In re
Impeachment of
William Jefferson Clinton
President of the United States
 

    Twenty-six months ago, more than 90 million Americans left their homes and workplaces to travel to
    schools, church halls and other civic centers to elect a President of the United States. And on Jan.
    20, 1997, William Jefferson Clinton was sworn in to serve a second term of office for four years.

    The Senate, in receipt of articles of impeachment from the House of Representatives, is now gathered
    in trial to consider whether that decision should be set aside for the remaining two years of the
    President's term. It is a power contemplated and authorized by the framers of the Constitution, but
    never before employed in our nation's history. The gravity of what is at stake -- the democratic choice
    of the American people -- and the solemnity of the proceedings dictate that a decision to remove the
    President from office should follow only from the most serious of circumstances and should be done in
    conformity with constitutional standards and in the interest of the nation and its people.

    The articles of impeachment that have been exhibited to the Senate fall far short of what the
    founding fathers had in mind when they placed in the hands of the Congress the power to impeach and
    remove a President from office. They fall far short of what the American people demand be shown and
    proven before their democratic choice is reversed. And they even fall far short of what a prudent
    prosecutor would require before presenting a case to a judge or jury.

    Take away the elaborate trappings of the articles and the high-flying rhetoric that has accompanied
    them, and we see clearly that the House of Representatives asks the Senate to remove the President
    from office because he:

    * used the phrase "certain occasions" to describe the frequency of his improper intimate contacts with
    Ms. Monica Lewinsky. There were, according to the House managers, 11 such contacts over the course
    of approximately 500 days.

    Should the will of the people be overruled and the President of the United States be removed from
    office because he used the phrase "certain occasions" to describe 11 events over some 500 days? That
    is what the House of Representatives asks the Senate to do.

    * used the word "occasional" to describe the frequency of inappropriate telephone conversations
    between him and Monica Lewinsky. According to Ms. Lewinsky, the President and Ms. Lewinsky
    engaged in between 10 and 15 such conversations spanning a 23-month period.

    Should the will of the people be overruled and the President of the United States be removed from
    office because he used the word "occasional" to describe up to 15 telephone calls over a 23-month
    period? That is what the House of Representatives asks the Senate to do.

    * said the improper relationship with Ms. Lewinsky began in early 1996, while she recalls that it began in
    November 1995. And he said the contact did not include touching certain parts of her body, while she
    said it did.

    Should the will of the people be overruled and the President of the United States be removed from
    office because two people have a different recollection of the details of a wrongful relationship -- which
    the President has admitted? That is what the House of Representatives asks the Senate to do.

    The articles of impeachment are not limited to the examples cited above, but the other allegations of
    wrongdoing are similarly unconvincing. There is the charge that the President unlawfully obstructed
    justice by allegedly trying to find a job for Monica Lewinsky in exchange for her silence about their
    relationship. This charge is made despite the fact that no one involved in the effort to find work for Ms.
    Lewinsky -- including Ms. Lewinsky herself -- testifies that there was any connection between the job
    search and the affidavit. Indeed, the basis for that allegation, Ms. Lewinsky's statements to Ms. Tripp,
    was expressly repudiated by Ms. Lewinsky under oath.

    There is also the charge that the President conspired to obstruct justice by arranging for Ms. Lewinsky
    to hide gifts that he had given her, even though the facts and the testimony contain no evidence that
    he did so. In fact, the evidence shows that the President gave her new gifts on the very day that the
    articles allege he conspired to conceal his gifts to her.

    In the final analysis, the House is asking the Senate to remove the President because he had a
    wrongful relationship and sought to keep the existence of that relationship private.

    Nothing said in this trial memorandum is intended to excuse the President's actions. By his own
    admission, he is guilty of personal failings. As he has publicly stated, "I don't think there is a fancy way
    to say that I have sinned." He has misled his family, his friends, his staff and the nation about the
    nature of his relationship with Ms. Lewinsky. He hoped to avoid exposure of personal wrongdoing so as
    to protect his family and himself and to avoid public embarrassment. He has acknowledged that his
    actions were wrong.

