Writing Articles of Impeachment Is Exhausting
James Rogan, who helped build the case against Bill Clinton in 1998, knows exactly what Democrats on the Judiciary Committee are going through right now.
Updated at 12:21 p.m. ET on December 4, 2019.
It’s an exclusive club that members of the House Judiciary Committee are joining today: The United States has undergone impeachment just three other times in its history, and only a handful of people each time have been charged with compiling a list of the president’s impeachable offenses.
James Rogan knows what that’s like.
Rogan, now a superior-court judge in California, was a 41-year-old member of the Judiciary Committee during former President Bill Clinton’s impeachment. He was present for all the late nights and early mornings the committee spent reviewing Independent Counsel Kenneth Starr’s 453-page report in the fall of 1998 detailing the president’s affair with Monica Lewinsky. And he worked alongside other members of a dedicated team, which included now-Senator Lindsey Graham of South Carolina, to help narrow down Starr’s list of 11 possible impeachable offenses to just four. Later on, Rogan served as one of the 13 House managers during Clinton’s trial in the Senate—the representatives tasked with presenting the Republican majority’s case.
While Rogan was a leader on impeachment, he was also a casualty of the process. Democrats spent a record sum to unseat him in 2000, and he lost his reelection bid by nine points. The man who defeated him was none other than Adam Schiff, the current Democratic chair of the House Intelligence Committee, who has shepherded the impeachment inquiry into President Donald Trump.
“Here I am, 21 years later, and people still come up to me all the time and say, ‘Well, knowing what you know now, would you do it again?’” Rogan told me in an interview. “[I knew] this [was] going to cost me everything professionally—and it did. But I knew that going into it, and so I’ve never had any regrets.”
Democrats on the Judiciary Committee now find themselves in the same position as Rogan was more than two decades ago: deciding on and drafting articles of impeachment against a sitting president. The committee kicked off its first public hearing with expert witnesses this morning, and it will spend the next several days compiling a list of allegations that members will argue necessitate Trump’s removal from office. The offenses that end up on that list will help determine the success of the impeachment effort, and they will appear beside Trump’s name in history books for generations to come—phrases like abuse of power and obstruction of justice.
I called Rogan this week to understand what it’s like to take on such a project. We discussed House Republicans’ late-night Chinese-food runs in 1998, the demands of being on Judiciary Chairman Henry Hyde’s “Fact Team,” and how it felt to participate in a process that changed the course of American politics. Our conversation has been lightly edited for length and clarity.
Elaine Godfrey: In December 1998, you and your Republican colleagues were at roughly the same point in your impeachment inquiry as the Democrats are now. What was it like, being so involved in that process?
James Rogan: We were in a late-night session of the Judiciary Committee [on December 1, 1998], as I recall, [when Chief Investigative Counsel] Dave Schippers handed me a plain manila envelope and said, “Look at this when you get a chance, but don’t show it to anybody.” And I threw it in my briefcase, and didn’t think much of it, because there was all this paperwork going back and forth between members of Congress. I remember getting home late that night, and I was going through all the stuff in my briefcase, and I pulled out this envelope and opened the top, and my eyes popped out of my head. It was a several-page document captioned: “Draft Articles of Impeachment Against the President of the United States.”
There I was, sitting at my kitchen table going over it, line by line, making suggestions, amendments, comments, changes. I faxed it back to Dave Schippers and, ironically, that document with all of my handwritten notes was on display at the Smithsonian from 2000 to 2018.
Godfrey: Did you meet as a whole committee about the articles?
Rogan: I had innumerable meetings with Chairman Hyde during that period, sometimes by myself. I had been a former prosecutor and a former judge, and so he called me a lot. I would go in and meet with him with other members of the committee. And those tended to be the people that he assigned a leadership role to bring the articles forward in the House and to handle the debate in the House. He called it the “Fact Team”: Bill McCollum from Florida, Asa Hutchinson [from Arkansas], Ed Bryant from Tennessee. By the time we got to the Senate [trial], the lead guys were [me, Hutchinson, Bryant] and then Lindsey.
Godfrey: What were those meetings like?
Rogan: I used to bring my camera into some of these behind-the-scenes meetings, and some [photos] are actually in my book. I’m looking at one here where Bill Jenkins [of Tennessee] is sitting next to Lindsey Graham, back in our majority conference room. Bill is reading Roll Call and Lindsey’s watching TV. There are pictures of us all working around the table, and you can see cups of coffee, and people with boxes and documents.
Pizzas were ordered sometimes, and sometimes we’d go out. Sometimes, if we were working, and it was 11 or 12 o’clock at night, we’d go find some late-night Chinese restaurant that was open nearby. You’d have all these people sitting around some fast-food place discussing articles of impeachment in a corner booth.
Godfrey: How much of a factor was public opinion in those discussions?
Rogan: I was paying attention to it closely. Of the 13 House managers that prosecuted President Clinton’s case and of all the Republicans on the House Judiciary Committee, I was the only one representing not just a Democratic district, but a heavily Democratic district where Bill Clinton won both times by large majorities.
