More Transcripts From the Hearings

By Federal News Service
Tuesday, December 1, 1998

Witnesses:

• Gerald B. Tjoflat, U.S. Appeals Court judge
• Charles E. Wiggins, U.S. Appeals Court judge
• A. Leon Higginbotham Jr., retired U.S. Appeals Court judge
• Elliot Richardson, former U.S. attorney general
• Leon A. Edney, retired chief of naval operations
• Thomas P. Carney, retired army chief of staff
• Alan Dershowitz, Harvard Law School professor
• Stephen Saltzburg, George Washington University Law School professor
• Jeffrey Rosen, George Washington University Law School professor

REP. HYDE: Well, I hate to keep you waiting. You've already waited so long. Some of the members will come straggling in, I dare say. So we will resume. Again, your patience has been saintly, and we thank you very much.

On our second panel we have nine witnesses who will give us a variety of perspectives on the consequences of perjury and related crimes. The panel consists of federal judges, a former attorney general, retired military officers, legal scholars, and this morning we had the other panel of people who have actually been convicted of these crimes.

Let me note at the outset that all of these witnesses are appearing in their personal capacities, and none of their statements should be construed as expressing the views of any organizations with which they might be associated.

Our first witness is the honorable Gerald B. Tjoflat, a United States circuit judge on the United States Court of Appeals for the 11th Circuit. Judge Tjoflat is a graduate of the University of Cincinnati and Duke University School of Law. His law school tenure was interrupted by two years' service as a special agent in the U.S. Army Counterintelligence Corps. After law school, Judge Tjoflat practiced law in Jacksonville, Florida for a number of years. He took the bench in 1968 as a circuit judge on Florida's fourth judicial circuit. In 1970 he was appointed to the United States district court for the middle district of Florida.

In 1975 he was appointed to the United States court of appeals for the fifth circuit. And when Congress split the fifth circuit, he went to the newly-created 11th circuit. He served as chief judge for the 11th circuit from 1989 until 1996. In addition to his court duties, he's involved in local and national community service, educational and professional development organizations. He received the 1996 Fordham Stein prize, a national prize that recognizes positive contributions of the legal profession to American society.

Next to Judge Tjoflat is the honorable Charles Wiggins, a dear friend of this committee's, a man who served on this committee for many years. And he's now a senior United States circuit judge on the United States court of appeals for the ninth circuit. Judge Wiggins, as a former colleague and a dear friend, we're particularly pleased to have him here today. He graduated from college and law school at the University of Southern California and served two tours as an infantry officer in the United States Army.

He began his law practice in El Monte, California in 1957, where he also served in a variety of local elected offices. In 1966 he was elected to the United States House of Representatives, where he served with distinction on this committee during the impeachment inquiry of President Nixon, and he played a very vital role in that hearing. Judge Wiggins left Congress in 1978, returned to private practice till 1984, when he was appointed to the ninth circuit, and he's served on that court since that time.

Is Mr. Conyers here? Well, we'll skip you, Judge Higginbotham, only because Mr. Conyers wants the honor of introducing you. So it's not out of disrespect.

Our next witness is the honorable Elliot Richardson. Mr. Richardson is a graduate of Harvard College and Harvard Law School. After law school he clerked for Judge Learned Hand of the second circuit and Supreme Court Justice Felix Frankfurter. Throughout his distinguished career he has served in numerous public positions, including secretary of Health, Education & Welfare, secretary of Defense, attorney general of the United States, secretary of Commerce, and ambassador to the Court of St. James. That is a resume. In 1992 he retired as a senior partner in the Washington office of the law firm Milbank, Tweed, Hadley & McCloy. In January of this year, President Clinton awarded him the Presidential Medal of Freedom.

And now I'll yield to John Conyers for purposes of introducing Judge Higginbotham.

REP. CONYERS: Thank you, Mr. Chairman. A. Leon Higginbotham, Jr., started out as a President Kennedy appointee to the FTC. He then -- he had finished Antioch, Yale Law School, Harvard, University of Michigan, New York University, University of Pennsylvania. I counted them. He has 62 honorary degrees from universities. And he's written extensively, particularly about race relations in America and how the justice process has impacted on it. And he's currently writing his biography and other writings.

He's been so helpful in the civil rights movement across the years, and he is presently professor of jurisprudence at Harvard and the John F. Kennedy School of Government, counsel to Paul, Weiss, RifkinD, Wharton & Garrison in their New York and Washington offices, and a former circuit judge and chief judge of the United States court of appeals for the third circuit. We're delighted that you as well as all of the distinguished members here could stay with us for this lengthy period today.

Thank you, Mr. Chairman.

REP. HYDE: Thank you, Mr. Conyers. Our next witness is Admiral Bud Edney, who retired from the United States Navy in 1992 after 39 years of service. He's a graduate of the United States Naval Academy and has a master of public administration degree from Harvard University. A naval aviator, he has logged over 5,600 carrier flight hours and flown 350 combat missions.

During his career, his assignments included command of a carrier air wing, command of the aircraft carrier USS Constellation, and command of a carrier battle group. He also served as commander of all U.S. forces in the Atlantic and commandant of midshipmen at the U.S. Naval Academy. He concluded his career as supreme allied commander of NATO forces in the Atlantic and commander-in-chief of the U.S. Atlantic Command following his service as vice chief of naval operations and chief of naval personnel.

Since his retirement he has served as a member of the Defense Department's roles and mission commission, as a senior fellow at the Center for Naval Analysis, as a director of the Retired Officers Association, and a director of Newport News Shipbuilding. He presently teaches ethics at the Naval Academy, holding the distinguished leadership chair.

Our next witness is Lieutenant General Thomas Carney, who retired from the United States Army in 1994 after 35 years of service. He is a graduate of the United States Military Academy and has a master's degree in operations research and systems analysis from the Naval Postgraduate School. Just before his retirement, he served as the Army's deputy chief of staff for personnel. In that position he was responsible for developing all plans, policies and programs for the management of the Army's military and civilian personnel. Prior to holding that position, he commanded the Army's recruiting command, where he was responsible for the Army's efforts to recruit new soldiers.

General Carney has also held a number of combat commands, including serving as commander of the fifth infantry division and assistant commander of the 82nd Airborne Division. An airborne- qualified Ranger, he served two tours of duty in Vietnam, was awarded two distinguished service medals, three legions of merit, three bronze stars, the combat infantryman's badge for coming under fire in combat, and a combat jump star for making a parachute jump into combat.

Since his retirement, General Carney has served as an independent management consultant to the Shell Oil Company, the Delaware Port Authority, Deloitte & Touche accounting firm, and the National Academy of Public Administration. Most recently he served as deputy librarian of Congress, where he acted as chief executive officer of the world's largest library.

Our next witness is Professor Alan Dershowitz, the Felix Frankfurter professor of law at Harvard Law School. Professor Dershowitz is a graduate of Brooklyn College and Yale Law School. After law school he clerked for Chief Judge David Bassilon (sp) of the DC circuit and Supreme Court Justice Arthur Goldberg. Since that time he has taught at Harvard Law School. He's authored dozens of books and articles on various subjects, and he has represented numerous high-profile clients, including O.J. Simpson, Mike Tyson and Claus von Bulow.

Our next witness is Professor Stephen Saltzburg, the Howry (sp) professor of trial advocacy, litigation and professional responsibility at George Washington University Law School. Professor Saltzburg is a graduate of Dickinson College and the University of Pennsylvania Law School. After law school he clerked for Judge Stanley Wigel (sp) of the U.S. district court for the northern district of California and Supreme Court Justice Thurgood Marshall. He taught at the University of Virginia Law School for many years before moving to George Washington in '93. He has also served as deputy assistant attorney general for the criminal division and an associate independent counsel. He has published numerous articles in the field of criminal law.

Our next witness is Professor Jeffrey Rosen, an associate professor of law at George Washington University Law School.

Professor Rosen is a graduate of Harvard College and the Yale Law School, and after law school he clerked for Chief Judge Abner Mikva of the DC circuit. In addition to his teaching duties, Professor Rosen is the legal affairs editor of The New Republic and a staff writer for The New Yorker. He has authored numerous published articles.

We will begin with Judge Tjoflat. It would be helpful if you could hold your remarks in chief to about five minutes. We will have the light on. If you go over, I certainly am not going to cut you off, but we have a big panel and we have an inquiring membership up here. So Judge Tjoflat.

MR. TJOFLAT: Thank you, Mr. Chairman. As you indicated before you began the introduction --

REP. HYDE: Move the mike over.

MR. TJOFLAT: All right. Is that all right?

REP. HYDE: That's fine.

MR. TJOFLAT: As you indicated before you began the introductions, none of us here appears in behalf of any group. So I don't appear in behalf of the judicial branch or the judges of the 11th circuit. I appear myself. And the views I express on the subject of the consequences of perjury and related crimes are my own views, though I think they're shared in general, as my own opinion, by most judges, and probably by most of the members of this committee.

I am not here to suggest what the committee should do.

REP. HYDE: Your Honor, Mr. Conyers --

REP. CONYERS: Mr. Chairman, with all due fairness to our sitting judges that are here, I want to explain to you that we have the canons. We have the advice from the experts. And the fact that you're indicating your own individual views are not exculpatory at all. And so if you want, I will send down to you the ABA Code of Judicial Conduct, Canon 3(b)(9), that doesn't talk about your own views. We know you're not representing anybody but yourself. But as a sitting judge, you are still under the Code of Judicial Conduct, which precludes sitting judges from commenting on pending matters. Aware?

MR. TJOFLAT: I'm fully aware.

REP. CONYERS: All right.

MR. TJOFLAT: And it is not my intent to comment on the merits of the matter before this panel.

REP. CONYERS: I just wanted to bring this to your attention, sir.

MR. TJOFLAT: I'm fully familiar with the canons, and I appreciate your citing them.

The system of justice depends on three things in order to function as its framers intended. The first thing is an impartial judiciary. It is absolutely imperative that whoever is on the bench in a matter be impartial. The second thing that is indispensable to the administration of justice is a bar of lawyers who are committed to adhering to the code of ethics at all times, in all matters. And the third thing that is indispensable to the administration of justice is the oath taken by witnesses.

Those three things together, under our system, produce justice. It's like a three-legged stool in a way. And if one of the legs or two of the legs break, then the stool collapses. To the extent that this situation permeates the system, either because the oath is not obeyed or because lawyers do not adhere to the canons of ethics or because judges don't carry out their oaths of office, disrespect for the rule of law is bred and the people mistrust the system. And when they do that, they resort to other means of resolving their disputes.

Now, today's hearing focuses on the third element, and that is the oath; in particular, what effect perjury has on the system of justice. One way to illustrate what perjury can do to the administration of justice is to imagine a pool of water, a pond, and you drop a pebble into the pond. The pebble is perjury, let us say, and it creates a ripple effect. The extent of the ripple effect depends on the extent to which the perjury is material, is important to the matter under inquiry, to the truth-seeking process.

Now, what happens with the ripple effect is that perjury of that sort implicates the judicial system and the parajudicial system, we'll call it. It may require -- for example, if it occurs in a case that is on trial, it may require a continuance of the case. It may require a mistrial. It may require more discovery. In a criminal case, it could likewise carry the same -- a mistrial or require a continuance. If it's a pretrial proceeding of some sort, other machinery of the courts may have to be brought into play, because the natural tendency is to counteract perjury with other evidence in order to shed light on the truth.