    By the same token, these actions must not be mischaracterized into a wholly groundless excuse for
    removing the President from the office to which he was twice elected by the American people. The
    allegations in the articles and the argument in the House managers' trial memorandum do not begin
    to satisfy the stringent showing required by our founding fathers to remove a duly elected President
    from office, either as a matter of fact or law.

    There is strong agreement among constitutional and legal scholars and historians that the substance of
    the articles does not amount to impeachable offenses. On Nov. 6, 1998, 430 Constitutional law
    professors wrote:

    "Did President Clinton commit 'high crimes and misdemeanors' warranting impeachment under the
    Constitution? We . . . believe that the misconduct alleged in the report of the independent counsel . . .
    does not cross the threshold. . . . I t is clear that members of Congress could violate their
    constitutional responsibilities if they sought to impeach and remove the President for misconduct, even
    criminal misconduct, that fell short of the high constitutional standard required for impeachment.

    On Oct. 28, 1998, more than 400 historians issued a joint statement warning that because
    impeachment had traditionally been reserved for high crimes and misdemeanors in the exercise of
    executive power, impeachment of the President based on the facts alleged in the O.I.C. referral
    would set a dangerous precedent. "If carried forward, they will leave the Presidency permanently
    disfigured and diminished, at the mercy, as never before, of caprices of any Congress. The Presidency,
    historically the center of leadership during our great national ordeals, will be crippled in meeting the
    inevitable challenges of the future." . . .

    Article I alleges perjury before a Federal grand jury. Article II alleges obstruction of justice. Both perjury
    and obstruction of justice are statutory crimes. In rebutting the allegations contained in the articles of
    impeachment, this brief refers to the facts as well as to laws, legal principles, court decisions,
    procedural safeguards and the Constitution itself. Those who seek to remove the President speak of
    the "rule of law." Among the most fundamental rules of law are the principles that those who accuse
    have the burden of proof and those who are accused have the right to defend themselves by relying on
    the law, established procedures and the Constitution. These principles are not "legalisms" but rather the
    very essence of the "rule of law" that distinguishes our nation from others. . . .

    If there were any doubt that the House of Representatives has utterly failed in its constitutional
    responsibility to the Senate and to the President, that doubt vanishes upon reading the trial
    memorandum submitted by the House managers. Having proffered two articles of impeachment,
    each of which unconstitutionally combines multiple offenses and fails to give even minimally adequate
    notice of the charges it encompasses, the House -- three days before the managers are to open their
    case -- is still expanding, not refining, the scope of those articles. In further violation of the most basic
    constitutional principles, their brief advances, merely as "examples," 19 conclusory allegations -- 8 of
    perjury under Article I and 11 of obstruction of justice under Article II, some of which have never
    appeared before, even in the report submitted by the Judiciary Committee ("Committee Report"), much
    less in the Office of Independent Counsel ("O.I.C.") referral or in the articles themselves. If the target
    the managers present to the Senate and to the President is still moving now, what can the President
    expect in the coming days? Is there any point at which the President will be given the right accorded
    a defendant in the most minor criminal case -- to know with certainty the charges against which he
    must defend?

    The Senate, we know, fully appreciates these concerns and has, in past proceedings, dealt
    appropriately with articles far less flawed than these. . . .

    ROUTE TO IMPEACHMENT
 

    On Sept. 9, 1998, Mr. Starr transmitted a referral to the House of Representatives that alleged 11 acts
    by the President related to the Lewinsky matter that, in the opinion of the O.I.C., "may constitute
    grounds for an impeachment." The allegations fell into three broad categories: lying under oath,
    obstruction of justice and abuse of power.

    The House Judiciary Committee held a total of four hearings and called but one witness: Kenneth W.
    Starr. The committee allowed the President's lawyers two days in which to present a defense. The
    White House presented four panels of distinguished expert witnesses who testified that the facts, as
    alleged, did not constitute an impeachable offense, did not reveal an abuse of power, and would not
    support a case for perjury or obstruction of justice that any reasonable prosecutor would bring. White
    House counsel Charles F. C. Ruff presented argument to the committee on behalf of the President,
    which is incorporated into this trial memorandum by reference.