Just before the vote [on articles of impeachment], Newt Gingrich pulled me out of the committee hearing. And he had a poll in his pocket. He pulled it out, and he said, “Have you seen the poll? [It shows that if] you vote to impeach Bill Clinton, 75 percent of high-propensity voters will never vote for you again.” That included quite a number of high-propensity Republican voters. So impeachment in my district was a shortcut to the unemployment line.
But it wasn’t dispositive to me, because that wasn’t my training. I had been a gang-murder prosecutor in the Los Angeles County DA’s office. I had been a state-court judge in California. People with that kind of background aren’t hardwired to read polls before they go into court and try cases or render judgments on cases. I figured it would probably cost me my reelection, but that’s what I get paid to do.
Godfrey: Were you watching or reading anything that was helpful to your decision making in this process?
Rogan: There was so much briefing material coming our way that there really was no time for leisurely reading. We were so busy, particularly those of us who were on the Fact Team. Our instructions from Chairman Hyde were very specific. He told us, “You four guys need to know every jot and tittle of that 400-page Starr report. You need to know where all the exhibits are—you need to know what’s in every document—so that no matter what anybody says during debate, if they get up and say something that isn’t true or isn’t documented, I need one of you guys to be able to get up and rebut that right now.”
It was like studying for the bar exam.
Godfrey: What were the tension points among Republicans on the committee? Did you get into any arguments about the articles?
Rogan: I don’t remember any arguments. It was tense in the sense that we knew that this was very historic and was going to have significant political and constitutional repercussions. But there was never anybody shouting or anybody pointing fingers.
There were political discussions. I had a lot of individual [Republican] members coming up to me saying things like, “You know, I’m kind of in a marginal district. Throw some articles in there that I can vote against, because I want to be able to say I didn’t vote for all of them, that I voted against some of the articles.”
I had a lot of Republicans come up to me and say, “Which are the two that you need?” I would tell them, “If you’re only going to vote for two, vote for perjury and obstruction of justice.”
In fact, that’s exactly what happened. We had four articles of impeachment in the committee, and the House only passed two articles.
Godfrey: Democrats are currently trying to decide if they should stick to Ukraine in the impeachment articles, or include other alleged Trump offenses like violations of the emoluments clause. Were you thinking back then about folding in allegations that weren’t related to the Starr report?
Rogan: I not only was thinking about it; I was advocating for it. I did not believe we should limit ourselves to the Starr report. In fact, I had very limited interest in the whole Lewinsky saga. Of course I knew that the president had committed perjury and obstructed justice to try to beat Paula Jones’s lawsuit against him, and I thought that should be included. But I thought that there were also bigger fish to fry. Clinton had various scandals unrelated to the Starr report, and I felt we should do what the House Judiciary Committee did in 1973 and 1974: Open up hearings, give the president an opportunity to rebut the charges, bring in evidence, let his lawyers cross-examine the witnesses. But that was vetoed.
Rogan: Remember that the midterm elections happened in early November 1998. Speaker Gingrich had been predicting that we were going to pick up 20 or 30 seats. But not only did we not pick up 20 or 30 seats; we lost seats, and we came within a whisker of losing our majority. So there was a beaten-down sense among Republicans that this is a political loser. There was a major sense of making this thing just go away as quickly as possible.
Godfrey: What was the experience like personally for you?
Rogan: It was physically exhausting, for a number of reasons, aside from the political beating I was taking back home every day. I was just getting my teeth kicked out on a daily basis for two straight years. If you were to come into my chambers today, hanging over the door is my favorite piece of political memorabilia. It’s in a great big frame—a huge handmade sign that says People unite, denounce Rogan. It was from one of three burn-me-in-effigy rallies held one weekend.
When we moved over to the Senate, we were going on two and three hours of sleep a night for six weeks. I was very beaten down.
Godfrey: How would you describe your attitude throughout the process?
Rogan: I’m going to answer your question and then I’m going to regret answering it truthfully, because when you report it, even if I try to explain it, it’s going to come across the wrong way. I had the time of my life. And it’s because I’m a history buff. Putting aside all of the pain and everything else, for anybody who’s a real trial lawyer, as I was, when you try a case where the president of the United States is your defendant; the United States Senate is your jury; the chief justice of the United States is your trial judge; every word spoken is on live, worldwide television; and you know that, every time you open your mouth, if you say something stupid, your great-grandkids will get to watch it on the History Channel, the stakes don’t get any higher. It was the ultimate trial.
Henry Hyde was always yelling at me, because I’d go on TV shows like Meet the Press with Tim Russert and I always had a smile on my face. I was not somber. He was constantly telling me, “Stop smiling,” and I told him, “Look, Henry, now I understand why the Christians, when they got thrown to the lions, they sang before the lions ate ’em. You know you’re going to get eaten by the lions anyway. Hell, you might as well sing. Since I know I’m going to get my ass kicked anyway, I might as well just smile.”