RUSH LIMBAUGH AND PETER THE LAWYER DISCUSS
STARR PROSECUTION STRATEGIES (COMPLETE 3/5/98
BROADCAST EXCERPT TRANSCRIPT)
The Rush Limbaugh Radio Program/Excellence In Broadcasting Network broadcast Thursday, March 5, 1998; re-broadcast Friday, March 6, 1998
The Rush Limbaugh Radio Program/Excellence In Broadcasting Network
BEGIN TRANSCRIPT
RUSH LIMBAUGH, HOST, THE RUSH LIMBAUGH RADIO SHOW: OK, back to the phones now. 1-800-282-2882. This is Peter in Annapolis, Maryland, welcome to the EIB network.
PETER THE LAWYER FROM ANNAPOLIS, MARYLAND: Hi, Rush, I love your show.
LIMBAUGH: Thank you very much.
PETER: I'm just calling; I don't think you've gone soft on Clinton, far from it. But I do think you underestimate the legal jeopardy that he's in, at the moment. I think one of the things you need to recognize is that Starr could convict on the evidence we know he's got. He could convict both Monica Lewinsky and the president, assuming he could bring an indictment against the president, with the evidence he's got, on a charge of conspiracy to obstruct justice. Remembering that Monica has already testified on all those tapes. Now I suppose that you...
LIMBAUGH: That's not testimony.
PETER: Yes, it's going to be admissible in a criminal trial. I am a lawyer, and I used to teach evidence, and that is going to be admissible in a criminal trial for conspiracy, both against Monica and against the president.
LIMBAUGH: But she wasn't sworn.
PETER: It doesn't matter. It'll come in as out of court statements admissions of the defendants. And it will be admissible against her because it constitutes admissions, her admissions of matters that she wants to deny at trial. And it will come in against the president as her co-conspirator in a unified trial. So it is admissible, it is going to help support the case against the president and against her. And with that evidence, together with the surrounding circumstantial evidence, it seems to me it's going to be overpoweringly clear, when the evidence is presented, that there was a conspiracy to obstruct justice, that the two of them agreed together, at least tacitly, to present coordinated perjury. And that is a crime, and there's just not going to be any way around it, it seems to me.
LIMBAUGH: Well, there's one big "if" in all this, and that is, if he can indict the president.
PETER: Well, he can't indict the president, but what he can do, what I would do...
LIMBAUGH: Well, that's not, I mean...
PETER: Well, he believes he can't indict the president. That's public record. He may be wrong about that, but let's assume that he'll act in accord with his beliefs.
LIMBAUGH: OK, he sends it up to Henry Hyde.
PETER: He sends it up to Henry Hyde, but what he can do in the meantime is what I would do in his place: is to indict Monica Lewinsky for conspiracy to obstruct justice, naming Bill Clinton as an undicted co-conspirator, which is a phrase, I think, that has a certain amount of historical resonance.
LIMBAUGH: Yes, yes it does. I remember that phrase well.
PETER: And I believe that he could bring such an indictment, and he could make it good with a conviction, no matter what Monica Lewinsky says. And there's another point, too, which is, you know, pay no attention to William Ginsburg, who is off making statements as a way of negotiating with the Office of Independent Counsel through the press. What he says, I think, is completely meaningless; he's just beating his chest. Monica Lewinsky cannot afford to give any testimony that denies having a sexual relationship with the president. She has already said in her proffers that she is going to, that she is willing to testify to that relationship. And if she does not, when her testimony is offered, the Office of Independent Counsel is guaranteed to put her into prison.
LIMBAUGH: Wait, wait, let me....You're a lawyer, right?
PETER: Yes I am.
LIMBAUGH: Are you a prosecutor?
PETER: No. I have done some criminal work; well, I was once a prosecutor, briefly.
LIMBAUGH: Are you a member of the criminal defense bar?
PETER: No, that's not typically my practice, although I have done some criminal defense over the years.
LIMBAUGH: Amazing. Here's a criminal defense lawyer---well, you've worked in that area, and not criticizing Starr. You're a first.
PETER: Basically, I'm a civil lawyer, however, as Starr is. In full disclosure, I worked in the Justice Department while Starr was there, and actually had some professional contact with him...
LIMBAUGH: Oh, so you know Starr?
