The NewsHour with Jim Lehrer

JIM LEHRER: Good evening. I'm Jim Lehrer. On the NewsHour tonight, the president's budget proposal, with Budget Director Lew and Senate Budget Chairman Domenici; a debate about whether President Clinton can be indicted in court now for his alleged Lewinsky crimes; an update of bilingual education in California; and a David Gergen dialogue about the future. It all follows our summary of the news this Monday.

NEWS SUMMARY

JIM LEHRER: President Clinton sent congress a fiscal year 2000 budget today. It would spend $1.77 trillion, and create a $117 billion surplus. Most of that would go to build up Social Security. Republicans criticized the plan for failing to include an income tax cut. We'll have more on the budget right after the news summary. Monica Lewinsky gave a deposition today for the president's impeachment trial. She testified under oath in secret for six hours at a Washington hotel. Congressman Ed Bryant was the questioner for the House managers. Two of Mr. Clinton's lawyers handled the cross-examination. Three senators monitored the testimony. Vermont Democrat Patrick Leahy was one of them.

SEN. PATRICK LEAHY: We have a very, very specific rule that covers the senate, the senators who were present, either presiding or attending, the House managers, the White House counsel, which prohibits them from talking about the details of what went on. We will provide the transcripts and the videotape to the senate where it can be seen by senators, but we will not discuss it nor should any of the others who were there.

JIM LEHRER: We'll have more on impeachment later in the program. Researchers today praised a major new discovery about the origin of AIDS. We have more from Andrew Veitch of Independent Television News.

ANDREW VEITCH, ITN: It looks like the solution to a 20-year mystery. The virus that causes AIDS originated in chimpanzees in the rain forests of Central Africa. It spread through blood to the humans who hunt them for food and then to the cities. Because the virus can be transmitted in other bodily fluids, it was the start of a sexually transmitted pandemic. An estimated 35 million people have been infected worldwide. An Anglo American team of researchers has tracked the genetic material of the virus back to a chimpanzee of a subspecies Pan troglodytes troglodytes kept in a laboratory in Alabama. She was called Marilyn.

SPOKESMAN: Looking at this new chimpanzee sequence, comparing it with the others and the human aids virus and saying, "Oh, my God, this must mean that the human aids virus, H.I.V.-1, came from chimpanzees."

ANDREW VEITCH: Since the chimps are immune to the virus, the discovery opens a new path to a possible cure for AIDS. The scientists who tracked HIV to the chimps want to continue studying them in the wild to find out how the virus is transmitted but they're worried that now the animals are identified as the source of AIDS hunters will destroy them not for food but out of fear of the disease.

JIM LEHRER: On Kosovo today, Yugoslavia called for a meeting of the UN Security Council to head off possible NATO air strikes. They were threatened if Yugoslavia and Albanian rebels refused to engage in peace talks. They are scheduled for Paris at the end of the week. In Washington, Defense Secretary Cohen was asked about using U.S. ground forces in Kosovo to keep a peace.

SECRETARY COHEN: I would not favor under any circumstances nor do I believe anyone else would support putting American troops into Kosovo in an intrusive and non-permissive environment. There would have to be -- at a minimum there would have to be a political agreement on the part of all the parties concerned before that would be a consideration that I would recommend.

JIM LEHRER: Denver Bronco fans were better behaved today as they gathered to welcome home their Super Bowl-winning team. The Broncos beat the Atlanta Falcons last night, 34-19. After the game, unruly fans rioted in Denver and other Colorado cities. They broke windows, started bonfires, and overturned cars. They were subdued by police using tear gas and pepper spray. And that's it for the news summary tonight. Now it's on to the president's budget; indicting a sitting president; bilingual education in California; and a David Gergen dialogue.

FOCUS - WEIGHING THE NUMBERS

JIM LEHRER: Kwame Holman begins our budget coverage.

KWAME HOLMAN: This morning, the White House delivered to Capitol Hill softbound copies of President Clinton's $1.77 trillion budget for fiscal year 2000. Once inside, the thick, black books sealed in plastic were placed on display tables and handed out to reporters and congressional staff. The details of the president's budget were unveiled officially later in the morning at a ceremony in the White House.

PRESIDENT CLINTON: This is our budget for the year 2000. It is the first budget of the 21st century. It charts a progressive but prudent path to our future, a balanced budget that makes vital investments.

KWAME HOLMAN: The budget is a blueprint for how the federal government divides and spends each dollar it receives. From year to year, the pennies spent from that dollar on different parts of the budget vary only slightly. But a new factor is a growing budget surplus projected over the next decade, which opens a range of tax-cutting and spending options for Congress and the White House. In his budget for next year, the president would spend 15 cents of every dollar on national defense, and 17 cents on discretionary programs for education, transportation, science, technology, and foreign aid. Among mandatory spending programs, 22 cents would go to Social Security, 11 cents to Medicare, 6 cents to Medicaid, and 12 cents for other entitlement programs, such as food stamps, veterans' pensions, and federal workers' benefits. 11 cents would be used to pay the interest on the national debt, a reduction from years past. And the projected budget surplus allows the president to set aside 6 cents to pay for a plan to shore up Social Security, if Congress and the president can agree on one. President Clinton spent much of his time this morning talking about Social Security and the surplus.

PRESIDENT CLINTON: I have proposed committing 62 percent of the surplus for the next 15 years to Social Security and investing a small portion of that in the private sector, just as any private or state government pension would do, so that we can earn higher returns and keep Social Security sound for 55 years.

KWAME HOLMAN: The president also proposed using the surplus to bolster Medicare.

