The NewsHour with Jim Lehrer

JIM LEHRER: Good evening. I'm Jim Lehrer. On the NewsHour tonight, the opening of the president's defense before the senate. We have excerpts, some legal perspective, and analysis by Mark Shields and Paul Gigot. We'll have the other news of this Tuesday at the end of the program tonight.

FOCUS - THE PRESIDENT'S DEFENSE

JIM LEHRER: President Clinton's impeachment defense began today in the senate. White House Counsel Charles Ruff spoke for more than two hours. Other members of the president's team will speak tomorrow and Thursday. Former Democratic Senator Dale Bumpers of Arkansas was added to the team and will speak on Thursday. Kwame Holman begins our coverage of today.

SPOKESMAN: The senate will convene as a court -

KWAME HOLMAN: House Republican managers spent three days last week building their case against PresidentClinton. Today, White House lawyers began the task of trying to tear it down.

WILLIAM REHNQUIST: The Chair recognizes Mr. Counsel Ruff to begin the presentation of the case for the president.

KWAME HOLMAN: White House Counsel Charles Ruff was the first member of President Clinton's legal team to speak. He opened the president's defense with an unequivocal statement.

CHARLES RUFF: William Jefferson Clinton is not guilty of the charges that have been proffered against him. He did not commit perjury, he did not obstruct justice. He must not be removed from office.

KWAME HOLMAN: White House Counsel Ruff then quickly laid out for the sitting senators the series of events that led to the investigation of President Clinton, events Ruff called into question even as he described them.

CHARLES RUFF: On May 6, 1994, Paula Jones sued President Clinton in the United States District Court for the Eastern District of Arkansas. She claimed that then-Governor Clinton had made, in 1991, some unwelcome overture to her in an Arkansas hotel room, and that she suffered adverse employment consequences and was subsequently defamed. After the Supreme Court decided in May, 1997, that civil litigation against the president could go forward while he was in office, the case was remanded to the district court, and over the fall and the winter of 1997, the Jones lawyers deposed numerous witnesses, and inevitably, despite the strict protective order entered by Judge Wright and a continuing exhortation to counsel not to discuss any aspect of the case with the press, information flowed from those depositions into the public forum clearly with only one purpose: To embarrass the president. Then on December 5, 1997, the Jones lawyers placed on their witness list the name of Monica Lewinsky, and on December 19th, she was served with a subpoena for a deposition to be scheduled in January. The Jones lawyers deposed the president on January 17, 1998. They began the deposition by proffering to him a multi- paragraph definition of the term "sexual relations" that they intended to use in questioning him. And there followed an extended debate among counsel and the court concerning the propriety and the clarity of that definition. Mr. Bennett objected to its use, arguing that it was unclear, that it would encompass conduct wholly irrelevant to the case, and that it was unfair to require the president to apply a definition that he had never seen before to each question he was asked. Indeed, Mr. Bennett urged the lawyers for Ms. Jones to ask the president specific questions about his conduct, but they declined to do so. Four days later, the independent counsel's investigation became a public matter. And on January 29th, responding to a request by the independent counsel to bar further inquiry relating to Ms. Lewinsky, Judge Wright ruled that evidence relating to her relationship with the president would be excluded from the trial, and she reaffirmed this ruling on March 9, stating that the evidence was not "essential to the core issues in this case of whether plaintiff herself was the victim of sexual harassment, hostile work environment, or intentional infliction --intentional infliction of emotional distress.

KWAME HOLMAN: And Ruff introduced Kenneth Starr and Linda Tripp into a series of events.

CHARLES RUFF: In mid-January, 1998, Linda Tripp had brought to the independent counsel information that she had been gathering surreptitiously for months about Ms. Lewinsky's relationship with the president, and her involvement in the Jones case, and thus began the penultimate chapter. As you will see, Ms. Tripp's relationship with Ms. Lewinsky and her role in these matters is more than merely a backdrop to the succeeding events. Independent counsel met with Ms. Tripp, informally granted her immunity from federal prosecution, promised to assist her in securing immunity from state prosecution, where she had been illegally taping the telephone calls with Ms. Lewinsky. On the 16th, Ms. Tripp invited Ms. Lewinsky to have lunch with her in the Pentagon City Mall, and there, she was greeted by a corps of F.B.I. agents and independent counsel lawyers, and taken to a hotel room, where she spent the next several hours. Ms. Tripp was in the room next door for much of that time. When she left that evening, she went home to meet with the Jones lawyers-- with whom we know she has been in contact for many months-- in order to brief them about her knowledge of the relationship between Ms. Lewinsky and the president, so that they in turn could question the president the next morning. As the independent counsel himself has acknowledged, Ms. Tripp was able to play this oddly multi-faceted role because, although as part of her immunity agreement, the O.I.C. could have prevented her from talking about Ms. Lewinsky, they inexplicably chose not to. And so we are here. But before moving on, let me pause on an important procedural point. Although the senate has asked that the parties address the issue of witnesses, only after these presentations have been completed, the managers spent much of their time last week explaining to you why, if only witnesses could be called, you would be able to resolve all of the supposed conflicts in the evidence. Tell me, then, how is it that the managers can be so certain of this strength of their case? They didn't hear any of these witnesses. The only witness they called, the independent counsel himself, acknowledged that he had not even met any of the witnesses who testified before the grand jury. Yet they appeared before you to tell you that they are convinced of the president's guilt, and that they are prepared to demand his removal from office. Well, the managers would have you believe that the Judiciary Committee of the House were really nothing more than grand jurors serving as some routine screening device to sort out impeachment chaff from impeachment wheat. Thus, as they would have it, there was no need for anything more than a review of the cold record prepared by the independent counsel; no need for them to make judgments about credibility or conflicts. Indeed, they offered you a short lesson in grand jury practice, telling you that U.S. Attorneys do this thing all the time; that calling real live witnesses before a grand jury is the exception to the rule. Well, it has been a few years since I served as U.S. Attorney for the District of Columbia, so there may have been a change in the way prosecutors go about their business, but I don't think so. And so what lesson can be learned from the process followed by the House? I suggest that what you have before you is not the product of the Judiciary Committee's well-considered, judicious assessment of their constitutional role. No, what you have before you is the product of nothing more than a rush to judgment. And so, how should you respond to the managers' belated plea that more is needed to do justice? You should reject it. You have before you all that you need to reach this conclusion: There was no basis for the House to impeach, and there is now and never will be any basis for the senate to convict.