PETER: I do know the man slightly.
LIMBAUGH: Could it be that you are calling here to leak?
PETER: No, no, I don't know the man to that degree. I have no knowledge to be leakable. But I do believe that Ken Starr is an honorable man who has taken a terrible beating under circumstances where he couldn't defend himself, and I think it's just appalling. But I honestly believe that he can put Monica Lewinsky in jail, with the evidence he has now. In fact, he can put her in jail if half of the press reports are true, regardless of the question of whether or not she had a sexual relationship with the president.
LIMBAUGH: Yeah, but politically, does that get us---does he want to create another Susan McDougal with Geraldo Rivera and all these defense lawyers on television every night and then demanding his head. Political question: at what point is he going to draw a political line?
PETER: Well, I suppose there would be a political price to pay for trying her. I believe it may be a price he has to pay. Look, the Office of the Independent Counsel needs closure here. And they can't get it if they can't indict the president---they can't get it directly. But what they can get is closure by indicting him indirectly as an unindicted co-conspirator in a conspiracy to obstruct justice.
LIMBAUGH: Can you hang with me through the three minute break here at the bottom of the hour?
PETER: I certainly can.
LIMBAUGH: Because there are two things I want to explore with you that I didn't have an opportunity to do in this segment, and that is one, I need a detailed explanation of the legal admissibility of the Linda Tripp tapes, or Lewinsky's words on those tapes, as testimony; and the value, or lack of it, of that proffer, as you mentioned it. So we'll get to that here in just a second.
[COMMERCIAL BREAK]
LIMBAUGH: Back now to Peter in Annapolis, Maryland. Rush Limbaugh, the EIB Network. Two things. Explain to me now, with the luxury of time, how it is that the Linda Tripp tapes of Monica Lewinsky, twenty hours, are admissible as though they are sworn?
PETER: Well, the principal obstacle to admitting those tapes, along with any other out of court statement, is the hearsay rule, that says you can't bring in out of court statements to prove the truth of the matter asserted in them. But there are exceptions to that rule, and one of the principal ones is that you can bring in out of court statements by a party to the lawsuit or a defendant in the criminal case where the statement constitutes an admission against the position they are taking at trial. If Monica Lewinsky or the president goes to trial under circumstances where they're accused of conspiring to obstruct justice by agreeing at least tacitly to offered perjured testimony, saying they had no sexual relationship, her out of court statements will be admissions. Everything on those tapes that constitute statements indicating that she had a sexual relationship with the president, would be admissions admissible despite the hearsay rule.
There's also another exception called statements against interest which might apply to a number of the other statements on the tapes. Everything useful on those tapes will be admissible in her trial for conspiracy to obstruct justice, where he will be, either actually or de facto, a co-defendant. So, that's the admissibility angle. The other thing that comes up, is people say, "well some of those tapes were made illegally." But of course that won't obstruct their admissibility either, because they weren't made illegally with the involvement of the government, they were made, if illegally, by a private party who had not yet consulted any government agent. Now, there's no question that the OIC, the Office of the Independent Counsel, never did anything illegal in collecting those tapes. And therefore, since the government wasn't involved in any help...
LIMBAUGH: Well, they're not even illegal, are they, because...
PETER: I don't know how many of them may have been. If they were taped in Maryland, the one end of a telephone conversation; they might have been. But that will not affect their admissibility in any case...
LIMBAUGH: Ah, but if Linda Tripp can prove she didn't know of the law, because doesn't Maryland have an exemption based on (inaudible)...
PETER: It does, created by the court. I'm a Maryland attorney, incidentally. It does have a court-created exception, which is very unusual in criminal law, meaning, indicating, that you have to have knowledge that you are breaking the law for it to be in fact a violation, and they're probably never going to make a case against her. But in any case that won't affect their admissibility. So it seems to be pretty clear that every useful aspect of those tapes will come into evidence in a criminal trial against Ms. Lewinsky and the president as under well recognized exceptions to the hearsay rule. And the fact that commentary is ongoing in this country on the assumption that Monica Lewinsky's story is a complete---is in a closed box and it's under her control, whether or not she offers it out, is just silly.
