Submission by Counsel for President Clinton to the Committee on the Judiciary
of the United States House of Representatives
David E. Kendall Gregory B. Craig Charles F.C. Ruff Nicole K. Seligman
Special Counsel to Cheryl D. Mills Emmet T. Flood the President Lanny
A. Breuer Max Stier The White House Office of the White Alicia L.
Marti Washington, D.C. 20502 House Counsel Williams & Connolly The
White House 725 12th Street, N.W. Washington, D.C. 20502 Washington,
D.C. 20005
December 8, 1998
PREFACE
In addition to the factual, legal and Constitutional defenses we present in thi
s
document, the President has asked us to convey a personal note: What the Presi
dent
did was wrong. As the President himself has said, publicly and painfully, "the
re is
no fancy way to say that I have sinned."
The President has insisted that no legalities be allowed to obscure the simple
moral
truth that his behavior in this matter was wrong; that he misled his wife, his
friends and our Nation about the nature of his relationship with Ms. Lewinsky.
He
did not want anyone to know about his personal wrongdoing. But he does want
everyone -- the Committee, the Congress and the country -- to know that he is
profoundly sorry for the wrongs he has committed and for the pain he has caused
his
family, his friends, and our nation.
But as attorneys representing the President in a legal and Constitutional
proceeding, we are duty-bound to draw a distinction between immoral conduct and
illegal or impeachable acts. And just as no fancy language can obscure the fac
t
that what the President did was morally wrong, no amount of rhetoric can change
the
legal reality that the record before this Committee does not justify charges of
criminal conduct or impeachable offenses.
The Framers, in their wisdom, left this Body the solemn obligation of determini
ng
not what is sinful, but rather what is impeachable. The President has not
sugar-coated the reality of his wrongdoing. Neither should the Committee ignor
e the
high standards of the Constitution to overturn a national election and to impea
ch a
President.
TABLE OF CONTENTS
PREFACE i
I. INTRODUCTION 1
II. THE FACTUAL BACKGROUND 5
A. The Whitewater Investigative Dead-End 5
B. The Paula Jones Litigation 8
C. The President's Grand Jury Testimony About Ms. Lewinsky 12
III. THE CONSTITUTION REQUIRES PROOF OF OFFICIAL MISCONDUCT FOR IMPEACHMENT 13
A. Under the Constitution the Conduct Alleged in the Referral Does Not Reach th
e
Level of "High Crimes and Misdemeanors" 14
1. Historical Background of "High Crimes and Misdemeanors" 14
2. The Framers Believed that Impeachment Redresses Wrongful Public Conduct 18
3. Our Constitution's Structure Does Not Permit Impeachment for Reasons of the
Sort
Alleged in the Referral 21
B. American Presidential Impeachment Practice and Contemporary Scholarship Conf
irm
that Impeachment Is Only for Political Offenses Against the State Itself, Not f
or
Private Wrongs 24
1. Prior Impeachment Proceedings Against American Presidents 24
2. Contemporary Views Confirm that Impeachment Is Not Appropriate Here 28
C. Relevant Historical Precedents Demonstrate that No Impeachable Offense Has B
een
Alleged Here 31
1. Alexander Hamilton 31
2. The Failure of the Proposed Article of Impeachment Against President Nixon
Alleging Fraudulent Tax Filings 33
IV. THE CONSTITUTION REQUIRES CLEAR AND CONVINCING EVIDENCE TO APPROVE ARTICLES
OF
IMPEACHMENT 38
A. This Committee Should Apply the Same Clear and Convincing Standard Observed
by
Its Predecessor in the Watergate Proceedings 38
B. The Clear and Convincing Standard Is Commensurate with the Grave Constitutio
nal
Power Vested in the House 41
V. THE COMMITTEE SHOULD NOT RELY ON THE REFERRAL'S ACCOUNT OF THE EVIDENCE 43
A. The Information Presented to the Committee in the Referral Has Not Been Subj
ected
to the Most Basic Adversarial Testing 46
B. The Referral Differs Vastly From the Precedent of the Watergate "Road Map" 4
6
C. The Resulting Referral Omitted a Wealth of Directly Relevant Exculpatory Evi
dence
47
D. Mr. Starr's Conduct in the Lewinsky Investigation Has Betrayed a Bias that H
elps
Explain the Lack of Neutrality in the Referral 51
VI. THE PRESIDENT DID NOT COMMIT PERJURY 54
A. Elements of Perjury 54
B. Contradictory Testimony From Two Witnesses Does Not Indicate That One Has
Committed Perjury 57
1. It Must Be Proven that a Witness Had the Specific Intent to Lie 57
2. A Perjury Case Must Not Be Based Solely Upon the Testimony of a Single Witne
ss 59
C. "Literal Truth" and Non-Responsive Answers Do Not Constitute Perjury 61
D. Fundamentally Ambiguous Questions Cannot Produce Perjurious Answers 65
E. It Is Expected and Proper for a Witness to be Cautious When Under Oath 69
F. Specific Claims of Perjury 70
1. Civil Deposition of January 17, 1998 71
2. Grand Jury Testimony of August 17, 1998 86
VII. THE PRESIDENT DID NOT OBSTRUCT JUSTICE 89
A. The Elements of Obstruction of Justice 89
B. Specific Claims of Obstruction 93
1. There Is No Evidence that the President Obstructed Justice in Connection wit
h
Gifts Given to Ms. Lewinsky 93
2. The President Did Not Obstruct Justice in Connection with Ms. Lewinsky's Job
Search 114
3. The President Did Not Have an Agreement or Understanding with Ms. Lewinsky t
o Lie
Under Oath 137
4. The President Did Not Obstruct Justice by Suggesting Ms. Lewinsky Could File
an
Affidavit 141
5. The President Did Not Attempt to Influence Betty Currie's Testimony 148
6. The President Did Not Attempt to Influence the Testimony of "Potential" Gran
d
Jury Witnesses Through His Denials 152
VIII. THE PRESIDENT DID NOT ABUSE POWER 156
A. The President Properly Asserted Executive Privilege to Protect the
Confidentiality of Communications with His Staff 158
1. The White House Made Every Effort at Accommodation and Ultimately Asserted t
he
Privilege as Narrowly as Possible 160
2. The Court's Ruling Upholding the White House's Assertion of Executive Privil
ege
Squarely Rebuts the OIC's Abuse of Power Claim 165
B. The President Was Entitled to Assert Attorney-Client Privilege to Protect th
e
Right of Presidents to Request and Receive Confidential and Candid Legal Advice
from
White House Counsel 166
1. The Governmental Attorney-Client Privilege Claim Was Grounded in the Law of
the
D.C. Circuit and the Supreme Court 167
2. The Courts' Rulings Squarely Rebut the OIC's Claims of Abuse of Power 168
C. The Privilege Litigation Did Not Delay the OIC's Investigation 171
D. Mr. Starr Misrepresents the Record to Claim that the President Deceived the
American Public About the Executive Privilege Litigation 174
E. The President's Decision Not to Testify Before the Grand Jury Voluntarily Wa
s Not
an Abuse of Power 176
F. False Public Denials About an Improper Relationship Do Not Constitute an Abu
se of
Office 176
1. Subjecting a President to Impeachment Would Disrupt Our Constitutional Gover
nment
177
2. The President's Denial of an Improper Relationship Is Not Comparable to Pres
ident
Nixon's Denials of Involvement in the Watergate Burglary and Cover-up 179
IX. CONCLUSION 183
SUBMISSION BY COUNSEL FOR PRESIDENT CLINTON TO THE COMMITTEE ON THE JUDICIARY O
F THE
UNITED STATES HOUSE OF REPRESENTATIVES
I. INTRODUCTION
The President of the United States has not committed impeachable offenses. He
repeatedly has acknowledged that what he did was wrong, he has apologized, and
he
has sought forgiveness. But his apologies, his acceptance of responsibility, a
nd
his contrition do not mean either that the President committed criminal acts or
that
the acts of which he is accused are impeachable offenses. Counsel for Presiden
t
Clinton respectfully submit this memorandum to demonstrate and document this
contention.
We offer this memorandum mindful of the fact that this body now confronts one o
f the
most difficult questions our Constitution poses to Congress: whether to invali
date
the popular will expressed in the election of the President. "Voting in the
presidential election," as Professor Charles Black wrote, "is certainly the
political choice most significant to the American people."/ Accordingly, "[n]o
matter can be of higher political importance than our considering whether, in a
ny
given instance, this act of choice is to be undone."/ Consideration both wise
and
deliberate must precede any decision to report articles of impeachment. For "t
he
power of impeachment and removal is drastic one, not to be lightly undertaken .
. .
and especially sensitive with reference to the President of the United States."
/
We previously have submitted three memoranda/ to this Committee, addressing var
ious
issues arising out of the Independent Counsel's September 11, 1998, Referral./
In
this submission, we comprehensively set out our response to the Referral based
on
the evidence now available to us; address certain questions stemming from the
testimony of the Committee's sole witness, Independent Counsel Kenneth W. Starr
/ and
correct fundamental misconceptions about this matter arising from deeply unfair
or
unsupported inferences drawn in the Referral and significant misstatements abou
t the
evidence in the press and elsewhere. For example, it is widely alleged among t
hose
favoring impeachment that the President "lied under oath" to the grand jury. B
ut a
review of the available evidence proves that this allegation often is based not
on
what the President actually said under oath but rather on what some of his accu
sers
claim he said -- such as that in the grand jury he categorically denied having
a
sexual relationship with Ms. Lewinsky, or that he denied being alone with her,
when
in fact he explicitly acknowledged to the grand jury both that he had had an
inappropriate intimate relationship with Ms. Lewinsky and that he had been alon
e
with her. There are numerous other examples of allegations, now commonly belie
ved,
that are wholly -- not just somewhat -- unsupported even by the evidence presen
ted
to the Committee in the OIC referral. It is in part the purpose of this memora
ndum
to separate fact and fiction and demonstrate why the record supports neither th
e
charges made nor impeachment. We ask that readers set aside their preconceptio
ns of
what they think the evidence is, based on the biased presentation in the Starr
Referral and subsequent inaccurate coverage, and look instead at the evidence
itself.
At the outset, let us be clear. Extraordinary as it must seem in a matter of t
his
gravity, the President has not been specifically notified what allegations are
at
issue here. The Referral itself cites "eleven possible grounds for impeachment
" of
the President, Ref. at 129, although it does not identify the rationale for
including these grounds./ In his presentation to the Committee, Mr. Schippers
identified a somewhat different set of "fifteen separate events directly involv
ing
[the] President" which "could constitute felonies which, in turn, may constitut
e
grounds to proceed with an impeachment inquiry."/ The Chairman apparently has
indicated that the Committee may consider only two charges,/ while recent newsp
aper
articles variously state that the Committee staff is drafting three charges or
four
charges./ We have been provided only the most limited and in some instances no
access to significant evidence in the Committee's possession, elliptically refe
rred
to by Members at the November 19, 1998, testimony of the Independent Counsel./
Without knowing what this evidence is, and being able to analyze and quote it,
we
cannot fairly or adequately rebut every allegation the Committee may later choo
se to
bring forward from the Referral or elsewhere.
Moreover, the Committee has recently launched new investigative forays in areas
not
covered by the Referral. It has taken depositions related to Ms. Kathleen Will
ey,
and it has authorized (but now apparently withdrawn) subpoenas for depositions
and
documents related to fundraising for the 1996 Presidential campaign. Simple
fairness entitles us to an adequate opportunity to receive, review, and use the
information in the Committee's possession (for example, the transcripts of
depositions from which we were excluded), be apprised of the specific charges t
he
Committee is considering, and have a fair chance to discover and present eviden
ce in
rebuttal.
The present memorandum is thus necessarily limited in scope, and we will make a
further submission to address any new or revised allegations the Committee may
decide to pursue.
II. THE FACTUAL BACKGROUND
Certain undisputed facts are relevant to the legal analysis in this memorandum,
in
addition to those set forth in previous submissions.
A. The Whitewater Investigative Dead-End
The Lewinsky investigation had its antecedent in the long-running Whitewater
investigation. On August 5, 1994, Kenneth W. Starr was appointed Independent
Counsel by the Special Division to conduct an investigation centering on two
Arkansas entities, Whitewater Development Company, Inc., and Madison Guaranty
Savings and Loan Association. The Office of Independent Counsel's ("OIC")
investigation dragged on slowly/ and inconclusively, without any charges being
lodged against either the President or Mrs. Clinton. The Independent Counsel
himself announced his resignation in February 1997 to become Dean of the Pepper
dine
Law School/ but, after a firestorm of media criticism,/ he backtracked and resu
med
his duties./
Without any expansion of his jurisdiction, Mr. Starr then began to conduct an
investigation into rumors of extramarital affairs involving the President. In
the
Spring of 1997, Arkansas state troopers who had once been assigned to the Gover
nor's
security detail were interviewed, and "[t]he troopers said Starr's investigator
s
asked about 12 to 15 women by name, including Paula Corbin Jones. . . ." Woodw
ard &
Schmidt, "Starr Probes Clinton Personal Life," The Washington Post (June 25, 19
97)
at A1 (emphasis added). "The nature of the questioning marks a sharp departure
from
previous avenues of inquiry in the three-year old investigation . . . . Until n
ow, .
