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Burden of Proof

David Schippers Declares President Clinton's Impeachment Trial a 'Sell Out'

Aired September 5, 2000 - 12:30 p.m. ET


ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: The man who prosecuted the president. David Schippers brought the case of the Republican House managers across Capitol Hill to the Senate floor. But he says the ensuing trial of President Clinton was rigged and a sellout.


DAVID SCHIPPERS, MAJORITY COUNSEL: Make no mistake, the conduct of the president is extricable bound to the welfare of the people of the United States. Not only does it affect economic and national defense, but more directly, it affects the moral and law-abiding fiber of the commonwealth, without which no nation can survive.


ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

COSSACK: Hello and welcome to BURDEN OF PROOF. Greta is off today.

Nearly two years ago, on September 9th, 1998, the Office of Independent Counsel Ken Starr delivered 36 boxes of evidence to Capitol Hill. OIC officials notified House managers that they had found "substantial and credible information that may constitute grounds for impeachment" of the president. Members of the House agreed, and ultimately, President Clinton was impeached and later survived a Senate trial.

The inside story of the impeachment case and Senate trial is the subject of a new book, "Sell Out," which is authored by former counsel to the House managers David Schippers. Joining us today are minority chief counsel Julian Epstein, David Schippers, and constitutional law professor Michael Gerhardt. And in the back, Neil Glancy (ph) and Matt Pillsbury (ph).

David, I want to read to you a quote which appears on the back of your new book "Sell Out." It says, and just in case people think you don't exactly say what is on your mind, they will enjoy this initial quote. You get on to say the following: "What I saw as chief investigative counsel for the House Judiciary Committee, and therefore the man in charge of compiling the case against the president, was not a pretty sight. Lies, cowardess, hypocrisy, cynicism, butt-covering, amorality. These all combine to make a mockery of impeachment process."

You don't sugarcoat your criticism just for one side. You attack both sides. One of the attacks you make is this notion of bipartisanship. You seem to think that it shouldn't have been bipartisanship. Explain.

SCHIPPERS: Well, bipartisan, whenever I heard the word bipartisan from a Republican, that meant that they were selling out to whatever the Democrats wanted, in the House or in the Senate, and that was bipartisanship. Other than what I said there, though, I really enjoyed everybody I ran into.

COSSACK: You used the word "Sell Out," and you also said this trial was rigged. Why do you say that?

SCHIPPERS: Well, it was. In Chicago, we refer to it as a first ward election. The outcome was decided before we ever went over to the Senate. Apparently, they had all agreed, one, the Republicans didn't want to be bothered with this; two, the Democrats were going to vote not guilty. So it was a foregone conclusion. We didn't know it at the time but...

COSSACK: But David, in the sense of talking about impeaching the president, you are talking about, perhaps not a legal act, you are talking about a political act, why would you, you know, obviously you know your way somewhat around the halls of politics to be selected for this job, why would you be surprised that Democrats would vote for Democrats and at the time that you were having an impeachment trial you had a highly popular president, why would you be surprised that in fact it was going to work out that way?

SCHIPPERS: You see the sell out was not the outcome. The outcome, the vote was kind of anti-climatic. The sell out was that we were never permitted to put on a case.

I'm an old prosecutor. It is like walking into a courtroom and saying, all right, judge, we are ready to proceed, and having the judge say: Not guilty. That's what happened.

COSSACK: But isn't the mistake that you are making is that you are comparing this trial to a criminal trial, to a traditional criminal trial, like you just talked about, where the judge would kick you out of the courtroom before you even got a chance to go to jury, when in fact this had nothing like that -- this was nothing like a traditional trial.

SCHIPPERS: Well, then why did they put their hands up, raise their right hand and take an oath to do equal and impartial justice? Why didn't they just do away with the oath? Why the hypocrisy of taking an oath to do equal and impartial justice and then refuse to permit the House managers to put on the case. That was the problem. That was the sell out.