JIM LEHRER: Ruff had microphone problems during the first hour of his presentation, which is why he was holding it in his hand. During a short recess, the problem was fixed and Ruff resumed. He said the articles of impeachment are not constitutional and not supported by the evidence. Kwame Holman continues our coverage.

KWAME HOLMAN: Charles Ruff began by reminding senators that courtroom prosecutors sometimes do not reveal all of the facts in a case, and he said this case falls into that category.

CHARLES RUFF: Last week, for example, you will recall that Mr. Manager Sensenbrenner told you that during my appearance before the Judiciary Committee, in his words, "Charles Ruff was asked directly 'Did the president lie during his sworn grand jury testimony?' And Mr. Ruff could have answered that question directly. He did not and his failure to do so speaks a thousand words." Now, just to be certain that the record is straight, let me read to you from the transcript of that Judiciary Committee hearing. Representative Sensenbrenner: "The oath that witnesses take require them to tell the truth, the whole truth and nothing but the truth. And I seem to recall that there are a lot of people, myself included, when asked by the press what advice we would give to the president when he went into the grand jury in August was to tell the truth, the whole truth and nothing but the truth." Mr. Ruff: "Indeed." Representative Sensenbrenner: "Did he tell the truth, the whole truth and nothing but the truth when he was in the grand jury?" Mr. Ruff: "He surely did." I'm certain that Mr. Sensenbrenner would not intentionally mislead the senate. But his error was one of inadvertence. But in any event, now the record is clear. Of considerably more importance than this momentary lapse are the many substantive flaws that we will point out to you in the coming days, sometimes pure errors of fact, sometimes errors of interpretation, sometimes unfounded speculation. My colleagues will deal with many of these flaws at greater length as they discuss the specific charges against the president, but I'll give you a couple of examples as I reach the appropriate points in my overview today because I want you to have in mind throughout our presentation and, indeed, throughout the rest of these proceedings this one principle: Be wary. Be wary of a prosecutor who feels it is necessary to deceive the court.

KWAME HOLMAN: Ruff went on to give an overview of how the defense team will argue against each of two the articles of impeachment, beginning with the charge of perjury.

CHARLES RUFF: Perjury requires proof that a defendant knowingly made a false statement about a material fact. The defendant must have had a subjective intent to lie. Testimony that's provided as a result of confusion or mistake or faulty memory or carelessness or misunderstanding is not perjury. The mere fact that the recollections of two witnesses may differ does not mean that one is committing perjury. Common sense and the stringent requirements of the law dictate that law is required. And that is where you need to begin your focus as you look at the charge that the president perjured himself in the grand jury in August of last year. Any assessment of that testimony must begin with one immutable fact: He admitted that he had, in his words, inappropriate, intimate contact with Monica Lewinsky. No one who was present for that testimony has read the transcript, or watched the videotape could come away believing anything other than that the president and Ms. Lewinsky engaged in sexual conduct. Indeed, even the prosecutors, who surely cannot be accused of being reluctant to find presidential misconduct, contend not that the president lied about the nature of his relationship but only about the details. Yet, the managers, in their eagerness to find misconduct where none had found it before, have searched every nook and cranny of the grand jury transcript and sent forward to you a shopping list of alleged misstatements, obviously in the hope that among them will you find one with which you disagree. But they hope in vain. The record simply will not support a finding that the president perjured himself before the grand jury. Now, the managers begin by asking you to look at the prepared statement that the president offered at the very beginning of his grand jury appearance. Before the president actually began his testimony, his lawyer, Mr. Kendall, spoke to Mr. Starr and told him that at the first moment at which there was an inquiry concerning the detailed nature of the relationship with Ms. Lewinsky, he wished to make a prepared statement and he was permitted to do so. That statement acknowledged the existence of an intimate relationship, but it did not discuss the specific physical details in what I think we will all understand to have been an effort to preserve the dignity of the office. Now, the House has charged that this statement was somehow a "premeditated effort to thwart the O.I.C.'S investigation." That is errant nonsense. Even the independent counsel saw no such dark motive in this statement. Now, to conclude that the president lied to the grand jury about his relationship with Ms. Lewinsky, you must determine -- forgive me -- that he touched certain parts of her body but, for proof, you have only her oath against his oath. Those who have been criminal defense lawyers know that perjury prosecutions, as rare as they are, would never be pursued on the evidence available here. And those among you who do not bring that special experience, at least bring your common sense and are equally able to assess the weakness of the case that would rest on such a foundation. Common sense also is enough to tell you that there cannot be any basis of charging a witness with perjury on the ground that you disbelieve his testimony about his own subjective belief in a definition of a term used in a civil deposition. Not only is there no evidence to support such a charge here, it is difficult to contemplate what evidence the managers might hope to rely on to meet that burden.