. what has become a wide-ranging investigation of many aspects of Clinton's
governorship has largely steered clear of questions about Clinton's relationshi
ps
with women . . . ."/ One of the most striking aspects of this new phase of the
Whitewater investigation was the extent to which it focused on the Paula Jones
case.
One of the troopers interviewed declared, "'They asked me about Paula Jones, a
ll
kinds of questions about Paula Jones, whether I saw Clinton and Paula together
and
how many times.'"/
At his testimony before this Committee on November 19, 1998, Mr. Starr conceded
that
his agents had conducted these interrogations and acknowledged that he had not
sought expansion of his jurisdiction from the Attorney General or the Special
Division of the Court of Appeals,/ but he contended that these inquiries were
somehow relevant to his Whitewater investigation: "we were, in fact, interview
ing,
as good prosecutors, good investigators do, individuals who would have informat
ion
that may be relevant to our inquiry about the President's involvement in Whitew
ater,
in Madison Guaranty Savings and Loan and the like."/ However, the OIC was obvi
ously
engaged in an effort to gather embarrassing information concerning the Presiden
t.
Indeed, a recent article in the New York Times Magazine notes that Deputy
Independent Counsel Jackie Bennett was "known among fellow prosecutors as the o
ffice
expert on the President's sex life long before anyone had heard of Monica
Lewinsky."/
B. The Paula Jones Litigation
In January 1998, the OIC finally succeeded in transforming its investigation fr
om
one focused on long-ago land deals and loans in Arkansas into one involving a
different topic (sex) and more recent events in Washington, D.C. The Lewinsky
investigation grew out of the pretrial discovery proceedings in the civil suit
Ms.
Paula Corbin Jones had filed against the President in May 1994, making certain
allegations about events three years earlier when the President was Governor of
Arkansas. Discovery had been stayed until the Supreme Court's decision on May
27,
1997, denying Presidential immunity./ Shortly thereafter, Ms. Jones selected a
new
spokesperson, Ms. Susan Carpenter-McMillan, and retained new counsel affiliated
with
the conservative Rutherford Institute,/ who began a public relations offensive
against the President. "'I will never deny that when I first heard about this
case
I said, "Okay, good. We're gonna get that little slimeball,"' said Ms.
Carpenter-McMillan, a staunch Republican."/ While Ms. Jones' previous attorney
s,
Messrs. Gilbert Davis and Joseph Cammarata, had largely avoided the media, publ
ic
personal attacks now became the order of the day as the Jones civil suit became
a
partisan vehicle to try to savage the President./ Ms. Jones' husband, Steve, e
ven
announced his intention to use judicial process to obtain and disseminate pejor
ative
personal information concerning the President:
In a belligerent mood, Steve [Jones] warned that he was going to use subpoena p
ower
to reconstruct the secret life of Bill Clinton. Every state trooper used by th
e
governor to solicit women was going to be deposed under oath. "We're going to
get
names; we're going to get dates; we're going to do the job that the press would
n't
do," he said. "We're going to go after Clinton's medical records, the raw
documents, not just opinions from doctors, . . . we're going to find out
everything."/
As is now well known, this effort led ultimately to the Jones lawyers being
permitted to subpoena various women, to determine their relationship, if any, w
ith
the President, allegedly for the purpose of determining whether they had inform
ation
relevant to the sexual harassment charge. Among these women was Ms. Lewinsky.
By mid-January 1998, Ms. Tripp had brought to the attention of the OIC certain
information she believed she had about Ms. Lewinsky's involvement in the Jones
case
and, as noted above, the OIC investigation then began to reach formally into th
e
Jones case. The OIC met with Ms. Tripp through the week of January 12, and wit
h her
cooperation taped Ms. Lewinsky discussing the Jones case and the President. Du
ring
the week, Ms. Tripp alerted the OIC that she had been taping Ms. Lewinsky in
violation of Maryland law, and the OIC promised Ms. Tripp immunity from federal
prosecution, and assistance in protecting her from state prosecution, in exchan
ge
for her cooperation. The OIC formalized that agreement in writing on Friday,
January 16, after it had received jurisdiction to do so from the Attorney Gener
al.
The President's deposition in the Jones case was scheduled to take place the ne
xt
day, on Saturday, January 17. As we now know, the night before that deposition
Ms.
Tripp had briefed the lawyers for Ms. Jones on her perception of the relationsh
ip
between Ms. Lewinsky and the President -- doing so based on confidences Ms. Lew
insky
had entrusted to her./ (She was permitted to do so even though, having receive
d
immunity from the OIC, the OIC could have barred her from talking to any one ab
out
Ms. Lewinsky but failed to do so.) At the deposition the next day, the Preside
nt
unexpectedly was asked numerous questions about Ms. Lewinsky, even before he wa
s
questioned about Ms. Jones.
The Jones case, of course, was not about Ms. Lewinsky. She was a peripheral pl
ayer
and, since her relationship with the President was concededly consensual, an
irrelevant one. Shortly after the President's deposition, Chief Judge Wright r
uled
that evidence pertaining to Ms. Lewinsky would not be admissible at the Jones t
rial
because "it is not essential to the core issues in this case."/ The Court also
ruled that, given the allegations at issue in the Jones case, the Lewinsky evid
ence
"might be inadmissible as extrinsic evidence" under the Federal Rules of Eviden
ce
because it involved merely the "specific instances of conduct" of a witness./
C. The President's Grand Jury Testimony About Ms. Lewinsky
On August 17, 1998, the President specifically acknowledged to the grand jury t
hat
he had had a relationship with Ms. Lewinsky involving "improper intimate contac
t."
He described how the relationship began, and how it had ended early in 1997 --
long
before any public attention or scrutiny. He acknowledged this relationship to
the
grand jury, and he explained how he had tried to get through the deposition in
the
Jones case months earlier without admitting what he had had to admit to the gra
nd
jury -- an improper relationship with Ms. Lewinsky. He further testified that
the
"inappropriate encounters" with Ms. Lewinsky had ended, at his insistence, in e
arly
1997, and he stated: "I regret that what began as a friendship came to include
this
conduct, and I take full responsibility for my actions." Id. at 461. He decli
ned
to describe, because of personal privacy and institutional dignity consideratio
ns,
certain specifics about his conduct with Ms. Lewinsky,/ but he indicated his
willingness to answer,/ and he did answer, the other questions put to him about
his
relationship with her. No one who watched the videotape of this grand jury
testimony had any doubt that the President was admitting to an improper physica
l
relationship with Ms. Lewinsky.
III. THE CONSTITUTION REQUIRES PROOF OF OFFICIAL MISCONDUCT FOR IMPEACHMENT
To date, the Judiciary Committee has declined to articulate or adopt standards
of
impeachable conduct. Its inquiry has proceeded and (it appears) its vote will
occur
with no consensus among Committee members as to the constitutional meaning of a
n
impeachable act. That is regrettable. For even if the constitutional standard
against which the Referral must be measured lacks the precision of a detailed
statute, it nonetheless has a determined and limited content. The Committee's
failure to define the applicable standard has necessarily created the perceptio
n
that an ad hoc "standard" is being devised to fit the facts. A constitutional
standard does in fact exist, and were the Committee to confront the question
directly, it would be evident that the Constitution's rigorous showing has not
been
made here.
A. Under the Constitution the Conduct Alleged in the Referral Does Not Reach th
e
Level of "High Crimes and Misdemeanors"
The Constitution provides that the President shall be removed from office only
upon
"Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors." U.S. Const. Art. II, 4. The legal question confronting the
Committee is whether the acts of the President alleged in the Starr Referral co
uld
conceivably amount to "high Crimes and Misdemeanors."
The answer is that they could not. The syntax of the Constitution's formulatio
n
"Treason, Bribery or other high Crimes and Misdemeanors" (emphasis added) stron
gly
suggests that, to be impeachable offenses, high crimes and misdemeanors must be
of
the seriousness of "Treason" and "Bribery." Yet the Referral alleges nothing
remotely similar in gravity to those high crimes.
Moreover, both the historical background of the "high Crimes and Misdemeanors"
concept and the Constitution itself make clear that the conduct alleged does no
t
constitute an impeachable offense. To the contrary, cognizant that the impeach
ment
process upsets the electoral will of the people, the Framers made the standard
of
impeachable offenses an especially high one, requiring a showing of injury to o
ur
very system of government.
1. Historical Background of "High Crimes and Misdemeanors"
The English precedents illustrate that impeachment was understood to apply only
to
fundamental offenses against the system of government. In English practice, th
e
term "high crimes and misdemeanors" had been applied to offenses, the common
elements of which were their severity and the fact that the wrongdoing was dire
cted
against the state./ The English cases included misappropriation of public fund
s,
interfering in elections, accepting bribes, and various forms of corruption. I
bid.
These offenses all affected the discharge of public duties by public officials.
In
short, under the English practice, "the critical element of injury in an impeac
hable
offense was injury to the state."/
The notion that "injury to the state" was the hallmark of the impeachable offen
se
was also shared by the Staff of the Impeachment Inquiry when it researched the
issue
in connection with the investigation of President Richard Nixon in 1974. In ea
rly
English impeachments, the Staff concluded, "the thrust of the charge was damage
to
the state. . . . Characteristically, impeachment was used in individual cases t
o
reach offenses, as perceived by Parliament, against the system of government."/
The constitutional and ratification debates confirm that impeachment was limite
d to
only the gravest political wrongs. The Framers plainly intended the impeachmen
t
standard to be a high one. They rejected a proposal that the President be
impeachable for "maladministration," for, as James Madison pointed out, such a
standard would "be equivalent to a tenure during the pleasure of the Senate."/
The
Framers plainly did not intend to permit Congress to debilitate the Executive b
y
authorizing impeachment for something short of the most serious harm to the sta
te.
In George Mason's apt language, impeachment was thought necessary to remedy "gr
eat
and dangerous offenses" not covered by "Treason" or "Bribery" such as "[a]ttemp
ts to
subvert the Constitution."/
That is why, at the time of the ratification debates, Alexander Hamilton descri
bed
impeachment as a "method of NATIONAL INQUEST into the conduct of public men."/
No
act touches more fundamental questions of constitutional government than does t
he
process of Presidential impeachment. No act more directly affects the public
interest. No act presents the potential for greater injustice -- injustice bot
h to
the Chief Executive and to the people who elected him -- and the Framers were f
ully
aware of this.
The specific harms the Framers sought to redress by impeachment are far more se
rious
than those alleged in the Starr Referral. During the ratification debates, a nu
mber
of the Framers addressed the Constitution's impeachment provisions. The follow
ing
is a list of wrongs they believed the impeachment power was intended to address
:
? receipt of emoluments from a foreign power in violation of Article I, section
9;/
? summoning the representatives of only a few States to ratify a treaty;/
? concealing information from or giving false information to the Senate so as t
o
cause it to take measures it otherwise would not have taken which were injuriou
s to
the country;/
? general failure to perform the duties of the Executive./
Impeachment provisions in a number of late eighteenth century state constitutio
ns
reaffirm that the Framers' generation believed that impeachment's purpose was
redress of official wrongdoing. The New Jersey Constitution's impeachment prov
ision
for "misbehavior" was interpreted to permit impeachment not for personal wrongd
oing
but for acts by public officials performed in their public capacity./ Delaware
's
first Constitution authorized impeachment for "offending against the state by
maladministration, corruption, or other means, by which the safety of the
commonwealth may be endangered."/ And Virginia's Constitution of 1776 provided
for
impeachment of those public officers who "offend[ ] against the state, either b
y
maladministration, corruption or other means, by which the safety of the State
may
be endangered."/
The history on which they relied, the arguments they made in Convention, the
specific ills they regarded as redressable, and the State backgrounds from whic
h
they emerged -- all these establish that the Framers believed that impeachment
must
be reserved for only the most serious forms of wrongdoing. They believed, in s
hort,
that impeachment "reached offenses against the government, and especially abuse
s of
constitutional duties."/
The Referral alleges no wrongs of that magnitude.