And when that occurs, the courts are taxed in the sense that they cannot be made available to other litigants who are standing in the pipeline ready to be served. The courts have to expand themselves and their processes to accommodate the perjury, and that is called obstruction of justice. The perjury in that circumstance impedes the due administration of justice. It causes, as I say, delay and expenditure of judicial resources. And it precludes a summary disposition in many times of cases.

So, with that, Mr. Chairman, I'll conclude my opening remarks. I'm sure there will be questions later.

REP. HYDE: Very well. Judge Wiggins.

MR. WIGGINS: Thank you, Mr. Chairman. I want to make it clear that I'm here as an individual, at the request of Chairman Hyde.

REP. HYDE: We can't hear you.

MR. WIGGINS: I'll speak right into it. All right -- that I'm appearing today as an individual and not as a member of the ninth circuit. I am appearing here at the request of Henry Hyde, your chairman. And I'm honored to be here in his company today.

I have a problem. I'm just about blind, and I can't read my remarks. But I have prepared remarks and I've submitted them. If you have questions of me, I'll be sure that they're written down, and I'll respond after I get back to my magnifying machine that permits me to read.

Well, the question asked by Chairman Hyde was whether I would state my views concerning the impeachability of perjury and obstruction of justice, and that's an easy question to answer. Of course, they are. They're impeachable. And I don't think there should be any debate on that subject. But the debate should occur ultimately before the House of Representatives on whether or not the president should be impeached.

Now, there is no question he is vulnerable. And I think that indicates to the committee what its responsibility is. Is there probable cause to believe that President Clinton has committed impeachable offenses, namely perjury and obstruction of justice? And we can question the legitimacy of the testimony, but I think there is little doubt that the president is vulnerable, could be impeached.

But that doesn't preclude a second judgment by you as a member of the House to vote in the public interest on the question of whether the president should be impeached. That question troubles me greatly. I believe that the committee is within its responsibility to report articles of impeachment to the House as a matter of law and as a factual matter, too. I confess that there are factual issues, too.

But I resolve those questions in favor of the committee voting to impeach the president. But that doesn't preclude my second guess as a full member of the House. When you are called upon, as I think you will be called upon, to vote as a member of the House of Representatives, your standard should be the public interest. And I confess to you that I would recommend that you not vote to impeach the president.

I'm not a fan of impeachment, as you know, but I find it troubling that this matter has grown to the consequence that it now occupies on the public screen when the president has lied -- I think he has lied, but the issue is whether the president should be impeached. And you're ultimately going to be called upon to cast your vote in that regard. I would urge that you not vote to impeach the president.

I want to send some sort of clue to you about my own research concerning the impeachability of offenses. I find it very troubling that the Judiciary Committee seems to be willing to impeach a president for such vague concepts as obstruction of justice. I find that there is not any necessity that the president know that his acts were impeachable, that he was obstructing justice or abusing power, rather; abusing power at the time he did them.

That's true with respect to President Nixon's impeachment experience and it's true today. There's some talk about impeaching the president for abuse of power. I think that's too vague. The president is entitled to notice, some notice, that he is performing acts that are wrong and that he did those acts notwithstanding that notice.

I think the text of my remarks speak for themselves, and I'll stop at this time, Mr. Chairman.

REP. HYDE: Thank you, Judge Wiggins. Judge Higginbotham.

MR. HIGGINBOTHAM: Mr. Chair, when I was 35 years old, about the age of Congresswoman Watts (sic), I became a United States district judge. I had that coveted honor for 29 years. I retired about five years ago, so that I'm talking solely as an individual. But I have enough absolute confidence to say to you that I do not speak only for myself. My wife read the speech, and she concurs. (Laughter.)

I have, in my first two books, spent hundreds of hours going over Foran (sp) and Elliot (sp), who were the two prior major scholars who give us the whole American legal history. And maybe I should start by quoting them. But as I listen today and as I've heard you before, I don't think what this illustrious body needs are quotes from Madison or Mason or Benjamin Franklin, but quotes from a person known as Luther Standing Bear, a member of the Lakota Tribe, who said, "Thought comes before speech."

And the more I have reflected on it, it seems to me that that is the critical issue. Do we have the capacity, when dealing with one of the most important constitutional issues which this committee will ever have, to pause and to give thought before you speak and before you vote?

I have filed a very detailed statement with all of the things that academicians do, with footnotes, which will satisfy those who want footnotes. And as I listened to the debate this morning, I heard a spectrum of profoundly conflicting views. Some argued very convincingly that there is a scintilla or maybe more than a scintilla of evidence to justify a perjury prosecution. And others, I thought, with extraordinary good sense, questioned whether this case had the probative weight to make the critical judgment that's necessary.

And I came to the conclusion that I could not put your thoughts together, and therefore, in my document, I use the words which every great appellate lawyer uses. When you want to test the (core?) and the phrase "assuming (arguendo?)," is there a cause of action? Assuming arguendo that all of the adverse evidence that has been alleged by my adversary, is there a prima facie case?

And I will assume, for the purposes of analytical discussion, that some reasonable people could find a prima facie case. But if you're going to understand my good friend Luther Standing Bear, that is not the end of the thought but only the beginning. And the thought issue has to be if there is a prima facie case of perjury, does that establish a basis for the unique punishment inherent in impeachment?

Now, Justice Frankfurter -- and I don't have to tell my good friend Elliot Richardson, because he heard it so many times -- would often say, "If I can define the question, I can determine the answer." For me, the proper question is, even if there is perjury, is there a basis for impeachment?

And in the document which I've submitted to you, quoting and relying on the historians who've appeared before you -- Professor Holder of Virginia, Professor Sunstein and others -- I don't believe that this case reaches the narrow category of egregious or large-scale abuses of authority that comes from the exercise of distinctly presidential power. And that does not mean that there's any prerequisite to justify the president's conduct. But we are not talking about grand theater, we are talking about a profound constitutional inquiry, which few generations of Congressmen have ever had to make. And it is on that platform, that I would like to address my comments to you.

And when you've been teaching in law school, the one thing you always try to test the students on, is a hypothetical. You are much too smart to be students, and I'm much too old to not be a professor.

So, let me give you what -- if I were teaching my class at Harvard, the hypothetical I would present to them. I would say, suppose that on January 17, 1998, and on August 17, 1998, which are the two dates on which President Clinton testified, that he appeared before a grand jury, and that his testimony was that when he was driving his automobile in a 50-mile per hour speed zone, that he said he was going 49, but the record demonstrates, beyond a reasonable doubt, that he was going 55. And it would demonstrate that he knew that he was going 55, and therefore you have perjury material to that inquiry, could the president of the United States, under those circumstances, be removed from office, because he gave a false statement about the speed of his car, in a grand jury inquiry?

For those of you who use the word "per se" abstract, as if it is a formula which covers everything, then it would be impeachable. I submit to you, that perjury has gradations. And I spend a lot of time in my paper, suggesting to you that there are gradations of perjury. Some are serious, and some are less. And though I do not applaud the president for what he did, for impeachment purposes, there is not much difference between someone who testified falsely on a speeding incident, and someone who testified falsely about his relationship in a sexual matter voluntarily with a private person.

So therefore, that's one point I think you've got to clarify. Are you going to follow a per se perjury rule, or will you look at gradations. We look at gradations of perjury, even under the sentencing rules, and I cite them here to you.

Now, let me press the doctrine a little more. Now, the two ladies who testified today, I respect them as decent human beings, who, like all of us, or maybe like me, have frailties, who may not have had the level of perfection which some of you have -- (scattered laughter) -- so, they had frailties. And they were sentenced.

But what is the relevance? What is the probative relevance of what they did, compared to impeaching a president, one who got 49 percent of the votes of the citizens of this nation? If they are sentenced, the presidency still holds up. But in the Jones case, there was a powerful, concurring opinion by Justice Breyer. And in that concurring opinion, he said, "the president is the most indispensable person in America." You cannot equate the Presidency of the United States, with a basketball coach from South Carolina. And that takes not a thing from her excellence, and the human empathy which we must have for her.

And there are other concerns I had, when I heard the word "double standards." And if you were a student in my class, I would have started a real Socratic inquiry: "What do you mean about `double standards'?"

Under the statute, the president of the United States can be treated just like they were. The only difference is a time delay until January 20th. That is not an issue that he has immunity. It is a question of delay. And the Founding Fathers, when creating this Constitution, were concerned about the complexity of government, that they had a whole series of rules --

REP. HYDE: Pardon me for interrupting you. But I know the light's been on for about 10, 12 minutes.

REP. COBLE: (Off mike.)

REP. HYDE: I was going to ask the judge if he could bring his remarks to a close.

REP. COBLE: Judge, no discourtesy to you. I was just thinking about the other folks on the panel.

MR. HIGGINBOTHAM: An eminently fair comment. So, let me look at Congress.

REP. HYDE: That's a terrible way to repay fairness, Judge.

MR. HIGGINBOTHAM: Mr. Chairman, at least I tried. If you're talking about double standards, look at Dombrowski (ph) versus Eselman (ph), which stands for the proposition that members of the United States Congress can go on the floor of the House, and commit what in a private setting would be libel. They can say things -- I know none of you do it -- which are malicious, which are even fraudulent, and you have absolute immunity from any liability whatsoever. And that has been applied to judges in Stump (ph) v. Starkman (ph), to prosecutors in Emblen (ph) v. Patchman (ph), and to witnesses in Briscoe (ph) v. Lahue (ph).

So therefore, we don't have a single standard in the operation of our society. We do have some situations of special privilege, and I think you, Mr. Chairman, for your extraordinary indulgence. (Scattered applause.)

REP. HYDE: Thank you, Judge. Mr. Richardson. Ambassador Richardson.

MR. RICHARDSON: Mr. Chairman and members of the committee, thank you for giving me this opportunity to share with you my perspective on the responsibilities thrust upon you by President Clinton's conduct. It is a perspective gained from experience, not only as a United States Attorney-General, but also as a state attorney general, and United States Attorney.

In fact, I may well be the only person who has held all three of those jobs. I will be glad, of course, to respond to your questions, and hope that my testimony will, in the end, have contributed to saving more time than it costs.

As you have reminded us, Mr. Chairman, the principal focus of this hearing, is on the consequences of perjury and related crimes. That certainly has to be the area of your and your fellow citizens' primary concern. It does not follow, however, that there needs to be comparable emphasis on evidentiary matters. There is no material difference, indeed, between the Starr Report's allegations, and the president's admissions. It is accepted that he did in fact, over a period of months, deny, withhold, and misrepresent the truth as to his relationship with Monica Lewinsky.

This committee, moreover, has no need to decide whether or not these lies constitute, quote, "perjury," unquote, as that term is defined by criminal law. Taking into account the number, decisions, and context of these lies, as well as the fact that they were deliberately intended to mislead bodies officially charged with pursuing the truth, you could reasonably regard them as warranting impeachment, even though they may not come within the definition of perjury.

But Article II, Section 4 of the Constitution, specifies that on conviction by the Senate for an impeachable offense, the only available penalty is removal from office. To contemplate impeachment, therefore, is to raise the question of whether or not the circumstances justify so drastic a penalty.