KWAME HOLMAN: Next, Ruff argued against the charge the president obstructed justice and tampered with witnesses.

CHARLES RUFF: I want to talk first about what's come known as the "concealment of gifts" theory. The allegation that the president participated in some scheme to conceal certain gifts he had given to Ms. Lewinsky centers on two events allegedly occurring on December 28, 1297: First a conversation between the president and Ms. Lewinsky in the White House in which the two discussed the gifts, at least briefly, that he had given to Ms. Lewinsky; and, [b], Miss Currie's picking up a box of gifts from Ms. Lewinsky and storing them under her bed. The managers, as was true of the majority report and the independent counsel role before that build their theory in this case not on any pillars of obstruction but on shifting sand castles of speculation. Monica Lewinsky met with the president on December 28, 18997, sometime shortly before 8:00 A.M. -- to exchange Christmas presents. According to Ms. Lewinsky, they briefly discussed the subject of gifts she had received from the president in connection with her receipt some days earlier of the subpoena in the Jones case. And this was the first and only time, she says, in which the subject was ever discussed. Now, the managers quote one version of Ms. Lewinsky's description of that December 28th conversation as follows: "At some point I said to him, well, you know, should I, maybe I should put the gifts away outside my house somewhere or give to someone, maybe Betty. And he sort of said -- I think he responded 'I don't know' or 'let me think about that' and left that topic." But the senate should know that, in fact, Ms. Lewinsky has discussed this very exchange on at least ten different occasions and that the very most she alleges in any of them is that the president said "I don't know," or "let me think about it" when she raised the issue of the gifts. Indeed, in many of her versions she said, among other things, there really was no response, that the president did not respond, that she didn't have a clear image in her mind what to do next. She also testified that Miss Currie's name did not come up because the president really didn't say anything. And, most importantly, in not a single one of her multiple versions of this event did she say that the president ever initiated any discussion about the gifts, nor did he ever suggest to her that she conceal it. The next point I want to discuss with you is the statements that the president made to Betty Currie on the day after his Jones deposition, January 18th of last year. There's no dispute in the record, no conflict in testimony, that the president did meet with his secretary, Betty Currie, on the day after the Jones deposition. And they discussed Monica Lewinsky. The managers cast this conversation, this recitation, this series of statements and questions put by the president to Ms. Currie in the most sinister light possible and allege that the president attempted to influence the testimony of a witness-- "witness," by pressuring Ms. Currie to agree with an inaccurate version of the facts surrounding his relationship with Ms. Lewinsky. First Ms. Currie's status as a witness: In the only proceeding the president knew about at that moment, the Jones case, Ms. Currie was neither an actual nor a prospective witness. As to the only proceeding to which she ultimately became a witness, no one would suggest, manners or no one else would suggest the president knew that the independent counsel was conducting an investigation into his activities. In the entire history of the Jones case, Ms. Currie's name had not appeared on any of the witness lists. Nor was there any reason to suspect Ms. Currie would play any role in the Jones case. Discovery was down to its final days. Nor did the president ever pressure Ms. Currie to alter her recollection. Despite the prosecutor's best efforts to coax Ms. Currie into saying she was pressured to agree with the president, Ms. Currie adamantly denied it. Let me quote just briefly a few lines of her grand jury testimony. Question: "Now, back again to the four statements that you testified the president made to you that were presented as statements. Did you feel pressured when he told you those statements?" Answer: "None whatsoever." Question: "What was your impression that he wanted you to say because he would end each of the statements with 'right,' with a question?" Answer: "I do not remember that he wanted to me to say right. He would say 'right,' and I could have said wrong." Question: "But he could end each of those questions with a 'right,' and you could either say whether it was true or not true?" Answer: "Correct." Question: "Did you feel any pressure to agree with your boss?" Answer: "None whatsoever." And now we come to the last of the obstruction charges. The managers ask you to find that the President of the United States employed his friend, Vernon Jordan, to get Monica Lewinsky a job in New York to influence her testimony or perhaps in a somewhat forlorn effort to escape the reach of the federal rules of civil procedure -- actually to hide her from the Jones lawyers in the eight million people that live in that city. There is, of course, absolutely no evidence to support this conclusion. And so the managers who constructed out of sealing wax and string and spider's webs a theory that would lend to a series of otherwise innocuous and indeed exculpatory events a dark and sinister cast the undisputed record establishes the following: One, Ms. Lewinsky's New York job search began on her own initiative; two, the search began long before her involvement in the Jones case; three, the search had no connection to the Jones case; four, Vernon Jordan agreed to help her not at the direction of the president but at the request of Ms. Currie, Mr. Jordan's long-time friend; and, five, the idea to solicit Mr. Jordan's assistance, again, came not from the president but from Ms. Tripp. As I thought about this particular aspect of it, I have to say I was sort of reminded of "Diego" in "Des DeMona's Handkerchief," but we'll pass on. Both Ms. Lewinsky and Mr. Jordan have repeatedly testified that there was never an agreement, a suggestion, an implication that Ms. Lewinsky would be rewarded with a job for her silence or her false testimony. As Mr. Jordan succinctly put it, "unequivocally, indubitable, no." Now, it appears to me that the managers are suggesting, again with not a great deal of subtlety, that Vernon Jordan, one of this country's great lawyers and great citizens was prepared to perjure himself to save the president. So let's just imagine a manager's examination of Mr. Jordan in this chamber that would let you make your own judgment about his truthfulness. Question: "Mr. Jordan, isn't it a fact that you met with Ms. Lewinsky on December 11th to help get her a job?" Answer: "Yes." Question: "And isn't it a fact that before and after you met with her you made you calls to potential employers in New York?" "Yes." " And isn't it true that the reason for all this activity on December 11th was that Judge Wright had on that very day issued an order authorizing the Jones lawyers to depose certain women like Ms. Lewinsky?" "No." Question: "What do you mean no? Isn't it true that the judge had issued her order before you met with Ms. Lewinsky and before you made the calls?" Answer: "I had no knowledge of any such order." Now, I want to stop here for just a second so you know where Mr. Jordan was when that happened. By the way, I was with Mr. Jordan testifying again. I was actually on a plane for Amsterdam by the time the judge issued her order. So he testified in the grand jury. I left on United Flight 946 at 5:55 from Dulles Airport and landed, I understand, the next morning. He gets on his plane at 5:55 in the afternoon and an hour or so later, the lawyers are informed that the judge had issued her order. Now, do you think -- does any of you think that you need to look Mr. Jordan in the eye and hear his tone of voice to understand that the prosecutors have got it wrong?

