“The Right Side of History” is a podcast dedicated to exploring current events through a historical lens and busting left-wing myths about figures and events of America’s past.
On this week’s episode, hosts Fred Lucas and Jarrett Stepman talk to California Superior Court Judge James Rogan, a House impeachment manager during the Senate trial of President Bill Clinton and the author of “Catching Our Flag: Behind the Scenes of a Presidential Impeachment.”
Rogan, who served two terms in the House of Representatives, talks about the Clinton scandal that led to impeachment, why he says that Senate trial was a “sham,” and his three campaigns against Adam Schiff, which gave him a 2-1 record over the California congressman now leading the impeachment effort against President Donald Trump.
Jarrett Stepman: We are now joined by Judge James Rogan. Rogan is a California Superior Court judge in Orange County, California. He has served in the California Assembly as well as the U.S. House of Representatives in California’s 27th District. He was one of the 13 House managers in the impeachment trial of President Bill Clinton. Thank you so much for joining us on the show.
James Rogan: Jarrett, it’s a pleasure to be with you today and I appreciate the invitation.
Stepman: Well, you’re quite welcome and of course bringing you on is very apt at this moment as many in this country are talking about a potential impeachment trial. You have actually participated [in] one in the House of Representatives. First of all, can you explain to us how exactly you became one of the managers of this impeachment trial back in the 90s?
Rogan: Yeah, I can’t even say it was dumb luck. It was through tragedy. When I came back to Washington, I was elected in November 1996 and I came back for freshman orientation and the Republicans had only held the House for two years after a 40-year Democrat domination of the House. And the chairman of the Judiciary Committee, Henry Hyde, invited me over to his office and it was a great honor to meet him because I was a long time admirer of chairman Hyde. And he tried to recruit me to Judiciary.
He said, “Look, you’re a former gang murder prosecutor from the LA County DA’s office. You’re a former judge. You are exactly the kind of guy I want on Judiciary.”
And I told him, “Mr. Chairman, I’m flattered. Forget it. There’s no way I’m coming on the Judiciary Committee with you. I just got elected with 50.1% in a Democrat district that Bob Dole lost by about 20 points, our Republican presidential nominee. And so I’ll be with you on all the key votes that I believe in. I’m pro-life and I’m pro-gun, but I’m getting on the Commerce Committee and I’m not going to be there fighting with Maxine Waters and Barney Frank every day on TV. It’s just, that’s not going to help me back in my Hollywood movie studio-based Southern California, Los Angeles district.”
So I went on the Commerce Committee and about every three or four months, Henry would lobby me to get on the Judiciary Committee. And I was getting to the point where I was going to hold up a crucifix or put cloves of garlic around my neck to keep him away from me. But he finally came up to me toward the end of my first year and he said, “You’ve got all those Hollywood movie studios in your district. Intellectual property is the lifeblood of your district. I’ve been doing some research. On the Judiciary Committee, we have the intellectual property subcommittee. That would really be a good thing for you. If I can get you on that subcommittee, would you come on Judiciary?”
And I told him, “Well, OK, I will do that.” And he said, “However, we don’t have any openings and we won’t have any openings for about a year. And so after the elections in a year and we get the new Congress in and if you’re still here, I’ll have an opening. I’ll put you on that committee.”
Well, about a month or two later, my beloved friend Sonny Bono was killed in a skiing accident, January 1998. And so I went to Sonny’s funeral and we were very close friends and Henry sits down next to me in the service and he starts crying as they’re bringing in the casket. And that made me get choked up.
And through his tears, Henry’s wiping his eyes, he said, “You know, Jim, Sonny was on the intellectual property subcommittee. We’ve got that vacancy now. So remember we had that conversation. I’m going to recommend you for it.”
So to make a long story short, just to show you how this worked, I’m giving you these dates for a reason. Sonny was killed on Jan. 5. On Jan. 9, I’m at the funeral. On Jan. 11, Henry sent a letter to Speaker [Newt] Gingrich asking for a waiver because anybody serving on Commerce can’t serve on any other committee. Gingrich approved the waiver, went to a House vote I think on Jan. 20.
On Jan. 21, I got up at 5:30 in the morning to catch a plane to California. I looked at the newspaper, on the front page, there was some article about [President Bill] Clinton having an affair with an intern. And so by the time I just like kind of shrugged and I said, “Well, no big deal.” By the time I landed in California, the Monica Lewinsky story had exploded all over the worldwide press.
