‘Nothing More Than a Rush to Judgment’

These are excerpts from White House Counsel Charles F. C. Ruff’s presentation to the Senate:

Mr. Chief Justice, members of the Senate, distinguished managers, William Jefferson Clinton is not guilty of the charges that have been preferred against him. He did not commit perjury, he did not obstruct justice. He must not be removed from office.

Merely to say those words brings into sharp relief the fact that I and my colleagues are here today in this great chamber defending the president of the United States. For only the second time in our nation’s history the Senate is convened to try the president of the United States on articles of impeachment.

We seek on his behalf no more than we know you will give us: a fair opportunity to be heard, a fair assessment of the facts and the law, and a fair judgment.

Linda Tripp’s Tapes

In mid-January 1998, Linda Tripp had brought to the independent counsel information that she had been gathering surreptitiously for months about Ms. Lewinsky’s relationship with the president and her involvement in the [Paula Corbin] Jones case. And thus began the penultimate chapter.

Now, the president’s deposition was scheduled to take place the very next day, Saturday, Jan. 17. On the 16th, Ms. Tripp invited Ms. Lewinsky to have lunch with her in the Pentagon City Mall. And there she was greeted by a corps of FBI agents and independent counsel lawyers, and taken to a hotel room, where she spent the next several hours.

Ms. Tripp was in the room next door for much of that time. When she left that evening, she went home to meet with the Jones lawyers, with whom we know she has been in contact for many months, in order to brief them about her knowledge of the relationship between Ms. Lewinsky and the president, so that they in turn could question the president the next morning.

As the independent counsel himself has acknowledged, Ms. Tripp was able to play this oddly multifaceted role because, although as part of her immunity agreement, the OIC could have prevented her from talking about Ms. Lewinsky, they inexplicably chose not to.

Question of Witnesses

Although the Senate has asked that the parties address the issue of witnesses only after these presentations have been completed, the managers spent much of their time last week explaining to you why, if only witnesses could be called, you would be able to resolve all of the supposed conflicts in the evidence.

Tell me then how is it that the managers can be so certain of the strength of their case? They didn’t hear any of these witnesses. The only witness they called, the independent counsel himself, acknowledged that he had not even met any of the witnesses who testified before the grand jury. Yet they appear before you to tell you that they are convinced of the president’s guilt, and that they are prepared to demand his removal from office.

Well, the managers would have you believe that the Judiciary Committee of the House were really nothing more than grand jurors, serving as some routine screening device to sort out impeachment chaff from impeachment wheat. Thus, as they would have it, there was no need for anything more than a review of the cold record prepared by the independent counsel, no need for them to make judgments about credibility or conflicts.

Indeed, they offered you a short lesson in grand jury practice, telling you that U.S. attorneys do this thing all the time, that calling real, live witnesses before a grand jury is the exception to the rule. Well, it’s been a few years since I served as U.S. attorney for the District of Columbia, so there may have been a change in the way prosecutors go about their business; but I don’t think so.

And so what lesson can be learned from the process followed by the House? I suggest that what you have before you is not the product of the Judiciary Committee’s well-considered, judicious assessment of their constitutional role. No, what you have before you is the product of nothing more than a rush to judgment.

Scholars and Historians

Now the managers have made fun of the notion that hundreds of distinguished scholars and historians expressed their opinion that the offenses with which the president has been charged are not high crimes or misdemeanors. Indeed, they suggested, not too subtly, that they must have signed those letters because they were political supporters of the president. To quote them, “You go out and obtain from your political allies and friends in the academic world . . . a letter saying that the offenses as alleged in the articles of impeachment do not rise to the level of an impeachable offense.”

Well, as I understand the managers’ position, it is that Garry Wills sold his intellectual soul because he’s a political supporter of the president; Stephen Ambrose sold his political soul, his intellectual soul, because he’s a political supporter of the president; C. Vann Woodward sold his intellectual soul because he’s a political supporter of the president.

Is it possible, instead, that distinguished scholars of all political persuasions thought it important to offer their professional opinion on a matter of the greatest historical and legal import because they cared about our country? Because they cared that the constitutional process not be debased?

Judges Are Different

What then of the managers’ argument that the Senate’s recent conviction of three judges requires conviction on the articles before you today? Again, they simply have it wrong, both as a matter of Senate precedent and as a matter of constitutional analysis.

They argue that because a judge is obliged faithfully to carry out the law, just as the president is, each must be removed if he commits perjury or obstructs justice. Judges and presidents, and one would presume all other civil officers, if you follow their argument to its logical conclusion, including assistant secretaries and others, must, in their view, be removed from office if the Senate finds that they committed either offense, removed without a second thought.

But judges are different. Indeed, every civil officer other than the president of the United States is different. They’re different because before deciding whether to impose the ultimate sanction of removal, the Senate must weigh in the balance dramatically different considerations.

First, the answer to the ultimate impeachment question--that is, whether the conduct charged so undermines the official’s capacity to perform his constitutional duties that removal is required despite the institutional trauma it may cause--must be very different for one of 900 or 1,000 judges with lifetime tenure who can only be removed by impeachment than it is for one person elected every four years by the people to serve as the head of the executive branch. Surely the managers recognize that the Senate here faces a far different question, a far different constitutional issue . . . .”

Differences in Testimony

Now . . . the managers advance the baseless charge that the president intentionally placed the beginning of his relationship with Ms. Lewinsky in 1996 rather than 1995, as she has testified. Interestingly, they don’t even purport to offer any support for this charge other than Ms. Lewinsky’s testimony. And they offer not even the somewhat odd explanation originally offered by the independent counsel to explain why the president, having admitted the very worst things a father and husband can conceive of admitting, would have shifted the time by three months.

Next, the managers assert that the president’s admission that he engaged in wrongful conduct, “on certain occasions,” was false because the president actually engaged in such conduct some 11 times. And they assert as well that when the president admitted he had occasional telephone conversations that included inappropriate discussions, that was false because they had actually had 17 such phone conversations.

Now, the president gave his best recollection of the frequency of those contacts. Ms. Lewinsky gave hers. Assuming that the majority is correct in its assumption that there were 11 or 17, can anyone imagine a trial in this court or in any other court in which the issue of whether “certain occasions” by definition could not mean 17, and “occasionally” could not refer to 11, would be the issue being litigated?

Now, to conclude that the president lied to the grand jury about his relationship with Ms. Lewinsky, you must determine--forgive me--that he touched certain parts of her body, but for proof you have only her oath against his oath. Those among you who have been prosecutors or criminal defense lawyers know that perjury prosecutions, as rare as they are, would never be pursued on the evidence available here. And those among you who do not bring that special experience at least bring your common sense and are equally able to assess the weakness of the case that would rest on such a foundation.