The members of this committee, I submit, already have all the information they need, on which to base their own individual answers to this question. If a majority of you conclude that the answer to this question should be no, it's obvious that the actual adoption by the House of Representatives of impeachment charges, will be pointless. Worse, such action would automatically transmit those charges to the Senate for trial, thus indefinitely prolonging a final resolution to this matter. The Senate itself, meanwhile, would have no alternative but to convict or acquit; no intermediate outcome would be possible.

This body, by contrast, is in a position, right now, to submit to the House as a whole, its best judgment as to an intermediate course. And since, unlike a judicial sentence, such an outcome -- censure or rebuke, with or without a formal acknowledgement of guilt -- cannot be made proportional in severity to the seriousness or number of the offenses charged, an attempt by the House to make the grounds for its intermediate action seem more precise, would serve no useful purpose.

To my mind, the intermediate course offers the most appropriate and least destructive solution. The initial wrongdoing was not criminal, and did not, in contrast to that of Richard Nixon, entail the abuse of power. Given a president's unique status as the Chief Executive, whose authority derives from a vote of the American people, his crimes or misdemeanors, should, in order to justify his removal, have to be higher than those that issue here.

Thank you, Mr. Chairman. That completes my prepared statement.

REP. HYDE: Thank you, Mr. Richardson. Admiral Edney.

ADM. EDNEY: Good afternoon, Mr. Chairman. It is a pleasure to appear before your distinguished committee today. I ask that you bear with my voice today. One of the benefits of reaching my stage in life, is that you get to take your grandchildren to the Macy's Day Parade. (Laughter.) Those that witnessed it this year, it rained the entire time. But I did enjoy my time in the Big Apple.

In view of my particular experience as a career military officer, serving this nation's defense needs for 37 years, I will focus my remarks on the importance of ethics and integrity in the military chain of command of this great country. And at the top of that chain of command, as we all recognize, is our Commander-in- Chief.

We live in a society that more and more, is transmitting a confused message on the subject of ethics and integrity, so much so that it often makes one wonder if we are losing our way. Faced with this reality, the Armed Forces have concluded all personnel must be inculcated repeatedly with the requirement and expectation that military leadership must evolve from a foundation of trust and confidence.

Ethics and integrity of our military leadership, must be much higher than the society at large. And even the elected officials that serve that society.

Success in combat, which is our business, depends on trust and confidence in our leaders, and in each other. Ethics and integrity are the basic elements of trust and confidence, both in our military leadership in matters from above, and more importantly, from below.

So today, in our military, we are asking our people: What is right? Why do what is right?

The moralist answer is, "Because it is the right thing to do." Our answer is, "Because the trust and confidence required of our profession, demands it." This trust and confidence must exist up and down the chain of command, where operations require execution of orders that endanger lives.

Doing what is right, based on the whole truth, must be natural and automatic for the American military officer. Whenever one reflects on the need for ethics within the military profession, as executed by those who have the privilege of leading the American soldier, sailor, Marine, airmen and Coast Guardmen in the duty of defending our national security interests, I believe it is necessary to reflect on the roots of our nation.

For it is there where the higher calling of this nation -- some call it a moral purpose -- that we serve today, began . We must never forget the values that this nation was founded on. They are marked forever by the lives of those who fought and gave the ultimate sacrifice for those principles and belief.

I will submit to you, while there are many effective styles of leadership, two essential ingredients of successful military leadership, are integrity and ethics. Rank and high positions do not confer privileges. They entail unavoidable responsibilities and accountability.

Young Americans -- and that's who fights, and lose their lives in our wars, and we should never forget it -- young Americans in our military, place their leadership on a pedestal of trust and confidence, when they earn it. The troops have the right to expect unfailing and professional performance and integrity from each level of leadership. As military leaders at all levels, we need to consistently display that match between words and deeds, between laws and compliance, between institutional values and behavior.

Now, the catch is, this match must take place 24 hours a day. There is no duty time, and then off time, where you can "let your hair down," and not represent these basic values. There can be no compromise on this issue, in a profession where the ultimate you can demand of a subordinate, is that he or she lay down their life in the execution of your orders on behalf of this country.

When all is said and done, military leadership must have a moral base, a set of ethical values, to keep us true to the high ideals of our forbearers, who provided us the cherished inheritance of freedom and justice.

The integrity of an officer's word, signature, commitment to truth, concerning what is right, and acting to correct what is wrong, must be natural, involved, and rise to the forefront of any decision issued. Leadership, by example, must come from the top. It must be consistent with the highest standards, and it must be visible for all to see. "Do as I say and not as I do," won't hack it in our military.

This country is firmly entrenched in the principle of civilian leadership of our military, and the authority of the president of the United States. Therefore, I believe those who hold that leadership position, to be credible, should meet the same standards. America and her Armed Forces have always stood on the side of right and human decency. You do not throw these core values away, in the process of defending them. You also do not lower the bar of ethical standards and integrity, when individuals fail to live up to them.

We must continue to remove those who fall short, and seek those who meet and exceed the requirements. Lower standards and less accountability at the top, will undermine the trust and confidence so essential to good order and discipline, as well as mission success.

REP. HYDE: Admiral, can you bring your remarks to a close? Thank you.

ADM. EDNEY: Military leadership requires asserting what is right, and what is wrong. When there are any number of courses of action that can take, mistakes will happen, and can be directed, usually with a positive learning curve. The cover-up of mistakes and responsibility by lying or obstruction, cannot be tolerated.

The leadership of our armed forces must be based on principle, not litigious double-talk. Thus, the leadership traits of our military, as well as the civilian leaders of the military, must demonstrate, above all else, a commitment to integrity and ethics on a daily basis.

In summary, we must learn from our past mistakes, but we must get on with the business at hand, and focus on the future, not our wake. Military readiness and mission accomplishment, depends on the trust and confidence in the integrity of our leader. The actions of the leader, are more important than the words. It is important for those who lead, to know what you stand for. It is also important to know what you won't stand for.

Finally, regardless of what the exit polls say, the character of a nation and its leaders does matter. And it matters most to those who are prepared to lay down their lives for that nation. Those entrusted with the defense of our nation, are in the risk- taking business.

Finally, our leaders must eschew obfuscation in all we do. Our national leaders must talk straight, with integrity on every issue. If we lie to ourselves as an institution, or as individuals within that institution, we are laying the seeds of our own individual and national destruction.

Thank you for the privilege of addressing this committee.

REP. HYDE: Thank you, Admiral. Lieutenant General Carney.

GEN. CARNEY: Thank you, Mr. Chairman and members of the committee. I've been asked to testify on the importance of the code of ethics, and particularly integrity to the effective leadership of military forces. I emphasize, as you did, Mr. Chairman, I am speaking for myself as a private citizen, who happens to be a retired Army Lieutenant General, and I'm not speaking for the military.

Prior to attending West Point almost 40 years ago, my Jesuit high school mentor made me aware that I would have to swear an oath, and that I'd better be comfortable with it. When I read it, I found it to be an oath I could live with. Later, at West Point, i learned how unique it was in military history.

American servicemen and -women, they swear allegiance to the concepts embodied in a document. We do not swear allegiance to a king or a president, or the motherland, or to the regiment. We swear to support and defend the Constitution of the United States against all enemies, foreign and domestic, and to bear true faith and allegiance to the same.

Even in retired status, we live by that oath. Indeed, even in retired status, we are subject to the Congress's body of law for the military, known as the Uniform Code of Military Justice, include Article 88, which precludes contemptuous words against the president. I intend certainly to not make any such remarks today, although I believe actions to which he admitted, he would find personally to be contemptuous.

Of course, also included in that oath, is that we will -- and I quote -- "obey the orders of the President and the officers appointed over me," end quote.

That's in the oath, and that is not negotiable. We have a professional military today, the best the world has ever seen. It's not a drafted military, as the one I first joined. It's a military that's guided by its oath, and by its supporting code of ethics. Regardless of the service, as the Admiral has pointed out, these codes are quite similar, but I'll discuss the Army's in particular, with which I'm most familiar.

The first of those codes I encountered, was the West Point motto, "Duty, Honor, Country," three simple words that I still study today. The boundless nature of the word "country" is best described in Article I of the Prisoner of War's Code of Conduct, quote, "I am an America fighting man. I serve in the forces which guard my country and our way of life, and I am prepared to give my live in their defense."

The word "honor" includes all the chivalrous aspects of the word, including integrity. Integrity was very clearly delineated for us in the Cadet Honor Code, quote "A cadet does not lie, cheat or steal, nor associate with those who do." No one ever made a distinction about whether or not you were under oath or not.

The rationale for the code went beyond the notion that honorable men do not lie, cheat, or steal. It included the reality that battlefield reports impact decisions that affect the outcomes of battles, and the lives of soldiers. Consequently, soldiers don't want to serve with or around other soldiers that they don't trust.

For this trust to exist, the military must insist on the highest standards of integrity. And the word "duty" in the "Duty, Honor, Country," motto, said to us that we are not just prepared to give our lives, we are prepared to live tough lives as well. So today, soldiers are months away from their family, serving in Haiti, Bosnia, Croatia, Macedonia, Kuwait, the Sinai, Korea, Central America, and elsewhere.

Now, there have been very good efforts over the years, to add clarity to the words "Duty, Honor, Country," and in my view, none has been any better than the recent articulation of the Seven Army Values. This particular is carried in the wallets of all the United States soldiers, and a dogtag, slightly smaller than that, is worn on their dogtag chains.

Those three words I've discussed, are expounded on in the seven words. "Duty, Honor, Loyalty, Integrity, Selfless Service, Courage, and Respect for Others." Note that integrity has now been separately listed from honor, to add even more emphasis to its importance.

Why is it important that military services be value-based institutions? There are both external and internal reasons. Externally, to paraphrase a great American, America's military is created by America, is for America, and is from America. It hasn't been any other way for the 225 years of its history, and particularly the last 25, since the draft ended.

It's not really an all-volunteer army, it's an all-recruited army. And each year, half a million young American men and women have to personally elect to join it, and another 1.8 million have to elect to remain. That is truly from America.

So, the military must have a positive image, or frankly, we'll have to return to the draft. Despite occasional mistakes and setbacks, the military has been the most admired institution in America for almost two decades, according to the Gallup Poll Survey on Americans' confidence in their institutions. It is my personal view, as an old recruiter, that it can't be any other way. If you erode the value system, then Americans will not be proud to join, nor to stay.

Fortunately, today's highest military leaders are attuned to this reality, and none of them need to be reminded of the importance of an ethical climate. They talk it, and they walk the talk.

The internal reasons for having solid values: those half- million who join us every year, come from all backgrounds and all walks of life, and not every one of them has had the advantage of being born to parents like my mom and dad. Not all of them have been exposed to the Ten Commandments and the 12 Points of the Scout law. So the Army has an aggressive program of character development, starting with basic training.

I'm not so naive as so to think that the Army of a million men and men, active Guard and Reserve are void of weak leaders -- certainly not -- but the good news is that there are systems to weed them out in peacetime so that the terrible wartime consequences can be avoided.

