to mean -- the truth, the whole truth, and nothing but the truth.

REP. GALLEGLY: Do -- at this point, do you believe that the president has told the truth, the whole truth, and nothing but the truth, so help him God, to the American people?

MR. CRAIG: I do not think he violated the oath knowingly when he testified in front of the Jones deposition.

REP. GALLEGLY: Do you think he's violated his oath to the American people in telling the truth, the whole truth, and nothing but the truth?

MR. CRAIG: I'd disagree with your sense that he did. He did not violate his oath.

REP. GALLEGLY: Thank you very much, Mr. Craig.

I think probably one of the problems that we're dealing -- with the president's defense today is that any reasonable analysis shows that the president lied on several occasions, in both the deposition and the grand jury testimony. For example, in the deposition of January 17th, the president was asked, "Have you ever given any gifts to Monica Lewinsky?" He answered, "I don't recall." Yet just two and a half weeks before the deposition, President Clinton had given Miss Lewinsky six gifts: a marble bear's head, a Rockettes' blanket, a black dog stuffed animal, a small box of chocolate, a pair of joke sunglasses, and a pin of the New York skyline. The question was important because it goes directly to the issue of a cover-up by the president and possibly his attempt to influence the testimony of a witness.

We've all heard that the president has extraordinary memory. However, at the same time we're expected to believe that he does not remember giving six gifts to Miss Lewinsky just two and a half weeks earlier -- and oh, by the way, the president knew -- who knew was on the witness list for the Jones sexual harassment case. Quite frankly, this is an insult to our intelligence and frankly indicates that the president is still not telling the truth.

Mr. Chairman, I yield back.

REP. SENSENBRENNER: The gentleman's time has expired.

The gentleman from New York, Mr. Nadler.

REP. JERROLD NADLER (D-NY): Thank you, Mr. Chairman.

My question is for Professors Wilentz and Ackerman. Gentlemen, I want to follow up sort of on what my colleague Mr. Boucher asked about standards of proof. We've heard quotes that "we just have to see if there's credible evidence, send it over to the Senate, see if -- let them be the tryer of facts." In my view, that simply transforms the role of the House into a rubber stamp for the special prosecutor, just a transmission belt, and is incorrect.

We've also heard other comments. Special Prosecutor Smaltz, after Mr. Espy was acquitted, said that indictment by itself is a deterrent to corruption, as if you seek to punish someone by indictment.

And a member of this committee was quoted as saying that "Impeachment itself, even if not followed by a conviction, even if you know that there's no real possibility of a conviction, is a punishment for misconduct, a scarlet letter." Now, we -- even if the Senate acquits and even if you know there's no possibility the Senate will, in fact, convict.

Now, we know that the canons of legal ethics to say that it is unethical for a prosecutor to seek an indictment if the prosecutor does not believe that he can get a jury to convict the defendant. Could you comment on the view that it's proper to seek an impeachment as a punishment for improper conduct, even if you know or think that the evidence will not produce a conviction by the Senate?

MR. WILENTZ: Let me start comments, Congressman Nadler, by quoting Oliver North's attorney Brendan Sullivan, or paraphrase him, rather, to say that Congress is not, or rather, the House of Representatives is not a potted plant. You're not just sitting here passing things along to the Senate. To see that as your role I think is a violation of your oath of office, in fact. It certainly goes towards that -- your oath to uphold the Constitution. That is what you're here for. And if you are derelict in that, if you back off from that out of fear, out of desire just to get it over with --

REP. NADLER: It's not like a grand jury if there's any probable cause.

MR. WILENTZ: No. This is no more like a grand jury than impeachment is like a normal jury trial. It's not. They're two different species.

REP. NADLER: Could you comment to the second half of the question --

MR. WILENTZ: Could you remind me of that half, please?

REP. NADLER: The second half of the question is the propriety of voting for impeachment if you think -- as a punishment in and of itself, and if you think that the Senate will probably not convict on the evidence --

MR. WILENTZ: Historically that just runs against the entire tenor of what impeachment has been about. There has never been a case where a House of Representatives has decided to move on an impeachment proceeding with the idea that the Senate would not convict. The entire reason -- I think Elliot Richardson said this very eloquently the other day -- a vote to impeach is, in effect, a vote to remove.