PRESIDENT CLINTON: Already, we have extended the life of the trust fund by ten years. We can save it for another decade if we use 1out of every 6 dollars of the surplus for the next 15 years to guarantee the soundness of Medicare. This budget makes a down payment on that goal. It also commits 12 percent of the surplus, about $500 billion, more, if the Congress turns out to be right, for tax relief, to establish universal savings accounts, U.S.A. accounts, to help Americans to invest, to save for retirement, to share more fully in our nation's wealth.

KWAME HOLMAN: After doing all of that, President Clinton insisted there still would be enough of the surplus left to make a significant dent in the national debt.

PRESIDENT CLINTON: Look at this chart. If we set aside 62 percent of the surplus for 15 years for Social Security and we set aside 15 percent for Medicare, we will cut the debt by two-thirds. As a share of our economy, we will cut it by 84 percent. Look, when I took office, it was about 50 percent. We have got it down now to about 44 percent. In 15 years, we will have it down to 7 percent, a third of what it was in 1981, before we started exploding the debt with the deficits. That will give us the lowest share of publicly held debt since 1917, before the United States entered World War I. (Applause)

KWAME HOLMAN: The president's budget also calls for increased defense spending, up to $330 billion, by the year 2005. Among the president's domestic spending initiatives next year is $5 billion to hire new teachers and build classrooms and $5.3 billion for health care initiatives, including expanding Medicare eligibility to people under age 65. The president has proposed five years of targeted tax cuts, totaling more than $35 billion, including $1,000 per family for long-term health care and $250 for stay-at-home parents who care for infants. The president would raise money with a 55-cents-per-pack tax increase on cigarettes, and by limiting tax breaks for corporations and wealthy investors.

JIM LEHRER: To two key budget players now. Jack Lew heads President Clinton's Office of Management and Budget. Pete Domenici, Republican of New Mexico chairs the Senate Budget Committee. Senator, in general, what do you think of the president's proposal?

SEN. PETE DOMENICI, Chairman, Budget Committee: Well, first, I want to get a commitment from you. When we get our budget ready, we want to come back and explain ours to you for the American people.

JIM LEHRER: You got it. That's a deal.

SEN. PETE DOMENICI: Okay. It's pretty difficult to be talking about both, although I'll lace my conversations a little bit.

JIM LEHRER: That's a deal, senator, you got it.

SEN. PETE DOMENICI: Thank you.

JIM LEHRER: Yes, sir.

SEN. PETE DOMENICI: Let me first say, you know, the president and those who helped him put this budget together are very smart. Jack Lew is a wonderful man, besides being smart, but essentially it's almost as if they have gone to the extreme to see to it that we don't cut American taxpayers' taxes but rather that we continue this spiral of little tiny targeted tax cuts and then that we invent some new program for savings accounts where we match money with people when as a matter of fact the president has set the stage for a truly historic battle. 38 percent of the surplus is not needed for Social Security and he said that because he said 62 percent is needed. We ought to save that 62 percent and together we ought to figure a way to tie it up where it can't be spent. But to then talk about taking more of that surplus and putting it into some kind of lock box when the president stands before us and has submitted a budget that increases spending all over the place and even recommends giant new entitlement programs, what are they going to be paid out of? They're going to be paid out of that 38 percent, because if you spent them, they're not available for tax cuts. And I look at this as a typical Democrat versus Republican argument. We think that 38 percent is overpayment by the American people. We'd reduce the debt by using the Social Security funds the way they ought to be, but the 38 percent, we think the average working American and taxpayer should get back what he overpaid. And that means that they should get across-the-board cuts and it can actually exceed 10 percent over a period of time, which I think would save us from a growing government even though the president said two years ago "we've seen the end of big government." We've kind of seen it reinvented in the president's budget. Now, frankly, it's almost deja vu, it's much like last year's. All these programs are going to be paid for with increased taxes and with increased user fees, none of which are going to be adopted. And so essentially, I think we're going to have a really nice argument about should the taxpayers get the money back -- or should we play like we're saving it knowing it's going to be spent ultimately we don't give it back to them?

JIM LEHRER: Jack Lew, first of all, do you agree with the senator's definition of what the problem here, what the argument is going to be about, that 38 percent, and whether or not it should be returned to the people as a tax cut or used the way the president and you propose?

JACK LEW, White House Budget Director: Well, I would have put it a little bit differently, Jim. I think I would agree the first question is do we set aside 62 percent for Social Security and put that money back into the Social Security trust fund? If we've agreed on that, we have a good beginning. The president's proposal goes beyond that. The next 15 percent would be dedicated to Medicare, and the important thing about Social Security and Medicare is first it's keeping commitments we've already made, paying obligations we already have. We think that's the right thing to do been before we make new obligations - whether it's on the spending side or on the tax side. But, more importantly, the payments to Social Security and to Medicare are investing money in the trust funds, which will reduce our need to borrow. Reducing the public debt is the key to the virtual cycle that will keep the deficits from returning, will keep surpluses growing and keep the economy growing. The senator has described an alternative plan where that 15 percent -- instead of going for Medicare -- would go for a tax cut. And I would suggest respectfully that that would not have the same effect on the economy, it would not have a good effect on the economy. Reducing debt is increasing national savings, as Chairman Greenspan testified last week before Senator Domenici's committee. That's the best thing to do with the surplus for the economy.

JIM LEHRER: But you see that as the alternative, Mr. Lew? It's not necessarily tax cuts or spending -- it's tax cuts or putting the money and reducing the Medicare problem, right?