    On Dec. 11 and 12, the Judiciary Committee voted essentially along party lines to approve four articles
    of impeachment. Republicans defeated the alternative resolution of censure offered by certain
    committee Democrats. Almost immediately after censure failed in the committee, the House Republican
    leadership declared publicly that no censure proposal would be considered by the full House when it
    considered the articles of impeachment.

    On Dec. 19, 1998, voting essentially on party lines, the House of Representatives approved two articles
    of impeachment: Article I, which alleged perjury before the grand jury, passed by a vote of 228 to
    206, and Article III, which alleged obstruction of justice, passed by a vote of 221 to 212. The full
    House defeated two other articles: Article II, which alleged that the President committed perjury in his
    civil deposition and Article IV, which alleged abuse of power. Consideration of a censure resolution was
    blocked, even though members of both parties had expressed a desire to vote on such an option.

    From beginning to end the House process was both partisan and unfair.

    Consider:

    * The House released the entire O.I.C. referral to the public without ever reading it, reviewing it,
    editing it or allowing the President's counsel to review it;

    * The chairman of the House of Judiciary Committee said he had "no interest in not working in a
    bipartisan way";

    * The chairman also pledged a process the American people would conclude was fair;

    * The Speaker-designate of the House endorsed a vote of conscience on a motion to censure;

    * Members of the House were shown secret "evidence" in order to influence their vote -- evidence
    which the President's counsel still has not been able to review.

    It is the solemn duty of the Senate to consider the question whether the articles state an impeachable
    offense. That Constitutional question has not, in the words of one House manager, "already been
    resolved by the House." To the contrary, that question now awaits the Senate's measured
    consideration and independent judgment. Indeed, throughout our history, resolving this question has
    been an essential part of the Senate's constitutional obligation to "try all Impeachments." . . .

    We respectfully suggest that the articles exhibited here do not state wrongdoing that constitutes
    impeachable offenses under our Constitution.

    IMPEACHMENT STANDARD
 

    The Constitution provides that the President shall be removed from office only upon "impeachment
    for, and conviction of, treason, bribery or other high crimes and misdemeanors." The charges fail to
    meet the high standard that the framers established.

    The syntax of the constitutional standard "treason, bribery or other high crimes and misdemeanors"
    strongly suggests, by the interpretive principle noscitur a sociis, that, to be impeachable offenses, high
    crimes and misdemeanors must be of the seriousness of "treason" and "bribery."

    Our constitutional structure reaffirms that the standard must be a very high one. Ours is a Constitution
    of separated powers. In that Constitution, the President does not serve at the will of Congress, but as
    the directly elected, solitary head of the executive branch. The Constitution reflects a judgment that a
    strong executive, executing the law independently of legislative will, is a necessary protection for a free
    people.

    These elementary facts of constitutional structure underscore the need for a very high standard for
    impeachment. The House managers, in their brief, suggest that the failure to remove the President
    would raise the standard for impeachment higher than the framers intended. They say that if the
    Senate does not remove the President, "The bar will be so high that only a convicted felon or a traitor
    will need to be concerned." But that standard is just a modified version of the plain language of Article
    II, Section 4 of the Constitution, which says a President can only be impeached and removed for
    "treason, bribery, or other high crimes and misdemeanors." The framers wanted a high bar. It was not
    the intention of the framers that the President should be subject to the will of the dominant legislative
    party. As Alexander Hamilton said in a warning against the politicization of impeachment: "There will
    always be the greatest danger that the decision will be regulated more by comparative strength of
    parties than by the real demonstrations of innocence or guilt." Our system of Government does not
    permit Congress to unseat the President merely because it disagrees with his behavior or his policies.
    The framers' decisive rejection of parliamentary government is one reason they caused the phrase
    "treason, bribery or other high crimes and misdemeanors" to appear in the Constitution itself. They
    chose to specify those categories of offenses subject to the impeachment power, rather than leave
    that judgment to the unfettered whim of the legislature.

