The Potowmack Institute

The Hypocrisy of Bob Barr and Steven Buyer on Impeachment and the Rule of Law

These points are greatly expanded on in our Rule of Law file.

In the debates on the impeachment of President Clinton impeachment Republicans harrangued us at some length on the rule of law. None ever really explained what the rule of law means and what it imposes on private individuals. What it means that the rule of law, the state's monopoly on violence, and the state's internal sovereignty all mean the same thing. When sovereign individuals in the State of Nature before there is the rule of law enter into political community, consent to be governed, and pledge allegiance to flag and to the Republic for which it stands, they surrender up in the words of John Locke in the Second Treatise of Government "the executive power of the Law of Nature," the power to make and enforce law. See our amicus curiae brief in US v. Emerson.

The concepts are all present here but if the conditions and concepts apply to the president of the United States, they also apply to the NRA's "armed citizen guerrillas". The words "consent of the governed" become only words without meaning. There is no discussion on what the words to mean. The concepts of "treason," "offenses against our system of government", and "a government of laws and not of men" are present in the discussion. Somehow the right of the NRA's "armed citizen guerrillas" to "outflank" this government or threaten to outflank this government is not an offense against our system of government. If the rule of law protects us from the knock on the door in the middle of the night by tyrannical government, it also protects us from the knock on the door by the NRA's "armed citizen guerrillas."

Also, what does not enter into the discussion is that the rule of law is also based on the stature of the Office of the Presidency regardless of who occupies it. Unable to defeat President Clinton through normal legal electoral processess rightwing Republicans undertook an usurpation. The whole process of impeachment was a calculated process of entrapment. Bob Barr was calling for impeachment before there was even a crime. The crime discussed came out of the investigation itself which was an assault on the Office of the Presidency as much as on the holder of the office. The perjury accusation was part of a carefully laid trap.

House Judiciary Committee Debate on Articles of Impeachment, December 11, 1998

Remarks by U.S. Representative Bob Barr (GA-7), December 18, 1998

Remarks by U.S. Representative Steve Buyer (IN-5), January 16, 1999

Bob Barr, House Judiciary Committee Debate on Articles of Impeachment, December 11, 1998

It is morning in America; literally . . . and figuratively. Children all across this land are sitting down to their classes, after having been led in the Pledge of Allegiance to our flag by dedicated teachers in classrooms large and small. Adorning the walls of those classrooms are pictures of great American heroes, like George Washington.

George Washington. Why George Washington?

When asked to name the single most important gift America had given the world, Daniel Webster replied, "the integrity of George Washington."

The integrity of George Washington.

How many of us wondered, as a child, holding a shiny new quarter in our hand, why the profile of George Washington adorns more coin and paper money than any other national figure. Integrity.

However, as we stand today on the threshold of a new millennium, dazed by scandal and riddled with doubt, we are forced to confront the reality that, in the words of Mark Helprin, writing in the July 2nd 1998 Wall Street Journal, in an essay lamenting the decline of statesmanship, "we have only what we have."

When I look out at this audience, I see America. I see Americans young and old, black and white, probably natural-born and naturalized, and just as probably rich and poor. I see citizens, and likely hopeful citizens, all drawn to America by something that makes generation after generation of boys and girls want to grow up in America; something that makes citizens of other lands yearn desperately to come to our shores and become our fellow citizens.

What is it that sets us apart; that draws people to America and keep them here? Anyone who lives in another country, and visits America, quickly learns there is indeed something extraordinarily special about this place; this land; this country. As American citizens, we feel a glow of pride whenever we return home after traveling abroad.

While there are many things that make our nation unique, in the final analysis, everything that is special and unique about our country is built on— and protected by— one foundational principle: The rule of law.

Unfortunately, like many of the phrases in our national debate, the phrase "rule of law" has been so oft repeated we risk losing our grasp on exactly what we mean when we say it. What, then, do we mean when we talk about the rule of law?

The rule of law finds its highest and best embodiment in the absolute, unshakeable right each of us has to walk into a courtroom and demand the righting of a wrong. It doesn't matter what color your skin is, what God you pray to, how large your bank account is, or what office you may hold. If you are an American citizen, no one can stand between you and your access to justice. President John F. Kennedy put it this way:

This is the fundamental American right President Clinton tried to deny a fellow citizen; one Paula Jones. It could just as easily have been anyone here in this room today, in the audience or on the Committee. It could have been your husband, wife, child, or neighbor. It just happened to be Paula Jones.

Whether one agrees with Paula Jones's case or not, is irrelevant. What is very relevant is that, when she tried to exercise her indisputable right to take her case to court— a right the Supreme Court voted 9 to 0 to allow her to exercise— the highest official in our nation tried to take that right away from her. The same public official who, as a governor, had tapped her on the shoulder and had her escorted, under the watchful eye of police troopers, to a hotel room and crassly demanded personal services of her. Later, when Paula Jones tried to walk into a courtroom, that governor, now the President of the United States, slammed the door in her face. And it very nearly remained locked shut.

In a society based on equal justice under law, such an egregious wrong cannot be ignored. We in the Congress, on this Committee, absolutely cannot ignore it.

Even more troubling is evidence that this Administration has used its power to do exactly the same thing to other critics. Need we remind America of the 900-plus FBI files brazenly, and illegally, misused by the White House? And, in the case of Linda Tripp, a top Pentagon official goes yet unpunished for violating her rights under the Privacy Act in an effort to smear her. As Chief Investigative Counsel Schippers and Representative Graham have pointed out, media accounts indicate the White House was directing the same machinery against Monica Lewinsky before they were confronted by irrefutable physical evidence of the veracity of her story.