JACK LEW: Certainly that's the next step. After that, the president does have a tax proposal in his surplus allocation. He's proposed U.S.A. accounts and Senator Domenici suggests the preferable alternative is an across-the-board tax cut. We disagree, but that's a kind of disagreement that really is the basis for a good debate. We think the right way to give tax relief is to encourage savings, to encourage people to prepare for their own retirement, to be able to supplement Social Security and their pensions with their own savings.

JIM LEHRER: All right. Let's get back to the senator on that, just that general point that there are two ways to skin the cat, you want to do it one way, he wants to do it another but it's still skinning the same cat.

SEN. PETE DOMENICI: Let me say to my good friend, Jack Lew, if I had the least bit of confidence that this White House and White Houses to follow would not spend this so-called non-Social Security surplus or that congress would not spend it, I would be sounding that horn that we can put it on the deficit and that would be a pretty good way to use it. I don't believe that for a minute and - I don't -

JIM LEHRER: Why not? Why don't you believe that, Senator?

SEN. PETE DOMENICI: Because history reveals to the contrary. When you have a surplus around and you have designated it as a surplus, you obviously spend it. And history would reveal we have much more of a propensity to spend than to cut programs. We have much more of a propensity on the tax side to increase taxes here and there, rather than to cut taxes.

JIM LEHRER: Mr. Lew, is he right about that?

JACK LEW: We agree with the history, but we've proposed something that's different from the history. I think that if the money is put into the Social Security trust fund and it's set aside as assets to pay benefits now owed, I would dare almost any future political party from proposing to take it away. That's a very, very strong promise. It's a promise that couldn't be broken.

SEN. PETE DOMENICI: We're not disagreeing. But, look, let's make sure. We're saying reduce the debt by putting what belongs to Social Security. You've come up with some hokey-pokey idea that we're going to put more than that somewhere, and we're going to use it for Medicare and yet reduce the deficit. It's not understandable.

JACK LEW: By the way we figure our overall surplus, we've had a surplus for the last number of years which has gone to tax cuts, it's gone to spending. We've not put any of the surplus into Social Security. Social Security builds up assets and then those assets are repaid in the future. We're saying add to the assets. Put it into Social Security the way you would put it into either spending or tax cut.

SEN. PETE DOMENICI: Let me add something on Medicare because it deserves saying. There's a commission studying; they're going to recommend how to preserve it for a long period of time. We ought to wait for them. They're bipartisan. The president's budget doesn't account for this idea of let's increase the benefits by paying for prescription drugs. It's not even mentioned. And if you spend it there, it's out of the general fund for the first time in American history using general taxpayers' money for that entitlement program, which has not been part of the way we think it should be paid for.

JIM LEHRER: Mr. Lew, let me go back to one of the senator's general points at the beginning, which was that this budget is actually a return to big government, that the president declared the era of big government was over two years ago and this is right back in the old era. How do you respond to that?

JACK LEW: Well, I would respond with several points. First, the government as a percentage of the economy has been reduced every year that President Clinton has been in office, and that would be true with this budget as well. It would decline from last year, as it did from each previous year, as it did from the two previous administrations. Secondly, the number of civilian workers in the federal government has declined by hundreds of thousands. We have a smaller, leaner federal government. There are many challenges that the federal government should undertake and I think there's bipartisan consensus on many of these, certainly in the area of national defense. I think we have the makings of a good bipartisan discussion on what the additional requirements are.

JIM LEHRER: Senator, do you dispute those basic points that the government actually has been shrinking in the last few years?

SEN. PETE DOMENICI: Look, you know, the economy grew so much that if you use percentage of G.D.P., you get a bigger government, and the percentage doesn't necessarily grow. Most of the personnel cuts, I think 92 percent, have come because we've reduced the military of the United States, not agencies and departments substantially. In fact, some departments have gone up. But the point of it all is why do we need to take the 38 percent that is excess taxes to the United States and say we're trying to spend that for something other than tax cuts and at the same time say we're in some way preserving Social Security when it has nothing to do with Social Security.

JIM LEHRER: Mr. Lew, the basic philosophical difference, is there a basic philosophical difference here that is going to be argued out over the next several weeks, maybe months, that the Republicans as represented by Senator Domenici want to take a portion of that 38 percent, which I think it's 10 percent is what you're proposal is, is it not Senator Domenici?

SEN. PETE DOMENICI: No. But you shouldn't confuse that 10 (percent) with 38 (percent).

JIM LEHRER: Okay. Right, but some part of that.

SEN. PETE DOMENICI: Yes.

JIM LEHRER: And you and the president, Mr. Lew, are not willing to do that. Is that -

JACK LEW: I think there is a philosophical difference. We think keeping our commitments to Medicare does come first and we would put 15 percent there. I think we have to be honest about the needs that are out there in the area of defense and the area of education. We are going to have to find some more resources to meet those needs. And we have proposed a tax cut. The U.S.A. accounts are a tax cut. So we have proposed that 12 percent of the surplus go to a tax cut, and I do think we will have a good principle disagreement on the nature of that tax cut, and we look forward to that.

SEN. PETE DOMENICI: We'll have one other big one. We're going to propose a very large increase in education, kind of a sea change, maybe as much as a 40 percent increase, but we're going to do that not through the Department of Education but direct to the classrooms and school boards across America. We're going to do that by cutting other programs and restraining programs and saying our first priority is a real addition to education.

JIM LEHRER: So there's no disagreement, Senator Domenici, between you and the president -- between Republicans and Democrats over the need to put federal money into education?

