To Get to the Truth, Senate Must Call Witnesses

San Diego Union Tribune, January 17, 1999 

by Victoria Toensing

Suppose they gave a trial and no one testified, could a jury convict?  Of course not and that’s just why the White House wish is for a witnessless Senate procedure.

For a White House who cried “Foul” when House Republicans, in their grand jury role, called only one fact witness, this war on witnesses is a complete reversal.  “The people don’t want to hear about private sex matters,” proclaim the pro-Clintonites in a campaign to wrap up the impeachment trial with only defense lawyers and House managers as the participants.

Yes, we are all sick of the salacious.  But sexually graphic grand jury testimony is not the only evidence to support a guilty verdict on the two impeachment charges: perjury and obstruction of justice.  Moreover, besides exposing the 100 Senate-jurors to the facts they must deliberate upon before deciding to remove or retain this President, there are sound reasons for establishing a testimonial record.  Credibility of witnesses and key facts need to be established or refuted for us and for history.  Just as important is that the Senate give Constitutional deference to the vote of the House to impeach William Jefferson Clinton.

Every witness against this President has been smeared, starting with Monica Lewinsky.  In fact, the House brief submitted this week accuses the “President and his representatives” of obstructing justice “by orchestrat[ing] a campaign to discredit Ms. Lewinsky to affect adversely her credibility as a witness.”  Should the White House be permitted to let its portrayal of a stalker-gone-giddy-on-fantasy-thoughts-of-Bill be the lingering image of Monica?  The Senators, as those responsible for determining the credibility of the witnesses and as triers of fact, should not make a decision without looking Monica in the eye while she is examined and cross-examined over these matters.

Ms. Lewinsky could be questioned about all matters relevant to the charges except the sex.  From her demeanor on those questions, the Senators can decide whether to believe her grand jury testimony describing the sex.

On the other hand, pro White House witnesses such as Presidential secretary and affair enabler, Betty Currie, have not only been protected but courted by the President.  Our only image of Ms. Currie is the repeated TV airing of her cowering exodus from the D.C. federal court house while mobbed, not by zealous prosecutors, but by a rude press corps.  Perhaps Ms. Currie’s vulnerabilities allowed her to be affected by Presidential favors.  Did a trip to Africa with the President influence Ms. Currie to shade her testimony more favorably for him as the successive transcripts of her five separate grand jury appearances suggest?  A face to face cross examination of her might reveal, for example, whether she really does not recall phoning Ms. Lewinsky about retrieving (subpoenaed) Presidential gifts to hide under the bed in her house.  Her grand jury lapse of memory on this point is not supported by her phone records.

The factual record has been distorted by White House spin.  Only the sexual residue is discussed at cocktail parties or in Jay Leno lines, as cigar jokes out number cigars.  The reason for the public’s lack of knowledge of relevant evidentiary facts (other than the tawdry) is that reading the 60,000 pages of the Starr Report, its numerous footnotes and attached exhibits is a laborious chore only a few Congressional and White House lawyers and TV talking heads have fully completed.  Live persons are needed not only to clarify misimpressions and conflicts in the grand jury testimony but to give life to the evidence. 

For example, if the President’s spin is that Monica testified she was never asked to lie, shouldn’t there be extensive questioning of Ms. Lewinsky to clarify how her false affidavit came to be? You don’t have to ask someone to lie to get someone to lie.  Bill Clinton did not say, “Please Monica, lie in the Grand Jury .” That’s not his shtick.  Clinton's approach, tried and tested on Gennifer [SP?] Flowers, is smoother:  “If we both deny it, no one will ever know.”*

We should hear from Ms. Currie the circumstances under which the President requested she come to his office on the weekend night of his Paula Jones deposition when he asked her to confirm untrue statements, such as “Monica always came on to me. Right? She wanted to have sex with me and I couldn’t do that. Right?”  If someone makes false statements to you and asks you to agree with them, is he trying to get you to lie?*

One by one, Presidential advisers such as Sydney Blumenthal, John Podesta, and Erskin Bowles should repeat the assurances the President made to them about his relationship with an intern so we can understand the circumstances of how he lied to colleagues who were about to be witnesses. 

History must also be served.  What would we give for a video tape of the Andrew Johnson impeachment trial to hear the voice inflections and observe the body language of the witnesses?  What we have now for Clinton’s impeachment record is comparable to the extant evidence of Johnson’s trial: only the written word.  One hundred and thirty years hence, historians in the 22nd century will want to understand why we have reached whatever decision we do in this year before the millennium.  Live testimony from Ms. Lewinsky, Ms. Currie, Mr. Blumenthal, Mr. Podesta and others will place the flesh of credibility or non credibility on the skeletal transcript.

The Constitution specifically gave the House the role to decide impeachment.  As such, the House has historically assumed the role of prosecuting the trial through its appointed managers.  The Senate must give the House deference equal to the other party, the President.  A White House request to put on witnesses should never be denied.  No less accommodation should be given the House managers.  I know not one lawyer who could fulfill the trial responsibility of presenting the case and sustaining the burden of proof while prohibited from putting forth witnesses.

Very few key facts have been agreed to by both sides.  The president has only admitted to what the DNA has not allowed him to deny.  His motto is: “If it is not DNAable, it is deniable.”   The problem for the White House lawyers is that the more they argue this perjury, this obstruction of justice are not impeachable offenses, the more they must argue the facts.  And any debate over facts strengthens the argument for witnesses. 

The Senate compromise reached last week provides for House managers and White House lawyers to debate the case and then for Senators to submit questions, an efficient procedure that permits the parties to ascertain where the jury is troubled about the evidence.  At this point, if a motion to dismiss fails, the next step of calling witnesses, is time and labor consuming.  It requires two separate votes: first, on the list of witnesses to be deposed (questioned behind closed doors) and second, on the witnesses to testify before the Senate.  A deposition is a pretrial device used to prevent surprise, a silly redundant step here for any witness who has already given grand jury testimony. But such compromises enable the Senate to work by unanimous consent.

With Republican Senate moderates such as John Chafee, Olympia Snowe and Susan Collins all stating this past week that they thought it would be difficult to reach a verdict without hearing witnesses, it is likely the President’s motion to dismiss will not prevail and the 51 or more votes will be there for testimonial evidence.  That's as it should be.