2. The Framers Believed that Impeachment Redresses Wrongful Public Conduct
The remedy of impeachment was designed only for those very grave harms not othe
rwise
politically redressable. As James Wilson wrote, "our President . . . is amenab
le to
[the laws] in his private character as a citizen, and in his public character b
y
impeachment."/ That is why Justice Story described the harms to be reached by
impeachment as those "offensive acts which do not properly belong to the judici
al
character in the ordinary administration of justice, and are far removed from t
he
reach of municipal jurisprudence."/
For these reasons, impeachment is limited to certain forms of potential wrongdo
ing
only, and it is intended to redress only certain kinds of harms. Again, in
Hamilton's words:
the subjects of [the Senate's impeachment] jurisdiction are those offenses whic
h
proceed from the misconduct of public men, or in other words from the abuse of
violation of some public trust. They are of a nature which may with peculiar
propriety be denominated POLITICAL, as they relate chiefly to injuries done to
the
society itself./
Early commentators on the Constitution are in accord on the question of
impeachment's intended purpose. In Justice James Wilson's words, impeachments
are
"proceedings of a political nature . . . confined to political characters" char
ging
only "political crimes and misdemeanors" and culminating only in "political
punishments." / And as Justice Story put the matter, "the [impeachment] power
partakes of a political character, as it respects injuries to the society in it
s
political character."/ In short, impeachment was not thought to be a remedy fo
r
private wrongs -- or even for most public wrongs. Rather, the Framers "intende
d
that a president be removable from office for the commission of great offenses
against the Constitution."/ Impeachment therefore addresses public wrongdoing,
whether denominated a "political crime[ ] against the state,"/ or "an act of
malfeasance or abuse of office,"/ or a "great offense[ ] against the federal
government."/ Ordinary civil and criminal wrongs can be addressed through ordi
nary
judicial processes. And ordinary political wrongs can be addressed at the ball
ot
box and by public opinion. Impeachment is reserved for the most serious public
misconduct, those aggravated abuses of executive power that, given the Presiden
t's
four-year term, might otherwise go unchecked.
Private misconduct, or even public misconduct short of an offense against the s
tate,
is not redressable by impeachment because that solemn process, in Justice Story
's
words, addresses "offences which are committed by public men in violation of th
eir
public trust and duties."/ Impeachment is a political act in the sense that it
s
aims are public; it attempts to rein in abuses of the public trust committed by
public officeholders in connection with conduct in public office. The availabi
lity
of the process is commensurate with the gravity of the harm. As one scholar ha
s put
it, "[t]he nature of [impeachment] proceedings is dictated by the harms sought
to be
redressed -- 'the misconduct of public men' relating to the conduct of their pu
blic
office -- and the ultimate issue to be resolved -- whether they have forfeited
through that conduct their right to continued public trust."/
3. Our Constitution's Structure Does Not Permit Impeachment for Reasons of the
Sort
Alleged in the Referral
a. Impeachment Requires a Very High Standard Because Ours Is a Presidential and
Not
a Parliamentary System
Ours is a Constitution of separated powers. In that Constitution, the Presiden
t
does not serve at the will of Congress, but as the directly elected,/ solitary
head
of the Executive Branch. The Constitution reflects a judgment that a strong
Executive, executing the law independently of legislative will, is a necessary
protection for a free people.
These elementary facts of constitutional structure underscore the need for a ve
ry
high standard of impeachable offenses. It was emphatically not the intention o
f the
Framers that the President should be subject to the will of the dominant legisl
ative
party. Our system of government does not permit Congress to unseat the Preside
nt
merely because it disagrees with his behavior or his policies. The Framers'
decisive rejection of parliamentary government is one reason they caused the ph
rase
"Treason, Bribery or other high Crimes and Misdemeanors" to appear in the
Constitution itself. They chose to specify those categories of offenses subjec
t to
the impeachment power, rather than leave that judgment to the unfettered whim o
f the
legislature.
Any just and proper impeachment process must be reasonably viewed by the public
as
arising from one of those rare cases when the Legislature is compelled to stand
in
for all the people and remove a President whose continuation in office threaten
s
grave harm to the Republic. Impeachment for wrongdoing of lesser gravity invol
ves a
legislative usurpation of a power belonging only to the people (the power to ch
oose
and "depose" Presidents by election) and a Legislative encroachment on the powe
r of
the Executive.
The current process appears bent on "mangling the system of checks and balances
that
is our chief safeguard against abuses of public power."/ Impeachment of the
President on the grounds alleged in the Referral would ignore this intentionall
y
imposed limit on legislative power and would thereby do incalculable damage to
the
institution of the Presidency. Whether "successful" or not, the current drive
"will
leave the Presidency permanently disfigured and diminished, at the mercy as nev
er
before of the caprices of any Congress."/ The undefined, but broad and lenient
,
standard under which the Committee is implicitly proceeding converts the impeac
hment
power into something other than the drastic removal power of last resort intend
ed by
the Framers. This new impeachment weapon would be a permanent, extra-constitut
ional
power of Congress, a poison arrow aimed permanently at the heart of the Preside
ncy.
The inevitable effect of such a threat would be the weakening of that Office an
d an
improper subservience of the President to the Congress, that was wholly uninten
ded
by the Framers.
That is not the impeachment power enshrined in the Constitution and defined by
two
hundred years of experience. The Constitution permits a single justification f
or
impeachment -- a demonstrated need to protect the people themselves.
b. Impeachment Requires a Very High and Very Clear Standard Because It Nullifie
s the
Popular Will
The Framers made the President the sole nationally elected public official,
responsible to all the people. He is the only person whose mandate is country-
wide,
extending to all citizens, all places, and all interests. He is the people's
choice.
Therefore, when the Congress raises the issue of impeachment, the House (and
ultimately the Senate) confront this inescapable question: is the alleged
misconduct so profoundly serious, so malevolent, that it justifies undoing the
people's decision? Is the wrong alleged of a sort that not only demands remova
l of
the President before the ordinary electoral cycle can do its work, but also
justifies the national trauma that accompanies the impeachment process itself?
The wrongdoing alleged here does not remotely meet that standard.
B. American Presidential Impeachment Practice and Contemporary Scholarship Conf
irm
that Impeachment Is Only for Political Offenses Against the State Itself, Not f
or
Private Wrongs
1. Prior Impeachment Proceedings Against American Presidents
Three American Presidents have been the subject of impeachment proceedings. Ea
ch
was impeached (or threatened with impeachment) for allegedly wrongful official
conduct and not for alleged misdeeds unrelated to the exercise of public office
John Tyler. In 1841, President Tyler succeeded William Henry Harrison after th
e
latter's death in office. He immediately ran into political differences with t
he
Whig majority in Congress. After Tyler vetoed a Whig-sponsored tariff bill, a
Whig
Congressman offered a resolution of impeachment against President Tyler. The
resolution proffered nine impeachment articles, each alleging high crimes and
misdemeanors constituting crimes against the government in the performance of
official duties. The allegations included withholding assent to laws indispens
able
to the operation of government and assuming to himself the whole power of taxat
ion,
abuse of the appointment and removal power, and abuse of the veto power./
The resolution was rejected. But the fundamental premise of each charge was th
at
the President had committed crimes against the United States in the exercise of
official duties.
Andrew Johnson. President Johnson is, of course, the only president actually t
o
have been impeached. President Johnson ran afoul of the Reconstruction Congres
s
after the death of President Lincoln. After President Johnson notified Secreta
ry of
War Stanton that he was removed from office, the Congress voted an impeachment
resolution in 1868 based on the President's supposed violation of the Tenure of
Office Act. Ultimately, eleven articles were adopted against him and approved
by
the House./
As in the case of President Tyler, all the allegations concerned allegedly wron
gful
official conduct said to be harmful to the processes of government. The leadin
g
House manager in the Senate trial was Rep. Benjamin Butler, who defined impeach
able
offenses as follows: "We define, therefore, an impeachable high crime and
misdemeanor to be one in its nature or consequences subversive of some fundamen
tal
or essential principle of government, or highly prejudicial to the public inter
est .
. ." /
On May 26, 1868, President Johnson was acquitted by a single vote./ Although t
he
vote was overwhelmingly partisan, seven Republican Senators broke with the part
y and
voted for acquittal. Sen. William Pitt Fessenden was one of those seven. He d
id
not vote for impeachment because, as he put it, an impeachable offense must be
"of
such a character to commend itself at once to the minds of all right thinking m
en,
as beyond all question, an adequate cause for impeachment. It should leave no
reasonable ground of suspicion upon the motives of those who inflict the penalt
y."/
Richard Nixon. Five articles of impeachment were proposed against then-Preside
nt
Nixon by this Committee in 1974. Three were approved. Two were not./ As with
the
charges against Presidents Tyler and Johnson, the approved articles alleged off
icial
wrongdoing. Article I charged President Nixon with "using the powers of his hi
gh
office [to] engage[ ] . . . in a course of conduct or plan designed to delay, i
mpede
and obstruct" the Watergate investigation./ Article II described the President
as
engaging in "repeated and continuing abuse of the powers of the Presidency in
disregard of the fundamental principle of the rule of law in our system of
government" thereby "us[ing] his power as President to violate the Constitution
and
the law of the land."/ Article III charged the President with refusing to comp
ly
with Judiciary Committee subpoenas in frustration of a power necessary to "pres
erve
the integrity of the impeachment process itself and the ability of Congress to
act
as the ultimate safeguard against improper Presidential conduct."/
The precedents speak clearly. The allegation against President Tyler and the
articles actually approved against Presidents Johnson and Nixon all charged ser
ious
misconduct amounting to misuse of the authority of the Presidential office. As
Professor Sunstein expressed it in his testimony before this body's Subcommitte
e on
the Constitution, American presidential impeachment proceedings have targeted
"act[s] by the President, that amount[ ] to large-scale abuse of distinctly
Presidential authority."/ The Referral contains nothing of the kind.
2. Contemporary Views Confirm that Impeachment Is Not Appropriate Here
a. Contemporary Scholarship Confirms that Impeachment Is Appropriate for Offens
es
Against Our System of Government
Impeachable acts need not be criminal acts. As Professor Black has noted, it w
ould
probably be an impeachable act for a President to move to Saudi Arabia so he co
uld
have four wives while proposing to conduct the Presidency by mail and wireless
from
there; or to announce and adhere to a policy of appointing no Roman Catholics t
o
public office; or to announce a policy of granting full pardons, in advance of
indictment or trial, to federal agents or police who killed anyone in the line
of
duty in the District of Columbia./ None of these acts would be crimes, but all
would be impeachable. This, because they are all "serious assaults on the inte
grity
of government."/ And all of these acts are public acts having public consequen
ces.
Holders of public office should not be impeached for conduct (even criminal con
duct)
that is essentially private. That is why scholars and other disinterested obse
rvers
have consistently framed the test of impeachable offenses in terms of some
fundamental attack on our system of government, describing impeachment as being
reserved for:
? "offenses against the government";/
? "political crimes against the state";/
? "serious assaults on the integrity of the processes of government";/
? "wrongdoing convincingly established [and] so egregious that [the President's
]
continuation in office is intolerable";/
? "malfeasance or abuse of office,"/ bearing a "functional relationship" to pub
lic
office;/
? "great offense[s] against the federal government";/
? "acts which, like treason and bribery, undermine the integrity of government.
"/
b. Recent Statements by Historians and Constitutional Scholars Confirm that No
Impeachable Offense Is Present Here
In a recent statement, 400 historians warned of the threat to our constitutiona
l
system posed by these impeachment proceedings. The Framers, they wrote, "expli
citly
reserved [impeachment] for high crimes and misdemeanors in the exercise of exec
utive
power."/ Impeachment for anything short of that high standard would have "the
most
serious implications for our constitutional order."/
That view accords with the position expressed by 430 legal scholars and communi
cated
by letter to the House leadership and the leadership of this Committee./ The
legal
scholars' letter underscores that high crimes and misdemeanors must be of a
seriousness comparable to "treason" and "bribery" that are distinguished by a
"grossly derelict exercise of official power." That standard, as the law profe
ssors
note, is simply not met here even on the facts alleged. "If the President comm
itted
perjury regarding his sexual conduct, this perjury involved no exercise of
Presidential power as such."/ In other words, "making false statements about s
exual
improprieties is not a sufficient basis to justify the trial and removal from o
ffice
of the President of the United States."/ To continue an impeachment inquiry un
der
such circumstances would pose a heavy cost to the Presidency with no return to
the
American people.
Thus, as Professor Michael Gerhardt summarized the matter in his recent testimo
ny
before a subcommittee of this body, there is "widespread recognition [of] a
paradigmatic case for impeachment."/ In such a case, "there must be a nexus be
tween
the misconduct of an impeachable official and the latter's official duties."/
The
Referral presents no such case.