SEN. PETE DOMENICI: Well, from my standpoint there may be with some Republicans. But if a different kind of education assistance -- we're going to get a lot of support from senators and I think before we're finished, the people are going to support it because we're not any longer talking about little targeted programs where we interfere and almost tell the schools what to do. We're saying, "you know what's best, you don't have enough money, we're going to give you this for five principle functions within your school and we're going to do it for 10 years and see if we don't improve education." That's a different philosophy on how to help education.

JIM LEHRER: Is that a different philosophy to you, Mr. Lew?

JACK LEW: Well, I haven't seen the proposal and I would certainly want to wait to see it. But I think that if we share the goal of increasing the resources for reducing class sizes, if we share the goal of increasing the resources available for school construction, we may well be able to find some things here that we do agree on. I hope so. The president's goal, our goal is that we have a bipartisan process to deal with the problem of Social Security and then to have a discussion about our priorities so that we use the surplus to pay for first things first. We've put our priorities forward. We hope there's bipartisan consensus that those are the right priorities and we look forward to joining this debate.

JIM LEHRER: All right. And -- Senator Domenici -- we're going to leave it there, but Senator Domenici you have my word, when you have your proposal together, we'll get Mr. Lew back and let him react to yours.

SEN. PETE DOMENICI: Ours will be much simpler.

JACK LEW: I look forward to doing that.

JIM LEHRER: All right. That's a deal, gentlemen, thank you both.

FOCUS - INDICTING THE PRESIDENT?

JIM LEHRER: Still to come on the NewsHour tonight, indicting a sitting president; bilingual education in California; and a David Gergen dialogue. Margaret Warner has the indicting story.

MARGARET WARNER: Independent Counsel Ken Starr is coming under fire again. The latest controversy was triggered by a story on the front page of yesterday's "New York Times." It reported that Starr is weighing the possibility of asking a federal grand jury to indict President Clinton while he's still in office. The article said that independent counsel has not reached a decision but that, "Starr has concluded that he has the constitutional authority to seek a grand jury indictment of president Clinton before he leaves the White House in January, 2001."The article cited as its sources several associates of Mr. Starr. The reaction from senators conducting the impeachment trial of Mr. Clinton was overwhelmingly negative.

SEN. CHARLES SCHUMER, (D) New York: I think that Ken Starr is once again running amok. The timing is very suspicious, why was that leaked right now? He's had other timing problems before.

SEN. CARL LEVIN, (D) Michigan: Either he or people in his office are trying to impact this trial. They've tried to impact it before in a number of ways, wrongfully, irresponsibly, and I just think it shows terrible judgment on the part of that office. And I'm not surprised by it. They've shown this kind of poor judgment before, but it is worse than a distraction, it's irresponsible.

MARGARET WARNER: Republican senators also were critical.

SEN. OLYMPIA SNOWE, (R) Maine: It was certainly a distraction and it's unfortunate. Frankly, I would question the constitutionality as well.

SEN. MIKE DE WINE, (R) Ohio: I think it would be bad public policy and I don't think it is constitutional. I don't think the independent counsel should do it.

MARGARET WARNER: The president's lawyer, David Kendall announced today he would ask a federal judge to hold Starr and his staff in contempt for leaking grand jury information to the "Times."

DAVID KENDALL: The office of independent counsel has once again engaged in illegal and partisan leaking as manifested by yesterday's page one story in the "New York Times" headline: "Starr is Weighing Whether to Indict Sitting President."

MARGARET WARNER: Starr Spokesman Charles Bakaly addressed the leaks issue on ABC's Good Morning America.

CHARLES BAKALY: We did not leak this information and that's all I could say about that.

MARGARET WARNER: Bakaly did not dispute the substance of the "Times" story but said Starr would weight until the impeachment process had played out before making any move.

CHARLES BAKALY: Judge Starr has not made a formal decision or final decision on what he may or may not do. He, himself, is a constitutional scholar and teaches constitutional law. So we will consider all of the opinions that are out there once it leaves a political process and then we have to make our legal decisions and that's what we'll do.

MARGARET WARNER: Late today, Starr issued a statement saying he was deeply troubled by the "Times" report and that his office had no desire to inject itself into the impeachment process currently underway.

MARGARET WARNER: For more on this, we're joined by two constitutional law scholars. Eric Freedman teaches at Hofstra University School of Law; he has published an extensive study of the Constitution's impeachment clause. And Ken Gormley teaches at Duquesne University Law School. He examined this subject in last month's "Stanford Law Review." He also wrote "Archibald Cox: Conscience of a Nation," a new biography of the first Watergate special prosecutor.

MARGARET WARNER: Professor Freedman, is Kenneth Starr -- are the reports accurate that -- if he believes he has the constitutional authority to indict a sitting president, do you think he does?

ERIC FREEDMAN, Hofstra University School of Law: He has the authority, the question of whether he should exercise it is quite another matter. There are numerous instances where something which is constitutional may not be appropriate and that's exactly, for instance, what Leon Jaworski determined in considering whether to indict President Nixon. So the fact that as a constitutional matter he may have the authority doesn't mean that this is an appropriate circumstance to exercise that authority.

MARGARET WARNER: What leads you to believe that the Constitution does give him that authority?

