Ms. WATERS. They should have.
Chairman HYDE. Well, where were you?
Ms. WATERS. I wasn't here.

Chairman HYDE. More's the pity.

Mr. CANADY. The gentleman from Michigan, Mr. Conyers, is recognized.

Mr. CONYERS. Mr. Chairman and ladies and gentlemen, this discussion has taken a very disturbing turn for me to hear the Chairman of this committee explaining why the perjury that may be involved with the President in the Paula Jones matter has to go to some impeachable circumstance, and I direct this to Professor Schlesinger and Professor Sunstein.

It seems that when the day is done and we have had all of this valuable consultation with scholars and lawyers and professors and judges, the fact of the matter is that we are going to have to decide whether or not something in the Ken Starr narratives submitted to this body requires that we go forward with evidentiary hearings, and yet the only thing I hear about is perjury.

Now, Gary Trudeau dismissed that a few weeks back, and now it is brought back with new force and new vigor, that anyone that would not disclose fully his private life under oath has now committed an impeachable offense.

Now, this is a little this is the biggest stretch that has ever occurred to me that could be happening here, and I would really like both of these witnesses to go over this again, because if this is impeachable conduct, we have now turned the precedents of impeachment on their head.

Make no mistake about it. I am not saying that this committee can't do it if it chooses, but the question is, are we aware of it, to try to garble it up like this is the way we have always done it, and I invoke the need to defend the rule of law. It is my concern that the rule of law be honored. It is my concern that the 16 cases in 209 years have borne some similarity to what we are doing here today.

I would like to yield to the witnesses, please.

Mr. SCHLESINGER. Well, I sympathize very much with your point, obviously. I feel that if we were to establish as a basis for removing Presidents perjury, lying about your sex life is the last thing surely that the framers of the Constitution ever had in mind, nor do I think legitimate growth at the gathering of knowledge, which Frankfurter cited as advocating, I do not think that would include matters like this. We would become the laughing stock of the world and also the presidency would be diminished forever, and that would, as I suggest, apply to Republican Presidents as well as to Democratic Presidents.

We must not lower the bar of impeachment, we must not make it easier for the House and the Senate to dominate the executive branch. That is really the choice we face when we are asked to accept offenses like these as impeachable offenses.

Mr. SUNSTEIN. Chairman Hyde gave a wonderfully eloquent presentation about the rule of law, and I would like to relate that to your question.

The constitutional term is "high Crimes and Misdemeanors," not "violation of the rule of law." If the President did violate the rule

of law-and that is a very serious offense, and it appears possible that he did he is subject to criminal punishment after he leaves office; and what Chairman Hyde said, I endorse every word, and for lawyers and nonlawyers, there is nothing more important than that. But what you said, Representative Conyers, I think also holds

true.

There was an extremely interesting exchange between Representative Waters and Chairman Hyde about the Iran-Contra proceeding, which I think is worth underlining. Representative Hyde noted that his committee went very carefully over the allegations there and no one mentioned impeachment. And Representative Waters said, "exactly."

Now, that is extremely illuminating. No one, thank goodness, no one called for impeachment of President Reagan or President Bush or Vice President Bush in connection with Iran-Contra. That was very important for domestic and international stability.

Chairman HYDE. Mr. Sunstein, may I just maybe correct the record? I am not sure of this, but Henry Gonzalez always filed lots of bills of impeachment, and there may well have been one pending against-I thought about that after I spoke.

Mr. CONYERS. Please, Mr. Chairman.

Mr. SUNSTEIN. What was wonderful about the Iran controversy is that impeachment was never seriously_considered an option, even by President Reagan and President Bush when he became President. His strongest political opponents did not consider impeachment a problem.

Now, a reasonable person could believe one is more serious than the other, the other is more serious than the one. I think Representative Conyers is correct that we should draw a line in the sand and stop this train before it runs away.

Mr. CONYERS. I thank you both for your contributions. It seems to me that if we miss this among the humor and lightheartedness, which is a little stunning here, we are talking about a prosecutor, an Office of Independent Counsel that is under its own investigation at several levels of government; and now we are bringing him in as the witness, and I mean, this is beyond contemplation in a real sense.

