IV. Allegations of Perjury against a Party in a Civil Deposition in a Federal Lawsult:

As a general matter, federal prosecutors are not asked to bring federal criminal charges against Individuals who allegedly perjure themselves in connection with civil lawsuits. As a rule, Federal prosecutors on their own do not seek to bring criminal charges against people who perjure themselves la connection with civil depositions. This would open a floodgate of referrals. Parties by definition are blased, and it would be difficult to discount the potential blas. By their nature civil lawsuits have remedies built into the system. Lying ikigants can be exposed as such and lose their lawaks. The judge overseeing the lawsuk is in the best position to receive evidence about false statements deceitful conduct and even perjured testimony. She can sanction violating litigants by Initiating civil or criminal contempt proceedings. Notwithstanding the reasons generally, there are 10 good reasons taken in contbination which support the view that a career federal prosecutor, asked to investigate allegations like those in the Clinton-Lewinsky matter, would not pursue federal criminal prosecution to the Indictment or trial stage.

1. The alleged perjury occurred in a civil deposition and concerned private, lawful, sexual conduct between consenting adults.

2. The alleged perjured testimony was deemed inadmissible by the trial judge.

3. That evidence arguably was dismissed as Immaterial by the trial judge.

4. In any event the alleged perjured testimony was at most marginally relevant.

5. The alleged perjured testimony did not affect the outcome of the case.

6. The parties secried, and the court dismissed the underlying civil lawsuit.

7. The settlement of the sul prevented the appellate court from ruling on the dismissal and on the materiality of the alleged perjured testimony.

8. The theoretically harmed party knew of the alleged perjury prior to settlement.

9. Alleged political enemies of the defendant funded the plaintiff's suk. (A concern of blas.) 10. A federal government Informant conspired with one of the civil litigants to trap the alleged perjurer Inco perjuring himself. (A concern of blas.)

Given the above considerations, most federal prosecutors would not want to use taxpayer dollars, federal agents and sensitive federal investigative resources to uncover the most intimate and embarrassing detalls of the private sexual lives of consenting adults when there is a great risk of blas and when there is a judge in a position to address the alleged criminal conduct.

V. Allegations of Criminal Wrongdoing Against the President of the United States:

The judgment that a career prosecutor might make about an ordinary person might be very well affected by the knowledge that the alleged perjury was committed by the President. Even the most experienced, fair-minded prosecutor will find it difficuk not to pursue allegations of criminal misconduct against the President. The Interests in targeting, threatening or in harming the President can be explained in part by the power and visibility of his office. Even a prosecutor with exceptional judgment might be tempted by the challenge of bringing down a President. A prosecutor with unchecked power, unlimited resources and only one target might find the temptation even stronger.

It is difficul to think of a failsafe structure that could protect anyone from allegations of blas in the decision to prosecute or not to prosecure the President. Not the Attorney General, the Independent Counsel, the Justice Department, the PBI, the Secret Service, the Federal Judiciary, the Congress, the Bar, and the Academy can escape some person or act in their background that could create a conflict or an appearance of a conflict. No one for or against prosecution would be safe from attack on the merits or from false personal attacks.

For this reason, a prosecutor or a committee assigned such a case must strive to be objective – knowing that criticism of blas will be unavoidable. In the prosecutorial context, a 13 to 10 vote by

the Grand Jury constitutes enough votes to proceed, but reflects that there must be a serious problem with some aspect of the case. Similarly, a vote for impeachment based on a party line vote or near party line vote is a signal that something is wrong with the case and that the case may not be worth pursuing. This is particularly true where the overwhelming majority of Americans appear to be well informed about the allegations and umblased as a group, yet they do not want this President Impeached. While indictinents and Impeachment proceedings are different, they carry at least two similarkies: One, most of us know it when we see the clear cases for criminal conviction and Impeachment. Two, publit confidence in the rule of law and our system of government would suffer If we regularly Indicted cases or impeached Presidents only to have juries or the Senate vote to acqult.