KWAME HOLMAN: In asking the senate to acquit the president on all charges, Ruff included a personal note.

CHARLES RUFF: I'm never certain how to respond when an advocate onthe other side of a case calls up images of patriots over the centuries who have sacrificed themselves to preserve our democracy. I have no personal experience with war. I've only visited Normandy as a tourist. But I do know this: my father was on Omaha Beach 55 years ago -- and I know how he would feel if he were here today. He didn't fight - no one fought for one side of this case or the other; he fought, as all those did, for our country and our Constitution. And as long as each of us, manager, president's counsel, senator does his or her constitutional duty, those who fought for their country will be proud.

KWAME HOLMAN: Immediately after today's session, a number of Democratic senators said Ruff made a strong presentation that reinforced that there is no need to call witnesses in the trial. Even some Republican House managers said Ruff did an excellent job, but that their version of events is more believable.

JIM LEHRER: Still to come on the NewsHour tonight, some legal perspective on today's proceedings and Shields and Gigot.

FOCUS - LEGAL VIEWS

JIM LEHRER: Margaret Warner has the legal angle.

MARGARET WARNER: To assess the legal effectiveness of the president's defense today, we're joined by New York attorney Bruce Yannett, who was an associate independent counsel in the Iran-Contra probe, and John McGinnis, a professor at Cardozo Law School at Yeshiva University, where he teaches constitutional law among other courses. He clerked for then-Judge Kenneth Starr in 1984 and served in the office of legal counsel in the Justice Department during the Bush administration. Welcome gentlemen.

MARGARET WARNER: Bruce Yannett, how effective a job did the president do -- did the president's team do in attacking the legal case presented by the House managers?

BRUCE YANNETT: I was very impressed by the job that Mr. Ruff did today. I think -- keep in mind he was only speaking for two and a half hours and in effect was rebutting three days' worth of a House presentation. It's also, I think, worth keeping in mind that the White House doesn't really have a burden of proving anything here, but rather simply casting doubt upon the House's case. And in that regard I thought he was quite effective, first in pointing out the holes and the weaknesses and the factual evidence the House relied upon and attacking those parts of the House presentation where they clearly overreached and went beyond what the evidence will support. I think, second, he -- throughout his presentation -- belittled the notion that it's necessary to call witnesses to prove the case, and, in fact, highlighted the contradiction in the House presentation between their claims that the evidence is overwhelming that the president should be removed and their express need for witnesses. And I think finally the thing that he did, I think, implicitly more than explicitly was to remind the senators of the gravity of the decision that's facing them and to point out, remind them that if they were to vote to remove the president, this would be the first time in our history that that was to happen and is this the kind of factual and legal case that justifies taking that first step.

MARGARET WARNER: How did you read the case that was presented today, Mr. McGinnis?