    Any just and proper impeachment process must be reasonably viewed by the public as arising from
    one of those rare cases when the legislature is compelled to stand in for all the people and remove a
    President whose continuation in office threatens grave harm to the republic. Indeed, it is not
    exaggeration to say -- as a group of more than 400 leading historians and constitutional scholars
    publicly stated -- that removal on these articles would "mangle the system of checks and balances that
    is our chief safeguard against abuses of public power." Removal of the President on these grounds
    would defy the constitutional presumption that the removal power rests with the people in elections,
    and it would do incalculable damage to the institution of the Presidency. If "successful," removal here
    "will leave the Presidency permanently disfigured and diminished, at the mercy as never before of the
    caprices of any Congress."

    The framers made the President the sole nationally elected public official (together with the Vice
    President), responsible to all the people. Therefore, when articles of impeachment have been
    exhibited, the Senate confronts this inescapable question: is the alleged misconduct so profoundly
    serious, so malevolent to our Constitutional system, that it justifies undoing the people's decision? Is
    the wrong alleged of a sort that not only demands removal of the President before the ordinary
    electoral cycle can do its work, but also justifies the national trauma that accompanies the
    impeachment trial process itself? The wrongdoing alleged here does not remotely meet that standard.

    " H igh crimes and misdemeanors" refers to nothing short of Presidential actions that are "great and
    dangerous offenses" or "attempts to subvert the Constitution." Impeachment was never intended to
    be a remedy for private wrongs. It was intended to be a method of removing a President whose
    continued presence in the office would cause grave danger to the nation and our constitutional system
    of government. Thus, "in all but the most extreme instances, impeachment should be limited to abuse
    of public office, not private misconduct unrelated to public office." . . .

    Because impeachment of a President nullifies the popular will of the people, as evidenced by an
    election, it must be used with great circumspection. As applicable precedents establish, it should not be
    used to punish private misconduct. . . .

    The House managers suggest that perjury per se is an impeachable offense because (1) several Federal
    judges have been impeached and removed for perjury, and (2) those precedents control this case. That
    notion is erroneous. It is blind both to the qualitative differences among different allegations of perjury
    and the very basic differences between Federal judges and the President.

    First, the impeachment and removal of a Federal judge, while a very solemn task, implicates very
    different considerations than the impeachment of a President. Federal judges are appointed without
    public approval and enjoy life tenure without public accountability. Consequently, they hold their offices
    under our Constitution only "during good behavior." Under our system, impeachment is the only way to
    remove a Federal judge from office -- even a Federal judge sitting in jail. By contrast, a President is
    elected by the nation to a term, limited to a specified number of years, and he faces accountability in
    the form of elections.

    Second, whether an allegedly perjurious statement rises to the level of an impeachable offense depends
    necessarily on the particulars of that statement, and the relation of those statements to the fulfillment
    of official responsibilities. In the impeachment of Judge Harry Claiborne, the accused had been
    convicted of filing false income tax returns. As a judge, Claiborne was charged with the responsibility of
    hearing tax-evasion cases. Once convicted, he simply could not perform his official functions because
    his personal probity had been impaired such that he could not longer be an arbiter of others' oaths. His
    wrongdoing bore a direct connection to the performance of his judicial tasks. The inquiry into President
    Nixon disclosed similar wrongdoing, but the House Judiciary Committee refused to approve an article of
    impeachment against the President on that basis. The case of Judge Walter Nixon is similar. He was
    convicted of making perjurious statements concerning his intervention in a judicial proceeding, which is
    to say, employing the power and prestige of his office to obtain advantage for a party. Although the
    proceeding at issue was not in his court, his use of the judicial office for the private gain of a party to
    a judicial proceeding directly implicated his official functions. Finally, Judge Alcee Hastings was
    impeached and removed for making perjurious statements at his trial for conspiring to fix cases in his
    own court. As with Judges Claiborne and Nixon, Judge Hastings' perjurious statements were immediately
    and incurably detrimental to the performance of his official duties. The allegations against the
    President, which (as the managers acknowledge) "do not directly involve his official conduct," simply
    do not involve wrongdoing of gravity sufficient to foreclose effective performance of the Presidential
    office. . . .