In closing, I believe that the Justice Department got it right and Independent Counsel Donald Smaltz got it wrong. Indicoments and Impeachments that result in acquittal ought to be avoided where possible. No prosecutor would be permitted to bring a prosecution where she believed that there was no chance that an unblased jury would convict. Almost no one in this country belleves that the U.S. Senate will convict the President on any potential article of Impeachment. Members of Congress should consider the impact that a long and no doubt sensationalized trial will have on the country – especially a trial that will not result in a conviction. In the end, I am confident that you will give the weighty responsibility that you must discharge serious consideration. A vote against Impeachment need not be viewed as a vote against punishment. As Professor Steve Saltzburg noted, Judge Susan Webber Wright retains jurisdiction over the case wherein the allegedly perjured testimony occurred. She can hold civil or criminal contempt bearings. Of all the arbiters of justice In this matter, she is perceived as being the least blased. She can punish the President for false and misleading conduct —even if it does not rise to the level of perjury or obstruction of justice. Trust her to mete out the appropriate punishment.

'The DOJ Guidelines are just that. Guidelinca! They articulate principlox, not requirements. They are crafted with the real world in mind – a world with changing priorities and circumstances. Among other things, the U.S. Attorney's Mamial guidos prosecutors in deciding whether to initiate or decline federal charges. Prosecutors are given the following factors to consider:"Federal law enforcement priorities; the nators and the seriousness of the offense; The deterrent effect of prosecution; the person's culpability in connection with the offense; the person's history with respect to criminal activity; the person's willingness to cooperate in the investigation; the probable sentence or other consequences if the person is convicted." Jd. at 9-27.001

Chairman HYDE. Governor Weld.

TESTIMONY OF HON. WILLIAM F. WELD, FORMER GOVERNOR OF MASSACHUSETTS

Mr. WELD. Mr. Chairman, Mr. Ranking Member, members of the committee, my name is William Weld, and I am sincerely honored to appear before you this morning.

I am no Tom Sullivan, but I have knocked around the criminal justice world a little bit. From 1986 to 1988, under President Reagan, I was the Assistant Attorney General in charge of the Criminal Division in Washington, which is relevant because that's the policy or political appointment charged with ensuring the uniformity of charging decisions, decisions whether to seek an indictment around the country in various districts.

Prior to that, for 5 years, I was the United States Attorney in Massachusetts, and I became familiar in the course of that 7 years with the handbook, the Principles of Federal Prosecution, and with the United States Attorney's Manual and, when I was in Washington, with the practices and procedures that also have been developed over the years to try to ensure uniformity in charging decisions.

It so happens that in 1974, for 9 months, I also worked for this committee under Chairman Rodino on the impeachment inquiry into President Nixon, and I worked on the constitutional and legal unit there, which was charged with reading every precedent in Britain, in Hinds, in Cannon, in reported cases in the records of the 1787 debate on the Constitution having any relevance at all to what high crimes and misdemeanors means in the United States Constitution.

Like Mr. Sullivan, like many others, I do not consider myself an advocate here before you. I do have a couple of points of view that I would like to share with the members of the committee, and you can take them for what they are worth. Ordinarily, in a civil context, you don't qualify as an expert on the basis of 9 months' experience, but for whatever they are worth.

I do believe, Mr. Chairman, that under the Reagan Administration, it was not the policy of the U.S. Justice Department to seek indictments solely on the basis that a prospective defendant had committed adultery or fornication, which are not lawful, but it simply wasn't the policy to go there. It was also not the policy to seek an indictment based solely on evidence that a prospective defendant had falsely denied committing unlawful adultery or fornication. Let me say a little bit about perjury cases. I don't think they are all that rare, and I have prosecuted a lot of them, but I do think that what one or two of the witnesses said is true. There is usually something else involved in a Federal perjury prosecution. There is a pass-through aspect here. You are really going to something else. I once prosecuted a guy who stated that he was in Florida on November 28th and 29th, 1981. You may say, that's kind of stooping to pick up pins. Why would you prosecute him for that? Well, that was the day the city of Lynn, Massachusetts, burned down, and this guy was an arsonist, and three people made him in the Porthole Pub in Lynn, Massachusetts that day, and we found his fin

thought it would be a good idea to bring a perjury prosecution there to rattle the cage a little bit, and we did.

And often we brought them where we were trying to penetrate a wall of silence as in cases of public corruption or narcotics, when you are trying to break through this omerta, everyone has got to dummy up, phenomenon. But there is something else that you are trying to get at there.