JOHN McGINNIS: Well, I thought Charles Ruff was an extraordinarily effective advocate. He knew the first law of advocacy, which is to know your audience. The House managers had a harder time because they had to speak to both the public which wants this president largely to remain in office and to the senate. But Ruff, his client will speak to the public and so he concentrated entirely on the senate. His arguments, which while boring in some respects, I think spoke to the senators. He spoke about the senate rules, spoke how specific senate precedence might help his case. He also subtly repositioned the whole case, not as the House managers would have it, that the president had an assault, a consistent assault on the judicial branch over a course of many months, but this was really, according to Ruff in his opening statement, a kind of political conspiracy perhaps between Linda Tripp and the independent counsel. And I think he was very successful in using Linda Tripp as the villainess because Judge Starr is well known to many of the senators. That's probably not as believable. And the senate really does not want to hear from Linda Tripp in the well of the senate. And I think that was one of the implicit threats of Ruff's presentation.

MARGARET WARNER: Bruce Yannett, did you feel that, that he was implicit live suggesting that if you want to call witnesses, Linda Tripp would be one of our witnesses?

BRUCE YANNETT: Yes. Absolutely. He laced Linda Tripp in throughout his presentation really from very early on and made the point early on that she played a crucial role in all of this and then came back to Linda Tripp several times, including when he was discussing the obstruction case and talking about how it was Linda Tripp that suggested to Monica Lewinsky that she enlist Vernon Jordan's assistance and then talked about, obviously about how she was involved in the sting operation on Ms. Lewinsky. And so the clear threat, I think was if we're going to have witnesses, it's going to include people like Linda Tripp, who I think in the public's mind have a lower approval rating than even Ken Starr. He also at the same time I think was saying, look, you don't need to call people like Vernon Jordan and Monica Lewinsky. They testified for day after day after day. What they said and what they're going to say is already very well known. It's in the record. It's totally unnecessary. So I think he did both at the same time.

MARGARET WARNER: Mr. McGinnis, Mr. Ruff today spent a great deal of time and sort of built up to a crescendo really when he took on certain factual situations the House managers had presented one way and presented, as we just saw in the exchange about Vernon Jordan, new facts -- facts that had been in the record but had not been presented by the managers. If this were a pure legal case, which, of course, it's not, but how important is that as a legal tactic?

JOHN McGINNIS: Well, I think it's important legal and politically because I do think the senators are going to be trying - many of them in the center -- trying to do justice. They've taken an oath to do that. And I think the -- Charles Ruff was very successful, particularly on some of the conspiracy counts in offering an alternative explanation. Which explanation is ultimately more credible I think is still in doubt. But he was very successful in that. One of the things he did was he used some of the House's overstatements against them, some of their fudges he called them. One of the marks of his skills, his own fudges, I think, were hard to remark on, much harder than the House.

MARGARET WARNER: Like what?

JOHN McGINNIS: One that I would particularly point out was when he said - when, first of all, he minimized the significance of the main perjury count against the president, that the president did not tell the truth about where he touched Monica Lewinsky. That was very central because if that is false, then the president could not have been testified truthfully under any meaning of the definition, because under any meaning of the definition he would have had sexual relations with Monica Lewinsky, and then Charles Ruff went on to say there's really only Monica Lewinsky's word against the president's word. But that isn't really true either because we have contemporaneous accounts, in other words, accounts that Monica Lewinsky gave at the same time to others of her friends about this relationship which bear out a relation, as well as the fact that it's so inherently incredible that this was a one-way physical relationship that the president testified to.

MARGARET WARNER: Bruce Yannett, did you see a little fudging by Mr. Ruff on that point, or do you find him unpersuasive on that point?

BRUCE YANNETT: I certainly wouldn't characterize it as fudging. I think actually what he was trying to do with the perjury count was a couple of things. One was to say some of the allegedly perjurious statements really are very minor, immaterial inconsistencies, like did the relationship start in November of 1995 or January of 1996, for example; did the fact that the president said he met alone with Lewinsky occasionally, was that perjurious because it turned out to be 11 times over two years? I think he effectively diminished the importance of those, and I think what he was trying to was to say to the senate, look, what this is going to boil down to is a he said-she said contest over specific sexual acts. And first of all is that something you want to get into on the floor of the senate - he didn't say this, but this was his message, I think - first of all, do you want to get into this, and, second of all, even if the president lied about where he was touched or where he touched Ms. Lewinsky, is that the kind of lie, is that the kind of act that we're going to remove a president from office over? So I think he was actually quite effective in boiling this down to lying about sex.

MARGARET WARNER: Mr. McGinnis, turn finally to the law and the Constitution, because he did also say, one, the president could never be convicted in a court of law on perjury or obstruction of justice based on these charges. But, two, even if he could be or even if you decide he's guilty of one of them, it does not rise to the level of a removable offense for a president. Did you find him persuasive on those two points, just given your own background?