And the sell out, in my opinion, was worse to part of the Republican leadership in the Senate than on the part of the Democrats.

I don't -- the fact the president was acquitted is irrelevant in my opinion. Had we been permitted to put on a case, had we been permitted to present evidence, and then the vote had been exactly as it was, I would have said the system worked.

COSSACK: But, in fact, there was a decision made by the Republicans and the Democrats in the Senate to let you put on the kind of case that they wanted to hear, and that limited you severely, in terms of the amount of witnesses, and limited you severely in the amount of time, but isn't that what a judge does when you come to court?

SCHIPPERS: Well, the judge, yeah, but if a judge does that, and limits you, and refuses you to permit you to put on your case, you have an appeal, you have some way of remedying that defect.

In the Senate, they just made up their mind. We are lucky we even got the deposition testimony. They misled us all the way indicating that we would be able to put...

COSSACK: Who misled you?

SCHIPPERS: The Republican leadership are the ones we talked to. We only had one meeting, we being the managers, I was a witness to it. But the only meeting that we had with Democrats, when there were three Democrats and three Republicans, the bipartisan group that was supposed to set up some kind of a procedure.

COSSACK: Michael, is David wrong when he describes the procedure that went on in the Senate. You are a constitutional historian, what did the founding fathers have in mind for impeachment when they put together the rules? and should David be surprised that this is the way it ended up?

MICHAEL GERHARDT, CONSTITUTIONAL LAW PROFESSOR: I think the constitutional structure was clearly designed for a purpose, AND the structure had tremendous impact on exactly what I think we saw, the division of authority, for example, between the House and the Senate was very important. Each chamber of Congress is involved in the impeachment process to balance each other. Beyond that, the two- thirds requirement for conviction in the Senate was hugely important. I think it helped define the dynamic, and that should not have been surprising.

COSSACK: Well, in the sense of this being what I consider to be nothing like -- everybody will agree with me -- this is nothing like a criminal trial, you know, you are a prosecutor, this isn't anything like a trial that we are used to in the sense of going to court. This is an exercise in politics. I don't think it is an exercise in legality, right or wrong?

GERHARDT: It is an exercise in a certain kinds of politics, constitutional politics, if one could use that phrase. I think the critical thing to keep in mind is that there is a high threshold for impeachment, among other things. And the high threshold is you have got to have proof of treason, robbery or other high crime and misdemeanors. If you don't have that, you still might have some evidence of wrongdoing, but it doesn't necessarily rise to the level of an impeachable offense.

COSSACK: But what about, I think what David's main criticism is the notion that politics kept us from putting on our case, that we had evidence that the Senate never got a chance to see, therefore, we were kicked out before we even got started, and that was done by we will call it politics, rather than cowardess. I mean, should that be a surprise?

GERHARDT: I don't think so. Clearly, the framers included the House and the Senate in the process for a reason. They wanted sophisticated politicians to make the judgments, the necessary judgments about the quality of the evidence, and the necessity for a removal.

COSSACK: David, isn't that the problem that you run into here, what your jury, if you will, are people that are elected, and they have to go back home to those same electorate and run again, and you were dealing with the president, right or wrong, whose popularity was exceptionally high?

SCHIPPERS: That is one of the problems, and one of the problems is that they had to go back to be reelected and they were looking at the polls. There is no question about that.

Remember, whether the Framers set it up, they set it up with a Senate that was not answerable to the vagaries of public opinion. In the Senate, we saw public opinion rule the senators.

Yeah, that's right. They are supposed to be politicians, they are supposed to be statesmen. But they are supposed to be honorable and open-minded when it comes to impeachment. That's why the Framers gave it to the Senate. Not because -- if you say pure politics, then, unless there is a two-thirds majority in the Senate of the party bringing the impeachment, no president will ever be convicted.