Will soldiers follow weak leaders that don't abide by the standards I have attempted to describe? The answer is yes, they must, for they are bound by their oath to obey the orders of the president and the officers appointed over me. But the difference between an average unit and the best unit is most often its leaders -- great leaders -- men of character inspire soldiers to do extraordinary things. Conversely, a general malaise hangs over units whose leaders are weak. Soldiers want, indeed deserve leaders who are held accountable for the same standards that they are held. The credibility of the system is at stake when that is not the case. The military cannot afford to have its standards viewed as irrelevant or out of step. Military leadership development programs, the Code of Ethics and the Uniform Code of Military Justice all work together in concert to ensure that the standards are applied equally up and down the chain.

I look forward to your questions, sir.

REP. GEKAS: Thank you, general.

Professor Dershowitz.

MR. DERSHOWITZ: For nearly a quarter of a century I have been teaching, lecturing and writing about the corrosive influences of perjury on our legal system -- especially when committed by those whose job it is to enforce the law, and ignored or even legitimated by those whose responsibility it is to check those who enforce the law.

I appreciate very much your asking me to share my experience and expertise here with you today. On the basis of my academic and professional experience, I believe that no felony is committed more frequently in this country than the genre of perjury and false statement crimes. Perjury during civil depositions and trials is so endemic that a respected appellate judge once observed that, quote, "experienced lawyers say that in large cities scarcely a trial occurs in which some witness does not lie." Police perjury in criminal cases, particularly in the context of searches and other Exclusionary Rule issues, is so pervasive that the former police chief of San Jose and Kansas City has estimated that hundreds of thousands of law enforcement officials commit felony perjury every year testifying about drug arrests alone.

But in comparison with their frequency, perjury crimes are among the most underprosecuted in this country. As prosecutor Michael McCant (sp) concluded outside an income tax violation, perjury is probably the most underreported crime in America. Moreover, there is evidence that false statements are among the most selectively prosecuted of all crimes, and that the criteria for selectivity bears little relationship to the willfulness or frequency of the lies, the certainty of the evidence or any other neutral criteria relating to the elements of perjury.

Historically I think we can all agree that false statements have admitted considerable variation and degree. The core concept of perjury grows out of the Bible, the Ten Commandments, "bearing false witness," a term that consisted in accusing another falsely of a crime. Clearly the most heinous brand of lying is the giving of false testimony that results in the imprisonment of somebody who is innocent. Less egregious, but still quite serious, is false testimony that results in the conviction of a person who may be guilty, but whose rights were violated in a manner that would preclude conviction if the police testified truthfully. There are many other points of this continuum, ranging from making false statements about income taxes to testifying falsely in civil trials. The least culpable genre of false testimony are those that deny embarrassing personal conduct of marginal relevance to the matter at issue in the legal proceeding.

I think it is clear that the false statements of which President Clinton is accused fall at the most marginal end of the least culpable genre of this continuum of offenses, and would never even be considered for prosecution in the routine cases involving an ordinary defendant.

My own interest in the corrosive influences of perjury arose from two cases that I appeared in as a young lawyer. In both cases the policemen were caught committing perjury -- one on tape and the other by his own admission. In both cases the policemen were promoted, not prosecuted. Neither of those policemen were called to appear as witnesses here today. All reports on the persuasive -- pervasive problems of police perjury and tolerance of the lying by prosecutors and judges point to a widespread problem. The Mullin Commission in New York for example concluded that the practice of police falsification is so common that it has spawned its own word, "testilying." Officers who commit falsification to charge -- serve what they perceive to be legitimate law enforcement ends are committing perjury. The commission provided several examples of perjured cover stories that had been suggested to young officers in order to make arrests.

Many judges who listen to or review police testimony on a regular basis agree with Judge Alex Kozinski of the Ninth Circuit, who said it's an open secret long shared by prosecutors, defense lawyers and judges that perjury is widespread among law enforcement officials. Yet there is little apparent concern to remedy that serious abuse of the oath to tell the truth, even among those who now claim to be so concerned with the corrosive influences of perjury on our legal system. This committee, for example, pursuant to its oversight mandate, has never to my knowledge conducted hearing on this deeply corrosive issue, which has far more dangerous impact over our legal system than anything charged against President Clinton. If this were truly today an objective hearing on the consequences of perjury or on double standards, it would focus on the most serious types of perjury -- that committed by police with the approval of prosecutors and judges. Yet we see no such concern.

A perfect example of the selective morality regarding perjury occurred when President George Bush pardoned the former secretary of defense, Caspar Weinberger, in 1992, even though the evidence was absolutely clear and convincing.

The real issue was not the couple of convicted perjurers who appeared before this committee today, or the judges who condemn the evils of perjury, but the hundreds of thousands of perjurers who are never prosecuted and who this committee does not seem to care about, many for extremely serious and calculated lies designed to undercut constitutional rights of unpopular defendants, and the judges who say nothing and do nothing about this corrosive phenomenon. You could not fit into this room or into this building all of the people who testified more perjuriously than President Clinton and were not ever prosecuted.

If we really want to reduce the corrosive effect of perjury on our legal system, the place to begin is at or near the top of the perjury hierarchy. If instead we continue deliberately to blind ourselves to pervasive police perjury and other equally dangerous forms of lying under oath, and focus on a politically charged tangential lie in the lowest category of possible perjury, hiding embarrassing facts by evasive answers to poorly framed question, which were marginally relevant to a dismissible case, we will be reaffirming the dangerous and hypocritical message that perjury will continue to be selectively prosecuted, as a crime reserved for political or other agenda-driven purposes.

A Republican aide to this committee was quoted in the New York Times as follows: "In the hearing we'd be looking to whether it's tenable for a nation to have two different standards for lying under oath, one for the president and one for everyone else." On the basis of my research and experience, I am convinced that if President Clinton were an ordinary citizen he would not be prosecuted for his allegedly false statements. If President Clinton were ever to be prosecuted or impeached for perjury on the basis of the currently available evidence, it would indeed represent an improper standards, a selectively harsher one for this president and perhaps a handful of other victims of selective prosecution and the usual laxer one for everyone else, especially police perjurers. Thank you. (Applause.)

REP. GEKAS: The members of the committee will refrain from demonstration. That is not part of the decorum of this committee.

The gentleman -- the time of the witness has expired, and we now turn to Professor Saltzburg.

MR. SALTZBURG: Thank you, Mr. Chairman, members of the committee. The conflict among you is as understandable as it is palpable. On the one hand it is totally unacceptable to anyone interested in fair and equal justice to say that if the president committed perjury in a federal court, or before a federal grand jury he should get away with it, because he's president -- the economy is good or we are at peace.

We cannot excuse perjury in the most highly publicized case involving the most powerful official. We expect the oath to be taken seriously by future witnesses. On the other hand, our Constitution uses carefully chosen words when it limits impeachable offenses to bribery, treason or other high crimes and misdemeanors. There's a strong argument that perjury, offensive as it is, does not amount to corruption of or abuse of office, when the false answers relate to questions that do not address the president's official acts and duties.

There is reason -- good reason then -- why members of the committee, the full House and the public are conflicted. They want to condemn lying and deceit and have their government teach that truth matters, while at the same protecting this president and future presidents from the impeachment charges that do not rise to the level of misconduct that would justify removal from office.

Is there a way to resolve the conflicts, condemn lying and deceit, affirm truth and limit the scope of impeachment at the same time? I think there is, and that is what I want to talk about. Judge Starr testified -- accurately, in my view -- that some of the answers that the president gave in the Paula Jones deposition were, quote, "not true," end quote, or were, quote "false," end quote. This is very different from saying as some have that the president committed perjury in giving these answers.

An example will help to make my point. During the Jones deposition the president was asked to use a very carefully crafted definition of sexual relations. That definition defined certain forms of sexual contact as sexual relations, but for reasons known only to the Jones lawyers limited the definition to contact with any person for the purpose of gratification. It is not at all clear that the president's interpretation of the definition of, quote, "any person," end quote, as meaning other than himself was unreasonable. The question could have been worded much more clearly. And crass and unkind as it might be to suggest it, it is also unclear whether the president sought to gratify any person but himself. Thus his answers might in fact be true rather than false.

Now, some of you will wince and say, "Aha, semantics -- word- smithing." But you must face the fact that you cannot investigate perjury allegations without considering the state of mind and intent of the witness. And all of the things that might be on a witness's mind are relevant to a perjury inquiry. Indeed, once you recognize the difficulty of investigating perjury, the beginning of an answer emerges to my question of how to resolve the conflicts that divide you and the American people.

In considering past impeachments involving federal judges, who can be indicted while in office, the Congress generally has waited to let the criminal process work. Only after a judge was convicted of perjury did you consider impeachment. The president's unique constitutional role makes it unlikely that he can be indicted and/or prosecuted while in office, so you do not have the option of waiting. But you do have the option of deciding that allegations of perjury that do not involve corruption of or abuse of office should not give rise to impeachment investigation or charge because perjury is an elusive crime to prove, involves subjective judgments that are especially difficult to make in a politically charged environment. And when rising out of personal conduct, it is too attenuated from the official duties of the president.

I respectfully suggest to you that whether or not the president is guilty of perjury, he certainly answered questions in the Paula Jones deposition in a way that intended to mislead the Paula Jones lawyers about his relationship with Monica Lewinsky. I understand the president's predicament. Understanding the president's predicament, however, is not to excuse him. He could have conceded liability thereby avoiding the need to answer questions. He could have refused to answer questions about Ms. Lewinsky and suffered the consequences. He could have sought to make an ex parte submission to the court. He could have done many things, but he was not entitled to mislead the court and the Jones lawyers.

The president made the wrong choice, and there must be consequences for that. It is my firmly held view, however, that this committee has focused too much on whether the president actually committed perjury. It would be, and it is, dangerous to send a message that testimony is acceptable as long as it is not perjurious. This committee has the opportunity to promote the rule of law and to emphasize the importance of truth in judicial proceedings if it declares that no witness -- not the president, not anybody -- may deliberately deceive a court and deliberate create a false impression of facts. This is not exclusively a Republican or a Democrat notion. It is what ordinary, honest Americans want and expect from their judicial system.

I refer you in my written testimony to a Washington State case that I tried and won, in which a law firm and a company were punished for making false and misleading, but not perjurious, statements. If you agree with me that misleading a court is wrong, whether or not it is perjurious, then your path is clear and involves two steps -- one is collective and one is individual.

You should be able to unanimously agree upon a resolution that condemns the president for doing what he obviously did, which was answering questions in the Jones deposition to deceive the court and the lawyers, to condemn the president for defending that conduct before the grand jury, and to condemn him for lying to the American people. Such a resolution is perfectly consistent with your constitutional responsibilities. Nothing in the Constitution suggests that when a president engages in conduct that is reprehensible but not impeachable the Congress must be silent. Any resolution passed by both houses of Congress would be placed before the president. Placing such a resolution before him would enable him to act with honor by signing it, or to veto it and face the condemnation of the American people. That's the collective step.

The individual step is equally important. Each of you has the right to communicate, if you choose, your belief that Federal District Judge Susan Webber Wright should consider whether to impose sanctions on the president for his testimony in the Paula Jones case. Even though the case has been settled, Judge Wright retains power to sanction misbehavior in litigation that was before her. I believe it's important for Judge Wright to consider and to impose sanctions on the president. I say this because if I were in the Department of Justice and received strong evidence that a witness in a federal civil deposition lied under oath, my reaction in almost every case would be to refer the evidence to the federal judge to whom the case was assigned. It is hard to imagine using scarce prosecutorial resources to investigate the matter when the court and at least one party in the civil case have every incentive to do the investigation to correct any injustice that occurred and to sanction misbehavior.