JOHN McGINNIS: Well, I found him least persuasive on the constitutional portion. He didn't really speak to that at great length. I don't believe he ever really rebutted Charles Canady's presentation, which I think - actually think was the strongest legal presentation we've heard, the congressman from Florida, when he said the Framers understood perjury as an extremely serious matter -- as akin to bribery, indeed as very similar to bribery - that Chief Justice John Jay, our first chief justice, said no crime is more damaging to society because it strikes at the heart of our civic justice system; and that the president has many legal responsibilities that are actually more important than judges. He supervises the U.S. Attorneys; he appoints all the judges. I think he was a little unpersuasive in that. He really didn't address, I think, the power of the House's arguments on that and occasionally even made some mistakes, I think, in the sense that he argued that good behavior, that the senate had introduced legislation to get rid of judges for good behavior, that underscores the power that they have never removed judges for failing to meet the good behavior standard, only for the standard of high crimes and misdemeanors. So I thought he was least persuasive on constitutional grounds.

MARGARET WARNER: Mr. Yannett, your view on the constitutional issue, how well he did today.

BRUCE YANNETT: Well, you know, I think that first of all keep in mind he only had two and a half hours to make an entire presentation. It's the first thing to keep in mind. The second, I think it's quite important to remember that throughout his presentation, what he was saying was are we going to remove a president, overturn a popular election for this kind of conduct -- and that not all perjury is treated the same. And that's certainly true under the law, reminding people throughout the presentation that no reasonable prosecutor would ever bring either of these charges against someone in a court of law, and finally, pointing out that removing a president is the most serious step one can take. It's not the same as removing a single judge out of a thousand judges who the only way they can be removed is through impeachment. But this is quite a different step to take. And so I think that he was not dealing with the debate the framers but don't forget, he was rebutting three days worth of testimony in two and a half hours.

MARGARET WARNER: All right, well more to come. Thank you very much, John McGinnis and Bruce Yannett.

JOHN McGINNIS: Thank you.

BRUCE YANNETT: Thank you.

FOCUS - OVERVIEW

JIM LEHRER: Finally, some overview perspective on today's events from Shields and Gigot, syndicated columnist Mark Shields, and "Wall Street Journal" columnist Paul Gigot. Paul, do you believe Ruff changed any of the basic dynamics of this case today?

PAUL GIGOT: I think he did to some extent, Jim. I think what he did was he gave Democrats, who may be inclined to acquit the president, something to hang their hats on. Last week with the Republican managers' case, there were some Democrats who were saying -- looking around saying, hmm, there's something here we have to be concerned about perhaps. And I think what he did was he gave them an alternative explanation or tried to lay out an alternative explanation. You know, this is the first time in a year, Jim, in a whole year that the White House has actually responded to the facts. I mean, they never did in the House, except in passing in the House impeachment hearings. So this is the first time they've done it. I think they've done it because they feel they have to but they at least did give the Democrats something to hang on.

JIM LEHRER: How do you feel, Mark?

MARK SHIELDS: Jim, first of all, for three days in a row the Republicans were making their case, sometimes well, sometimes not well, but three days they were on offense. And the Democrats were on defense and the Democrats really -- you don't score on defense. What Chuck Ruff did today for the White House was he stopped the hemorrhaging, the hemorrhaging of self-doubt, the hemorrhaging of, you know, gee, is there a case to be made, is there a case to be heard? And, I think, most importantly, the dynamic you asked about, he switched it in this sense. The quite I broke down was: "Impeachment is not a remedy for private wrongs; it's a method of removing someone whose continued presence in office would cause grave danger to the nation." If he shifts the focus to that, then I think the political argument for the president becomes a lot stronger than the legal argument. And I think as long as it's on political grounds, Bill Clinton is in a stronger position.

JIM LEHRER: Just to follow up on the discussion we just heard, and that -- because in our listening to Ruff this afternoon and in our gavel-to-gavel coverage, the name Linda Tripp leapt out and leapt out and leapt out as a kind of a threat.

MARK SHIELDS: Sure.

JIM LEHRER: And Margaret's folks felt the same way. Do you feel that as well? Was he delivering a message?

PAUL GIGOT: He sure was. It was an implicit or maybe explicit threat to the Senators. And there's a great fear on the part of all the Senators of both parties -- but particularly some of the Republicans -- that this thing not get out of control and that it not become a spectacle. And so when they think of witnesses, they would like it contained. Behind the scenes they're telling the House managers, pare down your list, we don't want everybody you've ever thought you'd want to see up here; we want a contained list directly bearing on the facts. Ruff is saying to the Republicans you want witnesses? We'll give you witnesses, we'll give you all you can handle, including some you don't necessarily want to hear. Now some Republicans may say that's a bluff because they really don't want witnesses, and it may be a bluff. But nonetheless, it hangs out there as a challenge to them.

MARK SHIELDS: I think that the move toward witnesses had occurred before Ruff spoke today. I mean, there's no question - it's like Bob Bennett of Utah and Mitch McConnell of Kentucky and Ted Stevens of Alaska, all of whom had been on record against witnesses switching during the Republican managers' testimony and presentation. I don't think there's any question that a majority was moving very strongly in favor of witnesses, there was nothing the Democrats could do to stop them. And I think this is a way of saying, you know, the price of poker just went up.

JIM LEHRER: Interesting that the Senate Minority Leader Tom Daschle said yesterday that he felt - you know, he was opposed to it -- he felt that witnesses were now inevitable. Now Senate Majority Leader Lott said today even in a little session where I was this morning, "I'm not sure that Tom is right." That's a direct quote -- that the movement may not be there after all. That was even before Ruff had spoken.