COSSACK: Julian, the argument is that, in fact, this was a rigged rigged trial right from the beginning, and in fact, Mr. Schippers never had a chance; Agree or disagree?

JULIAN EPSTEIN, MINORITY CHIEF COUNSEL, HOUSE JUDICIARY COMMITTEE: Well, I just disagree with my good friend David Schippers. I mean, I think that the theory is basically that the trial was rigged because there was no process, there weren't hearings, there weren't witnesses that were brought. But I think that discounts an important fact which is this: There were mountains of data that were available to every senator and every member of Congress before this material was sent over to the Senate.

Ken Starr had interviewed every witness, in some cases five or six times. The transcripts of all of those interviews were available for everyone to read. And I think, by the time it got to Senate, the public and most of the senators had made their mind up on two essential questions. One is that these were not impeachable offenses. Secondly, that the factual case on them were not, on each of the individual theories, whether it was perjury, whether it was obstruction, the factual case on those matters were not particularly strong.

So I don't think that anyone really believes that to go through what Ken Starr had essentially already done by putting on loads and loads of witnesses that anything was going to change on one of those two questions.

COSSACK: All right, let's take a break. Up next, defending the president. Clinton's legal team has been criticized for exhaustive efforts at privileges, but shouldn't a defense team defend? Stay with us.


A woman who tried to approach first lady Hillary Rodham Clinton during a Brooklyn parade has been charged with second degree assault.

The woman hit the Secret Service agent who stopped her from approaching Mrs. Clinton.



COSSACK: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the World Wide Web. Just log-on to We now provide a live video feed, Monday through Friday, at 12:30 p.m. Eastern time. If you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show and even join our chat room.

Nearly two years after President Clinton was impeached in the House of Representatives, the chief counsel to the House managers has authored a new book. In "Sell Out," David Schippers criticizes the president's lawyers for building barriers to defend the commander-in- chief.

Well, Mr. Prosecutor, what is so wrong with the defense lawyers defending?

SCHIPPERS: All right, there is nothing wrong with defense lawyers defending. The -- which is it? which do you want? do you want to say it is a criminal case, in which case they are entitled to all the defenses known to man? or are you going to say it is a political case, in which they may not be entitled to all of those defenses.

COSSACK: Well, first of all to -- a lot of grand jury hearings in which they would certainly be entitled to all the defenses known to man, and now it is over in front of the Senate, and I would think that the president has an absolute duty to defend. After all, he has been elected into office by the people, I would think the president has an absolute duty to defend himself from being thrown out of that office. With that in mind, why shouldn't the president do everything that the president, you know, can do to keep himself in office? SCHIPPERS: I thoroughly agree, he certainly should. We should have been permitted to put on our case. He should have been permitted to put on whatever case he thought he should put on in defense. He should have been able to file any motions he wanted.

It's the difference between, in the House, it was kind of a grand jury situation. In the Senate, you had a trial. At the trial, he should have been afforded every opportunity for due process of law, including testimony by himself if he wanted to.

COSSACK: One of the things in the book that you talk about is the Juanita Broaddrick incident. Juanita Broaddrick is a woman who claimed that many, many years ago, over 20 years ago, the president allegedly raped her, and initially made that claim, and then signed an affidavit saying that that wasn't true.

In your book, you indicate that she did that for a purpose and really didn't mean it when she signed that affidavit. And in fact, you indicate that that evidence was shown, although it was never put into evidence, Juanita Broaddrick's claim, that evidence was shown to House members who may have been on the fence. Was it proper to show that evidence to House members although it wasn't ever included as part of the evidence?

SCHIPPERS: We did not go out of our way to show anything to any House members. If a House member came over and asked to see evidence, we showed them what we had. We had very little on Juanita Broaddrick.

The Juanita Broaddrick case, as far as I was concerned, and my staff was concerned was off the table. That was, as you say, it was a 20-year-old situation. Once we ascertained that the White House had nothing whatever to do with her filing a false affidavit, we left it alone.