C. Relevant Historical Precedents Demonstrate that No Impeachable Offense Has B
een
Alleged Here
1. Alexander Hamilton
That impeachment was reserved for serious public wrongdoing of a serious politi
cal
nature was no mere abstraction to the authors of the Constitution. The ink on
the
Constitution was barely dry when Congress was forced to investigate wrongdoing
by
one of the Framers. In 1792-93, Congress investigated then-Secretary of the
Treasury Alexander Hamilton for alleged financial misdealings with James Reynol
ds, a
convicted securities swindler./ Secretary Hamilton was interviewed by members
of
Congress, including the House Speaker and James Monroe, the future President.
He
admitted to making secret payments to Mr. Reynolds, whose release from prison t
he
Treasury Department had authorized. Mr. Hamilton acknowledged that he had made
the
payments but explained that he had committed adultery with Reynolds' wife; that
he
had made payments to Mr. Reynolds to cover it up; that he had had Mrs. Reynolds
burn
incriminating correspondence; and that he had promised to pay the Reynolds' tra
vel
costs if they would leave town./
The Members of Congress who heard Secretary Hamilton's confession concluded tha
t the
matter was private, not public; that as a result no impeachable offense had
occurred; and that the entire matter should remain secret. Although President
Washington, Vice-President Adams, Secretary of State Jefferson and House Minori
ty
leader James Madison (two of whom had signed the Constitution) all eventually b
ecame
aware of the affair, they too maintained their silence. And even after the who
le
matter became public knowledge some years later, Mr. Hamilton was appointed to
the
second highest position in the United States Army and was speedily confirmed by
the
Senate./
It is apparent from the Hamilton case that the Framers did not regard private s
exual
misconduct as creating an impeachable offense. It is also apparent that effort
s to
cover up such private behavior, including even paying hush money to induce some
one
to destroy documents, did not meet the standard. Neither Hamilton's very high
position, nor the fact that his payments to a securities swindler created an
enormous "appearance" problem, were enough to implicate the standard. These wr
ongs
were real, and they were not insubstantial, but to the Framers they were essent
ially
private and therefore not impeachable.
Some have responded to the argument that the conduct at issue in the Referral i
s
private by contending that the President is charged with faithfully executing t
he
laws of the United States and that perjury would be a violation of that duty.
That
argument, however, proves far too much. Under that theory, any violation of fe
deral
law would constitute an impeachable offense, no matter how minor and no matter
whether it arose out of the President's private life or his public responsibili
ties.
Lying in a deposition in a private lawsuit would, for constitutional purposes,
be
the equivalent of lying to Congress about significant conduct of the Executive
Branch -- surely a result those advocates do not contemplate. More importantly
, as
the next section demonstrates, we know from the bipartisan defeat of the tax fr
aud
article against President Nixon that the "faithfully execute" theory has been
squarely rejected.
2. The Failure of the Proposed Article of Impeachment Against President Nixon
Alleging Fraudulent Tax Filings
As previously indicated, this Committee's investigation of President Nixon in
1973-74 had to confront the question of just what constitutes an "impeachable
offense." That investigation resulted in the Committee's approval of three art
icles
of impeachment alleging misuse of the Presidential Office and rejection of two
others. Those decisions constitute part of the common law of impeachment, and
they
stand for the principle that abuse of the Presidential Office is at the core of
the
notion of impeachable offense.
That conclusion was no happenstance. It resulted from a concordance among Comm
ittee
majority and minority views as to the standard of impeachable offenses. One of
the
first tasks assigned to the staff of the Judiciary Committee when it began its
investigation of President Nixon was to prepare a legal analysis of the grounds
for
impeachment of a President. The staff concluded that:
"Impeachment is a constitutional remedy addressed to serious offenses against t
he
system of government. . . . It is not controlling whether treason and bribery a
re
criminal. More important, they are constitutional wrongs that subvert the stru
cture
of government, or undermine the integrity of office and even the Constitution
itself, and thus are 'high' offenses in the sense that word was used in English
impeachments. . . . The emphasis has been on the significant effects of the con
duct
-- undermining the integrity of office, disregard of constitutional duties and
oath
of office, arrogation of power, abuse of the governmental process, adverse impa
ct on
the system of government. . . . Because impeachment of a President is a grave s
tep
for the nation, it is to be predicated only upon conduct seriously incompatible
with
either the constitutional form and principles of our government or the proper
performance of constitutional duties of the president office."/
A memorandum setting forth views of certain Republican Members similarly emphas
ized
the necessarily serious and public character of any alleged offense:
"It is not a fair summary . . . to say that the Framers were principally concer
ned
with reaching a course of conduct, whether or not criminal, generally inconsist
ent
with the proper and effective exercise of the office of the presidency. They w
ere
concerned with preserving the government from being overthrown by the treachery
or
corruption of one man. . . . [I]t is our judgment, based upon this constitution
al
history, that the Framers of the United States Constitution intended that the
President should be removable by the legislative branch only for serious miscon
duct
dangerous to the system of government established by the Constitution."/
Notwithstanding their many differences, the Judiciary Committee investigating
President Nixon was in substantial agreement on the question posed here: an
impeachable wrong is an offense against our very system, a constitutional evil
subversive of the government itself.
Against that backdrop, it is clear that the Committee's vote not to approve a
proposed tax-fraud type article was every bit as significant a precedent as th
e
articles it did approve. The proposed article the Committee ultimately decline
d to
approve charged that President Nixon both "knowingly and fraudulently failed to
report certain income and claimed deductions [for 1969-72] on his Federal incom
e tax
returns which were not authorized by law."/ The President had signed his retur
ns
for those years under penalty of perjury,/ and there was reason to believe that
the
underlying facts would have supported a criminal prosecution against President
Nixon
himself./ Yet the article was not approved. And it was not approved because th
e
otherwise conflicting views of the Committee majority and minority were in conc
ord:
submission of a false tax return was not so related to exercise of the Presiden
tial
Office as to trigger impeachment.
Thus, by a bipartisan vote greater than a 2-1 margin, the Judiciary Committee
rejected the tax-evasion article./ Both Democrats and Republicans spoke agains
t the
idea that tax evasion constituted an impeachable offense. Congressman Railsbac
k
(R-Ill.) opposed the article saying that "there is a serious question as to whe
ther
something involving his personal tax liability has anything to do with [the] co
nduct
of the office of the President."/ Congressman Owens (D-Utah) stated that, even
assuming the charges were true in fact, "on the evidence available, these offen
ses
do not rise, in my opinion, to the level of impeachment."/ Congressman Hogan
(R-Md.) did not believe tax evasion an impeachable offense because the
Constitution's phrase "high crime signified a crime against the system of
government, not merely a serious crime."/ And Congressman Waldie (D-Cal.) spok
e
against the article, saying that "there had not been an enormous abuse of power
,"
notwithstanding his finding "the conduct of the President in these instances to
have
been shabby, to have been unacceptable, and to have been disgraceful even."/
These voices, and the overwhelming vote against the tax evasion article, unders
core
the fact that the 1974 Judiciary Committee's judgment was faithful to its legal
conclusions. It would not (and did not) approve an article of impeachment for
anything short of a fundamental offense against our very system of government.
In
the words of the Nixon Impeachment Inquiry Report:
Because impeachment of a President is a grave step for the nation, it is to be
predicated only upon conduct seriously incompatible with either the constitutio
nal
form and principles of our government or the proper duties of the presidential
office./
This Committee should observe no less stringent a standard. If this Committee
is
faithful to its predecessor, it will conclude that the Referral's allegations (
and
the perjury allegations in particular) do not satisfy the high threshold requir
ed to
approve articles of impeachment.
IV. THE CONSTITUTION REQUIRES CLEAR AND CONVINCING EVIDENCE TO APPROVE ARTICLES
OF
IMPEACHMENT
Even if a Member of Congress should conclude that "high Crimes and Misdemeanors
"
have actually and properly been alleged, that conclusion alone is not sufficien
t to
support an article of impeachment. In addition, the Member must conclude that
the
allegations against the President have been established by "clear and convincin
g"
evidence. This is a legal term of art requiring evidence greater than in the
ordinary civil case. The suggestion that a vote for impeachment of a democrati
cally
elected President represents no more, and requires no more, than the threshold
showing necessary for a grand jury indictment reflects a serious disregard for
the
significance of this process.
A. This Committee Should Apply the Same Clear and Convincing Standard Observed
by
Its Predecessor in the Watergate Proceedings
This Committee should follow the lead of its predecessor in the Watergate
proceedings. Twenty-four years ago, this Committee confronted the very same
question presented here: what threshold of proof is required to approve articl
es of
impeachment? Then, it was the consensus of all parties -- majority and minorit
y
counsel, as well as the attorney for the President -- that approval of an artic
le
must rest on clear and convincing evidence.
In the Watergate hearings, the President's counsel, Mr. St. Clair, put the
threshold-of-proof question in this way:
I think the American people will expect that this committee would not vote to
recommend any articles of impeachment unless this committee is satisfied that t
he
evidence to support it is clear, is clear and convincing. Because anything les
s
than that, in my view, is going to result in recriminations, bitterness, and
divisiveness among our people./
Majority counsel to this Committee, Mr. Doar, concurred that the
clear-and-convincing measure was the appropriate gauge:
Mr. St. Clair said to you you must have clear and convincing proof. Of course
there
must be clear and convincing proof to take the step that I would recommend this
committee to take. /
Emphasizing the political nature and consequences of impeachment, Mr. Doar
reiterated that "as a practical matter, proof must be clear and convincing."/
Minority counsel, Mr. Garrison, told the Committee that "when a member of the
committee or a Member of the House votes to impeach, he should do so having mad
e a
judgment that the evidence convinces him that the President should be removed f
rom
office."/ And in their "Standard of Proof for Impeachment by the House" sectio
n of
the Impeachment Inquiry, the Republican authors of the Minority Views formulate
d the
standard as follows:
On balance, it appears that prosecution [of articles of impeachment by the Hous
e] is
warranted if the prosecutor believes that the guilt of the accused is demonstra
ted
by clear and convincing evidence. . . .
[W]e therefore take the position that a vote of impeachment is justified if, an
d
only if, the charges embodied in the articles are proved by clear and convincin
g
evidence. Our confidence in this proposition is enhanced by the fact that both
the
President's Special Counsel and the Special Counsel to the Committee independen
tly
reached the same conclusion./
Finally, this Committee expressly found clear and convincing evidence supportin
g the
obstruction-of-justice and abuse-of-power charges against President Nixon./ Se
e,
e.g., Impeachment Inquiry at 33 ("[t]his report . . . contains clear and convin
cing
evidence that the President caused action . . . to cover up the Watergate
break-in"); id. at 136 ("[t]he Committee finds, based upon of [sic] clear and
convincing evidence, that th[e] conduct[ ] detailed in the foregoing pages of t
his
report constitutes 'high crimes and misdemeanors'"); id. at 141 ("[t]he Committ
ee
finds clear and convincing evidence that a course of conduct was carried out [b
y
President Nixon and his subordinates] to violate the constitutional rights of
citizens")./
B. The Clear and Convincing Standard Is Commensurate with the Grave Constitutio
nal
Power Vested in the House
As the Watergate precedent indicates, this Committee should not approve an arti
cle
of impeachment for which the record evidence, taken as a whole, is anything les
s
than clear and convincing. Put differently, each member must have a firm
conviction, clearly and convincingly grounded in record evidence, that the Pres
ident
is guilty of the wrongdoing alleged. As former Attorney General Elliott Richar
dson
warned on December 1, "'[a] vote to impeach is a vote to remove. If members of
the
Committee believe that should be the outcome, they should vote to impeach. If
they
think that is an excessive sentence, they should not vote to impeach because if
they
do vote to impeach the matter is out their hands, and if the Senate convicts, o
ut of
its hands.'"/
This clear-and-convincing standard is not the highest degree of proof known to
our
law,/ but the substantial showing it demands is commensurate with the gravity o
f
impeachment itself. Exercise of the House's accusatory impeachment power is it
self
an act that weakens the Presidency. Unlike the grand juror's vote to indict, w
hich
affects a sole individual, affirmative votes on articles of impeachment jeopard
ize
an entire branch of our national government and threaten the political viabilit
y of
the single person (except for the Vice President) elected by the entire elector
ate.
The clear-and-convincing requirement ensures that this momentous step is not li
ghtly
taken. Lower standards (probable cause or apparent preponderance of the eviden
ce)
are simply not demanding enough to justify the fateful step of an impeachment t
rial.