Anyone not possessing an infinite capacity for self-delusion knows— whether they're willing to say it or not— that the President perjured himself on multiple occasions, and committed other acts of obstruction of justice. It is also glaringly evident he enlisted others, from cabinet officials to political operatives, in this endeavor, and that it continued into this very room.

While reverence for parallels with the Nixon impeachment is seductive but inappropriate, there are points worth noting. In the Nixon case, for example, lying to Congress and to the American people in just such a manner provoked a separate article of impeachment.

Is the danger of such an attack on our constitutional processes any less dangerous today?

Sadly, I believe the case we are discussing today is but a small manifestation of William Jefferson Clinton's utter and complete disregard for the rule of law. Throughout his presidency, his administration has been so successful at thwarting investigations and obstructing the work of Congress and the courts, that it may be decades before history reveals the vastness of his abuse of power; or the extent of the damage it has wrought.

Whether the conduct in question is soliciting money from foreign sources, engaging in a scheme to violate campaign spending limits, smearing political enemies, or abusing the federal law enforcement apparatus, the underlying principles they portray are the same:

The law is irrelevant. The Constitution is of little moment. Basic standards of decency are of no concern. We are above the law.

President Clinton subscribes to the same theory Richard Nixon articulated in a 1977 interview with David Frost. Nixon said, "When the President does it, that means it is not illegal." That was dead wrong then, and it is dead wrong today . . . wrong, that is, unless one subscribes to the principle that the President is not only above the law, but that he is the law.

With his conduct and his arrogance, William Jefferson Clinton has thrown a gauntlet at the feet of the Congress of the United States of America. Today, it lies at the base of this dais. It remains to be seen whether we will pick it up.

Throughout our history, there have been times when the principle of equal justice under law was widely questioned, even in this century. It happened when some Americans tried to deny other Americans access to justice based on their skin color. It happened when Japanese-Americans were imprisoned in barbed-wire stockades based on misguided fears. It happened in Watergate when a President abused his power in an effort to thwart political enemies.

At each of these critical junctures, great Americans rose to the occasion. Their words filled courtrooms, newspapers, and congressional hearing rooms like the one we sit in today. Sometimes, justice was delayed, and it took time to right wrongs. However, in each of these instances, good finally prevailed over evil; the rule of law survived; and we pulled back from the slippery political slope that ends in tyranny. And, in each of these cases, America was guided by the law and the Constitution, not by polls or focus groups.

As children, all of us believed certain things with all our hearts. We knew there was a difference between good . . . and evil. We knew it was wrong to lie. And, equally important, that if we were caught, we would be punished. We knew that honesty and fairness were as much a part of why we respected our parents, pastors and teachers, as we assuredly knew they were a part of why we pledged allegiance to our flag.

What happened to these simple things we all knew in our hearts just a few short years ago? Why do so many adults now find it so hard to call a lie a lie, when as parents, teachers and employers, we have no such hesitancy? Why do so many now resist the search for the truth and accountability?

In the short time I've served in Congress, I've learned that this place, this city, has an incredible power to complicate the simple.

This staggering ability to muddle simple issues is perhaps best illustrated by the fact that much of the President's defense has hinged on defining common words in ways that shock most Americans, who think they have a rather firm grasp on the meaning of words such as lie, alone, is, perjury . . .

But, of course, to the President's defenders, words, history, and the records thereof are nothing more than leaves on a sidewalk in the fall; irrelevant items to be swept blithely out of the way whenever one wants to walk from point A to point B.

Those of us who are privileged to sit on this Committee have witnessed a seemingly endless stream of professional complicators, at work even inside these four walls. A veritable army of lawyers and scholars paraded in and out of this room, stopping only long enough to pompously lecture us on how our actions will be judged by history. They've delivered interpretations of the Constitution, history, the facts, and of the law that are so tortured as to make one wince.

However, there are two things that no witness appearing before our committee has succeeded in doing.

First, not a single witness has disputed the evidence submitted by Judge Starr. We've heard differing views of the evidence, but no real rebuttal. This evidence— as outlined by the Articles of Impeachment we will now consider— proves conclusively the President perjured himself, obstructed justice, tampered with witnesses and evidence, and abused power.

Secondly, no witness has been able to rewrite our Constitution. The impeachment clause remains at once steadfast and elastic in its applicability; up to each Congress according to the evidence detailing each abuse of power in each era, to interpret. This is precisely as our Founding Fathers designed it, because they did not know how future Presidents might abuse their offices. These Founding Fathers were great and insightful men; they knew that there would certainly be instances of abuse, and they gave us a process through which we could and must rid out system of that abuse.

And, despite their best efforts, despite repeated slight of hand, no professor or lawyer has been able to create authority that does not exist in our Constitution. Search as they might— and they searched mightily— none has found alternatives to impeachment. Censure, rebuke, and other novel "punishments" are all extra-constitutional, probably unconstitutional, and definitely meaningless. Discussions of these "punishments" may make for interesting— perhaps fascinating— conversation, joined in quite eagerly by the President himself, for he knows better than his defenders, that none would have any meaning in fact or in history.

It is equally pointless to argue that the President should not be impeached because he would be subject to criminal prosecution once he leaves office. It is a virtual certainty no prosecutor would prosecute a President that Congress had failed to impeach. Furthermore, given the President's conduct throughout this process, we cannot preclude the possibility he would be shameless enough to pardon himself before leaving office.

Where does all this leave us? What do we have? Do "we have only what we have," as Mark Helprin lamented? Are we locked into a strange, parallel universe in which up is down, is becomes was, and being alone is a physical impossibility. Are we indeed living in an alien world in which laws and documents have no meaning? A society in which our willingness to uphold constitutional standards of accountability is strangely paralyzed?