COSSACK: In fact, you showed that evidence to House members who were on the fence, as you put it.

SCHIPPERS: We showed it to some House members, if they asked for it. We also showed them all the other evidence.

COSSACK: Why would you show them evidence that you knew wasn't going to be included in the trial?

SCHIPPERS: Because it was evidence that had been produced by Mr. Starr, and that evidence was available to everyone in the House, if they wanted to see it, Democrats and Republicans alike. We couldn't properly refuse to show it to them. We did not go out of our way with everybody who came over and said you have got to look at Broaddrick stuff. If they asked for it, they saw it. Most of them were looking for other material.

COSSACK: Julian.

EPSTEIN: Well, I have some disagreement as to how the procedure went down at that time, particularly because we didn't eally know that was happening. But I think that David answers the question, it really wasn't relevant to the case of impeachment.

I think the things, if you go back and want to look at it, two years ago that really were a very, I think, destructive to the case was the fact that the nature of the Starr report that was sent up with all the grizzly details. I think the public reacted very negatively to that. There was perception, whether or not it was true, that it was politically timed. It was two months before the election.

As we see, Robert Ray appears to be doing with all of these other investigators that have been hanging out there, he is going to produce a report during, it is now six weeks before this election. I think the public will similarly say, as many Republicans said in 1998, that this will only remind the public that the Republicans don't have much of an agenda, all they really want to do is kind of shadow box with these scandals of the past. And I think that that's a big political negative for them.

COSSACK: Michael, one of the things, as I understand it, that the Founding Fathers were concerned about was the issue of a majority Congress taking on a minority president, just like we had in this situation, we had a Republican Congress, a Democratic president, and attempting to do, by the impeachment process, what they couldn't do in the election.

GERHARDT: Exactly. I think that, if you look at not only the Framers' statements, but the structure that they created, it is really designed to ensure a great deal of fairness to the person who is being considered for impeachment.

Again, the division of authority between the House and Senate is one safeguard. Another safeguard is the two-thirds requirement in the Senate, the fact that the senators taken an oath. All of these are designed as procedures to ensure fairness against, sort of, passion ruling.

COSSACK: What about the Senate, and David quotes a senator, I think it is Ted Stevens, and if I'm wrong you can correct me, who says: You know, we make up our own rules. We are the ones that decide how this thing works. And we make it up the way we -- what makes us happy. Do they have a right to do that.

GERHARDT: Absolutely. The senators have sole discretion to determine how to try the subject of an impeachment, and that's exactly what we saw happen here.

EPSTEIN: In fact, Roger, the Supreme Court has looked at this case. I mean, I think, if you certainly look at the way that it is framed in the Constitution, it certainly seems to give the Senate and the House ample discretion to determine what procedures they want to use. And in fact, the Supreme Court in the 1980s had a couple case that went before it. The Supreme Court basically affirmed that impeachment is what the Congress says it is; and secondly, the procedures that are to be used are whatever Congress determines. So I think that there is ample Supreme Court affirmation for that proposition. COSSACK: All right, let's take a break. Up next, land of the free, and how a record number of potential Democratic voters were ushered into citizenship before the '96 election. Stay with us.


Q: Which '80s rock band is suing CBS for alleged trademark infringement?

A: Survivor.



COSSACK: In a new book authored by David Schippers, the former counsel to the House managers, details an effort by the White House during the 1996 campaign. Schippers claims a speedy naturalization process was instituted affecting thousands of Latino voters, assuming they would vote Democratic. Schippers says the process didn't have the usual INS safeguards of keeping criminals from becoming U.S. citizens.

Before you explain this to me, I want to ask why did you include this in the book? I mean, what did this have to do with the impeachment?

SCHIPPERS: Well, it was part of our duties out here to do the oversight of the Justice Department. I included it in the book because I thought people should know what happened, that's why.