MARK SHIELDS: That's right. That's right. But Ruff in his presentation - don't forget this, Jim -- confronted the facts. He all but made -- I think he sealed the argument in favor of witnesses.

JIM LEHRER: Is that right?

MARK SHIELDS: I mean, what he did - oh, yes. I think he -- by challenging the facts-

PAUL GIGOT: Yes, sure.

MARK SHIELDS: -- and the conclusions and the statements made and the interpretations made by the House managers in their case he in a strange way -

JIM LEHRER: Do you agree? The only question is who and how many? How many and who?

PAUL GIGOT: Yes. I do think that's right. If he challenges the facts, then the managers are going to come back and say, well, let us put on our case to figure out where these differences are and see who is telling the truth. I think the Daschle and Lott differences are revealing of the anxieties in both of their conferences. You know -

JIM LEHRER: Explain that.

PAUL GIGOT: Tom Daschle knows that five or ten Democrats are inclined to vote for witnesses. So he figures the Republicans will vote for them, so he's going to say it's inevitable. Trent Lott, on the other hand, is saying, you know, I know my members may say they want witnesses but they're still jittery -

JIM LEHRER: Still scared about it.

PAUL GIGOT: -- about the fact it could run out of control.

MARK SHIELDS: I'll play one up with you. You saw Trent Lott. I saw Asa Hutchinson, the congressman from Arkansas, at breakfast this morning with a bunch of other reporters. And there is -- let me tell you -- there is strong division in and among the House managers on what witnesses, if witnesses, whom to call and whom not to call.

JIM LEHRER: I didn't know that.

MARK SHIELDS: There is far from unanimity.

JIM LEHRER: Yes. Yes. Now, as we sit here, we've had all of this and then what's going to happen in about a little less - we're talking -- it's quarter to 7 Eastern time. At 9:00 Eastern time the defendant is going to go right down there to this same place where we've just been watching, in a different room in the same thing and give the State of the Union address. Overlay that remarkable event on this other remarkable event, Paul.

PAUL GIGOT: Well, it's almost as if there is an alternative universe, an alternative presidency being offered by President Clinton. He's going to go up there and if the White House is to believe he's not going to mention this process that is preoccupying the senate and frankly the government - the entire government these days. Instead he's going to talk almost -- it's almost as if somebody else is being impeached or is on trial -- maybe Bob Dole or somebody else. Instead he's going to lay out an argument for the presidency that he would like it to be if none of this other stuff was happening and simply ignore it. It's an extraordinary kind of unreality.

JIM LEHRER: Unreality?

MARK SHIELDS: Well, I made a strong and compelling case at this very spot on Friday that he should not make the State of the Union address, which obviously went unheeded.

PAUL GIGOT: That's the first time.

MARK SHIELDS: I'd say, this Jim. Bill Clinton tonight is the -- is setting the political agenda. He's dominating the political debate. There is nobody on the other side who's remotely in his class right now as far as a national figure. I mean, no disrespect to Speaker Hastert or to Senate Majority Leader Lott. But, I mean, there's no Bob Dole; there's no Newt Gingrich. There's not anybody offering a competing agenda. So what he's going to do tonight is say this is the country's business, this is what we're about.

JIM LEHRER: Social security.

MARK SHIELDS: Social Security and education -

JIM LEHRER: -- tax -- readiness --health care.

MARK SHIELDS: And that really gives him two bites at the apple.

PAUL GIGOT: I see it a little differently. He's going to do some of that but what he's also going to do is he's going to say, look America, we've got a good thing going here. The economy is great. He's going to associate himself -

JIM LEHRER: The market was up today as a - go ahead.

PAUL GIGOT: He's going to associate himself with every bit of good news that we've had or are having. And he's going to say if I'm not the cause, I'm the icon of it; I'm the good luck charm and don't break up this good thing. And if I'm ousted, maybe it will break it up. It's subtle implication of what he's going to be saying tonight. And that's part of his political defense.

MARK SHIELDS: Well, it's more than associating himself. I mean, when the man took office, irrespective of how you feel about his behavior, the nation had its highest and steepest deficit in history. Now we have the highest surplus in history.

JIM LEHRER: In six years.

MARK SHIELDS: In six years. Now, I mean, he's been there. And he's been challenged by the opposition, his policies have been under attack and under siege by some of the great editorial pages of the country. And he's -

PAULGIGOT: He's adopted those same policies and you've resisted them.

MARK SHIELDS: The reality is it's Bill Clinton's deficit reduction plan, I mean, and it's Bill Clinton's economy. And you can be damned sure that if unemployment instead of 4.3 were 10.3 today, it would be Bill Clinton's fault ; it certainly wouldn't be the fault of anything else.

JIM LEHRER: You don't dispute that, do you?

PAUL GIGOT: Any president always gets credit for the economy good or bad - the blame - there's no question about him -- Bill Clinton's been skillful in taking that credit. The idea that everything flowed from that one, single act in 1993, all prosperity bloomed, I would take issue with. There was an intervening event or two, the reappointment of Alan Greenspan, the election of a Republican Congress, but there's no question that Bill Clinton as a political matter wants to take credit for those things, and the country is inclined to give it to him.