They pose a genuine risk of subjecting the President, the Senate, and most of
all
the people who elected the President to a trial "on the basis of one-sided or
incomplete information or insufficiently persuasive evidence."/ Moreover, thos
e
lower standards would be particularly inappropriate here, where this Committee
has
itself neither independently investigated the evidence nor heard from a single
witness with first-hand knowledge of such facts. The respected impeachment sch
olar
Michael Gerhardt has declared: "'This idea that all [this Committee] need[s] t
o
have is probable cause is in my mind ahistorical . . . . I do think that member
s, at
least historically, have demanded more in terms of the kind of evidence that ha
s to
exist to initiate formal impeachment proceedings against the President and also
to
trigger a trial.'"/
Exercise of the impeachment power by the House is a matter of the utmost
seriousness. No member of this Committee or of the House as a whole should app
rove
articles of impeachment unless that member is personally persuaded that a high
crime
or misdemeanor has been proven to have occurred by clear and convincing evidenc
e./
The precedent created in the Watergate proceedings could not be clearer. To br
eak
with that precedent and proceed on something less demanding would properly be v
iewed
as a partisan effort to lower the impeachment bar. The President, the Constitu
tion,
and the American people deserve more. Proof by clear and convincing evidence,
and
nothing less, is necessary to justify each member's affirmative vote for articl
es of
impeachment.
V. THE COMMITTEE SHOULD NOT RELY ON THE REFERRAL'S ACCOUNT OF THE EVIDENCE
The Committee is now in the process of completing its deliberations on this que
stion
of the utmost national gravity: whether to approve articles of impeachment aga
inst
the President of the United States. Voting in favor of such articles would com
mence
the somber process of annulling the electoral choice of the people of this coun
try.
Before analyzing, in the next three sections, with as much specificity as possi
ble
the charges the Committee apparently is considering, it is appropriate to exami
ne
the evidentiary record that serves as the basis for these grave judgments.
The record here is strikingly different from that on which the Committee acted
twenty-four years ago in the Watergate proceedings. There, over several months
of
investigation, the Committee examined numerous fact witnesses and obtained and
analyzed documents and other evidence; while it received a transmission of test
imony
and documents from the Watergate grand jury, it made its own independent evalua
tion
of the evidence it had gathered. See Nixon Report at 9 (Judiciary Committee
received statements of information from inquiry staff in which "a deliberate an
d
scrupulous abstention from conclusions, even by implication, was observed")./
Here, however, the Committee is almost wholly relying on the work of the Indepe
ndent
Counsel. Neither the Committee, its staff, nor counsel for the President have
had
the opportunity to confront the witnesses who have appeared before the OIC's gr
and
jury: to cross-examine them, assess their credibility, and elicit further
information that might affect the testimony the witnesses gave. Indeed, the ve
ry
genesis of this impeachment inquiry differs radically from the Watergate
proceedings. Twenty-four years ago, this Committee itself made a decision to e
mbark
upon an impeachment inquiry./ In the present case, however, this inquiry was
generated by the judgment of Mr. Starr that he had identified "substantial and
credible information . . . that may constitute grounds for impeachment." 28 U.
S.C.
595(c).
The Referral represents Mr. Starr's effort to support that conclusion. The gra
nd
jury never authorized the transmission of or even reviewed the Referral, Novemb
er
19, 1998 Testimony at 324-25 (Testimony of Mr. Starr) and, while Mr. Starr decl
ined
to address the question in his public testimony, we do not believe that the Ref
erral
itself was ever presented for substantive approval to Chief Judge Johnson or t
he
Special Division of the Court of Appeals for the Purpose of Appointing Independ
ent
Counsels./ Instead, the Referral reflects Mr. Starr's own version of the vast
amount of evidence gathered by the grand jury and the conclusions he draws from
that
evidence.
Unlike the impartial presentation to the Watergate committee from Special Prose
cutor
Jaworski, the Referral is a document advocating impeachment. It sets forth Mr.
Starr's best case for impeachment, not a neutral presentation of the facts. It
reflects a careful selection and presentation of the evidence designed to portr
ay
the President in the worst possible light. It is being presented as a good fai
th
summary of reliable evidence when it is in fact nothing of the kind. While we
will
address the specific allegations of perjury, obstruction of justice, and abuse
of
office (as best we can discern them) in the next sections, it is appropriate he
re to
sketch out the untested nature of the underlying evidence, the material omissio
ns in
the Referral, and the indications of bias and overreaching that have characteri
zed
the OIC's investigation. To demonstrate this is not to make an irrelevant ad
hominem attack on the Independent Counsel but to point out how unreliable is th
e
record before this Committee, and the caution and skepticism with which the
narrative and conclusions of the Referral must therefore be viewed.
A. The Information Presented to the Committee in the Referral Has Not Been Subj
ected
to the Most Basic Adversarial Testing
The Referral is based on grand jury information and as such has not been subjec
ted
to cross-examination -- the adversarial testing our system of justice employs f
or
assessing the reliability of evidence. As the Supreme Court has stated,
"Cross-examination is 'the principal means by which the believability of a witn
ess
and the truth of his testimony are tested.'" Kentucky v. Stincer, 482 U.S. 730
, 736
(1987) (citations omitted). Absent such testing, it is extremely difficult to
make
necessary judgments about the credibility of grand jury witnesses and the weigh
t to
be given their testimony.
B. The Referral Differs Vastly From the Precedent of the Watergate "Road Map"
Instead of transmitting to the Committee the information gathered by the OIC, M
r.
Starr chose to give it his own spin. Had he sat across the table from the
witnesses, it might have been that he based his judgments on such scrutiny. Si
nce
he did not, the grounds on which he credited some evidence and rejected other
evidence are unknown. The decision to proceed in this way was a sharp departur
e
from Special Prosecutor Leon Jaworski's submission to Congress of "a simple and
straightforward compilation of information gathered by the Grand Jury, and no m
ore."
In re Report and Recommendation of June 5, 1972 Grand Jury, 370 F. Supp. 1219,
1226
(D.D.C. 1974)./ As drafted, the Referral impedes the search for truth by
cherry-picking the evidence and presenting (as we demonstrate in the next secti
ons)
a deeply misleading portrait of the record.
C. The Resulting Referral Omitted a Wealth of Directly Relevant Exculpatory Evi
dence
The Referral repeatedly and demonstrably omitted or mischaracterized directly
relevant evidence that exonerates the President of the very allegations leveled
by
the OIC. For example:
The concealment-of-gifts-accusation. The Referral claims that the President an
d Ms.
Lewinsky "discussed" concealing gifts at their December 28 visit, and that the
President therefore orchestrated the pick-up of those gifts. The Referral igno
res
evidence to the contrary, such as:
? Asked if President Clinton discussed concealment with her, Ms. Lewinsky said
,
"[H]e really didn't -- he didn't really discuss it."
App. at 1122 (8/20/98 grand jury testimony of Ms. Lewinsky). As to who first
conceived of the idea of involving Ms. Currie, the Referral omitted the key pas
sage:
? "A JUROR: Now, did you bring up Betty's name or did the President bring up
Betty's name?
[MS. LEWINSKY]: I think I brought it up. The President wouldn't have brought
up
Betty's name because he really didn't -- he didn't really discuss it."
App. at 1122 (8/20/98 grand jury testimony of Ms. Lewinsky). And as to who bro
ached
the idea of actually picking up the gifts, the Referral again omitted this impo
rtant
testimony by Ms. Currie:
Q. . . . Just tell us from moment one how this issue first arose and what you d
id
about it and what Ms. Lewinsky told you.
A. The best I remember it first arose with a conversation. I don't know if it
was
over the telephone or in person. I don't know. She asked me if I would pick
up a
box. She said Isikoff had been inquiring about gifts.
Supp. at 582 (5/6/98 grand jury testimony of Ms. Currie) (emphasis added).
The jobs-for-silence-accusation. The allegation that the President obstructed
justice by procuring a job for Ms. Lewinsky in exchange for silence or false
testimony rests on the Referral's account of Ms. Lewinsky's job search that sim
ply
excluded the contradictory evidence. Both Ms. Lewinsky and Mr. Jordan flatly d
enied
that the job assistance had anything at all to do with Ms. Lewinsky's testimony
:
"I was never promised a job for my silence." App. at 1161 (8/20/98 grand jury
testimony of Ms. Lewinsky).
"As far as I was concerned, [the job and the affidavit] were two very separate
matters." Supp. at 1737 (3/5/98 grand jury testimony of Vernon Jordan).
Q. Did [Ms. Lewinsky] ever directly indicate to you that she wanted her job in
New
York before she could finish [her affidavit] up with Mr. Carter?
A. Unequivocally, no.
Q. . . . Is there anything about the way she acted when speaking with you . . .
that, as you sit here now, makes you think that perhaps she was attempting not
to
finalize whatever she was doing with Mr. Carter until she had a job in New York
?
A. Unequivocally, indubitably, no.
Supp. at 1827 (5/5/98 grand jury testimony of Vernon Jordan). And as to the
circumstantial evidence, we demonstrate in Part VI.B.2 that the Referral omitte
d a
host of probative and exculpatory facts that negate the existence of any improp
er
quid pro quo.
The influencing-Betty-Currie-accusation. The Referral asserts that the Preside
nt's
January 18 conversation was an attempt to influence Ms. Currie's testimony. Bu
t the
Referral omitted Ms. Currie's clear testimony that this discussion did no such
thing:
Q: Now, back again to the four statements that you testified the President mad
e to
you that were presented as statements, did you feel pressured when he told you
those statements?
A: None whatsoever.
* * *
Q: Did you feel any pressure to agree with your boss?
A: None.
Supp. at 668 (7/22/98 grand jury testimony of Ms. Currie) (emphasis added).
Q: You testified with respect to the statements as the President made them, an
d, in
particular, the four statements that we've already discussed. You felt at the
time
that they were technically accurate? Is that a fair assessment of your testim
ony?
A: That's a fair assessment.
Q: But you suggested that at the time. Have you changed your opinion about it
in
retrospect?
A: I have not changed my opinion, no.
Supp. at 667 (7/22/98 grand jury testimony of Ms. Currie).
The false-affidavit-accusation. The OIC accused the President of obstructing
justice by suggesting that Ms. Lewinsky file an affidavit that he knew would be
false. Ref. at 173. However, the OIC inexplicably never once quoted Ms. Lewin
sky's
repeated, express denials that anyone had told or encouraged her to lie:
"Neither the Pres[ident] nor Mr. Jordan (or anyone on their behalf) asked or
encouraged Ms. L[ewinsky] to lie." App. at 718 (2/1/98 Proffer).
"I think I told [Tripp] that -- you know, at various times the President and Mr
Jordan had told me I had to lie. That wasn't true." App. at 942 (8/6/98 grand
jury
testimony of Ms. Lewinsky).
"I think because of the public nature of how this investigation has been and wh
at
the charges aired, that I would just like to say that no one ever asked me to l
ie
and I was never promised a job for my silence." App. at 1161 (8/20/98 grand ju
ry
testimony of Ms. Lewinsky).
"Neither the President nor Jordan ever told Lewinsky that she had to lie." App
at
1398 (7/27/98 FBI Form 302 Interview of Ms. Lewinsky).
"Neither the President nor anyone ever directed Lewinsky to say anything or to
lie
?" App. at 1400 (7/27/98 FBI Form 302 Interview of Ms. Lewinsky).
The denying-knowledge-of executive-privilege-accusation. The Referral states t
hat
the President deceived the public by feigning ignorance of the executive privil
ege
litigation:. According to the Referral, while in Africa, the President "was as
ked
about the assertion of Executive Privilege, he responded 'You should ask someon
e who
knows.' He also stated, 'I haven't discussed that with the lawyers. I don't
know.'"
To achieve the desired effect, the Referral first misstates the actual question
posed. This is the actual exchange:
Q: Mr. President, we haven't yet had the opportunity to ask you about your deci
sion
to invoke executive privilege, sir. Why shouldn't the American people see that
as
an effort to hide something from them?
The President: Look, that's a question that's being answered back home by the p
eople
who are responsible to do that. I don't believe I should be discussing that he
re.
Q. Could you at least tell us why you think the first lady might covered by tha
t
privilege, why her conversation might fall under that?
The President All I know is - I saw an article about it in the paper today. I
haven't discussed it with the lawyers. I don't know. You should ask someone w
ho
does./
The foregoing are just examples of a technique employed throughout the Referral
,
which systematically omits or mischaracterizes material evidence that would hav
e
undermined its allegations.