REP. NADLER: And briefly, Professor Ackerman and Attorney General Katzenbach, on the second half of that question?

MR. ACKERMAN: It's especially inappropriate when you know that the 106th House is going to have to vote on it again. And if there's no reason to believe that the 106th House would be willing to vote an impeachment, this is to trivialize the impeachment process completely.

REP. NADLER: So you think it's improper to vote for impeachment if you don't think the Senate would likely convict?

MR. ACKERMAN: Or if the next House won't --

REP. MCCOLLUM: Attorney general?

MR. ACKERMAN: -- won't confirm you.

REP. NADLER: Attorney General?

MR. KATZENBACH: It seems to me that nothing could be more improper than to use the impeachment process as a punishment, and that is what you are suggesting. It is absolutely clear constitutionally that, however bad the acts, impeachment is not a punishment; it is to remove somebody from office, the president or a judge or somebody else who --

REP. NADLER: So do you think it would be proper or improper to vote for impeachment, even if you thought the president should be removed from office, if you thought the likelihood the Senate would -- would remove from office was nil?

MR. KATZENBACH: If you met the standards -- if the House met the standards of impeachment as a high crime and misdemeanor; if those were met and sincerely met, then I would think simply to consider what the Senate would do might be a factor in the voting but not necessarily from a matter of principle.

REP. NADLER: Anybody else want to comment on that?

REP. SENSENBRENNER: The gentleman's time has expired.

MR. BEER: Again, I'd say this points to the political and constitutional consequences; I mean, this is not just something that is happening now. This goes on down and into the future history of the relationship of Congress and the president. It's a further attack on the separation of powers, this kind of precedent. I entirely agree with what my colleague said.

REP. NADLER: Thank you very much.

REP. SENSENBRENNER: The gentleman from Florida, Mr. Canady.

REP. CHARLES T. CANADY (R-FL): Thank you, Mr. Chairman.

I want to thank the members of this panel for being here today.

I will candidly state that, with the exception of Professor Ackerman's argument concerning the procedural status of a Resolution of Impeachment passed by this House, I didn't find any new arguments advanced with respect to the grounds for impeachment or the proper circumstances for impeachment -- but I appreciate your being here -- and I'd want to say something about that issue.

But before I do that, I want to also thank Mr. Craig for indicating that we will soon be receiving an exhaustive defense, in writing, of the president's conduct that is set forth in the record. And I am not going to dwell on that, but I do want to ask one question, which just stands out to me, of Mr. Craig.

Mr. Craig, in the president's deposition last January, he was asked this question: "At any time were you and Monica Lewinsky alone together in the Oval Office?"

He answered, "I don't recall." He gave kind of an extended discussion there about working on the weekends, in which he indicated, "It seems to me she brought things to me once or twice on the weekends."

There was then a follow-up question: "So I understand your testimony is that it was possible, then, that you were alone with her but that you have no specific recollection of that ever happening." Answer from the president: "Yes, that's correct."

Now Mr. Craig, is it your position here today on behalf of the president that when the president gave those answers in the deposition, he was telling the truth?

MR. CRAIG: That's correct, Congressman. He answered the question that it was possible that he was alone with her. This is in the civil deposition, so all the description that I gave to that civil deposition is accurate. It was evasive, it was misleading, he tried to be narrowly accurate, but Congressman, he did not violate his oath.

REP. CANADY: Well, Mr. Craig, let me just say this. I read it. It's here in writing. I believe this is an accurate transcription of what took place. This is in the public domain. And it seems to me that the president unequivocally denied that he had any specific recollection of being alone with Ms. Lewinsky. And for you to contend today that that's truthful, I think, is not credible. Now, that's just an observation, and there are other questions about other parts of the record that I'm sure we will focus on as we move forward with this, but I must candidly state that I don't see how anyone in this country could believe that that was a truthful answer in light of all of the evidence that is before us.

Let me address the issue about the standards for impeachment. And I think it's important that all of us acknowledge that not all criminal acts are impeachable. No one here contends that. We also understand that impeachment should not be for trivial matters. Impeachment, we all understand, is a grave step to take. And yes, I believe, and I believe most of the members of the committee understand, that we need more than probable cause to move forward with an impeachment. We need convincing evidence. But I believe that on the record before us, we have convincing evidence of a pattern of lying under oath and obstruction of justice.