ERIC FREEDMAN: Well, we have had a lot of experience with this since the framers disagreed on exactly this issue. We have had a vice president indicted, that was Aaron Burr for murder of Alexander Hamilton in their duel, as well as Spiro Agnew. We've had a number of federal judges who were imprisoned before being impeached and when they said "you can't do that to me," that was rejected. And we have a number of plausible circumstances regarding either very heavy crimes such as murder, where the president might have a defense of self-defense, where a senate trial would be entirely inappropriate but we'd certainly want it resolved -- to much less serious things like drunken driving where we would not want to remove the president from office for it, but we would certainly want to express our disapproval -- all circumstances where the availability of criminal remedies is a good idea. And although this may not be such a circumstance today, it's unwise to interpret the Constitution inflexibly to cut off those possibilities for the future.

MARGARET WARNER: Professor Gormley, where do you come down on this?

KEN GORMLEY, Duquesne University School of Law: Well, Margaret, I believe that when Archibald Cox and Leon Jaworski looked at this during Watergate and also Robert Bork, then the solicitor general, they concluded that it was most likely not constitutional to indict a sitting president, that's, in fact, why President Nixon was not indicted and Jaworski just named him an unindicted co-conspirator. I think if you look at the constitutional history, if you look at Alexander Hamilton in Federalist 69 and 77, it was clear what he envisioned was that the president would have to be removed from office before he could be indicted or prosecuted. And when you look at the separation of powers, ramification of this, it becomes really clear why that's the rule. It creates gargantuan problems if you allow a sitting president to be indicted and prosecuted because with that comes the ability of another branch of government to incarcerate him, to arrest him, to put him in jail. And that can effectively stop the functioning of the government because, unlike any of the officials who Professor Freedman mentioned, vice president or a federal judge, the president is the sole head of the executive branch. He's the commander-in-chief of the army and navy, he is the head of all the executive departments and if you are allowed to indict and prosecute this president, you can also put him behind bars and keep him effectively from being able to govern the country.

MARGARET WARNER: What about that argument, Mr. Freedman, that the president is different than a vice president or than a judge because he, in essence, is -- he is certainly the head of the executive branch?

ERIC FREEDMAN: It's true that none of the legal precedent directly answers this, that's why we're talking about it. But there is a lot of historical experience because exactly the same argument has been made against requiring presidents to testify. Ultimately, if a president defies a grand jury subpoena, you would throw him in jail. The truth is that presidents have been repeatedly called upon to testify, none of them have ever gone to jail, partly because judges have creatively thought that they could come up with course of sanctions, as the Judge Sirica did during Watergate, and partly because there is, of course, a political dynamic simultaneously at work which says that a president who doesn't want to be ignominiously thrown out of office and then prosecuted needs to appear to be cooperating rather than defying the legal process. Furthermore, since Alexander Hamilton in disagreement with some of his contemporaries was writing, we have the 25th Amendment which allows a president to step aside voluntarily or to be suspended involuntarily, so that a lot of these concerns about the continuity of the executive branch no longer exist and, indeed, the 25th Amendment was precisely designed to address those problems and ameliorates some of these practical concerns, which even before the 25th Amendment never really came to fruition.

MARGARET WARNER: Professor Gormley, that argument that essentially the 25th Amendment means that the executive branch is not incapacitated.

KEN GORMLEY: I don't buy that argument. The 25thth Amendment was added obviously after President Kennedy was assassinated, and it was meant to deal with that gap in succession to figure out who would succeed to the presidency, the vice presidency. The 25th Amendment speaks specifically about removal from office, namely impeachment, death, or resignation. It does not deal with a president who is incapacitated who remains president, because if you can indict and prosecute, this person is still the president but this person may be in a jail somewhere. It simply doesn't deal with that. We have tons of problems, the system doesn't fit together, if you can do it. And one of the other problems is that if you indicted the sitting president, I believe the Constitution would also allow him just to pardon himself. So Bill Clinton could simply pardon himself; the Constitution allows a president to pardon any individual unless -- except in the case of impeachment and I believe that means impeachment and conviction. In this case, I believe that Bill Clinton could do that if he was indicted. The system isn't meant for this and that's why the framers wisely envisioned that there would be removal from office before the machinery of the criminal process went forward.

MARGARET WARNER: Mr. Freedman, what is to prevent, under your reasoning, a completely say unscrupulous prosecutor from essentially usurping the removal function that the senate exercises now under the impeachment clause? In other words, going to Mr. Gormley's point that in a criminal case because you can indict and make them show up and jail them that you do in essence, if not remove them, incapacitate them.

ERIC FREEDMAN: Well, frankly, it's not the unmeritorious prosecutions people are worried about, it's the meritorious ones. The unmeritorious ones, there are any number of legal ones to swat aside. It's the meritorious ones, and in those cases the likely alternative is impeachment, which as we can see is likely to be just as disruptive for the country and maybe an inappropriate process either for something like drunken driving or to decide a closely contested issue of guilt in a serious charge. And so we want to have flexibility. And the 25th Amendment particularly was designed to cover things like capture by the enemy, which is why Ronald Reagan used it before he went into surgery. It's designed to cover contingencies of this sort, and there is no good reason why this shouldn't be in reserve, considering that all kinds of things may intervene to either prevent an impeachment or make an impeachment inappropriate. And since the concept of the two remedies is really very different, it's appropriate to have them both available in full vigor.

MARGARET WARNER: And staying with you for a minute, Mr. Freedman, you start out this by saying you weren't sure it was wise. Why not?

ERIC FREEDMAN: Well, there are any number of situations where it's probably not a good idea and this may very well be the quintessential example, where, in fact, the precise matter is the subject of impeachment charges, and those appear likely to fail, where the evidence of guilt is at best murky and so the likelihood of conviction before a jury is very low, where there is no reason to think unlike, for instance, Richard Nixon's tax evasion, that the matter is in any sense going to go unremedied or unresolved by the public, those are all reasons why pursuing a criminal indictment is a very poor idea and I think Professor Gormley and I probably agree about that. What we disagree about is whether it's wise to try to cut it off forever in some future case where it might actually be a perfectly appropriate idea.