D. Mr. Starr's Conduct in the Lewinsky Investigation Has Betrayed a Bias that H
elps
Explain the Lack of Neutrality in the Referral
Mr. Starr's conduct in the Lewinsky investigation has demonstrated a bias again
st
the President. Understanding that bias is critical to evaluating the Referral
-- to
inform a proper weighing of the judgments Mr. Starr has made in selecting the
evidence, presenting the evidence, and drawing conclusions from it.
Mr. Starr actively sought jurisdiction in the Lewinsky matter, despite his
representations to the contrary.
After four years of fruitless investigation of the President and Mrs. Clinton o
n a
variety of topics generically referred to in the news media as "Whitewater," th
e
Starr investigation was at a standstill in early 1998 (the Independent Counsel
himself had sought to resign in 1997). However, a telephone call from Ms. Trip
p
with allegations of obstruction and witness tampering in the Paula Jones case (
which
turned out to be false) offered Mr. Starr a dramatic way to vindicate his long,
meandering, and costly investigation. Mr. Starr seized his chance energeticall
y,
promising Ms. Tripp immunity and using her to surreptitiously tape Ms. Lewinsky
even
before he made his request for jurisdiction to the Department of Justice.
Mr. Starr misrepresented how far he was willing to go in his attempts to obtai
n
evidence against the President.
The fervor with which Mr. Starr has pursued President Clinton is manifest in hi
s
denial, under oath, that his agents sought on January 16th to have Ms. Lewinsky
wear
a wire to surreptitiously record the President and Mr. Jordan. See, e.g.,
Transcript of November 19, 1998 Hearing at 286 (testimony of Mr. Starr). Mr.
Starr's vehement denials notwithstanding, the evidence the OIC submitted with t
he
Referral runs very much contrary to his version of the facts. Ms. Lewinsky's
testimony plainly contradicts Mr. Starr's account, see App. at 1147 ("they told
me
that . . . I'd have to place calls or wear a wire to see -- to call Betty and M
r.
Jordan and possibly the President"); id. at 1159 ("I didn't allow him [Presiden
t
Clinton] to be put on tape that night"), as does statements by her attorneys, T
ime
(Feb.16, 1998) at 49, and an interview memorandum of an FBI agent working for M
r.
Starr himself, see App. at 1379 (1/16/98 FBI 302 Form Interview of Ms. Lewinsky
).
It is evident that Mr. Starr wanted Ms. Lewinsky to help set up the President o
r
those close to him, but denied doing so in an effort to maintain a semblance of
impartiality.
Mr. Starr gave immunity to anyone he thought could help him go after the Presid
ent.
He granted immunity to one witness who had admitted engaging in illegal activit
y
over a period of several months (Ms. Tripp), and another witness who was, as he
stated, "a felon in the middle of committing another felony" (Ms. Lewinsky),
Transcript of November 19, 1998 Hearing at 140 (testimony of Mr. Starr), all in
an
effort to gather information damaging to the President.
The OIC leaked grand jury information hurtful to the President.
The OIC investigation has been characterized by a flagrant and highly prejudici
al
(to the President) campaign of grand jury leaks. Mr. Starr and his office have
been
ordered by Chief Judge Johnson to "show cause" why they should not be held in
contempt in light of "serious and repetitive prima facie violations of Rule 6(e
)."
Order (September 25, 1998) at 20. Leaks are significant not simply because the
y are
illegal, but also because the leaks themselves were often inaccurate and repres
ented
an effort to use misinformation to put pressure on the President. For example,
early leaks discussed the OIC's view that the "talking points" were an effort t
o
obstruct justice coming out of the White House:
[S]ources in Starr's office have told NBC News that the information Lewinsky's
lawyers were offering was simply not enough . . . . Sources in Starr's office a
nd
close to Linda Tripp say they believe the instructions (or talking points) came
from
the White House. If true, the could help support a case of obstruction of just
ice.
NBC Nightly News (Feb. 4, 1998) (emphasis added). The Referral barely mentions
the
"Talking Points" and makes no allegation that the President in fact had anythin
g to
do with this document./
The flaws in the Referral and the evidentiary record before the Committee are n
ot
academic. They reveal in concrete terms the weaknesses of the charges of perju
ry,
obstruction of justice, and abuse of office that have been presented to the
Committee. These charges are addressed in detail in the sections that follow.
VI. THE PRESIDENT DID NOT COMMIT PERJURY
Will Rogers is reported to have said of a contemporary: "It's not what he does
n't
know that bothers me, it's what he knows for sure that just ain't so." Defendi
ng
what the President actually said under oath is much easier than defending phant
om
allegations based on what some claim the President said. In analyzing the
allegation of perjury, we urge the Committee and the Congress to focus only on
what
is actually in the record, not on popular mythology, conventional (but incorrec
t)
wisdom, or political spin.
For example, it has variously been asserted that in the grand jury the Presiden
t
denied that he had a "sexual relationship" with Ms. Lewinsky and that he broadl
y
reaffirmed his earlier deposition testimony. In fact, in the grand jury, the
President admitted to an "inappropriate intimate relationship" with Ms. Lewinsk
y
that was physical in nature. In other words, any consideration of charges of
perjury requires a focused look at the actual statements at issue. Again, we a
sk
the Committee: Please, do not assume the conventional wisdom. Look, instead,
at
the actual record.
A. Elements of Perjury
Given the difficulties of testifying under oath with precision, proof of perjur
y
requires meeting a very high standard. A vast range of testimony that is impre
cise,
unresponsive, vague, and literally truthful, even if it is not completely
forthcoming, simply is not perjury. The law is aware of human foibles and
shortcomings of memory. Dissatisfaction with the President's answers because t
hey
may be narrow, "hair splitting," or formalistic does not constitute grounds for
alleging perjury.
Perjury requires proof that a defendant, while under oath, knowingly made a fal
se
statement as to material facts./ See, e.g., United States v. Dunnigan, 507 U.S
87,
94 (1993). The "knowingly" requirement is a high burden: the government must
prove
the defendant had a subjective awareness of the falsity of his statement at the
time
he made it. See, e.g., United States v. Dowdy, 479 F.2d 213, 230 (4th Cir. 197
3);
United States v. Markiewicz, 978 F.2d 786, 811 (2d Cir. 1992). Moreover, it is
(of
course) clear that a statement must be false in order to constitute perjury. I
t is
equally beyond debate that certain types of answers are not capable of being fa
lse
and are therefore by definition non-perjurious, no matter how frustrating they
may
be to the proceeding in which they are given: literally truthful answers that
imply
facts that are not true, see, e.g., United States v. Bronston, 409 U.S. 352, 35
8
(1973); truthful answers to questions that are not asked, see, e.g., United Sta
tes
v. Corr, 543 F.2d 1042, 1049 (2d Cir. 1976); and answers that fail to correct
misleading impressions, see, e.g., United States v. Earp, 812 F.2d 917, 919 (4t
h
Cir. 1987). The Supreme Court has made abundantly clear that it is not relevan
t for
perjury purposes whether the witness intends his answer to mislead, or indeed
intends a "pattern" of answers to mislead, if the answers are truthful or liter
ally
truthful.
In explaining the law of perjury, the Supreme Court and numerous lower federal
courts have set forth four clear standards. These core principles, discussed b
elow
in some detail, must inform the Committee's analysis here. First, the mere fac
t
that recollections differ does not mean one party is committing perjury. Few c
ivil
cases arise where testimony about events is not in conflict -- even as to core
matters at the heart of a case. When one party wins a case, the other is not
routinely indicted for perjury. Common sense and the stringent requirements of
perjury law make clear that much more is needed. Second, a perjury conviction
under
18 U.S.C. 1621 cannot rest solely on the testimony of a single witness and, at
the
very least as a matter of practice, no reasonable prosecutor would bring any ki
nd of
perjury case based on the testimony of one witness without independent corrobor
ation
-- especially if the witness is immunized, or is of questionable credibility.
As
the Supreme Court has made clear, a perjury case "ought not to rest entirely up
on
'an oath against an oath.'" United States v. Weiler, 323 U.S. 606, 608-09 (194
5).
Third, answers to questions under oath that are literally true but unresponsive
to
the questions asked do not, as a matter of law, fall under the scope of the fed
eral
perjury statute. That is so even if the witness intends to mislead his questio
ner
by his answer and even if the answer is false by "negative implication." And
fourth, answers to questions that are fundamentally ambiguous cannot, as a matt
er of
law, be perjurious.
B. Contradictory Testimony From Two Witnesses Does Not Indicate That One Has
Committed Perjury
1. It Must Be Proven that a Witness Had the Specific Intent to Lie
The "knowingly" element of perjury is not satisfied by the mere showing that th
e
testimony of two witnesses differs, or that the testimony of a witness is, in f
act,
not correct. Rather, it must be proven that a witness had a subjective awarene
ss
that a statement was false at the time he provided it. See, e.g., United State
s v.
Dowdy, 479 F.2d 213, 230 (4th Cir. 1973); United States v. Markiewicz, 978 F.2d
786,
811 (2d Cir. 1992). This is an extremely high standard. That standard is not
satisfied when incorrect testimony is provided as a result of confusion, mistak
e,
faulty memory, carelessness, misunderstanding, mistaken conclusions, unjustifie
d
inferences testified to negligently, or even recklessness. See, e.g., Dunnigan
, 507
U.S. at 94; United States v. Dean, 55 F.3d 640, 659 (D.C. Cir. 1995); see also
Department of Justice Manual, 1997 Supplement, at 9-69.214. As Professor Steph
en A.
Saltzburg testified to this Committee on December 1, 1998, "American judges and
lawyers ? know that [perjury] is a crime that we purposely make difficult to pr
ove.
We make it difficult to prove because we know that putting any person under oat
h and
forcing that person to answer 'under penalty of perjury' is a stressful experie
nce.
? Honest mistakes are made, memories genuinely fail, nervous witnesses say one
thing and in their minds hear themselves saying something different, and deceit
in
answers to questions about relatively trivial matters that could not affect the
outcome of a proceeding but that intrude deeply into the most private areas of
a
witness's life causes little harm." Perjury Hearing of December 1, 1998 (State
ment
of Professor Stephen A. Saltzburg at 1). Indeed, Mr. Starr has recognized that
people who have experienced the same event -- even the same significant event -
- may
emerge with conflicting recollections, and that that does not necessarily mean
one
of them is committing perjury:
MR. LOWELL: ? do you not think it would have been a less distorted picture, to
use
your words, to know that when [Ms. Lewinsky] left the room, she was followed by
agents, and that she swore under an oath that she, quote, "felt threatened that
when
she left, she would be arrested," end quote? Don't you think that completes th
e
picture a little bit?
MR. STARR: I think her perception was incorrect.
Transcript of November 19, 1998 Hearing at 139 (emphasis added).
MR. STARR: ? we talked at a high level of generality, as I understand it, not
in a
person-specific way, with respect to what a cooperating witness would do.
REP. DELAHUNT: You realize that Ms. Lewinsky's testimony contradicts you.
MR. STARR: I am aware that there may be other perceptions, but that is what we
, in
fact, asked.
Id. at 288 (emphasis added). The OIC's press spokesman Charles Bakaly, appeari
ng on
a television program immediately after Mr. Starr's testimony, attempted to exp
lain
this conflict between Ms. Lewinsky's sworn testimony and Mr. Starr's sworn test
imony
this way: "Well, you know, again, people have different versions of things."
ABC
Nightline, November 19, 1998 (emphasis added). The law, in short, gives ample
breathing space to conflicting testimony or recollection before leaping to
allegations of perjury.
2. A Perjury Case Must Not Be Based Solely Upon the Testimony of a Single Witne
ss
In a perjury prosecution under 18 U.S.C. 1621, the falsity of a statement alle
ged
to be perjurious cannot be established by the testimony of just one witness. T
his
ancient common law rule, referred to as the "two-witness rule," has survived
repeated challenges to its legitimacy and has been judicially recognized as the
standard of proof for perjury prosecutions brought under 1621. See, e.g., Wei
ler
v. United States, 323 U.S. 606, 608-610 (1945) (discussing the history and poli
cy
rationales of the two-witness rule); United States v. Chaplin, 25 F.3d 1373, 13
77-78
(7th Cir. 1994) (two-witness rule applies to perjury prosecutions). The Depart
ment
of Justice recognizes the applicability of the two-witness rule to perjury
prosecutions brought under 1621. See Department of Justice Manual, 1997
Supplement, at 9-69.265.
The crux of the two-witness rule is that "the falsity of a statement alleged to
be
perjurious must be established either by the testimony of two independent witne
sses,
or by one witness and independent corroborating evidence which is inconsistent
with
the innocence of the accused." Department of Justice Manual, 1997 Supplement,
at
9-69.265 (emphasis in original). The second witness must give testimony indepe
ndent
of the first which, if believed, would "prove that what the accused said under
oath
was false." Id.; United States v. Maultasch, 596 F.2d 19, 25 (2d Cir. 1979).