I can't detail that here, but I believe that's in the record and we will discuss that. And I think we need to look at the effect of such conduct on the system of government.

I refer back to the report of the committee in the Nixon inquiry. It said, "The emphasis has been on the significant effects of the conduct; undermining the integrity of office, disregard of constitutional duties and oath of office, arrogation of power, abuse of governmental process, adverse impact on the system of government."

I believe that there's a convincing case here of such an adverse impact.

Let me quote, finally, Chief Justice Jay, who delivered the following charge to a grand jury. He said, "Independent of the abominable insult which perjury offers to the Divine Being, there is no crime more extensively pernicious to society. It discolors and poisons the streams of justice, and by substituting falsehood for truth, saps the foundations of personal and public rights." He goes on to say --

REP. SENSENBRENNER: The gentleman's time has expired.

REP. CANADY: Thank you.

REP. SENSENBRENNER: The gentleman from Virginia, Mr. Scott.

REP. ROBERT SCOTT (D-VA): Thank you, Mr. Chairman. Mr. Chairman, earlier this morning I mentioned a motion that I'd like to introduce. The motion would have been, had it been in order, that: "I move that the committee establish a specific scope of inquiry prior to the White House's rebuttal of still undefined allegations. If it shall be necessary to expand the scope of inquiry, then such expansion shall be permitted by majority vote of the committee. In addition, once specific allegations of inquiry have been designated, the committee shall hear from witnesses with direct knowledge of these allegations before it considers any articles of impeachment." When that is in order, Mr. Chairman, I would like to introduce that.

But in the meanwhile, I'd like to ask Mr. Craig whether or not he's been given a list of allegations, noting that Mr. Starr's original report had 11 allegations; he came back with 10. Mr. Schippers, the Republican counsel, came up with 15, our Democratic counsel came up with three. Kathleen Willey has been mentioned as a possible scope. Campaign finance reform was in one day and out the next. Insult, by the virtue of the response to the 81 questions, has been mentioned as an impeachable offense, or lack of candor.

Do you have a list of the allegations that you're responding to?

MR. CRAIG: We do not, Congressman. And may I just say one thing about that problem, which I think has been highlighted by what Congressman Canady just did. Particularly when allegations are being made about perjury, it is very important to particularize what the statement or what the alleged testimony is that is perjurious.

And if this committee is going to be considering those kinds of articles, it would be of benefit to the world as well as to this individual trying to serve a purpose of a defense lawyer, to know precisely what it is the president said in the grand jury that is supposed to be perjurious. This is the way, in fact, it's the common pleading way, that you deal with indictments for perjury or allegations of false testimony.

REP. SCOTT: Okay, now, much has been said about the 17 boxes of material. It's my understanding that you've been given access to about a third of that material, is that right?

MR. CRAIG: I think we've been given some access, yes.

REP. SCOTT: But not a lot?

MR. CRAIG: We're not allowed to take notes or to make copies.

REP. SCOTT: Okay. Mr. Ackerman, you indicated, I think you acknowledged in your testimony, that there is precedence for carrying over impeachments from one Congress to the next. Is there any question about the need to appoint managers by the House in the new Congress? Is there any question about that aspect of it?

MR. ACKERMAN: There is only one case of carrying over, since -- in the last 65 years. That's Judge Hastings' case. The previous carryovers are the trial of Pickering in 1804, which is the high point of no due process throughout the entire -- this was the worst possible precedent in the history of the United States. And then there was a Judge Louderback (sp), I think it was, in 1933, which was just before -- there was this sort of -- the final revenge of the lame duck Congress. So there's only one case --

REP. SCOTT: The question is, is there any question that the new House would have to appoint managers?

MR. ACKERMAN: Absolutely, and in that case, the new House appointed managers. So there is absolutely no precedent for holding over the managers appointed by one House to the other House.

REP. SCOTT: The other question I have is, I'd like to ask, I guess, Professor Wilentz. The title of the offense has been mentioned as the impeachable offense. Can you comment on why the title of the offense should not be used as the measure of whether it's an impeacha