    STANDARD OF PROOF
 

    Beyond the question of what constitutes an impeachable offense, each Senator must confront the
    question of what standard the evidence must meet to justify a vote of "guilty." The Senate has, of
    course, addressed this issue before -- most recently in the trials of Judge Claiborne and Judge Hastings.
    We recognize that the Senate chose in the Claiborne proceedings, and reaffirmed in the Hastings trial,
    not to impose on itself any single standard of proof but, rather, to leave that judgment to the
    conscience of each senator. Many senators here today were present for the debate on this issue and
    chose a standard by which to test the evidence. For many senators, however, the issue is a new one.
    And none previously has had to face the issue in the special context of a Presidential impeachment.

    We argued before the House Judiciary Committee that it must treat a vote to impeach as, in effect, a
    vote to remove the President from office and that a decision of such moment ought not to be based
    on anything less than "clear and convincing" evidence. That standard is higher than the "preponderance
    of the evidence" test applicable to the ordinary civil case but lower than the beyond a reasonable
    doubt test applicable to a criminal case. Nonetheless, we felt that the clear and convincing standard
    was consistent with the grave responsibility of triggering a process that might result in the removal of a
    president. In fact, it had been the standard agreed upon by both Watergate Committee majority and
    minority counsel (as well as counsel for President Nixon) 24 years ago.

    Certainly no lesser standard should be applied in the Senate. Indeed, we submit that the gravity of the
    decision the Senate must reach should lead each Senator to go further and ask whether the House has
    established guilt beyond a reasonable doubt.

    Both lawyers and laymen too often treat the standard of proof as meaningless legal jargon with no
    application to the real world of difficult decisions. But it is much more than that. In our system of
    justice, it is the guidepost that shows the way through the labyrinth of conflicting evidence. It tells the
    fact finder to look within and ask: "Would I make the most important decisions of my life based on the
    degree of certainty I have about these facts?" In the unique legal-political setting of an impeachment
    trial, it protects against partisan overreaching, and it assures the public that this grave decision has
    been made with care. In sum, it is a disciplining force to carry into the deliberations.

    This point is given added weight by the language of the Constitution. Article I, section 3, clause 6 of
    the United States Constitution gives to the Senate "the power to try all Impeachments. . . . and no
    person shall be convicted without the concurrence of two-thirds of the members present." (Emphasis
    added.) Use of the words "try" and "convicted" strongly suggests that an impeachment trial is akin to
    a criminal proceeding and that the beyond-a-reasonable-doubt standard of criminal proceedings should
    be used. This position was enunciated in the minority views contained in the report of the House
    Judiciary Committee on the impeachment proceedings against President Nixon and has been
    espoused as the correct standard by such Senators as Robert Taft Jr., Sam Ervin, Strom Thurmond and
    John Stennis.

    Even if the clear and convincing standard nonetheless is appropriate for judicial impeachments, it
    does not follow that it should be applied where the Presidency itself is at stake. With judges, the
    Senate must balance its concern for the independence of the judiciary against the recognition that,
    because judges hold life-time tenure, impeachment is the only available means to protect the public
    against those who are corrupt. On the other hand, when a President is on trial, the balance to be
    struck is quite different. Here the Senate is asked, in effect, to overturn the results of an election held
    two years ago in which the American people selected the head of one of the three coordinate branches
    of government. It is asked to take this action in circumstances where there is no suggestion of
    corruption or misuse of office -- or any other conduct that places our system of government at risk in
    the two remaining years of the President's term, when once again the people will judge who they wish
    to lead them. In this setting, the evidence should be tested by the most stringent standard we know --
    proof beyond a reasonable doubt. Only then can the American people be confident that this most
    serious of constitutional decisions has been given the careful consideration it deserves. . . .

    RESPONSE TO ARTICLE I
 

    The President testified truthfully before the grand jury. There must be no mistake about what the
    President said. He admitted to the grand jury that he had engaged in an inappropriate intimate
    relationship with Ms. Lewinsky over a period of many months. He admitted to the grand jury that he had
    been alone with Ms. Lewinsky. He admitted to the grand jury that he had misled his family, his friends
    and staff, and the entire Nation about the nature of that relationship. No one who heard the
    President's Aug. 17 speech or watched the President's videotaped grand jury testimony had any
    doubt that he had admitted to an ongoing physical relationship with Ms. Lewinsky. . . .