The other thing I'd like to mention quickly is that it seems to me that she's in a terrible bind in part because, whether or not she had a sexual relationship with the president, the Office of the Independent Counsel is in a position to put her in jail. Because she's clearly, if half the stories are true, on tape tampering with Linda Tripp's testimony, whether or not she had a sexual relationship with...
LIMBAUGH: The talking points...
PETER: Well, the talking points and telling Linda Tripp, offering Linda Tripp a part interest in a condominium in Australia; it's clear that she asked Linda Tripp to deny that Monica Lewinsky had ever told her that there ever was an affair. Now, whether or not there was an affair, Monica Lewinsky had clearly told her there was one. And asking her to deny it under oath is suborning perjury. You know, so wholly apart from the question of whether or not there a sexual relationship with the president, it's very clear that she is on tape committing crimes. And when you're on tape committing crimes, you know, any criminal lawyer with half of a brain will tell you you don't face a jury. And, I don't think she's going to face a jury. She, now with respect...
LIMBAUGH: What do you mean by that?
PETER: I think that what you're looking at with William Ginsburg shooting his mouth off in public all over the place is that he is flexing, he's threatening the Office of the Independent Counsel, he's telling them, "Oh, you know you really need our testimony; we could say all kinds of things." But I think it's an empty threat, and I think they know it's an empty threat, and I think that ultimately her testimony will be offered under some sort of arrangement because it's the only way out for her. Otherwise, she goes to jail. I mentioned the proffer earlier, you wanted to ask about that.
LIMBAUGH: Yeah, yeah, because a caller brought this up yesterday, and said, "isn't she bound by the proffer?", and I...
PETER: No.
LIMBAUGH: She's not, if it's not signed, right?
PETER: Right. There is no, she is under no obligation to conform to the proffer and the proffer will not be admissible into evidence against her. But, the prosecutors know about the proffer. And if she gives any testimony inconsistent with it, flatly so, then, given that they can put her in jail, their motivation for doing so will be much, much stronger. You know, I think Ginsburg is trying to do two things. He's making empty threats, and, he's you know, sort of desparately searching for some way out of the box. But there is no way out of the box. And so, I guess, in summary, the two things I would say is, first of all, her testimony is much less important than people would make it out to be. And secondly, she's going to have to offer it anyway in the end. She has no choice; she's not going to be able to comform to the Clinton/Jordan party line and simply say that, you know, "I made it all up, never mind."
LIMBAUGH: Two more questions. Three federal appeals judges today are considering whether Starr should be investigated. This Frank Mandenici (sp) guy, who has been a chief critic of Ken Starr's, is arguing his claims today before this panel which is sitting at the University of Arkansas Law School, and of course there are all these calls from Congress for Janet Reno to investigate Starr...
PETER: Rush, these questions have to, the arguments have to do with all the old claims about his bias, and his tobacco company interests and stuff. Isn't that right?
LIMBAUGH: Yeah, and by the way, we've learned today, it's a big Duh, but it's now been learned that the White House is the source of the information that Starr had some association with General Motors during one of these cases where he's being accused of knowing that General Motors is going to lie about something...
PETER: Yeah by a lawyer who's been sanctioned for making the same arguments before.
LIMBAUGH: Yeah, yeah, and they said the White House---we now know---it's in The Hotline today---the White House put that news out; turned reporters on to that. So the overall question here is, what do you expect to happen with all these calls to investigate Starr, is it...
PETER: Absolutely nothing, absolutely nothing. One reason is that the White House simply can't afford to have him go away, he's too useful as a whipping boy.
LIMBAUGH: Well, but the White House...suppose the three judge panel agrees with Mandenici...
PETER: That's nonsense. Those claims have been investigated and rejected over and over again. And there's simply, I think, no possibility of that leading anywhere. The only way that Starr is going to be removed is if the White House decides he should be removed. And they're not going to do that. That's beyond the pale of possibility.
LIMBAUGH: The details of the deposition on the front page of the Washington Post today which the president's says he hasn't yet read...
PETER: Well, I think that's clearly another example of making announcements in public. I mean Clinton's trying to help people coordinate testimony with...
LIMBAUGH: Exactly, exactly, and this does not help Starr's investigation, right?