By the way, it was not Latino voters. We never focussed -- we had no idea what names we were using, we had no idea what the nationality, race or national origin of any of the people we were investigating because we did it by number.

COSSACK: Why did you assume that, therefore, that the people that were given this speedy naturalization process, as you claim, one, would be Democratic voters, two, that they would vote at all, and three, how many of them, if any, you could actually say were criminals?

SCHIPPERS: I don't -- I didn't in any way say that they were Democratic voters. I didn't care whether they were Democrat, Republican or Prohibition voters. Apparently the Democratic National Committee and the Democratic Party felt that they would be Democratic voters and that's why they knocked down all of the safeguards.

COSSACK: And you conclude that by the fact that, because of the speedy naturalization process -- you believe that was done strictly because you think that they believed they would vote for Democrats, right?

SCHIPPERS: Well, I saw the e-mails coming out of Vice President Gore's office saying, get this done, it's got to be done by election, it's got to be -- we have to finish it by the election. What else could you think?

COSSACK: Well, how about the fact that saying that they can turn to the American public and say, you know, we have done this and this is a campaign issue, how we deal with immigration, and this is how we stand on the issue?

SCHIPPERS: Well, they've got 60,000 felons that got citizenship because they cut down those safeguards.

EPSTEIN: Well, I'm not sure about 60,000, but I'll say it was many Republicans who were pushing the Immigration and Naturalization Service back in 1996 because of the backlog. Numerous Republicans are on record asking the INS to speed up the process. In fact, the INS during that time was using procedures that were established by, guess who? the Bush administration and the previous administration in 1992, and previous to that.

It's true that some people slipped through the craps -- the cracks. I'm not sure it was 60,000, as David says, but then the INS attempted to denaturalize those who were improperly naturalized, and the 9th Circuit has held it up.

But, basically, the problem was the INS had a procedure in place where if it didn't get a response regarding fingerprints from the FBI within 60 days, they would go ahead and naturalize it. That's -- naturalize the citizen. That is the process of the Bush administration used, and it's now been changed.

COSSACK: David, in terms of that response, I mean, how do you go ahead? I mean, what -- the picture you paint is a lot more nefarious than that.


COSSACK: I mean, you paint a picture of a -- almost a conspiracy, if you will, to get these people in.

SCHIPPERS: Right. There were safeguards in place. They were totally ignored. The pressure was put on the district directors in the five key states to get these people naturalized. In Chicago, we had thousands naturalized during ceremonies at one of our stadiums. One was in the morning, and one in the afternoon. They got so completely screwed up with what they were doing that they were handing out certificates of citizenship, failing to get the green cards back, or failing to give them the citizenship.

COSSACK: But what I'm suggesting is that what Julian says is, look, there may have been bumbling, and perhaps there was -- and fumbling of -- and there may have been an overlooking of procedures -- but can you lay that in the hands of a particular group and, therefore, include it in your book?

SCHIPPERS: Yes, yes.

COSSACK: And why? SCHIPPERS: Because the Citizenship USA was proceeding. They were making every attempt at the district level to get rid of the backlog, to get the people naturalized. All of a sudden, the White House and the vice presidency got involved and they just went out and put the pressure on Doris Meissner, who in turn put the pressure on the district directors. And being bureaucrats, they just forgot everything else. In Chicago, they didn't even bother to put...

COSSACK: David, I'm sorry I have to interrupt both of you. We got to go. That's all the time we have for today. Thanks to our guests and thank you for watching.

Today on "TALKBACK LIVE," the debate over debates: Will Bush and Gore square off? Tune in, log on at 3:00 p.m. Eastern time, noon Pacific.

And tomorrow on BURDEN OF PROOF, lawsuits surrounding the Bridgestone/Firestone recall as a congressional subcommittee holds hearings on a massive tire recall. Join us then for another edition of BURDEN OF PROOF. We'll see you then.



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