Judge Wright is in many respects the only hero that I see in this matter. Out of respect for the presidency she personally was present when the Jones lawyers questioned the president. She narrowed their definition of "sexual relationship" to protect the president. She fought to make their gag order work, to protect both sides against embarrassment. And though appointed by a Republican president, she found insufficient evidence to justify Paula Jones a jury trial.

My speculation is that Judge Wright has staid her judicial hand while this impeachment perjury is ongoing, not wanting to intrude or have the judicial branch perceived as even slightly partisan. But if this committee ends its investigation she should punish the president. She should send a clear message to all future witnesses. If she does so she should satisfy any legitimate interest in promoting truth identified by the committee or by the independent counsel. If she does, and you agree to censure his conduct, we will have resolved the conflicts that divide you. In doing so the government will teach the importance of truth and responsibility. We will condemn lying and deceit, and assure that consequences attach to witness misconduct. And we will carefully and properly reserve the political death penalty of impeachment for behavior more closely related to conduct of office than this president's.

REP. GEKAS: The time of the witness has expired.

We now turn to Professor Rosen.

MR. ROSEN: Thank you, Mr. Chairman. It's a great honor to be here today. This is, I think Democratic and Republican members may agree, a brutal and unforgiving time in American politics in which ordinary citizens and their elected representatives are increasingly threatened with punishment for relatively minor transgressions of the kind that the law used to excuse. Responsibility for this unhappy state of affairs can be traced in the post-Watergate era to the explosive conversion of three novel and expanding sets of laws, the sexual harassment laws, the laws prohibiting lies to federal officials, and the independent counsel law. President Clinton deserves his share of blame for the expansion of these laws, and it is only fair that he be held to account for them. Nevertheless, the appropriate response to the allegations against the president lies not in impeachment or in removal from an office but in congressional censure combined with the possibility of criminal prosecution or civil sanctions after the president leaves office.

This committee I think deserves great credit for focusing the attention of the nation of the ways in which people can and are severely punished for highly technical violations of the laws against lying. And in that sense I thought the testimony this morning was terribly useful. But it's surely significant that neither the independent counsel, nor anyone else to my knowledge, has been able to identify a case where a defendant was prosecuted, let alone convicted, for peripheral statements in a civil proceeding that he or she did not initiate in order to derive some kind of benefit. This coincides with the traditional reluctance in American law to prosecute perjury based simply on statements asserting one's innocence. Because defendants have traditionally been viewed as inherently unreliable, their testimony, unlike that of witnesses, was not taken under oath until after the Civil War. Judges recognized that the instinct for self- preservation is so strong that a guilty defendant will naturally be tempted to lie to protect himself. And it was considered a form of moral torture to force an accused to choose between incriminating himself on the one hand and facing eternal damnation for betraying his oath to God on the other.

In Clinton v. Jones the Supreme Court established that a sitting president can be sued and personally deposed, and his private life subject to wide-ranging discovery, even about conduct that preceded his inauguration. In an increasingly partisan environment, any remotely plausible lawsuit against a president will find ample funding, and inevitably there will be a clash of testimony. Now in ordinary civil suits this is nothing to worry about. Assessment of credibility after all is the main function of a jury, and people who lie in civil depositions are ordinarily punished by losing the case rather than being prosecuted for perjury. Paula Jones for example is not threatened for a perjury prosecution, even though she may have misstated the degrees of her salary increases.

If this president is impeached for lying during civil discovery, however, every time a future president's testimony is contradicted under oath an impeachment perjury may have to be triggered. The country and president will again be distracted in ways whose costs are hard to measure.

The most serious allegation against President Clinton is that he may have committed perjury before the grand jury when he contradicted Ms. Lewinsky's assertion that he touched her breasts and genitals with an attempt to gratify her. It seems implausible on the one hand that the core of the president's defense to the charges against him is that he didn't intend to arouse or gratify Ms. Lewinsky when he touched her. But wouldn't it be equally implausible to impeach the president of the United States on the grounds that he committed perjury when he denied that he intended to arouse Ms. Lewinsky? This committee chose not to ask the president to clarify his state of mind about this embarrassing subject when it submitted 81 questions to him. And therefore an impeachment count on this ground might fall short of the clear and convincing evidence standard that governed you during the Watergate impeachment hearings.

This is an indiscrete subject, but let me close with a call for prosecutorial discretion. Many of you are understandably concerned about establishing a double standard. Why should ordinary citizens be convicted of perjury for lying about sex while the president escapes punishment? But this concern is unfounded. If you exercise your discretion not to impeach the president, he will still be subject after he leaves office to precisely the same legal penalties as the witness who testified so movingly before us this morning, possible criminal prosecution and conviction as well as possible civil sanctions or disbarment. Indeed, you may well choose to rebuke the president with a reputational sanction that no ordinary citizen faces -- a congressional resolution of censure.

The Lewinsky investigation has been in many ways a nightmare for the country. But it has also been for all of us a constitutional education, reminding all of us that even well intentioned laws can have illiberal consequences when they are expanded beyond their historical roots. By reclaiming your constitutional duty to exercise the sole power of impeachment, which includes the power not to impeach, you can offer the country an aspiring example of statesmanship while at the same time rebuking the president for his reckless conduct in a way that will remain a permanent part of his legacy. Thank you.

REP. GEKAS: Thank you very much, Professor Rosen.

We will now begin the five-minute rule exposition of the members of the committee. We'll begin with the five minutes granted to the gentleman from Michigan.

REP. CONYERS: Thank you very much. I want to thank every one of you who have been here today. For us the wait was worth it. We only hope that it has some small measure of fulfillment for you. I commend everyone here.

Let us talk in terms of the realities that confront the 37 members in front of you. How do we move toward the exit door with some small measure of grace, Judge Higginbotham? How do we put a wrap around this so that this hearing -- this inquiry when it is studied by future scholars, by other members on the Judiciary Committee -- how do we put an end on it, even though we are so fragmented at this point apparently? But somehow around this one question of perjury, which I think has been discussed very importantly, Professor Dershowitz, and I think we have a frame of reference on it, what do you think we might want to do? Professor Saltzburg has been most explicit about that, and I thank you for that part of it. But would you begin this dialogue with us, please, because that is the key here: How can we find some path of reconciliation that will get us with some small measure of honor out of the door altogether?

JUDGE HIGGINBOTHAM: Were you talking to me, sir?

REP. CONYERS: I was.

JUDGE HIGGINBOTHAM: Well, more than a hundred years ago, when Justice Holmes gave his famous common law lectures he said a page of history is worth a volume of logic. And it seems to me that you have to put this within the corridor of history.

The other thing is what is on Auschwitz. He who does not know the lessons of history will be doomed to repeat its worst mistakes. And if you just look and reflect upon the fact that there has never been -- never been an impeachment proceeding on this minuscule level then it seems to me you would pause. Everyone talks about the Nixon experience -- but not as it's different -- the difference between zero and infinity. In the Nixon case you're using the Internal Revenue Service -- he was using the Internal Revenue Service -- not patting some woman on the side -- using the Internal Revenue Service to engage in improper tax audits and investigation of political enemies. In the Nixon case he was attempting to obtain confidential information maintained by the IRS concerning political enemies. In the Nixon case he was using the Federal Bureau of Investigation, the Secret Service and other executive personnel to undertake improper electronic surveillance and other investigatory techniques with regards to public enemies. In the Nixon case he was creating and maintaining a secret investigative unit within the Office of the President, which utilizes the resources of the Central Intelligence Agency, engage in covert and illegal activities -- and I could name about eight others which are beyond dispute. Is that comparable to this? If it's not, then I think Justice Holmes was right: a page of history is worth a volume of (allegations ?).

REP. CONYERS: Thank you so much, Judge.

Professor Dershowitz, would you elucidate for us please?

MR. DERSHOWITZ: I think history will not be kind to this committee. History will not be kind to this Congress. I think this committee and this Congress will go down in history along with the Congress that improperly impeached Andrew Johnson for political reasons.

I think there is no exit strategy that will permit this committee and this Congress to regain any place in history which is going to look positively. It made a dreadful mistake by ever opening up an impeachment inquiry on the basis of sex lies and coverups of sexual events. It's down that line. Now it's getting worse. It's like my typical client. First he commits the crime and then he compounds the crime by making it worse. Now it's becoming worse, because now we are seeing incredible hypocrisy introduced into the debate: "Oh, we care so much about perjury -- what a terrible thing perjury is." The only reason the majority of this committee cares about perjury is because they believe that President Clinton, their political opponent, is guilty of it. They couldn't have cared less about perjury when Caspar Weinberger was guilty of it.

REP. GEKAS: The time of the witness has expired. And the time of the gentleman --

MR. DERSHOWITZ: And they don't care at all about perjury by the police, as evidenced by the lack of attention to this problem.

REP. CONYERS: George Gekas's patience has expired.

REP. GEKAS: That's absolutely right. Now you may applaud. (Laughter.) (Light applause.) No, please don't take me literally. (Laughter.)

The chair now turns to the gentleman from Florida, Mr. McCollum.

REP. MCCOLLUM: Thank you very much, Mr. Chairman. First of all, I sat on the Iran-contra committee, and I do not believe for one minute that Caspar Weinberger committed perjury. But that's beside the point.

I also am chagrined with some other testimony today that implies that the president of the United States is irreplaceable. I don't think anybody is irreplaceable. I don't think anybody is indispensable. I think Al Gore would make as fine a president as President Clinton. I don't necessarily agree with him politically, but I certainly do.

I also am very concerned that some have tried to diminish the nature of the perjury and obstruction of justice, which I think there's compelling evidence of. The president committed perjury, from my reading of every bit of the facts we have here -- and I'm really convinced of this, the more I have studied it, and I've studied it a great deal more even this weekend -- when he lied under oath before the grand jury and in the Paula Jones case about whether he had sexual relations with Lewinsky, whether he was alone with her, whether he talked with her about her testimony, and on numerous other occasions.

And not only that, but it's very clear that long before she was subpoenaed in the Jones case, the president and Monica Lewinsky had an understanding that she would deny and he would deny any sexual relations if anybody ever asked about it. And then when she was subpoenaed, he suggested that she file an affidavit, knowing good and well it was going to be false, and encouraged her to do that.

And then, when there was a subpoena for her to produce any gifts that he had given to her, that specifically named a hat pin, and she wondered why in the world that was named there and was really worried about it, because that was the first gift she said he ever gave her. He then conspired with her to hide those gifts from the court. And then after that, he encouraged his secretary, Betty Currie, to lie to protect him.

Now, all of that to me, if proven -- and I think it's been proven in this case, and I think it would be proven in any court of law and a jury would convict him of all of those things -- arises to a very high level of high crimes and misdemeanors. Not only does it do that, but to me as well the problem we see in this is that there is injury to the nation, grave injury, if we find this to be true that the president has committed these crimes and then we tolerate them; then we don't impeach him.

The real question here today shouldn't be what are the consequences of perjury. The real question is, what are the consequences of not impeaching the president if he has committed perjury and obstruction of justice and witness tampering? What are the consequences? What are the consequences to the courts with respect to that if we look the other way? There are parties to every civil lawsuit. Those parties to every lawsuit out there expect truth to be told.