And I am deeply troubled by the way that the discussion in this committee is cavalierly accepting the fact that a misstatement, or even perjury in a civil case dismissed, is now going to lead to an impeachment. Not prosecution, which everyone here knows could happen after the term if someone ever sought to do it. And I want the record to show my dismay with the tone of this discussion after it has been gone over dozens and dozens of times.

There can't be a Member in this body that doesn't understand the decisions that they are making, and if you are making it as a new low and lowering the barrier, that is one thing. But if you are trying to complain that you are continuing the rule of law or that this is the way it has always been done, it is not going to wash. I recognize the gentlewoman from California, Ms. Lofgren. Ms. LOFGREN. Thank you, Mr. Ranking Member.

I don't have too much time left, but perhaps I can just, since I might get another minute to ask my full question, ask Professor Holden to comment.

I saw that when Professor McGinnis was expounding on the conversations, I saw you visibly flinch at the discussion he was engaging in as to the Founding Fathers. I wondered if you might like the opportunity to expound on your flinch.

Mr. HOLDEN. Maybe I should learn to be still. Congresswoman, you have to refresh me on what the question was.

Ms. LOFGREN. Let me regroup. My time is up and I will ask my full question during my time. I should have done so, I think, to begin with.

Mr. CANADY. The gentleman from South Carolina, Mr. Inglis, is recognized.

Mr. INGLIS. Thank you, Mr. Chairman.

Earlier, Ms. Jackson Lee seemed to cast doubt on the credibility of two of the witnesses before us for signing a friend of the court brief in support of Paula Jones' position. I understand on the next panel we will have two folks who signed the brief for the President in an amicus curiae situation. So I suppose that Laurence Tribe and Susan Low Bloch will be similarly discredited on the next panel by Ms. Jackson Lee. In other words, I don't think that anyone here should be discredited for signing such a friend of the court brief.

Now, I note with some humor here the level of sophistication, shall we say, of everyone here, and the sophistication seems to get us into trouble. It seems to me that Professor Schlesinger has just suggested to all future occupants of the White House, if you are ever called to testify in a case involving sex, lie if you wish, because it doesn't matter, because according to Professor Schlesinger and the sophisticated, it just doesn't matter. Lie if you choose. In other words, we should publish in the Federal Register a list of permitted perjuries. One of them, apparently, for President is that if you are called to testify, lie.

Professor Sunstein's wonderfully sophisticated solution to that is, get somebody to prosecute you afterwards; and as Mr. Conyers just said, if you can. If you can. Because of course, what we see here is-I suppose what Mr. Conyers is suggesting we do is completely abrogate our responsibilities under the Constitution.

In other words, we are constituted here as the Committee on the Judiciary, but we are going to leave it to somebody else. See if maybe later some U.S. district attorney might like to take up a matter against the President of the United States, Mr. Clinton; and Professor Sunstein may come and assist in that case, possibly.

But we on the committee, well, we turn the other way because, under Mr. Schlesinger's point of view, it is okay. Lie if you are the President; lie in a case involving sex, because after all, he says, gentlemen do that. Gentlemen, apparently-well, you would just not be with it if you didn't lie about sex.

So for all of those folks out there who question the rule of law dealing with sexual harassment, lie if you wish. If you are the big boss in some big company and you are called on to testify, lie as you wish. According to Mr. Schlesinger, you are a sophisticated gentleman then. And if you don't, you are some sort of an unsophisticate.

So let me

Mr. SCHLESINGER. May I be allowed to comment on this?

Mr. INGLIS. In a moment. In a moment.

Mr. SCHLESINGER. You keep repeating yourself.

Mr. INGLIS. I notice the same with your testimony as well. A great deal of sophistication, but very little common sense.

Let me now suggest some common sense from somebody that I heard in South Carolina. A lady at the end of a jetway who said to me, if I did that, I'd go to jail. She's right. There are 115 people in jail. And you know, I stood there and I said yeah, I think there are some people in jail. She said, 115 is the exact number.

Now, we would assume that she wouldn't be so sophisticated as to know all that. But she understands that the rule of law that Chairman Hyde was talking about is crucial to this country, and that means that everyone is subject to the law-not if they are sophisticated and the President, they get away with it, but rather, everyone is subject to the law.