Reporters were hounding me because they thought they had put two and two together. The scandal has broken out and they just put a former gang murder prosecutor on the committee today.
And so all these reporters were waiting to hit me at the airport and I just smiled and said, “Hey, I’m just here to work on intellectual property patents, copyrights, trademarks.” Nobody believed me, but it was just by incredible timing and born of a tragedy of the death of Sonny. Otherwise, that whole thing would’ve bypassed me.
Fred Lucas: One thing, speaking of your district, one thing I did want to ask you is that the person leading the current impeachment situation, that is Congressman Adam Schiff. You have a history with him. If you could talk about just the factual history there. I believe the two of you ran against each other three times.
Rogan: Congressman Schiff beat me in 2000 after the Clinton impeachment. And I don’t mean this as any reflection against Congressman Schiff because he’s a very tough campaigner and he beat me fair and square.
But we took a poll in the district right after I’d been reelected in November 1998. And we were about to begin the impeachment hearings with Judge Ken Starr testifying. Two weeks after I’d been elected with 50.1%, the poll said, if you vote to impeach Clinton, 75% of high-propensity voters will never vote for you again. And that included high-propensity Republican voters.
Clinton was very popular in my district. And although Congressman Schiff was the horse that the Democrats rode to victory, they could’ve probably run Zoot Fenster against me in 2000.
I have a poster that I still keep framed in my office from one of the three “Burn Rogan in Effigy” rallies held in one weekend in my district. I’m looking at it right now. It’s been hanging in my office for 21 years. It says, “Beware the wrath of the people. It does not forget.” And on the back, “People unite, denounce Rogan.”
Stepman: Oh my goodness.
Rogan: Impeachment made me very much of a pariah in the district. And although I didn’t lose by 75%, as I told Henry Hyde later with a smile … 60% of the people in my district never voted for me again. So he did beat me for Congress.
We had run against each other previously for the State Assembly and I beat him those two races. And I’ve teased him over the years that I’m still two for one up on him, but then he likes to remind me, “Yes, that’s true. But I’m sure you would trade those two for my one,” and he’s correct.
Stepman: So, getting to the concept of impeachment of course is something that’s very much talked about right now. I think a lot of Americans kind of want to know … why impeachment. As a former prosecutor, lawmaker, and now a judge, can you explain what legally constitutes the kind of vague phrase, high crimes and misdemeanors?
Rogan: That’s a great question. In fact, we struggled with that back in 1998 … just as the House struggled with it back in 1868 during the Andrew Johnson impeachment.
When the Clinton impeachment occurred, there had been up until from 1789 until 1998, when we were on the scene, my recollection is there had been about 17 different impeachments, one president, Andrew Johnson. The rest, mostly federal judges. I think there were … a few cabinet members thrown in there as well.
And as I told people often who kept saying to me, “Well, you impeached him for lying about an affair and that’s not a high crime and misdemeanor.” And I’ve been reminding people for over 20 years, we didn’t impeach him for having an affair. President Clinton had been caught dead bang, committing perjury in a felony civil rights lawsuit filed against him, in which he had been ordered to defend himself. And had been ordered to answer questions by a federal judge.
He had also suborned felony perjury and he had dead bang obstructed justice. And these were all things we proved during the impeachment trial.
And here’s what … my response to people for the last two decades [has] been: The Founders use that phrase, high crimes and misdemeanors. They didn’t invent it. That came back from our English common law heritage—treason, bribery, and other high crimes and misdemeanors. The House of Representatives defines what is a high crime and misdemeanor in the constitutional phrase. So it’s the precedents of the House.
And that was one of the main reasons why I voted to impeach President Clinton because, yes, the subject matter of his perjury was somewhat tawdry and not of a major concern like treason or bribery. But here would be the problem. If the House had said to President Clinton and to indeed America, “We’re going to refuse to impeach Bill Clinton for committing selling a perjury,” we would have set a standard for every future presidential impeachment. That perjury subornation of perjury and obstruction of justice in a federal proceeding was not an impeachable offense.
Yeah, maybe you could prosecute the president in the future after he or she left office, but we would have set a standard that felony behavior in that concept, and that context was not an impeachable offense. And as a former judge and prosecutor at the time, that was nothing to which I could ever put my name on.