And if witnesses that they call or witnesses who are called lie or encourage other people to lie or hide evidence or encourage other people to hide evidence, then the parties to that lawsuit can't get justice. They can't get a fair judgment. That's what undermines the court system. And to have the president of the United States engaging in activities that do that and then we don't impeach him -- he gets away with it, we tolerate it, we don't hold him accountable -- that's the problem. Congress has that responsibility under the Constitution, and I think that's the injury to the nation there.

And then, with respect to our military, as Admiral Edney, you and General Carney well stated, and Admiral Moorer said in written testimony that he didn't give here today, what about his role as commander-in-chief? When you expect military officers to be the leaders and you expect military officers to be, as Admiral Moorer, a former chairman of the Joint Chiefs of Staff, has said to us, to serve as role models for honorable and virtuous conduct, and you find that we don't hold the president accountable, the commander-in-chief accountable for matters that officers would be removed for, probably court-martialed for, what does that do to undermine our military and our good order and discipline in the military?

So I have two questions to ask. One I want to ask to Judge Tjoflat. One I want to ask to you, Admiral Edney. Judge Tjoflat, if we find the president guilty of perjury, obstruction of justice and so forth, and do not impeach him, what injury do you believe this could cause to the justice system? Are people more likely to commit perjury in the future if we do that than if not?

And then, because my time is running out, I want to ask Admiral Edney, if we find the president to have been guilty of perjury, obstruction of justice and so forth, and don't impeach him, what does this mean, since he is the commander-in-chief? Does it mean that we're undermining the trust and confidence you discussed that's central to good order and discipline in the military? Will we be undermining it if we don't impeach him, if we find him guilty of these crimes I've just described?

Judge Tjoflat, would you first respond? And then Admiral Edney, the other question.

MR. TJOFLAT: I think your question implies the answer.

REP. MCCOLLUM: And the answer is?

MR. TJOFLAT: Well, if that's the committee's finding, then there's going to be an effect on the administration of justice.

REP. MCCOLLUM: A negative effect --

MR. TJOFLAT: Yes.

REP. MCCOLLUM: -- if we don't impeach him.

MR. TJOFLAT: Well, I don't know about the remedy. All I'm saying is if that is the committee's finding, then you have a negative effect on the administration of justice, if that's the case.

REP. MCCOLLUM: What about the good order and discipline of the military, Admiral Edney? You described it. I've always heard the term "prejudice to good order and discipline." Could you tell us what that means? And would we be undermining that if we didn't impeach the president of the United States if he is guilty of these crimes that have been described, if we find him so?

ADM. EDNEY: I don't believe that there's any straight, clear answer to that, because the military of this country serve under a different code, which you have recognized as the UCMJ. And the president operates under the civilian laws. The professional military of this country will perform their duties and loyalty to the Constitution and the office of the president. That is the strength of the military.

Will it undermine the good order and discipline to have that example? That's like how you ensure safety. But it will not have a beneficial effect in the ability to measure the disadvantages or the adversarial effects as far as who stays in the military, who will come in the military, who will serve, and will the quality of the people -- we need a portion of this country's best to serve in the military. So it's hard for me to put an exact quantitative statement to your question, but certainly it is an issue that will not affect the performance of the military, but it might affect the quality and the numbers that make it a career.

REP. GEKAS: The time of the gentleman has expired. We turn to the gentleman from Massachusetts for five minutes.

REP. FRANK: Admiral, let me follow up on that, because I gather you're saying that you can't quantify it. And I appreciate your pointing out we all tend sometimes to be alarmist, and I would certainly agree with you that the people who are in the military now are going to do their best, and we should not assume they are easily swayed from their duty. And people will -- (inaudible) -- from both sides.

But you said it could have a longer-term negative effect, and that's because the commander, the person right up there in the chain of command -- in the civilian chain of command, but nonetheless in the chain of command -- might be seen to be getting away with conduct and not being held accountable for conduct that would be severely punished in the military. Is that true?

ADM. EDNEY: What you'll see, in my judgment, Congressman Franks, is a tendency to see the rationale that is being put forth here on the insignificance of lying and the insignificance of adultery and these other issues as then being used as a defense, and in that manner it will undercut the good order and discipline.

REP. FRANK: We don't have to speculate, because in December of 1992, George Bush, the outgoing president, pardoned Caspar Weinberger, who had been secretary of defense for, I think, six years during the Reagan administration. And while the commander-in-chief is here, the secretary of defense is between you all and the commander-in-chief and he has a very direct relevance here.

So I guess I would ask you -- now, my colleague from Florida says he's confident that Caspar Weinberger didn't commit perjury. I don't know whether Caspar Weinberger committed perjury or not and will never know, because George Bush pardoned him. He was indicted on four counts, including obstruction of Congress, false statements, and two counts of perjury. George Bush pardoned him after the 1992 election.

So the secretary of defense, who is obviously very directly in the chain of command in the armed services, was indicted on two counts of perjury and the president of the United States pardoned him. Did that have the negative effect on the military that you're afraid -- and, if not, why not? Because isn't it very similar? The secretary of defense certainly has a relevance to the military. He's in the chain of command.

ADM. EDNEY: No. First of all, the Weinberger case was never carried forth, so we do not know.

REP. FRANK: That's right. The president pardoned him. But he was indicted. And the question about whether or not it was carried forth begs the question, because the question is whether we should carry this forth. Caspar Weinberger was indicted. I guess the question is, when George Bush pardoned Caspar Weinberger, was he saying to the military, "Look, he's not going to be held accountable," and did that not have a bad effect to pardon someone before he was even tried but was indicted?

ADM. EDNEY: No. There is no proof on whether or not Caspar Weinberger committed --

REP. FRANK: Well, of course there was no proof, because it didn't go to trial. There couldn't be proof. George Bush made it proof-proof. And that's a problem. But it would be similar here. So if we don't move to impeach President Clinton, there won't be any proof either. They're in exact -- in fact, in both cases independent counsel had made charges. In fact, in the Weinberger case, the independent counsel went a step further. He brought indictment. In this case he just came and told us. So they're on the same footing.

And I have to say, Admiral, if, in fact, this was the case, I mean, my guess is this doesn't have a big effect on morale in either case. And I do want to say, you know, I remember when George Bush pardoned Caspar Weinberger. Les Aspin, the late Les Aspin, who later became the secretary of defense -- he was chairman of the Armed Services Committee -- he praised -- he said it was okay for George Bush to do that. It wasn't terribly partisan. I don't criticize George Bush for pardoning Caspar Weinberger, but I do think what is sauce for the wild goose chase ought to be sauce for the gander, to join our metaphors.

ADM. EDNEY: Let me make -- excuse me. Pardon my voice. One of the differences is the Weinberger case involves the execution of foreign policy, which is much more complex to understand and the issues involved, whereas the issues involved here are a very common, frequent occurrence in the military, and they get --

REP. FRANK: I think, A, you're denigrating the military, at least its top rank. I would hope they would understand national security policy. It had to do with arms sales, which I think frankly many of you understand better than I. But also I would say the charge was lying and not remembering. It wasn't some complex question about "Name six ayatollahs and give their" -- I mean, it was not a foreign policy test. It was, "Do you remember?" "No, I don't remember." It happened last week. "Do you know of any such things?" Well, they were in his desk, according to them. He was denying that he remembered things that were in the desk, you know, a little bit (away?).

I mean, Bill Clinton is being accused by my friends on the other side of perjury before the grand jury because he said, in August of 1998, that the activity began in February of '96 and Monica Lewinsky said November of '95. That's one of the three counts of grand jury, a question of a couple of months' difference in remembering something over two years. Caspar Weinberger was asked for a much shorter period of time. So I disagree with you as to the complexity. And I must say, I think that I unfortunately have to infer a lack of objectivity in your approach to this.

ADM. EDNEY: I am not implying in either case -- I will say that no matter who does it, whether it's a Republican or a Democrat, if you are found to be guilty of lying under oath under the judicial system of this country, it is a serious offense and it is --

REP. FRANK: And neither one has been found because of the pardon in one case and --

ADM. EDNEY: Then there was no conclusion to your questions, if you haven't found guilty Weinberger or the president. I'm not making any conclusions.

REP. HYDE: The gentleman's time has expired. The gentleman from Pennsylvania, Mr. Gekas.

REP. GEKAS: I thank the chair. Many of the members who have immediately rushed to the side of President Clinton, as they did from the very first moment that this case began, have already, even from that very first moment, pronounced that the president is guilty of no offense. Even though he lied under oath or may have committed perjury or all these others, it is not an impeachable offense.

In my estimation, they have issued individual pardons to the president as they sit here as members of Congress. They say he committed these acts. "We don't think that they should be impeachable."

REP. : Would the gentleman yield for a second?

REP. GEKAS: I will not yield. But I want to go to a little scene that was erected by Judge Higginbotham and ask if I might use "assuming (arguendo?)" back at you for a moment. The --

MR. HIGGINBOTHAM: It would be a pleasure, Congressman.

REP. GEKAS: Yeah. The scene --

MR. HIGGINBOTHAM: I want you to know that I once lived in your great commonwealth.

REP. GEKAS: Very good. The scene that you constructed was of the president admitting only to going 49 miles per hour while everybody in the world knew that he was doing 55. Is that what --

MR. HIGGINBOTHAM: No. I did not state it with the precision -- it's in the question, in my paper. I said the hypothetical was --

REP. GEKAS: Yes.

MR. HIGGINBOTHAM: -- the president factually was going 55 miles per hour in a 50 mile-per-hour zone.

REP. GEKAS: Right.

MR. HIGGINBOTHAM: He's questioned before a grand jury as to what was his speed.

REP. GEKAS: He says 49.

MR. HIGGINBOTHAM: And he says 49, knowing that it was 55.

REP. GEKAS: All right. Very good. Stop right there. Can you, assuming arguendo, assume also that there is another person involved in this case, a woman or a man or someone whose child was run over by the defendant, who insists that he did not go over 50 miles per hour, but everyone in the world knows that he violated the speed limit at 50, and thus he could amount to be a destroyer of the case of the plaintiff, who insists that negligence or speeding or going over the speed limit is the cause of the great damage to one's family? Is that an assumption that is beyond a scenario?

MR. HIGGINBOTHAM: I'm perfectly willing to accept your amendment of the scenario. And I'm willing to answer it, if you desire.

REP. GEKAS: Well, yeah, I will. I'll let you in a moment. But what I'm asking, isn't that tantamount to the Paula Jones case, where Paula Jones, whether you agree or not that she should have been granted the right by the Supreme Court to sue the president of the United States -- by the way, I disagreed with that opinion of the Supreme Court. I still rue the day that the Supreme Court ruled that way in that particular case, but now that's history.

Paula Jones was entitled, then, under the ruling of the Supreme Court, was she not, Judge Higginbotham, to the pursuit of her rights to find damages against the defendant in her case? Now, if indeed the president and Monica Lewinsky testified falsely in those proceedings in order to destroy the case of a fellow American citizen, to get away with not having to pay damages, to avoid the possibility of being found liable by a jury, to do all of those things, isn't that more serious than just a case of a triviality like a traffic offense, where if it's limited to a traffic offense, all of us would say you're absolutely correct? But when it involves destroying a negligence case or a reckless case of involuntary manslaughter, doesn't it take on different connotations when rights are destroyed by the virtue of false statements under oath? That's a very important question to me.