PETER: No, I don't think anyone can make the argument that it does. And I don't think anybody except the White House would make the argument that it does. But, ah, you know, they will (LAUGHS), they will. Let me just say, just quickly, I'd like to say that I think that the legal underpinnings of commentary on this subject have simply been appallingly sloppy. Over and over again people say stuff that's demonstrably untrue, clearly untrue, from a legal point of view.
LIMBAUGH: Like who, like who?
PETER: Oh, well, like the virtually universal statement that perjury is never prosecuted in a civil case. ABC News---I'll give you an example on their website---said a couple of things that were grossly untrue, one of which is the president could still modify his deposition to escape a perjury charge, which is simply not so. There is a retraction or recantation defense to perjury charges, but it's just simply not available in the situation where you've been caught lying. Once you're caught, you can't go back and amend your deposition to change things. And it doesn't matter whether or not you've signed it. You know, all that stuff was floating around. There's been just an incredible amount of misinformation about perjury charges, which always offered by way of trying to be exculpatory, suggests at least technically there's no perjury charge here, when there clearly is, when anyone who's got access to lawbooks knows that there clearly is. And it's, I have been aghast, over and over again. Another example is the almost universal assumption the Tripp tapes won't be admissible in a criminal trial. Anybody who knows anything about evidence knows that there's at least a strong possibility that they will be. And I don't think there's much of a possibility that they won't be.
LIMBAUGH: If...let me ask you one more...
PETER: As I was saying earlier, I mean those are just a couple of examples, but I could...they go on and on.
LIMBAUGH: Let me ask you once more. Starr can indict her. Now, explain to me again the jeopardy this places the president in, if any.
PETER: Well, I think that the jeopardy, if...what I would do if I were Ken Starr, and thank God I'm not, is that I would push this investigation through to a conclusion. I would indict Monica Lewinsky for conspiracy to obstruct justice. I would name Bill Clinton as an unindicted co-conspirator. It would be clear to everyone that her conviction meant that he could have been convicted if he was tried. And then I would go ahead and try her. And there's always the possibility that she would be acquitted, but I think it's a slight one. And then everybody would know that the president of the United States was convictable in a criminal trial, and the only reason he wasn't convicted was that he was the sitting president. And then I would go and re-try him when he leaves office. In the meantime, I would take the case that I had developed for purposes of trying to convict Monica Lewinsky and I would refer it to Henry Hyde in the Judiciary Committee and let them do with it what they will. And what I think they would do with it, where you have a clear case of convictability, is that they'd impeach the man. And I think, after hearings, when that happens---incidentally, I think that at the hearings, the tapes will be played, at least in part. How's the American public going to react to that?
LIMBAUGH: By the way, about that, Henry Hyde is written today by Robert Novak, and Novak's column today is that Henry Hyde's not shirking this at all. The story has been that the Republicans are not going to have the stomach for this, but Novak's column seems to say that Henry Hyde does have the stomach for it.
PETER: Yeah, I saw that column. Well, you know I believe he's right. Henry Hyde is highly respected, I think with good grounds. People forget that Henry Hyde fought the good fight with reference to abortion long before anyone had the guts to do it among the Republicans on the Hill. I think he is a decent man, I think he's a tough man; I think he'll do what's right, not out of partisan hatred for Clinton, God knows, but simply because it's the right thing to do, that...
LIMBAUGH: One more quick question...
PETER: No felon can be good enough to be president of the United States, and if you think otherwise, you're not a patriotic American. Anyway...
LIMBAUGH: One more quick one before we go. We have said, and you have agreed with me, that the release of the deposition today in the Washington Post story is a road map for Vernon Jordan and Betty Currie. What if it's also a road map for Monica: "OK, Monica, here's the version"---and I think what Vernon Jordan said when he came out of the grand jury on Tuesday was a road map for Monica, and was a challenge. "Now look, here's the story, Monica, you can get into an argument with me before the grand jury, but who are they going to believe? You, or me? I'm Vernon Jordan---who are you?"
PETER: I think it's a road map for all of the above, but as far as Monica Lewinsky is concerned, it leads her only over a cliff. If she follows that road map, she goes to jail. Now, she may not want to take issue with Vernon Jordan, but of course, Vernon Jordan, what he's doing is trying to separate himself. He's saying "I'm not really part of this. This is between Monica and the president. I didn't know; I asked; they told me there was nothing to it, so I went ahead with this."