So, for example, let me pose a hypothetical. Let's say that somebody in South Carolina today is in a divorce matter. The issue is adultery, a private matter which apparently you are allowed to lie about if you are the White House. But in South Carolina the issue of adultery in a matter involving divorce is very significant, because if you are guilty of adultery, you get zip from the other spouse, zip. So, a great deal turns on it, doesn't it?

So right now, in South Carolina, somebody is raising their hand to tell the truth and the issue is adultery. What shall we say to them from this rather august assembly, lie if you wish? Shall we say to them that the rule of law just doesn't matter in South Carolina, because they can lie in Washington?

No, I think what we say here is, it does matter, and you must tell the truth even if it causes embarrassment, even if it causes you discomfort, you must tell the truth in that matter involving adultery in that divorce case today in South Carolina.

I would ask Professor Presser if that is the matter of the rule of law we are talking about here. Does it-we get to the level of the divorce case in South Carolina, where the issue is adultery and the issue is whether the person sworn to testify today is going to tell the truth.

Is that what we are talking about with the rule of law that I think you so eloquently testified about?

Mr. PRESSER. Yes. I can only resubscribe to what Mr. Hyde said, and that is just, to use another metaphor, the law is a seamless web and once you begin eroding it, you begin to erode everything. You can't make distinctions and say, this part of the law we won't worry about. You have to worry about all of it.

Mr. INGLIS. Right. Well, I wonder if we had this situation where we are going to say that the President can be prosecuted later, which signal do we send in the meantime? I will be happy to entertain that possibility, and I hope if we decide to sort of just dissolve this thing, because it is too sophisticated for all the rest of us to understand about how in the world perjury in the case of the White House is okay but not in the case of the lady I saw in Charleston, South Carolina. So if we dissolve all of this, maybe there would be some future U.S. attorney that would prosecute Clinton for perjury once he leaves office.

But how do you come back to it later if we have disposed of it here? I don't know if you have any thoughts about how realistic that is to have somebody prosecute President Clinton after he leaves office.

Mr. PRESSER. Obviously it would depend on which party is in office and who wants to pardon whom before that happens.

But even more important than that, the point you raise is absolutely fundamental. When you elect a President for 4 years, even when a President is elected for 8 years, you do not have an elect sovereign. You still have an ordinary mortal who is subject to the rule of law. And the message that you send is, it doesn't matter for the President; that is a wrong message to send.

Mr. INGLIS. I would be happy to yield now to my colleague from South Carolina, Mr. Graham.

Mr. GRAHAM. That is certainly a hard act to follow. I don't want to-I think the law, history and common sense can coexist, and my name was mentioned and the only thing I would like to correct is about proportionality.

I have tried a few cases in South Carolina on adultery as a divorce lawyer. And people do lie, and you would have to build a lot of jails if you put everybody in jail who lied in a divorce case; and that is reality. It doesn't mean that it is right or wrong, that is just the way things are.

Sometimes people are tempted to shade the truth when it affects them in a very personal manner, and I can understand that.

I want to say something to Mr. Conyers. Deposition perjury in this case, I have tried to apply the test of what I think would happen to a common person, and I am not saying that the President of the United States should be treated as a common person, because I think he has a much higher obligation; but if you use the common person standard, I think you will find pretty quickly where the sex part of this thing falls out.

Let me tell you if I am a prosecutor and you bring in a case where a guy in a sexual harassment suit lied in a deposition and the deposition was dismissed and the case was dismissed, that with all of the things that I have got going on in my office, the rapes and the murders and all of the other stuff, I doubt, folks, if I am going to spend a lot of time trying to put that guy in jail even though he may deserve it, because a sexual harassment case is a very sensitive area. That is just the way things are with the com

mon man.

However, Professor Schlesinger-I have a lot of respect for you; I think we just disagree on this point-if you brought somebody into my office as a Federal prosecutor who found themselves in a Federal grand jury and were asked a relevant question about a relevant matter, whether it pertains to sex or not, and they lied, they would be going to jail if I had anything to do with it because that is a crime against the state.

Let me tell you why I probably won't vote for deposition perjury articles of impeachment. The President was in a situation where he was asked about a relationship that he probably wanted to keep private. Even though it is wrong, I can understand the human need to do that. He was blindsided, and he lied through his teeth. He tap-danced on a needle, and he made a fool of himself; and he tried