MR. HIGGINBOTHAM: No doubt about it. I tried personal injury cases as a federal judge for 13 years as a district court judge, not in your area, sir, but in Philadelphia. I must have had 200 right- angle collisions tried before me where there was a traffic light.

REP. GEKAS: That's why I don't go to Philadelphia.

MR. HIGGINBOTHAM: And in 200 cases, 199 had the green light on each side, so that -- (laughter) -- so that either Philadelphia has the worst traffic light system in the world, where all the lights are green when they come, or there is something less -- there's a diminution of accuracy.

REP. GEKAS: What I'm saying --

REP. HYDE: The gentleman's time --

REP. GEKAS: I ask unanimous consent for 30 seconds more.

REP. HYDE: Of course.

REP. GEKAS: I'm simply drawing the parallel, and you have helped me to draw it, that the added element of the fact that certain other American citizens' constitutional rights, to use the words of Professor Dershowitz, the constitutional rights might be damaged by perjury, where he thinks that should be investigated further, these constitutional rights to sue for damages might have been damaged by the testimony before a grand jury.

I yield back the balance of my time.

MR. HIGGINBOTHAM: Do you want me to answer, Mr. Chairman? I'm perfectly willing to, but I don't want to be disrespectful of your ruling.

REP. HYDE: I'm being instructed that you should answer.

MR. HIGGINBOTHAM: Well, all that I was suggesting is you can't apply a (per se?) rule, and you have to be factual-specific.

REP. GEKAS: And you have helped me.

MR. HIGGINBOTHAM: Okay.

REP. HYDE: I thank the gentleman. And Mr. Boucher, the gentleman from Virginia.

REP. BOUCHER: Thank you very much, Mr. Chairman. I'll direct this question to Professor Rosen, Professor Saltzburg and Professor Dershowitz; and following their answers, if others on the panel would also like to comment, and if time permits, we'd be happy to hear from them as well.

Since the referral to this committee of September 9th by the Office of Independent Counsel, a great deal has been said about the supremacy of the rule of law and the principle of American jurisprudence that no person, including the president of the United States, should be above the law. We've heard statements from witnesses today referring to those principles, and a number of members of this panel have talked about those very important principles in their questions.

Some have suggested that if one concludes that the president committed a crime such as perjury, the only way to pay service to these important principles is to impeach and remove the president from office. But the constitutional history of the impeachment power suggests that it was not designed as a punishment for individual misconduct on the part of the president.

Rather it was designed to protect the nation from the conduct of a president who, through his actions, has become a national threat.

Punishment of the individual for any crimes that the individual may have committed, while he holds the office of the presidency, is expressly provided for in Article I, Section 3, of the United States Constitution. In his testimony before this committee last week, the independent counsel, Mr. Starr, stated that in his view, the president would be vulnerable to the criminal justice process when he leaves the Office of the Presidency, in January of the year 2001.

He stated that the president at that time could be indicted, tried, convicted and given appropriate sentence for any crimes, including perjury, that were committed by the president during his tenure in the presidency. Mr. Starr also confirmed that the statute of limitations for the offenses that are described in his referral, is five years, and that there would be time remaining with the statute of limitations, to indict and prosecute the president after he leaves office, in the year 2001.

So, given the fact that the president can be prosecuted for any crimes that he may have committed while in office, and given the fact that the impeachment power was designed for the protection of the nation, not for the punishment of the president individually, should the House of Representatives decide that the president should not be impeached, would you not agree that the rule of law, and the principle that no person is above the law, including the president of the United States, is well served, in the event that he is vulnerable to prosecution, indictment, and trial for any crimes that he commits, while he holds the office of president?

Mr. Dershowitz, let's begin with you.

MR. DERSHOWITZ: Theoretically, the president could be prosecuted after he leaves office. The president will not be prosecuted after he leaves office, for several reasons.

First, this would be a selective prosecution. People who commit acts like the president, are never prosecuted for those acts. Second, no prosecutor in his right mind, would indict a president unless he were confident he would get a conviction. There would be no conviction in this case.

The problem is, that by Kenneth Starr holding this threat of prosecution over the president and his lawyers, they have made it impossible for the president to come and apologize, and do what many members of this House would like him to do: acknowledge more than he's already acknowledged.

As a practicing criminal lawyer, I can tell you, no lawyer worth his salt would ever recommend the president acknowledge anything, while there is a prosecution pending.

So, the answer is very simple. Let Kenneth Starr announce now what he will inevitably announce months from now: He will not prosecute the president. And I have a relatively high level of assurance, that the president would respond, by making statements unlike the statements he has made up to now.

But don't expect the president to admit complicity, while at the same time encourage the independent prosecutor, to threaten him with prosecution. It won't happen.

REP. BOUCHER: Let me briefly ask the other two witnesses to respond. And the question is this. Is not the rule of law well served by the president being vulnerable to the criminal justice process, just as any other American is, for crimes that he commits while he holds the office of the presidency?

Professor Saltzburg.

MR. SALTZBURG: I want to begin my answer by just saying to the chair, that a couple of us have to leave at five. And I know that by yielding, if there are questions members want to ask, we'd like to be able to answer them. And I want to answer this one.

It's very clear to me, that there is now a threat of criminal prosecution against the president. I'm very serious when I suggest to you, that but for this committee's going forward, I believe there's every reason to think that Judge Wright, would do what judges ought to do, which is, at the first hint -- not just of perjury, but that the court has been deceived, they ought to take action.

If you wanted to really send a message to the American people that everybody's equal under the law, and you really cared about honesty and integrity in the court system, what you'd do, is you'd put it in the hands of the court, where it can't be now, because the court, out of respect for a co-equal branch of government, would leave it with this committee.

There is a solution that would guarantee that the president would be no better off, and no worse off, but for timing.

REP. HYDE: Professor Rosen.

MR. ROSEN: I agree with Professor Saltzburg, that Kenneth Starr may indeed bring a criminal prosecution. But I'm interested in the light that your question casts, in the decision that your colleagues on the other side face.

Those who believe that the perjuries in question are impeachable offenses. What is the likelihood that a jury would convict, cast in the question of prosecutorial discretion. The lying cases suggest that overzealous prosecutors, who bring lying prosecutors, rarely succeed. Oliver North, for example, was prosecuted for lying to you, lying to Congress, and a Washington, D.C. jury acquitted. There are many other cases of citizens who are far more indulgent of lies, because they have common-sense intuitions about what lies should be punished, and therefore ultimately acquitting.

It seems that if you conclude, that your trier of fact, the Senate, is unlikely to convict, that might indeed be a factor in your decision, as the Grand Inquest of the nation, whether or not to bring an impeachment article in this case in the first place.

REP. HYDE: The gentleman's time has expired. Mr. McCollum. Mr. Coble.

REP. COBLE: Thank you, Mr. Chairman, thank you all for being with us, gentleman. Judge Tjoflat, is perjury a more acceptable transgression -- strike that, let me phrase it. Is perjury a less offensive transgression in a civil case, rather than a criminal one?

MR. TJOFLAT: No. Perjury is the same, regardless of the circumstances. I think that's well settled.

REP. COBLE: Thank you, sir. That was my thought as well. Admiral or General, I'm familiar with the military imposition of sanctions for fraternization. I've always felt that they should probably be imposed more flexibly. As an enlisted member, I have gone ashore with officers. As an officer, I've gone ashore with enlisted members, and never had any fraternization problems, so that's why I'm thinking the way I do.

But let me put this to you, Admiral. In the unlikely event -- probably unlikely event -- that an admiral would have a sexual affair with a seaman or a third class petty officer, and it was ultimately revealed, what would be the consequences?

ADM. EDNEY: The consequences would be immediate removal from the position I held, and a required resignation and potential loss of salary. But say only the first two, removal of office and required resignation, and then it would be up to the Congress what the salary of my retirement would be.

REP. COBLE: General, I'm sure you concur with that, probably.

GEN. CARNEY: Well, it depends on the nature of discredit to the service. I mean, if this had become rather public within the command, it was viewed to be detrimental to good order and discipline --

REP. COBLE: And I'll talk with you all later on ashore one night, about the flexibility of sanctions. We'll do that for another day.

Professor Saltzburg, Professor Dershowitz says that he believes that history will not smile favorably upon this committee nor upon this Congress. How do you think history will smile upon this committee, this Congress and President Clinton?

MR. SALTZBURG: Let me say that I think anyone who predicts history, is wrong. (Laughter.) Having said that, I will answer your question. I don't think, that as for this committee, I think that Professor Dershowitz is premature. You haven't reached the judgment yet. I mean, I know some of the press say you have. But if I thought you had, I wouldn't have come today.

You're struggling with important issues. And if you do your job well -- and, in my judgment, if you decide that there's a better way to handle this than impeachment, that if there's a better way, that history will say you took a difficult task, and you did it well.

I think, as for the Congress, it depends also on what the committee does. It's hard to know how the Congress will be judged, because it will depend on what you do first. And as for the president, I think tragically -- for any president, I don't just say this about this president -- I think that throughout history, every time the name "Bill Clinton" is mentioned, the name Monica Lewinsky will be mentioned also. And that, for any president, has to be the ultimate tragedy.

REP. COBLE: Well, my professorial -- you were sitting between the two learned men, so I went in the middle. Let me put a question to the appellate judges.

Gentleman have you all ever upheld a perjury case that was sent to you by a district court?

MR. TJOFLAT: Yes, I think many times.

REP. COBLE: Judge Wiggins?

MR. WIGGINS: Oh yeah, sure.

MR. TJOFLAT: I believe that's true.

REP. COBLE: And Judge Higginbotham?

MR. HIGGINBOTHAM: Yes, I cite some cases which I wrote in footnote 13, sir.

REP. COBLE: Well, I see my time is about to expire. I want the chairman to recognize that I beat the red clock again, Chairman. Good to have you with us, gentlemen.

REP. HYDE: Thank you, Howard. Mr. Nadler.

REP. NADLER: Thank you, Mr. Chairman. Mr. Chairman, I have a question for the three professors at the end. Professors Dershowitz, Saltzburg, and Rosen.

We've talked a lot today about equality before the law, that the president should not be above the law. Presumably, he shouldn't be beneath the law either. But he shouldn't be above the law, any more than any other person.

I'd like to ask the three of you, two separate questions on this. In terms of the fairness of the procedure, I alluded earlier today, to the fact that we are considering impeachment. We're going to be voting on articles of impeachment next week, and so far what has happened, is that an independent counsel gave us a report in which he characterized testimony that he received, or his people received. He reached conclusions from it, conclusions of fact and conclusions of law: "The president did this, the president did that, we know that from so-and-so's testimony, and these deeds amount to impeachable offenses."

He reached those conclusions. He gave those conclusions to us. The only witness we've had as to that so far, has been the prosecutor, who in effect said "I was right in the report. These witnesses said these things. We conclude that -- or I conclude -- that he committed impeachable offenses, and they are impeachable offenses."

Now we're told that we don't need -- the prosecution, in effect, doesn't have to call any witnesses before the committee, because after all, they testified under oath at the grand jury. We don't need to hear them, and they're believable, because they testified under oath.