Alternatively, the independent corroborating evidence must be inconsistent with
the
innocence of the accused and "of a quality to assure that a guilty verdict is
solidly founded." Department of Justice Manual, 1997 Supplement, at 9-69.265;
United States v. Forrest, 639 F.2d 1224, 1226 (5th Cir. 1981). It is therefore
clear that a perjury conviction under 1621 cannot lie where there is no
independent second witness who corroborates the first, or where there is no
independent evidence that convincingly contradicts the testimony of the accused
Section 1623 does not literally incorporate the "two-witness rule," but it is
nonetheless clear from the case law that perjury prosecutions under this statut
e
require a high degree of proof, and that prosecutors should not, as a matter of
reason and practicality, even try to bring perjury prosecutions based solely on
the
testimony of a single witness. In Weiler v. United States, 323 U.S. 606, 608-0
9
(1945), the Supreme Court observed that "[t]he special rule which bars convicti
on
for perjury solely upon the evidence of a single witness is deeply rooted in pa
st
centuries." The Court further observed that "equally honest witnesses may well
have
differing recollections of the same event," and hence "a conviction for perjury
ought not to rest entirely upon 'an oath against an oath.'" Id. at 609 (emphas
is
added). Indeed, the common law courts in seventeenth-century England required
the
testimony of two witnesses as a precondition to a perjury conviction, when the
testimony of a single witness was in almost all other cases sufficient. See
Chaplin, 25 F.3d at 1377 (citing Wigmore on Evidence 2040(a) at 359-60 (Chadbo
urne
rev. 1978)). The common law courts actually adopted the two-witness rule from
the
Court of Star Chamber, which had followed the practice of the ecclesiastical co
urts
of requiring two witnesses in perjury cases. Id. The English rationale for th
e
rule is as resonant today as it was in the seventeenth century: "[I]n all othe
r
criminal cases the accused could not testify, and thus one oath for the prosecu
tion
was in any case something as against nothing; but on a charge of perjury the
accused's oath was always in effect evidence and thus, if but one witness was
offered, there would be merely . . . an oath against an oath." Id. And, as no
ted
above, no perjury case should rest merely upon "an oath against an oath." As a
practical matter, the less reliable the single witness, the more critically the
independent corroboration is required.
C. "Literal Truth" and Non-Responsive Answers Do Not Constitute Perjury
A third guiding principle is that literal truth, no matter how frustrating it m
ay
be, is not perjury. In United States v. Bronston, 409 U.S. 352 (1973), the lea
ding
case on the law of perjury, the Supreme Court addressed "whether a witness may
be
convicted of perjury for an answer, under oath, that is literally true but not
responsive to the question asked and arguably misleading by negative implicatio
n."
Id. at 352. The Court directly answered the question "no." It made absolutely
clear that a literally truthful answer cannot constitute perjury, no matter how
much
the witness may have intended by his answer to mislead.
Bronston involved testimony taken under oath at a bankruptcy hearing. At the
hearing, the sole owner of a bankrupt corporation was asked questions about the
existence and location of both his personal assets and the assets of his
corporation. The owner testified as follows:
Q: Do you have any bank accounts in Swiss banks, Mr. Bronston?
A: No, sir.
Q: Have you ever?
A: The company had an account there for about six months in Zurich.
Q: Have you any nominees who have bank accounts in Swiss banks?
A: No, sir.
Q: Have you ever?
A: No, sir.
Id. at 354. The government later proved that Bronston did in fact have a perso
nal
Swiss bank account that was terminated prior to his testimony. The government
prosecuted Bronston "on the theory that in order to mislead his questioner,
[Bronston] answered the second question with literal truthfulness but unrespons
ively
addressed his answer to the company's assets and not to his own --thereby imply
ing
that he had no personal Swiss bank account at the relevant time." Id. at 355.
The Supreme Court unanimously rejected this theory of perjury. It assumed for
purposes of its holding that the questions referred to Bronston's personal bank
accounts and not his company's assets. Moreover, the Court stated, Bronston's
"answer to the crucial question was not responsive," and indeed "an implication
in
the second answer to the second question [is] that there was never a personal b
ank
account." Id. at 358. The Court went so far as to note that Bronston's answer
s
"were not guileless but were shrewdly calculated to evade." Id. at 361. Howev
er,
the Court emphatically held that implications alone do not rise to the level of
perjury, and that Bronston therefore could not have committed perjury. "[W]e a
re
not dealing with casual conversation and the statute does not make it a crimina
l act
for a witness to willfully state any material matter that implies any material
matter that he does not believe to be true." Id. at 357-58. The Court took pa
ins
to point out the irrelevance of the witness's intent: "A jury should not be
permitted to engage in conjecture whether an unresponsive answer, true and comp
lete
on its face, was intended to mislead or divert the examiner." Id. at 359.
The Supreme Court in Bronston provided several rationales for its holding that
literally true, non-responsive answers are by definition non-perjurious, regard
less
of their implications. First, the Court noted that the burden always rests squ
arely
on the interrogator to ask precise questions, and that a witness is under no
obligation to assist the interrogator in that task. The Court "perceive[d] no
reason why Congress would intend the drastic sanction of a perjury prosecution
to
cure a testimonial mishap that could readily have been reached with a single
additional question by counsel alert -- as every counsel ought to be--to the
incongruity of petitioner's unresponsive answer." Id. at 359. Moreover, the
Court
noted that because of the adversarial process, perjury is an extraordinary and
unusual sanction, since "a prosecution for perjury is not the sole, or even the
primary safeguard against errant testimony." Id. at 360. The perjury statute
cannot be invoked "simply because a wily witness succeeds in derailing the
questioner -- so long as the witness speaks the literal truth." Id.
Bronston is just one of scores of cases across the federal circuits that make c
lear
that the definition of perjury must be carefully limited because perjury
prosecutions are dangerous to the public interest since they "discourage witnes
ses
from appearing or testifying." Id. at 359./ For instance, in United States v.
Earp, 812 F.2d 917 (4th Cir. 1987), the defendant, a member of the Ku Klux Klan
, had
stood guard during the attempted burning of a cross on the lawn of an interraci
al
couple, and further evidence demonstrated that he had personally engaged in oth
er
attempts to burn crosses. During questioning before a grand jury, however, he
denied ever having burned crosses on anyone's lawn. He was convicted of perjur
y,
but the United States Court of Appeals for the Fourth Circuit reversed his
conviction, because "like the witness in Bronston, [the defendant's] answers we
re
literally true although his second answer was unresponsive." Id. at 919. That
is,
the defendant had not actually succeeded in his cross-burning attempts, so it w
as
literally true that he had never burned crosses on anyone's lawn. The court no
ted
that "while he no doubt knew full well that he had on that occasion tried to bu
rn a
cross, he was not specifically asked either about any attempted cross burnings.
"
Id. Every federal court of appeals in the nation concurs in this reading of
Bronston./
D. Fundamentally Ambiguous Questions Cannot Produce Perjurious Answers
A fourth guiding principle is that ambiguous questions cannot produce perjuriou
s
answers. When a question or a line of questioning is "fundamentally ambiguous,
" the
answers to the questions posed are insufficient as a matter of law to support a
perjury conviction." See, e.g., United States v. Finucan, 708 F.2d 838, 848 (1
st
Cir. 1983); United States v. Lighte, 782 F.2d 367, 375 (2d Cir. 1986); United S
tates
v. Tonelli, 577 F.2d 194, 199 (3d Cir. 1978); United States v. Bell, 623 F.2d 1
132,
1337 (5th Cir. 1980); United States v. Wall, 371 F.2d 398, 400 (6th Cir. 1967);
United States v. Williams, 552 F.2d 226, 229 (8th Cir. 1977). In other words,
when
there is more than one way of understanding the meaning of a question, and the
witness has answered truthfully as to his understanding, he cannot commit perju
ry.
Many courts have emphasized that "defendants may not be assumed into the
penitentiary" by "sustain[ing] a perjury charge based on [an] ambiguous line of
questioning." Tonelli, 577 F.2d at 199.
United States v. Lattimore, 127 F. Supp. 405 (D.D.C. 1955), is the key case dea
ling
with ambiguous questions in the perjury context. In Lattimore, a witness was
questioned before the Senate Internal Security Subcommittee about his ties to t
he
Communist party. He was asked whether he was a "follower of the Communist line
,"
and whether he had been a "promoter of Communist interests." He answered "no"
to
both questions, and was subsequently indicted for committing perjury. The Unit
ed
States District Court for the District of Columbia found that the witness could
not
be indicted on "charges so formless and obscure as those before the Court." Id
at
413. The court held that "'follower of the Communist line' is not a phrase wit
h a
meaning about which men of ordinary intellect could agree, nor one which could
be
used with mutual understanding by a questioner and answerer unless it were defi
ned
at the time it were sought and offered as testimony." Id. at 110. As the cour
t
explained further:
[The phrase] has no universally accepted definition. The Government has define
d it
in one way and seeks to impute its definition to the defendant. Defendant has
declined to adopt it, offering a definition of his own. It would not necessita
te
great ingenuity to think up definitions differing from those offered either by
the
Government or defendant. By groundless surmise only could the jury determine w
hich
definition defendant had in mind.
Id. at 109.
Many other cases stand for the proposition that a witness cannot commit perjury
by
answering an inherently ambiguous question. For instance, in United States v.
Wall,
371 F.2d 398 (6th Cir. 1967), a witness was asked whether she had "been on trip
s
with Mr. X," and she answered "no." The government could prove that in fact th
e
witness, who was from Oklahoma City, had been in Florida with "Mr. X." However
, the
government could not prove that the witness had traveled from Oklahoma City to
Florida with "Mr. X." The court noted (and the government conceded) that the p
hrase
"been on trips" could mean at least two different things: "That a person
accompanied somebody else travelling with, or it can mean that they were there
at a
particular place with a person." The court then stated that "[t]he trouble wit
h
this case is that the question upon which the perjury charge was based was
inarticulately phrased, and, as admitted by the prosecution, was susceptible of
two
different meanings. In our opinion, no charge of perjury can be based upon an
answer to such a question." Id. at 399-400.
Similarly, in United States v. Tonelli, 577 F.2d 194 (3d Cir. 1978), the defend
ant
answered negatively a question whether he had "handled any pension fund checks.
"
The government then proved that the defendant had actually handled the transmis
sion
of pension fund checks by arranging for others to send, mail, or deliver the ch
ecks.
The government charged the defendant with perjury. The court held that perjur
y
could not result from the government's ambiguous question. The court explained
:
It is clear that the defendant interpreted the prosecutor's questions about
'handling' to mean 'touching' . . . To sustain a perjury charge based on the
ambiguous line of questioning here would require us to assume [defendant]
interpreted 'handle' to include more than 'touching.' The record will not allo
w us
to do so and as the Court of Appeals for the Fifth Circuit has observed
'[e]specially in perjury cases defendants may not be assumed into the penitenti
ary.'
Id. at 199-200.
United States v. Bell, 623 F.2d 1132, 1137 (5th Cir. 1980), is yet another exam
ple
of this doctrine. In Bell, a witness was asked before a grand jury, "Whether
personal or business do you have records that are asked for in the subpoena," a
nd
the witness answered, "No, sir, I do not." It was later established that the
witness's files clearly contained relevant records. Nonetheless, the court hel
d
that the question was ambiguous, and therefore incapable of yielding a perjurio
us
answer. The witness interpreted the question to ask whether he had brought the
records with him that day, and not whether he had any records anywhere else in
the
world./
E. It Is Expected and Proper for a Witness to be Cautious When Under Oath
Every lawyer knows that in preparing a witness for a deposition one important t
ask
is to counsel the witness to be cautious in answering questions under oath, not
to
guess or give an answer as to which the witness is not sure, and not to volunte
er
information to opposing counsel that is not specifically sought by the question
For example, one legal text advises, "[C]ounsel will want to drill the deponent
to
answer questions as she would at the deposition: short and to the point, with
nothing volunteered."/ Lawyers are advised they should instruct a client: "If
you
do not know or do not remember, say that. You do not get extra points by guess
ing.
If you are pretty sure of the answer but not 100% sure, say that. ? You do not
get
extra points for giving perfectly clear and complete answers. Normally if ther
e is
some ambiguity in your answer, that will be a problem for the opposing party, n
ot
for you." Id. at 222. As Mr. Starr testified to the Judiciary Committee at on
e
point, "I have to be careful of what I say, because of not having universal fac
ts."