    *The President denies that he made materially false or misleading statements to the grand jury about
    "the nature and details of his relationship" with Monica Lewinsky. Early in his grand jury testimony, the
    President specifically acknowledged that he had had a relationship with Ms. Lewinsky that involved
    "improper intimate contact." . . .

    *The President denies that he made perjurious, false and misleading statements to the grand jury
    about testimony he gave in the Jones case. . . .

    *The President denies that he made perjurious, false and misleading statements to the grand jury
    about the statements of his attorney to Judge Wright during the Jones deposition. . . .

    *The President denies that he made perjurious, false and misleading statements to the grand jury
    when he denied attempting "to influence the testimony of witnesses and to impede the discovery of
    evidence" in the Jones case. . . .

    These allegations were not even included in the summary of the Starr evidence presented to the
    committee on Oct. 5, 1998, by House majority counsel Schippers. They are nothing more than an effort
    to inflate the perjury allegations by converting every statement that the President made about the
    subject matter of Article II into a new count for perjury. . . .

    REPLY TO ARTICLE II
 

    The evidence does not support the allegations of Article II. . . .

    *The President denies that on or about Dec. 17, 1997, he "corruptly encouraged" Monica Lewinsky "to
    execute a sworn affidavit in that proceeding that he knew to be perjurious, false and misleading." . . .

    *Article II (2) alleges that the President encouraged Ms. Lewinsky to give false testimony if and when
    she was called to testify personally in the Jones litigation. Again, Ms. Lewinsky repeatedly denied that
    anyone told her or encouraged her to lie. . . .

    *It creates the erroneous impression that the President gave Ms. Lewinsky instructions to conceal the
    gifts in the Dec. 28 meeting by quoting her testimony that "from everything he said to me" she would
    conceal the gifts. But we know that Ms. Lewinsky has repeatedly testified that no such discussion ever
    occurred. Her reliance on "everything he said to me" must, therefore, reflect her own plan to implement
    discussions the two had had about concealing the relationship long before her role in the Jones
    litigation.

    What this passage confirms is that Ms. Lewinsky had very much in her mind that she would do what she
    could to conceal the relationship -- a modus operandi she herself acknowledged well pre-dated the
    Jones litigation. That she took such steps does not mean that the President knew of or participated in
    them. Indeed, it appears that the entire gift-concealment plan arose not from any plan suggested by
    the President -- which the committee report so desperately struggles to maintain -- but rather more
    innocently from the actions of a young woman taking steps she thought were best. . . .

    *The President denies that he obstructed justice in connection with Monica Lewinsky's efforts to
    obtain a job in New York in an effort to "corruptly prevent" her "truthful testimony" in the Jones case. .
    . .

    *The President denies that he "corruptly allowed his attorney to make false and misleading statements
    to a Federal judge" concerning Monica Lewinsky's affidavit. . . .

    *The President denies that he obstructed justice by relating "false and misleading statements" to "a
    potential witness," Betty Currie, "in order to corruptly influence testimony." . . .

    *This final allegation of Article II should be rejected out of hand. The President has admitted
    misleading his family, his staff, and the Nation about his relationship with Ms. Lewinsky, and he has
    expressed his profound regret for such conduct. But this Article asserts that the President should be
    impeached and removed from office because he failed to be candid with his friends and aides about the
    nature of his relationship with Ms. Lewinsky. These allegedly impeachable denials took place in the
    immediate aftermath of the Lewinsky publicity -- at the very time the President was denying any
    improper relationship with Ms. Lewinsky in nearly identical terms on national television. Having made this
    announcement to the whole country on television, it is simply absurd to believe that he was somehow
    attempting corruptly to influence the testimony of aides when he told them virtually the same thing at
    the same time. . . .

    NO VOTE OF CONFIDENCE
 

    An American impeachment trial is not a parliamentary inquiry into fitness for office. It is not a vote of
    no confidence. It is not a mechanism whereby a legislative majority may oust a President from a rival
    party on political grounds. To the contrary, because the President has a limited term of office and can
    be turned out in the course of ordinary electoral processes, a Presidential impeachment trial is a
    constitutional measure of last resort designed to protect the republic.