We know for one thing, however, that a prosecutable felon sits in the White House as we meet today. However, thankfully we know, too, that today, as children all over this great land stand and pledge allegiance to the same flag beneath which we sit, our Constitution is still alive; perhaps not alive and well, but alive. We have within us the power to rescue it. To breath new life back into it. We also know in our hearts that, whether we support or oppose the President on policy issues, we cannot allow this situation that we today consider, to stand. The only way to provide future generations with a precedent that will protect them from Presidents who would abuse their power, is to preserve the doctrine that a President cannot commit felonies that would land an average American in prison and expect to remain in office.

As Jerome Zeifman, chief counsel of the House Judiciary Committee at the time of the Nixon impeachment inquiry a quarter century ago, has said, perjury is impeachable, and perjury has occurred. He fought for principle then, as we must now. For his sake; for the Constitution's sake; for our children's sake; and for the sake of every citizen of other lands who yearns for American citizenship, let us stand up, strongly and proudly, and tell the world that, at least today, in at least this House of Representatives, their are Americans who do indeed believe in the Law, Accountability, and our Constitution. Vote Articles of Impeachment.

Opening Statement by U.S. Representative Bob Barr
Impeachment Debate
December 18, 1998

I thank the gentleman.

Members of the House, today our Constitution stands in harm's way. The rule of law in America is under fire. The rule of law about which our chairman, Mr. Henry Hyde, spoke so eloquently just a few short moments ago; the rule of law which finds its highest and best embodiment in the absolute, the unshakable right each one of us has to walk into a courtroom and demand the righting of a wrong.

As President John F. Kennedy so eloquently put it: "Americans are free to disagree with the law, but not to disobey it; for a government of laws and not of men, no man, however prominent and powerful, no mob, however unruly or boisterous, is entitled to defy a court of law."

If this country should ever reach the point where any man or group of men, by force or threat of force, could long defy the commands of our courts and our Constitution, then no law would stand free from doubt, no judge would be sure of his writ, and no citizen would be safe from its neighbors.

This, Mr. Speaker, is the fundamental American right which President William Jefferson Clinton tried to deny a fellow citizen.

How did he do it?

I direct the attention of every member of this body to the report of the Committee on the Judiciary to accompany H.Res. 611. I direct your specific attention to Article III, which lays out a case of obstruction of justice.

Despite the fact that, in the ears of lay person, obstruction might conjure up a massive frontal assault, in the world of law— and I know this as a former United States attorney, who directed the prosecution of a Republican member of this body for obstructing justice before a grand jury— obstruction of justice is much more insidious, much more implied, much quieter, but nonetheless destructive of the rule of law in this country.

What is obstruction? And what was the pattern of obstruction in this case?

I respectfully direct the attention of each member of this body to the United States Criminal Code, Title XVIII, to those several provisions which set forth the principle that no man, no citizen of this land, no visitor to this land, shall tamper with witnesses, seek to hide evidence in a case or seek to change, modify or prevent testimony.

Yet, there is in this report, and in the accompanying 60,000 pages of evidence to which Chairman Hyde alluded, evidence of a clear pattern of obstruction of justice in violation of Title 18 of the United States Code by this president.

Such things as making statements to his secretary after he gave sworn testimony in an effort, a very clear effort, with no other purpose than to influence the testimony of his secretary, who most assuredly would have been and was called as a grand jury witness.

Evidence such as the president calling and directing one of the most powerful attorneys in this city, Mr. Vernon Jordan, after it was found out that Monica Lewinsky would indeed be and had been subpoenaed as a witness to appear before the court, and directed that she be found a job.

Evidence such as the president, the commander in chief, as we have heard today, picking up a telephone at 2 a.m. in the morning— not by coincidence— the very day that he found out that Ms. Lewinsky was indeed a named witness and would be a witness in the court case of Paula Jones, and going over with her to reaffirm in her mind the stories— the cover stories that they indeed had agreed to if just this calamity would befall them.

These, I submit to every member of this House, are obstruction. They are indeed a frontal assault on our Constitution. You have here today in Article III alone three legs of a stool, if I could borrow an analogy from the chairman of the Judiciary Committee. You have the Constitution, you have the United States Criminal Code as violated by this president, and you have the evidence.

They support a vote for Article III of impeachment of William Jefferson Clinton for obstructing justice in America.



Mr. Chief Justice, Senators, Counsel for the President:

I am Steve Buyer a representative from the 5th District in the State of Indiana. This morning the managers on the part of the House are going to present why the offenses you have been hearing about over the course of the last two days require the President's removal from office. I will discuss why the offenses attack the judicial system, which is a core function of the government and how perjury and obstruction of justice are not private acts, these are public crimes, and therefore are quintessential impeachable offenses. For the President's premeditated assault on the administration of justice must be interpreted as a threat to our system of government. I will be followed by Mr. Manager Graham, who will discuss the precedents in impeachment cases and by Mr. Manager Canady on how these felonies rise to the level of a "high crime and misdemeanor" as envisioned by the Founding Fathers and why they warrant his removal from office.

While this is Day Three of our presentation, it is important for the Senate to be fully informed as to the facts, the law, and the consequences.

For a reiteration of the facts, on May 27, 1997, the nine justices of the Supreme Court of the United States unanimously ruled that Mrs. Jones could pursue her federal civil rights actions against William Jefferson Clinton. On December 11, 1997, United States District Judge Susan Webber Wright ordered President Clinton to provide Mrs. Jones with answers to certain routine questions relevant to the lawsuit. Acting under the authority of these court orders, Mrs. Jones exercised her rights— rights that every litigant has under our system of justice. She sought answers from President Clinton to help her prove her case against him— just as President Clinton sought and received answers from her. President Clinton used numerous means to prevent her from getting truthful answers.