JIM LEHRER: Senator Lott was asked how he was going to conduct himself tonight, because that was - you know - a little skittish there. What do you do? Do you stand up and applaud for a guy you're trying for alleged high crimes and misdemeanors? And Senator Lott said, look, I'm prepared to stand up and applaud everything that he says that I agree with. And so somebody said, like what? And he said, well like Social Security reform. He said, we're not far apart on that. He went through a long list of things. And that is really going to be fascinating to watch how everybody handles themselves, both Democrats and Republicans.

MARK SHIELDS: Absolutely. The Democrats don't become too noisy and sort of taunting or whatever else at the Republicans who are a little uncomfortable, many of whom there are under duress and quite reluctantly. Don't forget -

JIM LEHRER: Some of them didn't want to come, right?

MARK SHIELDS: Some of them didn't want to come and I think but the ones who do come will be polite. They know that. I mean, the Republicans were hurt in 1995 when they did their kind of needling of Bill Clinton and it hurt the Republicans at that time. And I would say this. One thing missing tonight and don't forget this, the Democrats' favorite target -- Newt Gingrich -- won't be sitting behind him. I mean, it's going to be Speaker Dennis Hastert and the Democrats miss him.

JIM LEHRER: Do you expect anything major like that to happen, it's all going to be peaches and cream and polite?

PAUL GIGOT: I think it will be restrained, to say the least, on the Republican side. I think they'll politely applaud the presidency, but some of them I've been talking to, and they want to act like the Supreme Court does when the president comes in, which is stand up and when he leaves and enters but not overdo it on the applause.

JIM LEHRER: Again, as they say in journalism, we'll say what happens. Thank you both.

NEWS SUMMARY

JIM LEHRER: And in the other news today President Clinton, as we were just discussing, will deliver his State of the Union address tonight. He'll speak before a joint session of congress in the House chamber, where he was impeached just weeks ago. He was not expected, as Mark just said, to mention the ongoing senate impeachment trial. As he rehearsed today, White House officials said foremost among Mr. Clinton's new initiatives is a plan to shore up Social Security. It will dedicate more than half the budget surplus over the next 15 years to the program. It could amount to $2.7 trillion. He's also expected to propose investing up to 25 percent of that in stocks to take advantage of traditionally higher yields. Republicans also introduced legislative priorities today. G.O.P senators said their first few bills will also focus on Social Security, as well as an income tax rate cut. Senate Majority Leader Lott was asked at a news conference what he thought of the president's Social Security proposal. He said it seemed like a short-term solution, not a long-term one. At the U.S. Supreme Court today, the justices rejected a number of appeals: Three U.S. long distance telephone companies seeking easy access to the local phone service market; a California man's challenge to the state's three strikes law-- he had been sentenced to 25 years to life for stealing a bottle of vitamins because he was a repeat offender; a plea from a Florida Death Row inmate who wanted the electric chair outlawed on grounds it was cruel and unusual punishment; and a desire to revive a price-fixing suit against Ticketmaster. NATO's top general warned Yugoslav President Milosevic to stop attacking ethnic Albanians in Kosovo today, or face air strikes. Supreme allied commander General Wesley Clark met with Milosevic in Belgrade to demand his forces observe the October cease-fire with Kosovar separatists. We have more from Bill Neeley of Independent Television News.

BILL NEELEY, ITN: Serbian forces, on the move once more, hundreds heavily armed, taking over village after village. After four days of shooting, they attacked again today. Near Racak, where they massacred 40 ethnic Albanians, they used machine guns and pounded the area with mortars. We finally found proof that the Serbs are coming under fire. Rebels had fired on these men. Soon afterwards, a helicopter evacuated men. The Serbs said one of their policemen is dead and two injured. Fleeing it all however they can, the ethnic Albanian villagers -- but the Serbs are surrounding the area and they are frightened. This 15-year-old boy was hit by shrapnel; his father killed in the Racak massacre. This is one of four villages in the area now completely deserted. Monitors said this morning that 8,000 people were fleeing. After today's bombardment, there will be many more. The international monitors once again watched today's shelling. They are powerless to intervene. Their leader has been ordered out.

JIM LEHRER: Yugoslavia today let American diplomat and cease-fire monitor William Walker stay in the country one more day. Yesterday he was given two days to leave. Now he has three. He was ordered out for accusing Serb forces of the weekend massacre of more than 40 ethnic Albanians. A Finnish member of the International Olympic Committee resigned today. She was one of 13 members under investigation for allegedly accepting bribes to award the 2002 winter games to Salt Lake City. She was the first I.O.C. Member to quit. Two Salt Lake City officials resigned earlier this month.

RECAP

JIM LEHRER: We will be back at 9:00 P.M. Eastern time on many PBS stations for our live coverage of President Clinton's State of the Union address. And we'll see you tomorrow at 1:00 P.M. Eastern time for our continuing coverage of the impeachment trial, also on many PBS stations. And, of course, we'll see you online and at our regular time here tomorrow evening with reaction to, and analysis of, both the State of the Union and the impeachment trial. I'm Jim Lehrer. Thank you and good night.