I knew it would cost me my reelection if I voted to impeach Clinton. But I did what I thought was right. [I] went home, spent a year explaining it, fought hard, and accepted the consequences.
Lucas: Yes, on that same note, and this is a question that I’ve had, the Judiciary Committee approved four articles of impeachment against Clinton. Out of those, the full House approved only two of those.
Lucas: My questions, two questions on that are: One, the House rejected the article on perjury in the Jones case, yet it approved perjury and the federal grand jury case. Democrats, as you mentioned, claim that this was only about an affair. The Republicans, their core argument was perjury is perjury.
Do you think it undermined the argument that perjury is perjury when the House says we’re going to impeach him for this perjury but not impeach him for the perjury in the civil suit?
Rogan: Well, I don’t know what the correct answer to your question is because in fact you may or may not know on President Clinton’s last day [in] office, he signed a plea bargain with the special counsel to avoid being prosecuted where he admitted everything that we impeached him for.
He paid massive fines. He resigned his law license because the U.S. Supreme Court and the Arkansas Supreme Court [were] about to disbar him. And so I guess that becomes an academic question.
I answer your question politically. We had a whole bunch of Republicans that had voted yes on one perjury and no on another perjury, including one of my colleagues on the Judiciary Committee who became a House manager.
And when I asked a number of my colleagues, “How come you’re voting yes on one and no on the other? Do you think we didn’t prove it?”, they all told me the same thing, “Well no, I know that you proved it but I want to be able to go home and say I voted against something. I want to be able to say, ‘Well, you see, I didn’t vote for all of them,’ it makes me look more reasonable because I’m in a district with a lot of Democrats.”
And so it was a total political drill. I don’t recall anybody coming up to me saying, “I believe there was perjury in one instance and I don’t believe it or in another.” There wasn’t a single person who told me that. They all told me they did it because they wanted to be able to say they voted for some but voted against others.
Lucas: All right, I think that answers my question. The impeachment is ultimately a political process.
Rogan: … As Alexander Hamilton said, “It’s a political decision.”
Lucas: The other question on that, and this kind of bears on the situation today, but the other article the full House didn’t accept was abuse of power. Is that something that is just too broad and too vague?
Rogan: I haven’t read the Articles of Impeachment in 22 years and so I can’t tell you off the top of my head the way that was phrased. If you were to just ask me in a vacuum, is that a vague phrase? [The] answer is yes. I don’t recall what the text of that particular article was.
Ken Starr had presented 11 or 12 potential felonies, as I recall. We went forward in the committee and passed out four of them. The House selected two but what was in the actual text? I just can’t, I’m sorry. I can’t remember.
Stepman: So ultimately, and you kind of answered this question before, you kind of paid the ultimate, I guess you could say political price for helping lead this impeachment effort. Do you … still think it was ultimately the right thing to do, the right thing to do at that time?
Rogan: I thought it was the right thing to do at the time and I still think it’s the right thing to do. I’m always amused 20 years later people will sometimes ask me, “If you had to do it all over again knowing you were going to lose your seat in the Congress, would you have done it?” And I just smile.
In fact, if you go back and you look at my closing arguments at the Senate in February 1999—a year and what, 10 months or so before my final election campaign?—I told the senators, it ended up being extemporaneous.
I told the story about how I had a prepared closing argument and then I got ticked off five minutes before I walked onto the Senate floor to deliver one of the last closing arguments. And I tossed out three-quarters of my prepared speech and I went out and extemporized. You’d probably find it on YouTube.
Rogan: But I went out there and told them, told the senators, “Look, I spent 30 years of my life dreaming of one thing. Most kids want to play in the World Series. I wanted to be a congressman. Here I am, and in my freshman term I have to cast a vote that means I’m probably not coming back.” And I told them, “This is what the polls in my districts say. I’m not going to come back for this because of this.”
And that was my way of expressing to them, this was not some vendetta that Republicans had. I was putting my career on the line because I believed it was the right constitutional obligation, it was the constitutional obligation I had. I took an oath to support and defend the Constitution.
And if I had gone ahead and taken a dive on that vote just to save myself, then I wouldn’t have been any more worthy of office than President Clinton, who abused his constitutional oath of office.
I was telling people we needed to impeach President Clinton and remove him from office for violating his oath of office and for me to have voted no would’ve been the same violation. I wouldn’t have been any more worthy of maintaining my seat than I felt he was.