On December 17, 1997, he encouraged a witness to file a false affidavit in the case and to testify falsely if she were called to testify in this case...because truthful testimony would have helped Mrs. Jones. On December 23, 1997, he provided, under oath, false written answers to Mrs. Jones' questions. On December 18, 1997, President Clinton began an effort to get the witness to conceal evidence that would have helped Mrs. Jones. Throughout this period, he intensified efforts to provide the witness with help in getting a job to ensure that she carried out his designs.

On January 17, 1998, President Clinton provided, under oath, numerous false answers to Mrs. Jones' questions during his deposition. In the days immediately following the deposition, President Clinton provided a false and misleading account to another witness, his secretary, Betty Currie, in hopes that she would substantiate the false testimony he gave in the deposition. These actions denied Mrs. Jones her rights as a litigant, subverted the fundamental truth seeking function of the United States District Court for the Eastern District of Arkansas, and violated President Clinton's constitutional oath to 'preserve, protect and defend the Constitution of the United States" and his constitutional duty to "take care that the laws be faithfully executed."

Beginning shortly after his deposition, President Clinton became aware that a federal grand jury empaneled by the United States District Court for the District of Columbia was investigating his actions before and during his civil deposition. President Clinton made numerous false statements to potential grand jury witnesses in hopes that they would repeat these statements to the grand jury. On August 17, 1998, President Clinton appeared before the grand jury by video and, under oath, provided numerous false answers to the questions asked. These actions impeded the grand jury's investigation, subverted the fundamental truth seeking function of the United States District Court for the District of Columbia, and they also violated President Clinton's constitutional oath to "preserve, protect and defend the Constitution of the United States" and his constitutional duty as the Chief Executive Officer to "take care that the laws be faithfully executed."

Now, you will hear next week from the President's lawyers that the offenses charged by the House are not impeachable. In other words: even if the allegations are true, so what? I call this the "so-what defense" I am note offended by this defense because if that is all you have— try it.

You see, there are only a few basic ways to defend a case, on the facts, on the law or both.

In this case:

Go out and obtain from your political allies and friends in the academic world to sign a letter saying that the offenses as alledged in the Articles of Impeachment do not rise to the level of impeachable offense...

"Rise to the level" has become the legal cliche.

The House Managers chose not to go out in the academic world and obtain signatures on a letter to say why the offenses are impeachable and have this war of dueling academics.

Why? Because the House Managers have the precedents of the Senate on our side that the offenses alleged are impeachable offenses.

If I am prosecuting a defendant of perjury and obstruction of justice in White County Superior Court before Judge Bob Mrzlack in Monticello, Indiana on a Thursday...

The White House lawyers are hoping that those of you who voted to remove federal judges for similar offenses in the past have a feigned memory.

So, they have created the "so what" defense. To cleverly confuse you on the law and your precedents.

Well, it is the position of the House that what the President did— does matter— that by his actions, the President did commit "high crimes and misdemeanors." The House is prepared to establish that President William Jefferson Clinton willfully and repeatedly violated the rule of law and abused the trust placed upon him by the American people.

Now let me address how the offenses charged in the Articles of Impeachment attack the judicial system.

The offenses as charged in the Articles of Impeachment against our system of government are at the core of the concept of high crimes and misdemeanors. Perjury and obstruction of justice are, therefore, quintessential impeachable offenses. Indeed, it is precisely their public nature that makes them offenses— acts that are not crimes when committed outside the judicial realm become crimes when they enter that judicial realm.

Lying to one's spouse about an extramarital affair is not a crime. But, telling that same lie under oath before a federal judge as a defendant in a civil rights sexual harrasment lawsuit is a crime.

Hiding gifts given to conceal the affair is not a crime. But when those gifts are part of a subpoena in a judicial proceeding, the act of hiding the gifts becomes a crime.

Our law has consistently recognized that perjury subverts the judicial process. It strikes at our nation's most fundamental value, the rule of law. In Commentaries on the Laws of England, Sir William Blackstone differentiated between crimes that "more directly infringe the rights of the public or commonwealth, taken in its collective capacity," and "those which in a more peculiar manner injure individuals or private subjects." This book was widely recognized by the Founding Fathers such that James Madison described Blackstone's work as "a book which is in every man's hand."

Blackstone's private category contained crimes such as murder, burglary, and arson. The public category, however, catalogued crimes that could only be understood as an assault upon the state. Within a subcategory denominated "offenses against the public justice," Blackstone included the crimes of perjury and bribery. In fact, in his catalogue of "public justice" offenses, Blackstone places perjury and bribery side by side.

The Constitution recognizes that truth-telling under oath is central to the maintenance of our republic. Oaths are mentioned in the Constitution on at least five separate occasions, not the least of which is the President's own oath to defend the Constitution. Article I, Section 3 sets forth the requirement that the Senate be under oath when trying cases of impeachment. Article 2, Section 1 specifically prescribes the oath which must be taken before our president enter on the Execution of his office.

The right against self-incrimination under the Constitution derives in some measure from the republic's interest in preserving truth-telling under oath. Forced testimony is forbidden because it might lead many to violate their most solemn obligations and over time weaken the essential civic norm of the fidelity to that oath. The Framers took the significance of the oath very seriously.

The crime of perjury was among the few offenses that the First Congress outlawed by statute, and that affirms the Framers' view of its seriousness. In 1790, in a statute entitled "An Act for the punishment of certain crimes against the United States," Congress made the crime of perjury punishable by imprisonment of up to three years, a fine of up to $800, disqualification from giving future testimony, and "stand[ing] in the pillory for one hour." Today perjury is punishable by up to five years imprisonment in a federal penitentiary.

