"I think that the definition should include any criminal acts plus a willful failure of the President to fulfill his duty to uphold and execute the laws of the United States. Another factor that I think constitutes an impeachable offense would be willful, reckless behavior in office." Do you think that definition holds today as well? Mr. MCDOWELL. I think many of us agree with that. Mr. SMITH. Thank you, Professor. Thank you, Mr. Chairman. Mr. CANADY. Thank you. The gentleman from North Carolina, Mr. Watt, is now recognized. Mr. WATT. Thank you, Mr. Chairman. I want to express my thanks to Chairman Hyde for coming back into the room because I want to clarify the record a little before I go off. Nothing we do is outside the context of history, and this is not the first time Chairman Hyde and I have had this discussion where I ask him not to do things simply because somebody else had done something in the past that was wrong. I have reminded him many times of the statement that my mother always made that "two wrongs don't make a right," and I keep hoping that we will rise to the level of statesmanship here rather than lowering to the standard that somebody who did something that was not justified in the past did. Having said that, I want to adopt the statement that my good friend from South Carolina made about telling the truth. He says that we shape the truth when it affects us directly. We do shape the truth when it affects us directly, and I am not going to call for the chairman's impeachment on this, but I would like to ask unanimous consent, Mr. Chairman, of the subcommittee, to insert into the record, page 2 of the majority report, which is the certification, the foreword signed by our chairman, Mr. Hyde, dated November 4, 1998; a letter from the chief of staff, Mr. Mooney, to Julian Epstein, conveying the draft of the majority report dated November 4, 1998; a letter from the chief minority investigative counsel to Mr. Mooney dated November 6, 1998. That was after the staff report had been issued to the public, I would say to you. It was mailed to us on the 5th after being conveyed to our staff on the 4th, and then a follow-up letter dated November 9, 1998, from Mr. Conyers to Mr. Hyde, so that the record will reflect the exact sequence and opportunity that the minority counsel had to have any input into this staff report that was issued by the majority. I ask unanimous consent that these documents become a part of the record, Mr. Chairman. Mr. CANADY. Without objection. [The information follows:] CONGRESS OF THE UNITED STATES, HOUSE OF REPRESENTATIVES, Washington, DC, November 4, 1998. JULIAN EPSTEIN, Minority Chief Counsel and Staff Director, Washington, DC. DEAR JULIAN: Pursuant to our talk, enclosed is a draft copy of an update of the 1974 Staff Report on the constitutional grounds for impeachment. We hope to distribute copies to all Members for use as a resource as we proceed with the inquiry. If you would like to put together any information or research for distribution to Members, I would be happy to bring it to the Chairman. Sincerely, THOMAS E. MOONEY, SR., Chief of Staff and General Counsel, House Committee on the Judiciary. THOMAS E. MOONEY, SR., Chief of Staff-General Counsel, CONGRESS OF THE UNITED STATES, HOUSE OF REPRESENTATIVES, Washington, DC, November 6, 1998. DAVID P. SCHIPPERS, ESQ., Chief Majority Investigative Counsel, U.S. House of Representatives, Washington, DC. DEAR TOM AND DAVID: On Thursday, November 5, I was given a copy of staff memorandum prepared by the Majority addressing the 1974 Watergate Staff Report on Standards for Impeachment. The memorandum was covered with a letter from Tom to Julian which stated that it was a “draft copy" and that it was to be distributed "to all Members for use as a resource as we proceed with the inquiry." The letter went on to invite us to "put together any information or research for distribution to Members." The staff memorandum had no listing of staff or any indication that it was about to become final or be published before we had a chance to submit our conterpart. With that invitation, we began to immediately write a response to the Majority Staff memorandum, with which we take issue. The very next day, Friday, November 5, 1998, I received a printed Committee Report entitled "Constitutional Grounds for Presidential Impeachment: Modern Precedents." I also saw the same "Report By The Staff" published on the Committee's web page. I was very surprised that this memorandum had been published without our having had a chance to submit our information. More importantly, I was shocked that my name and the names of the Minority Staff were listed on the Majority memorandum indicating that we had participated or approved of the report. As you know, neither is true. I did not even see a draft until the day before it was printed in final. I was never asked to comment, edit, or revise the memorandum. We were in the process of writing our rebuttal when the Report was finalized. It violates all protocol, courtesy, and precedent for the Majority to write a memorandum on its own, send it as if it is a draft, prepare it as a final report for publication at the same time, and then include the names of the Minority as if it participated in that project. I do not understand how this could have happened, but I am obliged to protest these events and ask for correction. On behalf of the Minority Staff, I am asking that publication and listing of the Report on the Internet cease, that the Report be corrected to rename it as a Majority Report and to remove the