    This Senate is therefore vested with an extremely grave constitutional task: a decision whether to
    remove the President for the protection of the people themselves. In the Senate's hands there rests
    not only the fate of one man, but the integrity of our Constitution and our democratic process.

    Fidelity to the Constitution and fidelity to the electorate must converge in the impeachment trial
    vote. If the Senate is to give meaning to the Constitution's command, any vote on removal must be a
    vote on one or more specifically and separately identified "high crimes and misdemeanors," as set forth
    in properly drafted impeachment articles approved by the House. If the people are to have their
    twice-elected President removed by an act of the Senate, that act must be intelligible. It must be
    explainable and justifiable to the people who first chose the President and then chose him again. The
    Senate must insure that it has satisfied the Constitution's requirement of a genuine two-thirds
    concurrence that specific, identified wrongdoing has been proven. The Senate must also assure the
    people, through the sole collective act the Senate is required to take, that its decision has a readily
    discernible and unequivocal meaning.

    As matters stand, the Senate will vote on two highly complex articles of impeachment. Its vote will
    not be shaped by narrowing instructions. Its rules preclude a vote on divisible parts of the articles.
    There will be no judicial review, no correction of error, and no possibility of retrial. The Senate's
    decision will be as conclusive as any known to our law -- judicially, politically, historically and, most
    literally, irrevocable.

    Under such circumstances, the Senate's judgment must speak clearly and intelligibly. That cannot
    happen if the Senate votes for conviction on these articles. Their compound structure and lack of
    specificity make genuine agreement as to specific wrongs impossible, and those factors completely
    prevent the electorate from understanding why the Senate as a whole voted as it did. As formulated,
    these articles satisfy neither the plain requirement of the Constitution nor the rightful expectations of
    the American people. The articles cannot support a constitutionally sound vote for conviction.

    NEED FOR DISCOVERY
 

    The Senate need not address the issue of discovery at this time, but because the issue may arise at a
    later date, it is appropriate to remark here on its present status. Senate Resolution 16 provides that
    the record for purposes of the presentation by the House managers and the President is the public
    record established in the House of Representatives. Since this record was created by the House itself
    and is ostensibly the basis for the House's impeachment vote, and because this evidence has been
    publicly identified and available for scrutiny, comment, and rebuttal, it is both logical and fair that this
    be the basis for any action by the Senate. Moreover, Senate Resolution 16 explicitly prohibits the
    President and the House managers from filing at this time any "motions to subpoena witnesses or to
    present any evidence not in the record."

    In the event, however, that the Senate should later decide, pursuant to the provisions of Senate
    Resolution 16, to allow the House managers to expand the record in some way, our position should be
    absolutely clear. At such time, the President would have an urgent need for the discovery of relevant
    evidence, because at no point in these proceedings has he been able to subpoena documents or
    summon and cross-examine witnesses. He would need to use the compulsory process authorized by
    Senate Impeachment Rules V and VI to obtain documentary evidence and witness depositions. While
    the President has access to some of the grand jury transcripts and F.B.I. interview memoranda of
    witnesses called by the O.I.C., the President's own lawyers were not entitled to be present when
    these witnesses were examined. The grand jury has historically been the engine of the prosecution, and
    it was used in that fashion in this case. The O.I.C. sought discovery of evidence with the single goal of
    documenting facts that it believed were prejudicial to the President. It did not examine witnesses with
    a view toward establishing there was no justification for impeachment; it did not follow up obvious
    leads when they might result in evidence helpful to the President; and it did not seek out and
    document exculpatory evidence. It did not undertake to disclose exculpatory information it might have
    identified.

    Nor did the House of Representatives afford the President any discovery mechanisms to secure
    evidence that might be helpful in his defense. Indeed, the House called no fact witnesses at all, and at
    the few depositions it conducted, counsel for the President were excluded. Moreover, the House made
    available only a selected portion of the evidence it received from the O.I.C. While it published five
    volumes of the O.I.C. materials (two volumes of appendices and three volumes of supplements), it
    withheld a great amount of evidence, and it denied counsel for the President access to this material.
    It is unclear what the criterion was for selecting evidence to include in the published volumes, but there
    does not appear to have been an attempt to include all evidence that may have been relevant to the
    President's defense. The President has not had access to a great deal of evidence in the possession
    of (for example) the House of Representatives and the O.I.C. which may be exculpatory or relevant to
    the credibility of witnesses on whom the O.I.C. and the House managers rely.