Likewise, the Supreme Court has repeatedly noted the extent to which perjury subverts the judicial process, and thus the rule of law. For example, in the 1976 case of United States v. Mandujano, the Supreme Court emphasized:

Perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings. Effective restraints against this type of egregious offense are therefore imperative. . . . Hence, Congress has made the giving of false answers a criminal act punishable by severe penalties; in no other way can criminal conduct be flushed into the open where the law can deal with it.

Moreover, it is obvious that any testimony given to a grand jury must be truthful. As the Supreme Court stated in 1911 in the case of Glickstein v. United States: "it cannot be conceived that there is power to compel the giving of testimony where no right exists to require that the testimony shall be given under such circumstances and safeguards as to compel it to be truthful." Indeed, giving false material testimony to a grand jury— perjuring oneself— totally destroys the value of one's testimony and interferes with the ability of a grand jury to accomplish its mission, which is to find the truth. Perjury before a grand jury is a crime against our system of government and the American people. And in the case before us it is perjury upon perjury.

You will no doubt hear from the defense that this is just about an illicit affair. In the Preamble of the President's answer to the Articles of Impeachment it states: "The charges in the two Articles of Impeachment do not permit the conviction and removal from office of a duly elected President. The President has acknowledged conduct with Ms. Lewinsky that was improper." This is an attempt to trivalize the facts in this case. You will hear the President's lawyers remark that the view of the Founders is quaint, but really not applicable to these settings today.

This case is about an unanimous Supreme Court decision to allow an American citizen to pursue a lawsuit against the President, to seek the truth and a fair trial in a court of law.

Let's look at a few very recent examples, to see if the view of the seriousness of telling the truth under oath as envisioned by the Founding Fathers has changed.

United States v. Landi, Eastern District of Virginia, 1997. The defendant was convicted on 2 counts of perjury, one for lying in a declaration she made during a civil forfeiture case and the other for lying to a grand jury in a related criminal investigation. Here is what the judge said:

...the defendant committed perjury on two separate occasions. There can be no question of it being done by mistake, and perjury is perhaps one of the most serious offenses that can be committed against the court itself. And the court does not believe that it's appropriate to consider probation in the case of somebody who's been convicted of perjury. United States v. Vincent Bono, District of New Hampshire, 1998

The defendant was found guilty of lying before a grand jury in trying to cover his stepson's involvement in a robbery the grand jury was investigating. Here is what the judge had to say about lying before a grand jury:

United States v. Ronald Blackley, District of Columbia, 1998

The defendant, the former Chief of Staff to the Secretary of the United States Department of Agriculture, was found guilty at trial of three counts of making false statements to the government in connection with his official duties. Here is what the judge had to say:

The defendant stands before me as a high ranking government official convicted of making false statements under oath. This is such a serious crime that it demands an even longer term of imprisonment in this Court's view. This Court has a duty to send a message to other high level government officials, that there is a severe penalty to be paid for providing false information under oath. There is a strong reason to deter such conduct, and to dispel all the nonsense that's being publicly discussed and debated about the seriousness of lying under oath by government officials. A democracy like ours depends on people having trust in our government and its officials.

These three cases make very clear that lying under oath is as serious today in the 106th Congress as it was in 1790, in the First Congress when it enacted the perjury statute. The First Congress recognized the seriousness of perjury and its attack on the judicial system.

Now I want to discuss Article II, obstruction of justice, and how it is an attack on our judicial system. In either a criminal or a civil case, obstruction undermines the judicial system's ability to vindicate legal rights. If it is allowed to go unchecked, then the system will become a farce and ultimately a test of which side is better at using underhanded methods. Accordingly, federal courts have called the federal obstruction of justice statute "one of the most important laws ever adopted" in that it prevents the "miscarriage of Justice."

Black's Law Dictionary defines obstruction of justice as "[i]mpeading or obstructing those who seek justice in a court, or those who have duties or powers of administering justice therein." Not only is obstruction of justice its own crime in the federal criminal code, but in addition, the Federal Sentencing guidelines increase the sentence of a convicted defendant who has "willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing" of his offense. The commentary to the Guidelines specifically list as examples of obstruction actions the House alleges that President Clinton has committed, including "committing, suborning, or attempting to suborn perjury" and "destroying or concealing or directing or procuring another person to destroy or conceal evidence that is material to an official investigation or judicial proceeding..."

At a hearing on the Background and History of Impeachment as part of the House impeachment inquiry, Judge Griffin Bell, who was appointed to the Federal bench by President John Kennedy, and served as the United States Attorney General under President Carter, said that "I have thought about this a great deal. This is a serious matter. Trifling with the Federal courts is serious, and I guess I am biased because I used to be a Federal judge. But I cannot imagine that it wouldn't be a serious crime to lie in a Federal grand jury or to lie before a Federal judge, and that is where I come down."

Judge Bell went on to say that "...And all the civil rights cases that I was in in the South depended on the integrity of the Federal court and the Federal court orders and people telling the truth and fairness. Truth and fairness are the two essential elements in a justice system, and all of these statutes I mentioned, perjury, tampering with a witness, obstruction of justice, all deal in the interests of truth. If we don't have truth in the judicial process and in the court system in our country, we don't have anything. We don't have a system."

As you can see according to Judge Bell, "truth and fairness" are the two cornerstones of our judicial system....President Clinton violated both of these bedrock principles.