MARGARET WARNER: Mr. Gormley, would you agree with him on that point that perhaps it should remain murky and that there are situations where it might be called for?

KEN GORMLEY: Well, I think it will remain murky until the Supreme Court decides it, Margaret. And I don't think that that is likely to happen in this case unless it's pushed to the limits. But, no, I think that it's one of these things that needs to be a very clear rule. I also think that it's essential to understand that even if you go part way down the path and just indict and put it under seal, which some have suggested perhaps Kenneth Starr intends to do, you're essentially hanging the president out to dry with no ability to use all of the panoply of constitutional rights we usually have if we're criminal defendants, right to a speedy trial and all of these things. I think it's nothing but problems and I think it is constitutionally impermissible to begin a prosecution until you get to the end. And I think that both Cox and Jaworski concluded that in Watergate, and so it was more than concluding, it was unwise and irresponsible, I think the conclusion was it simply doesn't fit in with our scheme of government.

MARGARET WARNER: All right, gentlemen. We have to leave it there. Thank you both very much.

UPDATE - BILINGUAL EDUCATION

JIM LEHRER: An update on bilingual education in California. Spencer Michels reports.

SPENCER MICHELS: In California schools, the battle over bilingual education remains pitched, despite the passage last June of Proposition 227, which was designed to eliminate it.

SPOKESMAN: Proposition 227 establishes a program to intensively teach children to read and write English as soon as they begin school. Vote yes!

SPENCER MICHELS: More than 60 percent of California voters approved prop 227.

TEACHER: And you guys can all read the page together and then we'll let each one of you read it.

SPENCER MICHELS: Half of the nation's children who are not proficient in English all live in California. Before the election, half a million of them were enrolled in bilingual ed, where Spanish is used to help teach. But the new law directs schools to place students with limited English proficiency into classes where English is the only language spoken -- so-called English immersion.

STUDENTS READING OUT LOUD: I am laughing.

SPENCER MICHELS: Silicon Valley businessman Ron Unz, who authored and promoted the measure because he alleged bilingual was a failure now says many schools are not complying with the new law.

RON UNZ, Proposal 227 Sponsor: The vast majority really seem to be either trying to avoid the initiative, or get around it, or really just try to keepthe status quo, as if the initiative had never passed.

SPENCER MICHELS: Although no statewide figures are available, many districts admit they have not eliminated bilingual classes.

(CHILD SPEAKING SPANISH)

SPENCER MICHELS: In Redwood City, south of San Francisco, the school district reports that 80 percent of Spanish-speaking children are still enrolled in bilingual. At Hoover School, the parents of these children have requested waivers that exempt them from the English-only classrooms. And almost all those waivers have been granted, allowing the bilingual classes to continue. Esperanza Magana decided to use the waiver to keep her nine- year-old boy in a bilingual class.

ESPERANZA MAGANA: I decided to keep my boy in a Spanish class still, because it's kind of confusing for them to just change them from one day to another to English class. Right now, he's getting homework in Spanish and English, and I think that helps him a lot, because they're getting him into English.

SPENCER MICHELS: Proposition 227 allows waivers for children with special educational needs, whose educational development would benefit from an alternate course of study. The district argues that most children benefit from the bilingual approach, which makes it legal under the new law. But Ron Unz says the waivers are being used illegally.

RON UNZ: The initiative says parents of young children can apply for waivers, and if there's evidence that that particular child, for whatever reason, will benefit from a bilingual program, then the waiver can be granted. Instead, school districts are simply providing mass waivers to all these students and keeping them in a bilingual program, even if the average test score of children in that program is abysmally low. And that's what it is.

TEACHER: Measure. Remember we measured how tall we are over there, Clifford?

SPENCER MICHELS: For the 20 percent of Redwood City's Spanish-speaking students whose parents did not request waivers, new English immersion classes were begun. Genoveva Quezavas, mother of a kindergartner, opted out of bilingual.

GENOVEVA QUEZAVAS: I want her to learn perfect English, the same as Spanish, because I can teach her the Spanish.

SPENCER MICHELS: Well, what was wrong with the bilingual classes? Why didn't you want her in there?

GENOVEVA QUEZAVAS: Because bilingual classes, they are going to give more Spanish than English, and I want more English for her than Spanish.

TEACHER: Middle. Middle.

SPENCER MICHELS: This is the kind of class envisioned by prop 227's sponsors, where English is used almost exclusively. Under the law, students will remain in these classes, learning English for a year, and then join the mainstream. Unz believes tests will show this method works, and that should convince schools to follow the law.

RON UNZ: Now, once the new test scores come out, and with legal action on our part, I think we certainly will see much higher degrees of compliance.

SPENCER MICHELS: But Alison Reed, who taught bilingual last semester, finds it frustrating teaching her new first grade class without using Spanish.

ALISON REED, Teacher: We can communicate in Spanish, but yet, we're not allowed to by law. And so, I'm speaking in English all the time. It's hard to really get much writing and reading going, because they just don't know the words. So even though they see them on the paper, it doesn't make a lot of sense to them.

SPENCER MICHELS: The Berkeley School District is more adamant about keening bilingual ed. Here virtually all of the Spanish-speaking children were placed in bilingual classes using parental waivers. And Berkeley went further: It requested a district-wide general waiver from the law, and is leading a lawsuit against the state Board of Education to get such a waiver. Jack McLaughlin is superintendent.

