Law professors testify for judiciary committee

Two GW Law School professors testified before the House Judiciary Committee Tuesday to determine the potential for impeaching President Clinton, adding to the number of GW experts involved in the process.

Professors Stephen Saltzburg and Jeffrey Rosen submitted their comments on the definition and consequences of perjury to the 37-member committee and answered questions from several representatives.

Rosen said the basis for his selection is the article he published about presidential impeachment in The New Yorker, where he is a staff writer and legal affairs editor.

“I tried to explain to the committee that not all lies rise to the level of perjury and that not all perjury is impeachable,” he said in an interview.

Putting the issue in a historical context, Rosen said he told the committee defendants were not held under oath until after the Civil War, because they are traditionally viewed as unreliable.

“Judges recognized that the instinct for self-preservation was so strong that a guilty defendant will naturally be tempted to lie to protect himself,” he told the committee. “It was considered a form of moral torture to force an accused to choose between incriminating himself on the one hand, and facing eternal damnation for betraying his oath to God on the other.”

Rosen said he encouraged the committee to exercise “prosecutorial discretion,” which allows a prosecutor to withhold an indictment from the jury if it is unlikely to convict. He said he also encouraged the committee not to impeach the president.

“The House in this case, acting as the national grand jury, can decide that it will take into account the wishes of the American people and not prosecute the president for crimes it believes are unworthy of impeachment,” Rosen said.

During his testimony, he advocated censure to “rebuke the president for his reckless conduct.”

Saltzburg, the Howrey Professor of Trial Advocacy, Litigation and Professional Responsibility at the law school, said he told the committee that despite hazy and conflicting definitions of perjury, the House should still condemn Clinton for attempting to deceive a court and “giving a false impression of facts.”

“If you agree with me that misleading a court is wrong, whether or not it is perjurious then your path is clear,” said Saltzburg in his testimony. “You should be able to unanimously agree upon a resolution that condemns the president for doing what he obviously did. Nothing in the Constitution says, that when a president engages in conduct that is reprehensible but not impeachable, the Congress must be silent.”

Saltzburg further recommended lawmakers communicate their belief of Clinton’s wrongdoing to Federal District Judge Susan Webber Wright who dismissed the Paula Jones sexual harassment case against Clinton earlier this year after finding insufficient evidence to grant a jury trial.

In his testimony, Saltzburg noted that Wright retains the ability to sanction misbehavior in litigation. He praised Wright’s actions in the Jones case, calling her “the only hero that I see in this matter.”

Both Rosen and Saltzburg told the committee they found no substantial evidence that discrepancies in the president’s testimony before the Jones lawyers or independent counsel Kenneth Starr fit the definition of “high crimes and misdemeanors” stipulated by the U.S. Constitution as grounds for impeachment.

Congressional legislators have suggested the committee, chaired by Representative Henry Hyde (R-Ill.), conclude the investigation by month’s end.

The committee also heard from other expert witnesses Tuesday including Harvard Law School Professor Alan Dershowitz and convicted perjurers.

GW Law School Professor Jonathan Turley also testified before the committee in mid-November.

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