Finally, Judge Bell spoke to the issue if a President ever was convicted of a felony: "If the President were indicted and convicted of a felony, such as perjury or obstruction of justice or witness tampering, before impeachment proceedings began, would anyone argue that he should continue to be President? I don't think so. If the President were subsequently indicted and convicted of a felony, which the Constitution clearly allows, would anyone argue that he should continue to be President? I don't think so. A President cannot faithfully execute the laws if he himself is breaking them. The statutes against perjury, obstruction of justice and witness tampering rest on vouchsafing the element of truth in judicial proceedings civil and criminal— and particularly in the grand jury. Allegations of this kind are grave indeed."

To borrow the words of Constitutional scholar Charles J. Cooper, the crimes of perjury and obstruction of justice, like the crimes of treason and bribery, are quintessentially offenses against our system of government, visiting injury immediately on society itself, whether or not committed in connection with the exercise of official government powers. In a society governed by the rule of law, perjury and obstruction of justice simply cannot be tolerated because these crimes subvert the very judicial processes on which the rule of law so vitally depends.

It is no exaggeration to say that our Constitution, and the American people, entrust to the President singular responsibility for enforcing the rule of law. Perjury and obstruction of justice strike at the heart of the rule of law. A President who has committed these crimes has plainly and directly violated his most important executive duty. The core of the President's constitutional responsibilities is his duty to 'take Care that the Laws be faithfully executed.' And because perjury and obstruction of justice strike at the rule of law itself, it is difficult to imagine crimes that more clearly or directly violate this core presidential constitutional duty. When President Clinton had the opportunity to personally uphold the rule of law, to uphold the truth seeking function of the courts, to uphold fairness in judicial proceedings, he failed. Far from taking care that the laws be faithfully executed, a President guilty of perjury and obstruction of justice he has himself faithlessly subverted the very law that the rest of us are called upon to obey.

You will hear arguments that perjury and obstruction don't really have much consequence in this case, that these are not impeachable offenses because it was a private matter. I would like to arm you with the facts. According to the United States Sentencing Commission, in 1997, 182 Americans were sentenced in federal court for committing perjury. Also, in 1997, 144 Americans were sentenced in federal court for obstruction and witness tampering. In the same year, the state of California brought 4,318 perjury prosecutions. There are now at least 115 persons serving sentences for perjury in federal prisons. Where is the fairness to these Americans if they stay in jail and President stays in the Oval Office?

If the allegations in the Independent Counsel's referral were made against a sitting federal judge, would not the Senate convict? If William Jefferson Clinton were a sitting federal judge, would not the Senate convict? While my colleague, Mr. Manager Graham will look into this further, let's look briefly at precedent. When we bring up the issues regarding the impeachment of former Federal judges Mr. Claiborne and Mr. Nixon,, and one standard was used: high crimes and misdemeanors. The Senate said the one standard that applies to the President and Vice President will also apply to these Federal judges and other civil officers.

You see, in the defense of Judges Claiborne and Nixon, the defense lawyers in the trial in the Senate argued that the Federal judges should be treated differently from the President, that they could not be impeached for private misbehavior, because it is extrajudicial. The Senate rejected that proposition as incompatible with common sense and the orderly conduct of government. And I believe this Senate will do the very same thing to the President's defense. Federal judges and the President should be treated by the same standard: impeachment for high crimes and misdemeanors.

Don't be tempted to believe the defense argument that lying under oath about sex doesn't matter. Consider this.... American law makes rape a crime, domestic violence a crime, sexual harassment a civil rights violation, and libel a compensable offense. Without the protections of the perjury and obstruction statutes, none of these rights can be vindicated.

When the President's lawyers try to tell you this case is simply about an illicit affair, that demeans our civil rights laws. If indeed the President is successful in trying to make everyone believe that this case is only about sex, what will the message be from those in this hallowed body who have in the past been passionate advocates of our civil rights laws, whether they be race, gender, religion, or disability? If the evidence gathering process is unimportant in a federal civil rights sexual harassment lawsuit— remember, that is what is directly at issue in this case— what message does that send to the women of America?

There are some important questions we need to ask. Are sexual harassment lawsuits, which were designed to vindicate legitimate and serious civil rights grievances of women across America, now somewhat less important than our other civil rights laws? Which of our civil rights laws will fall next? Will we soon decide that the evidence gathering process is unimportant with respect to vindicating the rights of the disabled under the Americans with Disabilities Act?Will the evidence gathering process become unimportant with respect to vindicating the voting rights of those discriminated against based on race and national origin? Who will tell the hundreds of federal judges across the nation that the evidence gathering process in these cases is now unimportant?

Consider postal worker Diane Parker who was convicted of perjury and sentenced to 13 months in prison for making a false material declaration during a discovery deposition in a sexual harassment lawsuit. Judge Lacey Collier said, "one of the most troubling things in our society today is people who raise their hand, take the oath to tell the truth and then fail to do that....This, I hope, is sufficient punishment for you. But more importantly, I hope that it is a deterrence to others. So your story can be taken far and wide to demonstrate to others the seriousness of the responsibility of telling the truth in court proceedings."

The Senate must now determine whether it is acceptable and whether it is appropriate to set a precedent to have an individual serve as President of the United States, when that individual has committed serious felonies against our system of government while holding that office.

While we have been discussing how perjury and obstruction of justice are attacks on our judicial system, we must recognize how the judicial system is a core function of the government. When Mr. Manager Henry Hyde speaks of the rule of law protecting us from that knock on the door at 3:00 a.m., what exactly is he referring to? Well, in totalitarian societies, the rulers may drag the ruled off to prison at any time for any reason. Our system differs because we require our rulers to go through a judicial procedure before they put someone in prison or otherwise violate their rights. The President's offenses assault the administration of this judicial procedure. As such, they constitute an assault on a core function of the government and repudiate our most basic social contract. A core function of the government derives its role from the social contract that our civilized society has under which a fundamental exchange of rights takes place.