    Should the Senate decide to authorize the House managers to call witnesses or expand the record, the
    President would be faced with a critical need for the discovery of evidence useful to his defense --
    evidence which would routinely be available to any civil litigant involved in a garden-variety automobile
    accident case. The House Managers have had in their possession or had access at the O.I.C. to
    significant amounts of nonpublic evidence, and they have frequently stated their intention to make use
    of such evidence. Obviously, in order to defend against such tactics, counsel for the President are
    entitled to discovery and a fair opportunity to test the veracity and reliability of this "evidence," using
    compulsory process as necessary to obtain testimony and documents. Trial by surprise obviously has no
    place in the Senate of the United States where the issue in the balance is the removal of the one
    political leader who, with the Vice President, is elected by all the citizens of this country.

    The need for discovery does not turn on the number of witnesses the House managers may be
    authorized to depose. If the House managers call a single witness, that will initiate a process that
    leaves the President potentially unprepared and unable to defend adequately without proper
    discovery. The sequence of discovery is critical. The President first needs to obtain and review
    relevant documentary evidence not now in his possession. He then needs to be able to depose
    potentially helpful witnesses, whose identity may only emerge from the documents and from the
    depositions themselves. Obviously, he also needs to depose potential witnesses identified by the House
    managers. Only at that point will the President be able intelligently to designate his own trial
    witnesses. This is both a logical procedure and one which is the product of long experience designed to
    maximize the search for truth and minimize unfair surprise. There is no conceivable reason it should not
    be followed here -- if the evidentiary record is opened.

    Indeed, it is simply impossible to ascertain how a witness designated by the House Managers could
    fairly be rebutted without a full examination of the available evidence. It is also the case that many
    sorts of helpful evidence and testimony emerge in the discovery process that may at first blush appear
    irrelevant or tangential. In any event, the normal adversarial process is the best guarantor of the truth.
    The President needs discovery here not simply to obtain evidence to present at trial but also in order
    to make an informed judgment about what to introduce in response to the managers' expanded case.
    The President's counsel must be able to make a properly knowledgeable decision about what evidence
    may be relevant and helpful to the President's defense, both in cross-examination and during the
    President's own case.

    The consequences of an impeachment trial are immeasurably grave: the removal of a twice-elected
    President. Particularly given what is at stake, fundamental fairness dictates that the President be
    given at least the same right as an ordinary litigant to obtain evidence necessary for his defense,
    particularly when a great deal of that evidence is presently in the hands of his accusers, the O.I.C. and
    the House managers. The Senate has wisely elected to proceed on the public record established by the
    House of Representatives, and this provides a wholly adequate basis for Senate decision-making. In the
    event the Senate should choose to expand this record, affording the President adequate discovery is
    absolutely essential.

    CONCLUSION
 

    As the Senate considers these articles of impeachment and listens to the arguments, individual
    senators are standing in the place of the framers of the Constitution, who prayed that the power of
    impeachment and removal of a President would be invoked only in the gravest of circumstances,
    when the stability of our system of government hung in the balance -- to protect the republic itself
    from efforts to subvert our Constitutional system.

    The Senate has an obligation to turn away an unwise and unwarranted misuse of the awesome power
    of impeachment. If the Senate removes this President for a wrongful relationship he hoped to keep
    private, for what will the House ask the Senate to remove the next President, and the next? Our
    framers wisely gave us a constitutional system of checks and balances, with three coequal branches.
    Removing this President on these facts would substantially alter the delicate constitutional balance,
    and move us closer to a quasi-parliamentary system, in which the President is elected to office by the
    choice of the people, but continues in office only at the pleasure of Congress.

    In weighing the evidence and assessing the facts, we ask that senators consider not only the intent of
    the framers but also the will and interests of the people. It is the citizens of these United States who
    will be affected by and stand in judgment of this process. It is not simply the President -- but the
    vote the American people rendered in schools, church halls and other civic centers all across the land
    twenty-six months ago -- that is hanging in the balance.