So I just went, I did what I had to do, and I took my medicine 20 years ago and I’ve never looked back and I don’t regret it.
Yes, I wish I were still there. I’m sorry that I didn’t get to spend decades in Congress. I think I was a pretty good congressman, but ultimately, those jobs don’t belong to the people that holding them temporarily. They belong to the people who send you, and when you make the people who send you angry, you should expect a one-way ticket home.
Lucas: This is something that bears on any impeachment going forward. Why was it still worth it when there was almost zero chance of 67 votes in the Senate?
Rogan: Well, we knew there was zero chance. In fact, my book that I wrote on impeachment, “Catching Our Flag,” came out in 2011. Nobody knows about it because the day it was released, 24 hours before it was released, Navy Seals killed Osama bin Laden. And I thought to myself, “If Henry Hyde were alive, he’d be telling me what he used to tell me all the time, ‘That Clinton luck.’”
But I tell the backstory of what went on during all of this and how it was, everybody was maneuvering behind the scenes from my 3 or 4 feet of diary notes.
The interesting thing from that book did come out from Republicans who read it, they weren’t angry at the Democrats. They were angry at the Republicans when they saw the way they were moving mountains, trying to get us to not impeach him, and then once we did impeach him, to tank the impeachment.
Trent Lott, the majority leader, came into a room with me and with our chief counsel on the Judiciary Committee, Dave Schippers. By the way, a Democrat who voted for Clinton in ‘92 and who was a member of Bobby Kennedy’s mafia strike force in the 1960s. He was our chief counsel, chief investigative counsel on the committee.
And Trent Lott told both Dave and me:
I don’t care. We don’t care if you have pictures of Bill Clinton standing over a dead woman with a smoking gun. The polls say they didn’t want him impeached. You guys impeached him and for doing that you just lost your majority.
We’ve got a majority of Republicans in the Senate. We have 55 Republicans. Seven of my Republicans are up for election in 2000, are in tough races.
You guys have just jumped off a cliff. We’re not jumping off a cliff. We’re going to make this, we’re going to put this thing to bed, and you’re going to be sorry. Make this go away because if you don’t, if you bring this over to the Senate, you guys are going to be the ones that get the short end on this.
And Dave and I tried to tell him, “Well, what about your constitutional obligation?” He just blew it off and to this day I watch Trent Lott giving interviews along with Tom Daschle, the Democratic leader, and they’re still patting each other on the back for their bipartisan effort to totally tube this trial.
The Senate precluded us. It was a sham trial. I’ve been calling it a sham trial for 20 years. It wasn’t a trial and Trent Lott told me, he said, “It’s going to look like a trial. Everybody’s going to call it a trial.”
It’s the only trial I know of in American history where the prosecutors were not allowed by the jury to call a single witness to prove their case. The Senate voted in secret 100-to-zero, to prevent the House managers from calling one single live witness to prove their case. It was a sham trial.
I tell the story in the book how I made a motion among the House managers that if Trent Lott pulled this, we should announce we were refusing to proceed until the Senate went back to regular order and let us prove to the American people the reason a Republican-controlled House with five Democrats voted to impeach Bill Clinton. Five Democrats withstood incredible pressure from the White House and if they refused to do it, we should walk off the Senate floor.
All 13 managers agreed with that motion and then when Trent Lott walked into our room with Rick Santorum and said, “This is the way it’s going to be, we just voted 100-to-zero. You’re not calling any witnesses. That’s the way it goes,” I renewed my motion and the only guys that stood with me when it came time to pull the trigger were Bob Barr from Georgia and Chris Cannon from Utah. Everybody else said, “Well, I guess that’s what we have to do.”
Stepman: Well, Judge Rogan, thank you so much for your time and explaining how this process works. We really appreciate [you being] here on the “Right Side of History.“
Rogan: It’s my pleasure to be with both of you. And as I told you before we went on, I have a longstanding relationship with [The Heritage Foundation]. When I was in Congress, in fact, when I spoke at Heritage once, I said, “When important votes come up, members of Congress, the conservative Republicans went back into the cloak room. And the first question they were asking the people running our cloakroom was, ‘Has Heritage weighed in on this yet?’” So keep up the great work.
Stepman: Well, that’s great. Thank you so much.
Lucas: Thank you so much, sir.
Rogan: Thanks everybody.