We give up the right to exercise brute force to settle disputes, a situation where chaos reigns and the strongest most often prevail. Instead, we submit to the power delegated to the state under which an individual then submits, to the governmental processes as part of the social contract. Indeed, when conflict arises in our society, we as individuals are compelled via the social contract to take disputes to our third branch of government, the courts. The judicial branch of government then peacefully decides which party is entitled to judgement in their favor after a full presentation of truthful evidence.

Implicit in the social contract that we enter into as a civilized society is the principle that the weak are equally entitled as the strong to equal justice under law. Despite the tumbling tides of politics, ours is a government of laws and not men. It was the inspired vision of our Founding Fathers that the Judicial, Legislative, and Executive branches of government would work together to preserve the rule of law. The United States Constitution requires the judicial branch to apply the law equally and fairly to both the weak and the strong.

Once we as a society— and particularly our leaders— no longer submit to the social contract, and no longer pay deference to our third branch of government— which is equally as important as the legislative and executive branches of the government we begin to erode the rule of law and begin to erode the social contract of the great American experiment.

That's why Judge Bell stated: "A President cannot faithfully execute the laws if he himself is breaking them."

The administration of justice is a core function of the government precisely because of the importance we place on the fair resolution of disputes and on whom and for how long a person will be denied liberty for violating our criminal laws. Any assault on the administration of justice must be interpreted as a threat to our system of government. Our President, who is our chief executive and chief law enforcement officer and who alone is delegated the task under our Constitution to "take Care that the Laws be faithfully executed," cannot and must not be permitted to engage in such an assault on the administration of justice. The Articles of Impeachment adopted by the House of Representatives establish an abuse of the public trust and betrayal of the social contract in that the President is alleged to have repeatedly placed his personal interests above the public interest and violated his Constitutional duty. For if he is allowed to escape conviction by the Senate, we would allow our President to set the example for lawlessness and corruption. We would allow our President to serve as an example of the erosion of the concept of the social contract embraced and embodied by our Constitution. I don't believe this Senate will allow that to happen.

As you undertake your examination of the facts, the law, and your precedents, the Senate must weigh carefully its judgement, for the consequences are profound: Should the Senate choose to acquit it must be prepared to accept lower the standard, a bad precedent, and a double standard. However, should the Senate choose to convict, it will be reinforcing high standards for high office, maintain existing precedents, and uphold the principle of equal justice under law?

I think it is important to pause and look at the Constitutional duties of the President of the United States. The President is reposed with a special trust by the American people. The President is a physical embodiment of America and the hope and freedom for which she stands. When the President goes abroad, he is honored as the head of a sovereign nation...the nation is acknowledged, not just the individual who occupies the Office of the President.

As Commander in Chief, the President plays a unique and indispensable role in the chain of command. In Federalist 74, Alexander Hamilton stated that "of all the cares or concerns of government, the direction of war most peculiarly demands those qualities, which distinguish the exercise of power by a single hand."

It is universally agreed that the President, in his role as Commander -in-Chief, is not an actual member of the military. However, as the "single hand" that guides the actions of the Armed Services, it is incumbent that the President exhibit sound, responsible leadership and set a proper example when acting as the Commander-in Chief.

That leadership is at the core of the issue before us today. In order to be an effective leader, an effective military leader, the President must exhibit the traits that inspire those who must risk their lives at his command. These traits include honor, integrity and accountability.

Admiral Thomas Moorer, the former Chairman of the Joint Chiefs of Staff in his submitted testimony in the impeachment inquiry stated it this way: "Military leaders also serve as role models for honorable and virtuous conduct."

Veracity and truthfulness are important components of a leader's character. In order to have the trust of their subordinates, military leaders must have honor and be truthful in all things. That trust, that bond between the leaders and the led, is an essential element of any successful military organization.

The President' s own self-inflicted wounds have called his credibility into question. While a President's decisions are always critiqued, he receives the benefit of the doubt in the decision making process that he was placing the interests of the country above his own. Through his actions, the President has forfeited that benefit.

The lack of trust in the President's motives, his veracity and his judgement is inherently corrosive and can only have a detrimental effect on our military and our credibility overseas. This corrosion is difficult to measure, for it cannot be quantified easily in a readiness report or training exercise. But in squadbays and wardrooms around the world, there can be heard whispers and conversations of those who know that if they had been merely accused of the same offenses, their careers would have ended long ago.

This is the intangible effect that the President's actions have had on our military. We cannot ignore the fact that the Commander-in-Chief's conduct sets a poor example to the men and women of the U.S. military. Worse, we cannot ignore the idea that to acquit the President would create a double standard.

The Constitution directs this body to provide advice and consent to the President's nominations for military officers. As is your responsibility, the Senate has set high standards of conduct for these officers. The Senate has in the past, and likely will again, reject those whose moral and legal misconduct make them unsuitable to be officers in the United States military.

Let me indulge in a hypothetical example. An officer is nominated by the President for promotion to the rank of Major. After the list is submitted, but before confirmation, an investigation of the individual's background results in a report that mirrors the allegations in the Office of Independent Counsel referral. Under a careful review of the Uniform Code of Military Justice, that officer would be charged with the following offenses:

Needless to say, the Senate would insist on this hypothetical officer's removal from the promotion list. The service would certainly relieve him of his duties.

In every warship, every squadbay, every headquarters building through out the United States military, the picture of the Commander-in-Chief hangs at the apex of the pyramid that is the military chain of Command. All over the world, military personnel look at the current picture and know that, if accused of the same offenses as their Commander in Chief, they would no longer be deserving of the privilege to serve in the military.