JACK McLAUGHLIN, Berkeley Superintendent: Berkeley wants the right to be able to teach a student how to read in their native language. That's what we want the right to do.

SPENCER MICHELS: But in a sense, you're saying, "well, the people may have voted for this, but we don't agree."

JACK McLAUGHLIN: Well, no, we don't agree. We don't agree. And most educators don't agree. It is not sound research or based in any kind of research that's been done that says, you know, you jam students with English in a short period of time and deny them access to the remainder of the curriculum.

SPENCER MICHELS: Of the 400 students at Berkeley's Thousand Oaks School, more than a third have limited English proficiency, and in the past spent three or four years in bilingual classrooms before moving into mainstream English classes. Catalina Jimenez successfully followed that path.

CATALINA JIMENEZ: My teacher, she would have, like, one day where she would speak only English, or a little bit of Spanish, and then, the next day, she would talk Spanish and a little bit of English. For some of the kids that didn't know how to talk English, it was good, because the teacher would actually help them, and not just force them to talk only English.

SPENCER MICHELS: Now Catalina has graduated to a fourth grade all-English class, and Edgar is in a mainstream fifth.

EDGAR MORENO: I've got problems with some words, but not with all of them.

SPENCER MICHELS: When you have a problem with a word, what do you do, now that you're in just a regular English class?

EDGAR MORENO: I tell the teacher, how do you pronounce it?

SPENCER MICHELS: Prop 227 sponsor Ron Unz sees continued use of bilingual classes in the primary grades, in Berkeley and other districts, as attempts to avoid his law, and to prolong the statewide argument over bilingual education when, in fact, it should be over. He says educators cling to bilingual when the test scores show it is harming children.

RON UNZ: Within California, children enter the public schools speaking 140 different languages. The only language group that receives large availability of native language, so-called bilingual programs, are Spanish-speaking immigrant children. And they are the one immigrant group that does the worst in school, with the highest dropout rates and the lowest test scores and the lowest rate of admissions to college. The reason they're doing so badly is they don't learn how to read or write English properly in the schools, since the schools don't teach them English at a young age.

SPENCER MICHELS: But these days at Thousand Oaks School that argument carries as little weight as it did before the election. Kevin Wooldridge, a former bilingual teacher, is the principal.

KEVIN WOOLDRIDGE, Principal: I think that's an oversimplified conclusion. I mean, you really have to look at the socioeconomic situation of each family, the education level of the parents, what the kids are exposed to, what kind of support they have both in the community and in school. Typically, kids from lower socioeconomic backgrounds don't achieve to the extent of middle class kids and upper middle class kids. That cycle of underachievement is not language-specific.

SPENCER MICHELS: While the education arguments didn't end with the vote, neither did the political and legal. San Francisco's school district is continuing all its bilingual programs, claiming it is under a federal court order that supersedes prop 227. The court directed the schools to provide equal education to students who don't speak English and accepted bilingual education as a way to achieve that. By contrast, officials in Los Angeles, the state's largest district, say they are committed to compliance. At present, only about 10 percent of parents have requested waivers and so the number of students in bilingual education has been reduced by 90 percent. Superintendent of Schools Rubin Zacarias says they must follow the law, though his own feelings about bilingual's effectiveness are mixed.

RUBIN ZACARIAS, Los Angeles School Superintendent: We should and will follow the law, and Proposition 227, good or bad, is the current law. My issue with bilingual education was not the methodology but the fact that, in my mind, it was taking to long to effect that transition from the child's primary language to English acquisition. In this district it was taking sometimes five to six and even longer years to do that.

SPENCER MICHELS: Many students in Los Angeles English immersion classes still receive some help in Spanish. The large number of waivers granted by other districts throughout the state has prompted Ron Unz to threaten suit.

RON UNZ: What these administrators and elected officials should realize is that to the extent that they violate the law, they can be sued and held personally liable by the parents of children whose education is being harmed.

SPENCER MICHELS: Advisors to newly elected California Governor Gray Davis are debating the best way to deal with Prop 227 and bilingual education. And Ron Unz is working to get a similar measure on the ballot in Arizona.

DIALOGUE

JIM LEHRER: Finally tonight, a Gergen dialogue. David Gergen, editor at large of "U.S. News and World Report," engages Virginia Postrel, author of "The Future and Its Enemies: The Growing Conflict Over Creativity, Enterprise, and Progress."

DAVID GERGEN: Virginia, in your new book, you write: "The central question of our time is what to do about the future." And you say that's not a contest between the traditional left and right, it's a very different contest.

VIRGINIA POSTREL, Author, "The Future and Its Enemies:" Yes. I argue that the open-ended future, the future that evolves without anybody being in charge of it through trial and error, experimentation and feedback, competition and choice, is the defining question and that there are people who support that process whom I call dynamists, they support dynamism, and there are people who oppose it, support stasis. I call them stasists; and that you can find both of these groups among people who traditionally we would have said were on the left or on the right, because we have defined those categories very much in a Cold War context and they're changing.

DAVID GERGEN: Carry us a little deeper into the argument. What do you mean by this open-ended process?