We're also told that by the defense, in effect, the Democrats here not calling any witnesses, we're pleading nolo contendere, we're essentially admitting the facts. Some of us think the facts haven't been put before the committee, because there is no evidence before the committee, since the prosecutors' opinions and conclusions are not evidence.

And my first question is, how would you judge all of that? Have we followed any kind of procedure that comports with due process, or is this upside down?

My second question is a more simple question. The analogy has been made to the grand jury, we don't have to call the witnesses here, we're more like the grand jury, we just have to find probable cause, and pass it on to the Senate.

Given the precedents, do we need probable cause, do we need clear and convincing evidence? What is our role?

MR. DERSHOWITZ: I think the two questions really are rolled up into one. If, in fact, Congress is like the grand jury, and if impeachment is exactly like indictment, then what they're doing is flawless. But obviously, the analogy is completely flawed.

Indictment is the second-most serious act that can be taken in a constitutional government -- I'm sorry, impeachment -- second only to removal.

When you impeach a president, you have gone down historically and made a very significant decision. Andrew Johnson was impeached. That will live with him for the rest of his life. It doesn't get undone in the rest of our lives, and the rest of the lives of our country. It doesn't get undone, simply by the fact that he was not removed by one vote.

And so, for impeachment to occur, you need to do what the committee did last time around with President Nixon. You need to hear evidence. You need to make credibility determinations. You need to ask yourself the question, is the evidence -- has it reached a level of clear and compelling evidence, so that you are prepared to go down on record historically, as saying "I am prepared to impeach a president of the United States, to start the process of undoing an election, to in effect implement a legislative coup d'etat," the most dramatic act of check-and- balance.

To think that it's like an indictment, which could be handled on the basis of hearsay testimony, having a prosecutor come in and say "I've interviewed six witnesses, and this is what they say, because the courts say you can indict on the basis of hearsay," is to misunderstand the difference between a criminal case, and a great constitutional crisis.

REP. COBLE; Professor Saltzburg?

MR. SALTZBURG: Congressman, I don't know that you're going to like my answer. But it's going to be shorter -- (laughter) -- and straightforward.

As one who has watched this committee struggle a little bit, with accusations flying back and forth, let me answer you this way. There was no independent counsel in 1974. There was no one who did that kind of investigation, and it makes all the difference in how you view due process, in my judgment.

I think that the independent counsel's report, is a fair starting point. I think that it's wrong to suggest that you ignore it and proceed as though it didn't exist, and that it is perfectly fair for the majority to say -- point to the things that we ought to take evidence on.

I don't see how -- having said that, however -- I don't see how, to answer your first question, certain judgments could be made without witnesses. I don't see how you could make an obstruction of justice conclusion regarding gifts, without hearing from the participants, because as I read the information you have, the testimony is absolutely confusing. You have to hear that. That's one.

On others, it seems to me, you wouldn't have to hear witnesses. You know what the president said. You heard his explanation. So either you know enough to make a judgment about whether you think this is impeachable.

As for the standard, you know, there isn't one of the three of us, that can give you much help on this, because you know more about it than we do. We didn't run for office. We didn't go out to the voters and get elected. We're not the ones who held ourselves out there to be criticized, to fight those battles.

I mean, you know, much better than anybody, what this is about. And what it's about, is a simple question. If you decide to impeach the president, you're saying that it's important enough to paralyze this country for some period of time, because that's what it would be. You've got to decide that it's that important, and if it is, if you reach that conclusion, you'll do it. And I can't. All I can tell you, is that I have a judgment about that. But it's no better than yours. And I don't think I can help you.

But it's not just indictment. You can indict any individual, anywhere, any time, without paralyzing the country. So the question your ask yourself is, is the quality of the evidence, and the nature of the charges enough to warrant putting the country -- not just the president, but the country -- through that kind of proceeding?

REP. COBLE: Go ahead, Professor.

MR. ROSEN (?): I'm not sure that that was shorter than Professor Dershowitz's, but -- (Laughter.) --

REP. COBLE: (Off mike.)

MR. ROSEN (?): The one salutary effect of this particular hearing, is to convince people on both sides of the political spectrum, of the deep constitutional problems with the independent counsel statute. And I think this goes to the core of the questions.

Section 595(c), which requires the independent counsel to advise the House of Representatives of substantial and credible evidence, arguably requires him to turn over raw information. It's arguably a derogation of your sole constitutional authority, Article I, Section 2, to exercise the sole power of impeachment, to allow the independent counsel, or anyone else, to do the narrative project of forming legal conclusions, and judging the credibility of witnesses.

Clearly, you do have an obligation to engage in independent fact- finding about whether or not the alleged statements in question arise to the technical violation of perjury.

As to the second question, the Johnson Congress, its name was taken in vain earlier today, and I'd like to say a word on its behalf. The Johnson Congress acted with such constitutional scrupulousness. It carefully separated the lower-level charges of lying in public, drunkenness, and general partisanship, from the abuse of power charge, violating the Tenure of Office Act.

On that count, and this is an important precedent, I think it was established, beyond clear and convincing evidence. President Johnson didn't dispute that he had indeed -- he was indeed guilty of the charge in question. Therefore, that relevant threshold sets the bar quite high. This is not probable cause. This is a question about which the entire Congress, members from both parties, converged and agreed.

REP. HYDE: The gentleman's time has expired. The chair will yield himself five minutes. I missed part of Professor Dershowitz's statement, and I regret that. I had to attend to some other business. But I take it there was some concern about this committee being the only engine in the country that's moving in the direction we're moving in.

And by way of defense for this committee, I am proud of this committee, both sides of this committee. We're fighting, really, for a principle that is submerged in all of the persona that overwhelms this discussion, and the Dow Jones Average.

And we are fighting for the rule of law, really; what does it mean? What does an oath mean?

It isn't that you tell a falsehood about 55 miles an hour; it's that you have sworn "to almighty God to tell the truth, the whole truth and nothing but the truth," in a formalized procedure, and that you are the one man in the country who has a constitutional obligation to take care that the laws are faithfully executed. You are the chief law-enforcement officer in the country. And you have taken that oath, and you have cheapened it. You have disparaged it.

And is that not worth our time and discussion? Does the rule of law -- have you been to Auschwitz? Do you see what happens when the rule of law doesn't prevail?

Now, I don't leap from the Oval Office on a Saturday afternoon to Auschwitz, but there are similarities when the rule of law doesn't obtain, or where you have one law for the powerful and one for the nonaristocratic.

That's what we are discussing; the significance of the oath, the significance of truth, the breach of promise when someone lies to you. But when they lie, having raised their hand and sworn to tell "the whole truth" -- I wonder why they don't just say "tell the truth"? Why do they say "the whole truth and nothing but the truth"?

Evasions, evasions. There are all kinds of lies: There are fibs, little white lies. There is hyperbole, exaggeration and mental reservations, evasions. But then there is swearing "to God to tell the truth, the whole truth and nothing but the truth," and then deliberating deceiving, lying.

And that's worth -- someone said Paris is worth a Mass. I think that's worth our time to thrash this thing out. I don't know where it's going to come out. I think if many of you -- if Mr. Wiggins, who surprised me today, has his way, we'll pass a Resolution of Impeachment out of here, and it will fail on the floor, and that will end it.

And what becomes of the rule of law? What has happened to the oath? Has it been cheapened? And what does that mean for the rule of law?

These are important questions, and what about that "take care that the laws be faithfully executed," have we diminished that?

MR. DERSHOWITZ: May I respond?

REP. HYDE: Yeah. If I'm running out of ideas -- (laughing) -- you may respond.

MR. DERSHOWITZ: Well, I think you've made an excellent point and I think it is crucially important for this committee to be concerned with the rule of law and the importance of the oath. I think this committee is doing a terrible, terrible disservice to the rule of law and to the sanctity of the oath by trivializing the differences, as Judge Tjoflat said in one of the most unbelievably wrong-headed statements I have ever heard from a judge, that there is no difference between types of perjury.

I challenge anybody to respond and say that there is no difference between a police officer who deliberately frames an innocent man or woman who he knows is guilty (sic) and subjects that person to false imprisonment or the electric chair and someone who lies to cover up a private, embarrassing sex act.

What this committee is doing is trivializing the oath. What this committee is doing is trivializing the rule of law by only focusing on perjury because they want to get a president of the opposite party, they are telling the American public they don't care about perjury, they don't care about the real perjury that exists and is pervasive in this country, in courthouses and courtrooms and police stations. All they care about is Democratic perjury. Not Republican perjury by Caspar Weinberger, that -- which doesn't exist because you've read that record and you don't believe it's perjury -- not perjury by police officers, not perjury that affect the lives of Americans on a daily basis, but only perjury committed by one Democratic president. Nothing can trivialize the rule of law more than to selectively isolate this case and act as if it is the only case of perjury that's worth -- that's important.

And Mr. Chairman, you contributed to that in the beginning when you said that this was going to be a broad hearing about the pervasive influence of perjury on the American system. That is Hamlet without the prince, to talk about the pervasive influence of perjury on the American legal system and ignore a hundred years of police perjury and documented reports about police perjury, and pretend and close your eyes and make believe that the only perjury worth considering is perjury about a sex lie committed by a president of the opposite party, trivializes the rule of law and trivializes the oath of office.

REP. HYDE: I thank you, Professor Dershowitz. I don't thank you for criticizing the motives, saying that we're out to get the president. You haven't the slightest idea of the agony that many of us go through over this question.

Many of us are sensitive to those concerns -- all of us, I dare say. I think you have disparaged us by leaping to conclusions without any basis. But I will --

REP. CONYERS: Well --

REP. HYDE: Just a minute!

Now I will tell you something. These two women who came here today are suffering permanent damage because they lied under oath about matters that are relatively trivial, relatively trivial, and we are concerned about the double standard. That may mean nothing to you --

MR. DERSHOWITZ: It means a great deal to me.

REP. HYDE: -- but it means something to us.

REP. CONYERS: Mr. Chairman?

MR. DERSHOWITZ: It means a great deal to me. (Applause.) You selected these two women -- I mean, when is the last time this committee has expressed concern about the rights of criminal defendants -- (a chorus of "regular order" from committee members) -- except when criminal defendants can show that the president is being selectively prosecuted? It's a sham.

REP. CONYERS: Mr. Chairman?

REP. HYDE: Yes, Mr. Conyers.

REP. CONYERS: And I thank you for this interchange. But it is not unknown to ourselves and to anyone that's been watching our proceedings in the Judiciary Committee that we are split totally down the middle in the most partisan fashion that has ever happened. Never, Judge Wiggins, in our '74 proceedings were we split this far apart.

The result is fairly obvious of what's going to happen to anybody with the least understanding of this matter. So for you to be offended by the Dershowitz evaluation strikes me as a little disingenuous. You know what we're going to do here because it's been said repeatedly by every Republican member of the committee! So let's not get offended by the truth at this point in our proceedings.

REP. HYDE: You know a lot more than I know about how the Republicans -- every member -- is going to vote, because I don't know!

REP. CONYERS: Well I've heard them tell me what they were going to do. I've heard them tell me what's impeachable.

REP. HYDE: All right --

REP. : I ask for regular order.

REP. CONYERS: I've heard it, sir.

REP. HYDE: All right --