Some would say that this does not matter— that words like duty, honor, and veracity are just words— they do not matter— that nobody lives their lives that way— that these actions do not rise to the level needed to remove a president from office. In his farewell speech to the cadets at West Point, General Douglas McArthur stated that "The unbelievers will say they are but words, but a slogan, but a flamboyant phrase. Every pendant, every demagogue, every cynic, every hypocrite, every troublemaker, and I am sorry to say, some others of an entirely different character, will try to downgrade them to the extent of mockery and ridicule."

The ideal object must be held high, even though we recognize humans are not perfect. No matter how great we aspire, we will occasionally fail. But there must be the pursuit of such ideals. We cannot degrade our standards. By a conviction the Senate will be upholding a high and lofty standard for our military leaders, rather than a lower standard for the President, the Commander in Chief.

Let me turn to the President's responsibility to see that "the laws are faithfully executed." According to scholar Philip B. Kurland, it was probably George Washington, rather than the Constitution, that is responsible for our hierarchy of cabinet offices that have been taken for granted since the early days of the Republic. By the Constitution's charge and by custom and legislation, it is accepted practice that the executive branch is an entity for which the President is responsible both to Congress and to the public. "The whole of the executive branch acts subordinately to the command of the President in the administration of federal laws, so long as they act within the terms of those laws. Their offices confer no right to violate the laws, whether they take the form of constitution, statute, or treaty."

The President's Departments of Treasury and Justice seek to bring to account those who disturb our "domestic tranquility." Whether drug pushers or unabombers, gangsters or mobsters, church arsonists or violators of constitutional rights, the dedicated men and women of the FBI, DEA, Customs, Secret Service, BATF, INS , the U.S. Marshals Office; they all pursue them, methodically, thoughtfully, firmly, doggedly, applying the law while risking their lives to uphold the rule of law for our peace and security. They seek to ensure equal justice under law.

In The Imperial Presidency, Professor Arthur Schlesinger, Jr. states: "The continuation of a lawbreaker as chief magistrate would be a strange way to exemplify law and order at home or to demonstrate American probity before the world." By a conviction, the Senate will be upholding the high calling of law enforcement in protecting the rule of law and equal justice under the law.

Equal Justice Under Law....that principle so embodies the American constitutional order that we have carved it in stone on the front of our Supreme Court. The carving shines like a beacon from the highest sanctum of the Judicial Branch across to the Capitol, the home of the Legislative Branch, and down Pennsylvania Avenue to the White House, the home of the Executive Branch. It illuminates our national life and reminds those other branches that despite the tumbling tides of politics, ours is a government of laws and not of men. It was the inspired vision of our founders and framers that the Judicial, Legislative, and Executive branches would work together to preserve the rule of law.

But "Equal Justice Under Law" amounts to much more than a stone carving. Although we cannot see or hear it, this living, breathing force has real consequences in the lives of average citizens every day. It allows us to claim the assistance of the government when someone has wronged us— even if that person is stronger or wealthier or more popular than we are. In America, unlike other countries, when the average citizen sues the Chief Executive of our nation, they stand equal before the bar of justice. The Constitution requires the judicial branch of our government to apply the law equally to both. That is the living consequence of "Equal Justice Under Law."

The President of the United States must work with the Judicial and Legislative branches to sustain that force. The temporary trustee of that office, William Jefferson Clinton, worked to defeat it. When he stood before the bar of justice, he acted without authority to award himself the special privileges of lying and obstructing to gain an advantage in a federal civil rights action in the United States District Court for the Eastern District of Arkansas, and in a federal grand jury investigation in the United States District Court for the District of Columbia. His resistance brings us to this most unfortunate juncture.

So "Equal Justice Under Law" lies at the heart of this matter. It rests on three essential pillars: an impartial judiciary, an ethical bar, and a sacred oath. If litigants profane the sanctity of the oath, "Equal Justice Under Law" loses its protective force.

The House, as does the Senate, has a responsibility to uphold the Constitution. We have all taken oaths to defend the Constitution. The Founding Fathers created a system of checks and balances, a system of accountability between the functions of government. The Founding Fathers knew the nature of the human heart....that it struggles between good and evil. We recognize that no person has perfect virtue. We each have our human failings. The Founders could foresee a time when corruption could invade the institutions of government, and provided a means to address it. The impeachment proceeding is one such means.

We are seeking to defend the rule of law. America is a "government of laws, and not of men." What protects us from the knock on the door in the middle of the night? The law. What ensures the rights of the weak and the powerless against the powerful? The law. What provides rights to the poor against the rich? The law. What upholds the rightness of the minority view against the popular, but wrong? The law.

As Andrew Jackson wrote, "the great can protect themselves, but the poor and humble require the arm and shield of the law."

When our nation began its journey in history over 200 years ago, the United States was nearly unique in depending on the rule of law, as opposed to the rule by kings, or czars, or chieftains. Now that our unique experiment has been proved, the rest of the world seeks to follow our lead...government by the rule of law.

For the sake of ourselves and for the sake of generations yet unborn, we must preserve the rule of law.

I will leave you with the words of the First President of the Senate, and the Second President of our nation, John

"Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence."

The facts are stubborn. President Clinton lied, under oath. President Clinton committed perjury, repeatedly, willfully, premediatedly. President Clinton obstructed justice, by tampering with evidence and witnesses. These are offenses against our judicial branch of government. They are an affront to the rule of law. Historically, and in keeping with the precedents of the Senate in impeachment cases, perjury and obstruction of justice are impeachable offenses.

I urge the Senate, for the sake of generations yet unborn, to follow the facts, follow the law and follow the precedents, and convict and remove President William Jefferson Clinton from the Office of the President of the United States. I now turn to my colleague, Mr. Manager Graham.

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