names of the Minority Staff, that the Minority Report be included as part of the Committee's official publication (with the names of the Minority Staff listed there), and that this letter be distributed to the Committee. It is simply unfair for the Majority to have produced this document as if it was work in which the Minority participated and concurred. Sincerely, ABBE DAVID LOWELL, Chief Minority Investigative Counsel. CONGRESS OF THE UNITED STATES, HOUSE OF REPRESENTATIVES, Washington, DC, November 9, 1998. ABBE DAVID LOWELL, Chief Minority Investigative Counsel, Washington, DC. DEAR ABBE: This will respond to the letter dated November 6th which you delivered to Tom Mooney this morning. In October 1973, under the direction of Chairman Peter W. Rodino, Jr., the Judiciary Committee released a committee print prepared under the supervision of its General Counsel, Jerome Zeifman, entitled "Impeachment-Selected Materials." This was prepared beginning in August of 1973 with no consultation or input from the Minority Members or staff. A second committee print entitled "Impeachment— Selected Materials on Procedure" was produced in a similar fashion and released in January of 1974. On February 22, 1974, a third committee print was released. The impeachment inquiry staff produced a document entitled "Constitutional Grounds for Presidential Impeachment" at the request of Chairman Rodino. The input of his Committee's Minority Members was not sought. We also note that the names of the Majority and Minority staffs were listed in those publications. Chairman Hyde, as did Chairman Rodino, requested that the staff update these documents and that they be made available to both the Members and the American public. Minority staff was given a copy of the staff report before it was printed and an invitation was extended to submit for consideration by the Chairman for printing any additional reports or materials the minority staff would like the Members to be able to use as a resource. This exceeds the Rodino precedent. If you wish that the names of the Minority Staff be deleted in the future publications, please advise. Sincerely, Hon. HENRY J. HYDE, Chairman, THOMAS E. MOONEY, Chief of Staff-General Counsel. DAVID P. SCHIPPERS, Chief Investigative Counsel. CONGRESS OF THE UNITED STATES, HOUSE OF REPRESENTATIVES, Washington, DC, November 9, 1998. DEAR MR. CHAIRMAN: I am writing to express my dismay over the publication of the Committee Print entitled Constitutional Grounds For Presidential Impeachment: Modern Precedents, November 1998. My concerns over this report are several fold. First, the minority was neither consulted on the plan to publish the report, nor consulted on the substance of the report. Nevertheless, the report indicates on its front page that it is a "Report Prepared by the Staff of the Impeachment Inquiry," and thereby may give the unfortunate and misleading impression that it was prepared with bipartisan support. Obviously, this is not the case, and the minority strongly disagrees with the conclusions in that report, and believes that it makes marked departures from the 1974 report. I believe the report should, more properly, indicate on its cover that it is a report prepared by the Republican staff. I anticipate that you may respond to this concern by citing the 1974 precedent. However, I regard such precedent as unhelpful for two reasons. Unlike 1974, the Committee has not engaged in a meaningful bipartisan process on standards. In addition, the Committee has ignored the 1974 precedent on a number of issues, including its decision to release raw grand jury materials to the public. Second, when this report was circulated to us on Wednesday, and when we learned that it would be published without any minority input or consultation, we requested an opportunity to prepare our own report and to have it published simultaneously. This request was not met. Therefore, I would, at a minimum, like to now request that the minority report be published as a Committee print. Third, while it was my hope that such a process of debating the proper constitutional standard could have been done in a bipartisan manner, it was certainly my expectation that such a process would have occurred after the Committee's hearing today. We certainly hoped that the this hearing would have been viewed as serious enough so as to be influential in whatever product the Committee would produce on impeachment standards. Thank you for your attention to this. DEAR TOM AND DAVID: I appreciate your prompt response to my November 6 letter on the issue of the staff report. I have only a few points I would like you to consider. First, The Washington Times November 11, 1998 edition already cites to the conclusions of that report as if it was more than an "update" to its Watergate counterpart and as if it was joined by all the staff. This underscores my concern about its significance and our lack of involvement. Second, I was surprised that you were willing to justify the acts taken solely with reference to how the same thing happened to the Republicans in 1973 and 1974. Each of us has gone back and forth to cite some part of the Watergate proceedings when we can find one to support our positions. I understand that device. However, as Tom has explained, the Republicans who were in the Minority during the Watergate era sometimes complained that a certain procedure or decision was unfair or should be changed. Now that the Republicans are in the Majority, I would have thought that they in particular would correct what they thought at the time was wrong. To