VIRGINIA POSTREL: This is a very different view of progress. This is progress is real, human beings do learn; civilizations do learn over time, but they learn incrementally, they learn by trying things not always succeeding, having competing ideas and that could be technology, that can be culture, it can be the arts, new forms of expression developing. And you see this a lot, for example, in business culture. I mean, we used to have the ideal of the business was that it had strategic plans and everything was mapped out in advance and everybody worked on an assembly line and we had the one best way that would stay the same forever. There's been a complete sea change there. Now the idea is there's knowledge in the organization, it's way down often at the factory floor, the goal of managers is to get that knowledge to bubble up from the bottom to promote innovation in a highly competitive environment, and that is the sort of business side of this dynamist coalition that I'm talking about.

DAVID GERGEN: You said in your book that among the new dynamists the young are often much more entrepreneurial and they're interested in creative, new, innovative ways of doing things.

VIRGINIA POSTREL: Yes, there is particularly among people in their 20's, there is this tremendous emphasis on sort of forming your life. Your career is not going to be a matter of stepping on a mapped out corporate ladder but a matter of acquiring skills and doing different things and having your security come from your resilience, which is a theme that dynamists have in general; that security is not a matter of planning everything in advance and eliminating risks, it's a matter of being adaptable. And you see that among this younger generation of people. I mean, my husband teaches business school and he's seen it just in the 12 years he's been doing that, a shift -- more and more entrepreneurial young people.

DAVID GERGEN: A friend of mine made the argument to me the new metaphor for this generation is not one of climbing the ladder but of surfing.

VIRGINIA POSTREL: Surfing is a big metaphor through all this. I mean, it's a very dynamist metaphor -- whether it's surfing information or surfing life in general. It's a matter of incremental adaptation and sort of -- it's not that you eliminate dangers, it's that you deal with them.

DAVID GERGEN: Well, now who are the enemies of this future?

VIRGINIA POSTREL: Well, the enemies are people who want to either plan -- who see their future as something that must be controlled, or they value stability overall. And they sort of fall into two camps; one is your traditional what I call technocrat camp which says, "we're for the future but it must look like this 17-point plan." You get a lot of that in Washington, you know. Well, the future's great but, you know, don't let it get out of control. We don't trust you guys out there in the world." And the other is what I call reactionaries, for lack of a better term. It's people whose idea is that the future is too dangerous and that we need to go back to some sort of imagined past.

DAVID GERGEN: Arnold Toynby, the historian, wrote once that in a period of enormous technological change there's often been a decay of moral values. Do you worry about that?

VIRGINIA POSTREL: Well, I think all of these are part of a competitive learning something and part of that is social criticism. I mean, part of the feedback -- I talk about criticism by example, that's competition. But there's also criticism by expression; that's saying we don't approve of that. It does disturb me, however, that there's an emphasis on the negative and on immediately leaping toward we need to somehow control things in a central way as though there's one best way of doing things as opposed to, for example, with the Internet. There's been a tremendous proliferation of various filtering technologies that allow different families that have different preferences to pick ways of screening out things for their children. And so some of them may be strictly just hard core sex and violence or something like that, other ones are more specific, it may be religious content, it may be perfectly straightforward factual information about homosexuality that is more from a pro-gay rights point of view. They may not like that. So that kind of diversity of filtering I have no problem with. I mean, I may disagree with given filters as an individual, but as part of the process, that's part of the dynamic process.

DAVID GERGEN: What principles do we have, then, about -- as change comes -- about where we draw lines? For example, cloning of individuals, of human beings -- you say basically the dynamists would allow cloning to go forward, and we should not be bothered by the ethical implications, whereas, you argue the stasists, the enemies of the future, are the ones who say, "wait a minute, there's a real ethical question here about cloning of people."

VIRGINIA POSTREL: Well, I have a chapter on the natural and the artificial, which I think is a big dividing line not just on these biotech issues but also on how we think about the environment. And I think there are some legitimate concerns about various forms of genetic engineering. I am not persuaded by the arguments against cloning. I think you have to look at what it is really about. You're talking about a baby, first of all, you're not talking about like an army of little Hitlers, you're talking about a baby - a baby who's going to be brought into the world in the context of the society we have; that is, it's going to be, if we have clones, there will probably be a few infertile couples, possibly some gay couples, that's one thing that upsets people, but it's not going to be all of a sudden we wake up and we're living in "Brave New World." "Brave New World," the actual "brave new world" in the book is a static vision. It's a world where everything has been decided centrally about what society should look like and who human beings should be. I'm much more willing to trust those decisions to people sort of in a decentralized way, to say that parents are more likely to make good decisions for their children's future, including deciding to bring those children into the world, than someone saying, "well, you don't have a good reason for wanting to have a child this way."

DAVID GERGEN: Your bottom line then, though, is we'll have a much richer future, a much more diverse future if we, in effect, encourage change and lean always in the favor of innovation?

VIRGINIA POSTREL: No. If we encourage experimentation and feedback -- if we allow people to try things but also allow them to bear the consequences of the things they try. I mean, one of the ways we get in trouble is by picking winners in advance, too. So I don't believe change is always good. I do think that you need to lean a little bit against the impulse that says change is always bad. And so sometimes I -- people misinterpret what I'm saying. But I'm saying allow innovation and allow people to try things in a decentralized way, where they get the feedback right away.

DAVID GERGEN: Virginia Postrel, thank you very much.

VIRGINIA POSTREL: Thank you.

RECAP

JIM LEHRER: Again, the major stories of this Monday. President Clinton sent congress a fiscal 2000 budget. It calls for spending $1.77 trillion, and applying surplus revenue to Social Security. Republicans criticized it for not having an income tax cut. And Monica Lewinsky was questioned under oath in a deposition for the president's impeachment trial. We'll see you online and again here tomorrow evening. I'm Jim Lehrer. Thank you, and good night.