Until this year, the policy of the Department of Justice was that in cases of false statements, they would not seek an indictment solely on the basis of somebody denying that they themselves had committed misconduct. This is called the "exculpatory no" doctrine, and it was adopted in a lot of circuits. It was kicked out by the Supreme Court in a decision by Justice Scalia early this year based on bad facts. You had a ranking union official who had taken money from employers in violation of an independent Federal statute, so that's the something else that the prosecution was trying to get at. So a very unsympathetic case for the Court applying the "exculpatory no" doctrine.

In my view, it would have been a handy idea to carve out an exception to the abrogation of that doctrine for cases involving personal misconduct as opposed to a violation of an independent Federal statute such as was involved there. Certainly, a responsible prosecutor could apply that filter in the exercise of his or her discretion.

The last thing, let me just say, on the law of impeachment, I am pretty well convinced that adultery, fornication, or even a false denial, false, I am assuming perjury here, false denial of adultery or fornication, they do not constitute high crimes and misdemeanors within the meaning of the impeachment clause of the U.S. Constitution. They are not offenses against the system of government. They don't imperil the structure of our government.

The remedy of impeachment is to remove the officeholder, get the worm out of the apple. It is a prophylactic remedy. It is not punitive. If any of you are thinking we have got to vote yes on impeachment to tarnish the President, he is already tarnished, and that's really not the purpose of the impeachment mechanism. Nobody is going to forget this stuff. And this is a man who has been elected President of the United States twice, and thus entitled to this office, after allegations very similar to those now before you.

I hate to open old wounds, but you remember back to 1992, and the Gennifer Flowers matter, if there are two people in a room and they both deny that something happened, then you can't prove that it happened. Well, that's very similar to what we are talking about here, and this officeholder was elected President of the United States twice after all of those facts were before the people.

So I come out thinking that the most appropriate result is something other than removing this person from his office, taking his office away from him.

There is a lot of talk about censure. I think personally the dignity of Congress and the dignity of the country demands something more than merely censure here. And I would suggest in conclusion, Mr. Chairman, four things that you might want to think about in

Number one, it is not unknown for grand juries investigating corruption in a city or a county, for example, to issue a written detailed report of their findings. That could easily be done here. It would be entirely proper.

Number two, there could be a written acknowledgment of wrongdoing on the part of the President, and for reasons which will become evident in a moment I would not propose that there be insistence on the use of the word "lie" or "perjury" there, but it is something that could be negotiated to reflect the gravity of what he has done.

Number three, there could be an agreement to pay a fine. This is something tangible, more tangible than censure, and it involves the respondent as well as the moving party, the moving party here being the House, and that would mark the moment. That would mark the solemnity of the occasion. And the agreement would remove any doubt about somebody going to court and saying, there is no basis for this. It would be thrown out on the basis of political question doctrine anyway, I think.

I am not here to say what the fine should be, but if memory serves, Speaker Gingrich had to pay quite a large fine not so long ago because people didn't like either the content or the marketing of a college course that he taught.

The members might wish to consider providing that the fine could not be paid out of the proceeds of a legal defense fund, given all the background circumstances.

Finally, what I am proposing, the final element, would be that the President would have to take his chances with respect to the criminal justice process post his Presidency. I do not agree with those in the media who say that any deal on censure has to protect the President against criminal proceedings after he leaves office. First of all, there doesn't have to be any deal on censure. That's entirely within your power. The White House has no leverage there. Second, the Constitution explicitly says that even if a President or anybody is impeached, convicted and removed from office, they remain liable to trial and indictment. It is very explicit. It is right in the Constitution.

If the objection is that the spectacle of a former President being prosecuted would be tawdry and degrading, it really could not be much more tawdry and degrading than what we have already been subjected to through the constant daily reports of the Lewinsky affair.

Lastly, I agree with everyone who has spoken before about whether a perjury prosecution here really lies. I think there is quite a low risk of that from the point of view of the President.

So that's the suggestion. It is a political suggestion, but this is, in part, a political process; about a five-part deal, if you will, and I think the dignity of the House would be upheld if something like that were to be approached, and everybody could perhaps get on more easily with attending to the public's business.

Thank you, Mr. Chairman.

Chairman HYDE. Thank you, Governor.