simply adopt a process that you condemned at the time because you are now in the Majority seems to be retribution or revenge, not the best government we can provide. Why cannot we both agree that where the Watergate precedents are fair and appropriate, they should be used, and when they are unfair, they should be improved? Otherwise, if the Congress is ever again to have to face this difficult procedure, we will have only made it impossible for things to ever change because one side or the other will only seek to get even for the wrongs that occurred in the past. With this in mind, I would like to take you up on your offer. When the Minority has not been given the chance to comment on or revise a staff memorandum or report, or at least submit its own dissenting views, we would prefer that you not include our names. This would make it clear for today and in the future that we were not involved and that we do not concur. I appreciate the time and attention you have given me on this topic. ABBE DAVID LOWELL, CONGRESS OF THE UNITED STATES, HOUSE OF REPRESENTATIVES, Washington, DC, November 12, 1998. ABBE DAVID LOWELL, Chief Minority Investigative Counsel, Washington, DC. DEAR ABBE: We are in receipt of your letter of November 11th and appreciate your prompt response and clarification. As you are aware, we have no control over the The Washington Times' interpretation of our material, or for that matter, control over any other newspaper. Having followed these newspaper accounts rather closely over the last six to eight months, I find them less than factual. As a matter of fact, their accounts of what this Committee is about has been subject to a great deal of “spin” produced by the professional spinmeisters. Please be advised, that in accordance with your request, that whenever the "Minority has not been given the chance to comment on or revise a staff memorandum or report . . ." no Minority staff names will be listed in that Committee document. Thank you for your cooperation. Sincerely, Hon. HENRY HYDE, Chairman, THOMAS E. MOONEY, Chief of Staff-General Counsel. DAVID P. SCHIPPERS, Chief Investigative Counsel. JEROME M. ZEIFMAN, Sandy Hook, CT., November 14, 1998. DEAR MR. CHAIRMAN: I would like to comment on your recently published Committee Print and on your statement regarding prior Committee Prints prepared under my supervision as the Committee's then-General Counsel and published in October 1973 and January 1974. Both were concerned with the historical meaning of the term "High Crimes and Misdemeanors" and with prior impeachment procedures. I have reviewed the recent Committee Print and the extent to which it brings up to date the 1973 and 1974 Committee Prints prepared by me. I concur fully with your staff's analysis regarding both the history of impeachable offenses prior to 1974 as well as the more recent history. I also consider your staff's analysis as reflecting the highest standards of professional integrity. As you will recall, in 1996 you and I had a two-hour interview by Milton Rosenberg in Chicago concerning my then recently published book "Without Honor: The Impeachment of President Nixon and the Crimes of Camelot"-which was based largely on a personal diary that I kept at the time of Watergate. At the time of our broadcast we also had a private conversation in which I expressed to you the extraordinarily high regard that I have for the personal integrity and professionalism of your present Chief of Staff and General Counsel, Tom Mooney, with whom I had worked closely during the Rodino Committee's impeachment proceedings. This letter will also confirm the accuracy of your recent statement that I first began the preparation of these volumes in August 1973 under the direction of thenChairman Peter Rodino-and that the Minority Staff was given no opportunity to participate in the preparation of these official publications of the full Committee. In addition, the exclusion of the Minority Staff from participation in the project was pursuant to Chairman Rodino's personal orders to me not to disclose the project to either the other Democratic or Republican members of the Committee prior to publication. Mr. Chairman, let me also add that during my entire 17 year tenure as a congressional counsel (when the Congress was then controlled only by Democrats) such a practice was frequently followed by Judiciary Committee Chairman Emanuel Celler and continued under Chairman Rodino. In 1973 and 1974 under the restrictions of confidentiality imposed on me by Chairman Rodino, I felt strongly that my personal professional integrity-and responsibilities to all of the Members of the Committee and to the public-would be directly reflected in the historical accuracy and fairness of the volumes that we eventually published as official Committee Prints. In short, I had a personal responsibility to be as non-partisan and objective as humanly possible. In that regard, I was particularly pleased to include in the first volume a Law Review article by Paul Fenton, who had previously served on the Republican Minority Staff at the time the Committee (under the then-Chairmanship of Emanuel Celler) considered the impeachment charges against Justice William O. Douglas brought by then-Minority Leader Gerald Ford. It is a gratification to me that, to my knowledge, when the voïumes were published in 1973 and 1974 no member of the Congress, whether Republican or Democrat, or any academic scholar challenged the historical accuracy or fairness of the two volumes. On the contrary, many of the Republican members of the Judiciary |