LIMBAUGH: Except, except, there's a report today from the Fox News Channel that Vernon Jordan's lawyer came out today and said that Vernon Jordan did assume that the president was the one behind asking Betty Currie to call him to look into getting Monica a job.
PETER: Yeah. Well, assuming there was a sexual relationship here, there are two possibilities for Vernon Jordan. One: He's a participant in a criminal conspiracy; Two: He's an innocent dupe. Everything he's saying is: "Hey, I'm an innocent dupe. This is between you guys. Either you guys were in a criminal conspiracy, or it's all a figment of an overheated imagination of a young girl. But, either way, I'm clean. I'm out of this." That doesn't leave Monica Lewinsky any better off. You know, Vernon Jordan's testimony creates a situation where---in fact, it leaves her worse off---it creates a situation where there are two possibilities: One: she and the president were conspiring, and he was paying her off to give coordinated perjury; Two: there was never a sexual relationship and she was blackmailing the president of the United States. Either way, she goes down. So, she's got one option, and that option is: deal with the prosecutors, or you go to jail.
LIMBAUGH: Peter, thanks for the call.
PETER: Thank you, Rush.
LIMBAUGH: Thank you. I'm grateful you got through.
[VOICE-OVER] You're listening to the EIB Network.
END OF TRANSCRIPT
Here is some further information about indicting a sitting president by Mark
Levin of the Landmark Legal Foundation:
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LANDMARK LEGAL FOUNDATION
Can A President Be Indicted While in Office, Or Must He First Be Impeached?
BY MARK R. LEVIN
AND ARTHUR F. FERGENSON
January 23, 1998
Can a president be indicted while in office, or must he first be impeached? Recent events in Washington have renewed this once obscure debate.
Article I, Section 3 of the United States Constitution states, in part: "Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law."
There are two different concepts expressed in this part of the Constitution. First, impeachment is a political response, and the violations do not have to be specifically enumerated in a criminal code. It allows the public, through its representatives in Congress, to act on its revulsion with a president.
Some point to Article II, Section 4 of the Constitution and claim it requires criminal wrongdoing as a condition of impeachment. That section states, "The president, vice president and all civil officers of the United States shall be removed from office on impeachment for, and conviction, of treason, bribery, or other high crimes and misdemeanors." No less than the late constitutional expert Raoul Berger, who was one of the nation's leading scholars on the subject of impeachment, among others, wrote that treason, bribery, "'high crimes and misdemeanors' appear to be words of art confined to impeachments, without roots in the ordinary criminal law and which had no relation to whether an indictment would lie in the particular circumstances."
Second, the language in Article I, Section 3 makes clear that impeachment is not an exclusive remedy. A president is still subject to criminal prosecution, if warranted. He can be impeached and removed from office, but this is a limited remedy. Given this limitation, the Founding Fathers wanted to make clear that impeachment would not immunize a president and bar subsequent criminal prosecution. Obviously, this concern only arises in cases where impeachment precedes criminal prosecution. Therefore, if criminal prosecution precedes impeachment, it is not an issue.
Criminal prosecution and conviction does not remove a president from office. Impeachment is the only mechanism for his removal, absent issues of disability. Therefore, there was no question when the Constitution was written that impeachment would be available after a criminal prosecution. Consequently, there was no need for the Founding Fathers to provide language that preserves the impeachment power after a criminal prosecution.
Moreover, if a president truly believes that it is unconstitutional to indict a sitting president, the president has the power to stop the indictment against himself, or direct its withdrawal. He also has the power to grant himself an unconditional and complete pardon and thereby bar the prosecution. Since he has these powers, if an indictment is brought against him by the United States - meaning, by the Executive Branch that he heads - and he asks a court to dismiss it, he is asking for an advisory opinion. Under the Constitution, federal courts are forbidden from issuing advisory opinions. They do not exist to relieve the president from difficult political decisions. This is so even if the decision could lead to his impeachment and removal from office.
The possibility of impeachment does not immunize the president from criminal prosecution. He remains, at all times, a citizen of the United States who is answerable to the law.
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Mark R. Levin is president of Landmark Legal Foundation and Arthur F. Fergenson was a law clerk to Chief Justice Warren Burger.