Transcript of November 19, 1998 Hearing at 386. And Mr. Starr declined repeate
dly
to answer questions under oath, stating on numerous occasions that he would hav
e to
"search his recollection," and qualifying many of the answers he did give with
such
phrases as "to the best of my recollection" and "if my recollection serves me."
See, e.g., Transcript of November 19, 1998 Hearing at 107 ("But the letter, if
my
recollection serves me, goes to the circumstances with respect to the events of
the
evening of January 16th.") (emphasis added); Id. at 122 ("? But they were only
conversations, and it never ripened -- I'm talking about with Mr. Davis -- and
it
never ripened into an arrangement, an agreement, to the best of my recollection
, to
do anything because of the circumstances that then occurred.") (emphasis added)
; Id.
at 247 ("I'm unable to answer that question without -- you know, I will have to
approach -- you're saying any information relating to any -- and I would have t
o
search my recollection. I've prepared today for questions that go to this refe
rral.
So I will have to search my recollection.") (emphasis added); Id. at 343 ("Wit
h
respect to the travel office I would frankly have to search my recollection to
see
exactly where we were and when we were there.") (emphasis added); Id. at 358 ("
We
discussed with Sam [Dash] a variety of issues. I would have to search my
recollection with respect to any specific observations that Sam gave us with re
spect
to this.") (emphasis added). This is what a well-prepared witness does when
testifying under oath. No amount of pressure should force a witness to assert
recall where there is none, or to answer a question not asked. A failure to do
so
is neither remarkable nor criminal.
F. Specific Claims of Perjury
With these principles in mind, it is apparent that there is no basis for a char
ge of
perjury here, either with respect to the President's Jones deposition or his
subsequent grand jury testimony.
1. Civil Deposition of January 17, 1998
a. Nature of Relationship
The primary allegation of perjury arising from President Clinton's deposition
testimony of January 17, 1998, appears to be that he lied under oath about the
nature of his relationship with Ms. Lewinsky when he denied in that civil case
that
he had a "sexual affair," a "sexual relationship," or "sexual relations" with M
s.
Lewinsky. See Ref. at 131; Schippers Presentation at 25. In the deposition,
President Clinton asserted: (1) that he did not have a "sexual affair" with Ms
Lewinsky within the undefined meaning of that term, Dep. at 78; (2) that Ms.
Lewinsky was correct in her statement that she did not have a "sexual relations
hip"
with the President within the undefined meaning of that term, id. at 204; and (
3)
that he did not have "sexual relations" with Ms. Lewinsky as that term was defi
ned
by the Jones lawyers and limited by Judge Wright, ibid. The allegation that
President Clinton perjured himself with respect to any of these deposition
statements is without merit.
First, it is by now more than clear that the undefined terms "sexual affair,"
"sexual relations" and "sexual relationship" are at best ambiguous, meaning
different things to different people, and that President Clinton's belief that
the
terms refer to sexual intercourse is supported by courts, commentators, and num
erous
dictionaries -- a point ignored in the Referral and Mr. Schippers' presentation
to
the Committee despite the obvious problem with premising a perjury claim on suc
h
ambiguous terms. As one court has stated, "[i]n common parlance the terms 'sex
ual
intercourse' and 'sexual relations' are often used interchangeably." J.Y. v. D
A.,
381 N.E.2d 1270, 1273 (Ind. App. 1978). Dictionary definitions make the same p
oint.
For example,
Webster's Third New International Dictionary (1st ed. 1981) at 2082, defines "s
exual
relations" as "coitus;"
Random House Webster's College Dictionary (1st ed. 1996) at 1229, defines "sexu
al
relations" as "sexual intercourse; coitus;"
Merriam-Webster's Collegiate Dictionary (10th ed. 1997) at 1074, defines "sexua
l
relations" as "coitus;"
Black's Law Dictionary (Abridged 6th ed. 1991) at 560, defines "intercourse" as
"sexual relations;" and
Random House Compact Unabridged Dictionary (2d ed. 1996) at 1755, defines "sex
ual
relations" as "sexual intercourse; coitus."
The President's understanding of these terms, which is shared even by several c
ommon
dictionaries, could not possibly support a prosecution for perjury. How would
a
prosecutor prove these dictionaries "wrong?"/
Irrespective of the view that "sexual relations" means intercourse, the evidenc
e is
indisputable that this is indeed what President Clinton believed. Perjury requ
ires
more than that a third party believes President Clinton was wrong about the mea
ning
of these terms (a point on which the allegation plainly founders); it also requ
ires
proof that President Clinton knew he was wrong and intentionally lied about it.
But
the evidence demonstrates that the President honestly held that belief well bef
ore
the Jones deposition. The genuineness of President Clinton's beliefs on this
subject is even supported by the OIC's account of Ms. Lewinsky's testimony duri
ng an
interview with the FBI:
[A]fter having a relationship with him, Lewinsky deduced that the President, in
his
mind, apparently does not consider oral sex to be sex. Sex to him must mean
intercourse.
App. at 1558 (8/19/98 FBI 302 Form Interview of Ms. Lewinsky).
And finally, Ms. Lewinsky herself took the position that her contact with the
President did not constitute "sex" and reaffirmed that position even after she
had
received immunity and began cooperating with the OIC. For example, in one of t
he
conversations surreptitiously taped by Ms. Tripp, Ms. Lewinsky explained to Ms.
Tripp that she "didn't have sex" with the President because "[h]aving sex is ha
ving
intercourse." Supp. at 2664; see also Supp. at 1066 (grand jury testimony of N
eysa
Erbland stating that Ms. Lewinsky had said that the President and she "didn't h
ave
sex"). Ms. Lewinsky reaffirmed this position even after receiving immunity, st
ating
in an FBI interview that "her use of the term 'having sex' means having interco
urse.
. ." App. at 1558 (8/19/98 FBI 302 Form Interview of Ms. Lewinsky). Likewis
e, in
her original proffer to the OIC, she wrote, "Ms. L[ewinsky] was comfortable sig
ning
the affidavit with regard to the 'sexual relationship' because she could justif
y to
herself that she and the Pres[ident] did not have sexual intercourse." App. a
t 718
(2/1/98 Proffer). In short, the evidence supports only the conclusion that the
President's responses with respect to these undefined terms were truthful and a
t
worst good faith responses to indisputably ambiguous questions./ The Referral
and
the Committee have adduced no evidence to the contrary.
Second, the President's statement in his deposition that he had not had "sexual
relations" with Ms. Lewinsky as that term was defined by the Jones lawyers and
substantially narrowed by Judge Wright also is correct. Neither the OIC in its
Referral nor Mr. Schippers in his presentation to the Committee laid out the
sequence of events that led to the limited definition of "sexual relations" whi
ch
was ultimately presented to President Clinton and which he was required to foll
ow.
At the deposition, the Jones attorneys presented a broad, three-part definition
of
the term "sexual relations" to be used by them in the questioning. Judge Wrigh
t
ruled that two parts of the definition were "too broad" and eliminated them. D
ep.
at 22. The President, therefore, was presented with the following definition (
as he
understood it to have been amended by the Court):/
Definition of Sexual Relations
For the purposes of this deposition, a person engages in "sexual relations" whe
n the
person knowingly engages in or causes -
(1) contact with the genitalia, anus, groin, breast, inner thigh, or buttocks o
f any
person with an intent to arouse or gratify the sexual desire of any person;
(2) contact between any part of the person's body or an object and the genitals
and
anus of another person; or
(3) contact between the genitals or anus of the person and any part of another
person's body.
"Contact" means intentional touching, either directly or through clothing.
This definition substantially narrowed the meaning of the term as it was used b
y the
Jones lawyers. It rendered an overly broad definition bizarrely narrow and
contorted. But despite that narrowing, and the resulting peculiarity of what w
as
and was not covered, the Jones lawyers chose to stick with it rather than ask d
irect
questions, see Dep. at 23, as they were invited to do by the President's counse
l.
Dep. at 25. When they asked the President about "sexual relations" with Ms.
Lewinsky in the deposition, they did so with explicit reference to this definit
ion.
See Dep. at 78 ("And so the record is completely clear, have you ever had sexua
l
relations with Monica Lewinsky, as that term is defined in Deposition Exhibit 1
, as
modified by the Court?") (emphasis added).
It is plain that this narrow definition did not include certain physical acts -
- an
interpretation shared by many commentators, journalists, and others. See, e.g.
,
Perjury Hearing of December 1, 1998 (Statement of Professor Stephen A. Saltzbur
g at
2) ("That definition defined certain forms of sexual contact as sexual relation
s
but, for reasons known only to the Jones lawyers, limited the definition to con
tact
with any person for the purpose of gratification."); MSNBC Internight, August 1
2,
1998 (Cynthia Alksne) ("[W]hen the definition finally was put before the presid
ent,
it did not include the receipt of oral sex"); "DeLay Urges a Wait For Starr's
Report," The Washington Times (August 31, 1998) ("The definition of sexual
relations, used by lawyers for Paula Jones when they questioned the president,
was
loosely worded and may not have included oral sex"); "Legally Accurate," The
National Law Journal (August 31, 1998) ("Given the narrowness of the court-appr
oved
definition in [the Jones] case, Mr. Clinton indeed may not have perjured himsel
f
back then if, say, he received oral sex but did not reciprocate sexually"). Th
is
interpretation may be confusing to some. It may be counter-intuitive. It may
lead
to bizarre answers. But it certainly was not objectively wrong. And it was no
t the
President's doing.
Moreover, the Jones lawyers had the opportunity to ask questions which would ha
ve
elicited details about the President's relationship with Ms. Lewinsky but chose
not
to develop the issue. As an alternative to relying on the definition provided
by
the Jones lawyers, the President's counsel invited the Jones lawyers to "ask th
e
President what he did, [and] what he didn't do ?." Dep. at 21. The Jones lawy
ers
ignored the invitation and stuck with their definition even as it was limited.
As
the Supreme Court has explained, "[i]f a witness evades, it is the lawyer's
responsibility to recognize the evasion and to bring the witness back to the ma
rk,
to flush out the whole truth with the tools of adversary examination." Bronsto
n v.
United States, 409 U.S. 352, 358-59 (1973)./
b. Being Alone with Ms. Lewinsky
President Clinton's deposition testimony regarding whether he was alone with Ms
Lewinsky at various times and places does not constitute perjury. The fundamen
tal
flaw in the charge is that it is based on a mischaracterization of the Presiden
t's
testimony -- the President did not testify that he was never alone with Ms.
Lewinsky.
Both the Starr Referral and Mr. Schippers' presentation to the Committee start
from
the incorrect premise that the President testified that he was never alone with
Ms.
Lewinsky. See Ref. at 154 ("[T]he President lied when he said 'I don't recall'
in
response to the question whether he had ever been alone with Ms. Lewinsky.");/
Schippers Presentation at 29 ("[T]he President may have given false testimony u
nder
oath ? regarding his statement that he could not recall being alone with Monica
Lewinsky."). In fact, the President did not deny that he had been alone with M
s.
Lewinsky. For example, the President answered "yes" to the question "your test
imony
is that it was possible, then, that you were alone with her??". Dep. at 53./
Whatever confusion or incompleteness there may have been in the President's
testimony about when and where he was alone with Ms. Lewinsky cannot be charged
against the President. The Jones lawyers failed to follow up on incomplete or
unresponsive answers. They were free to ask specific follow-up questions about
the
frequency or locale of any physical contact, but they did not do so. This fail
ure
cannot be used to support a charge of perjury. Bronston, 409 U.S. at 360.
c. "Minimizing" Gifts that Were Exchanged
A separate perjury charge is based on the assertion that in his deposition the
President "minimized" the number of gifts he exchanged with Ms. Lewinsky. Ref.
at
151; Schippers Presentation at 29. Again, the evidence simply does not support
this
allegation. To start with, even the charge of "minimizing" the number of gift
s
concedes the only potentially material issue -- the President acknowledged that
he
did exchange gifts with Ms. Lewinsky. There is not much that is safe from a pe
rjury
prosecution if mere "minimization" qualifies for the offense.
As weak as the "minimization" charge is, it is also wrong. A fair reading of t
he
President's deposition testimony makes clear that, when asked about particular
gifts, the President honestly stated his recollection of the particular item.
See
Dep. at 75 ("Q. Do you remember giving her an item that had been purchased from
The
Black Dog store at Martha's Vineyard? A. I do remember that ?."). Moreover,
when
the President could not recall the precise items that he had exchanged, he aske
d the
Jones lawyers to tell him so that he could confirm or deny as the facts require
d./
See ibid.
In essence, this allegation is yet another complaint that President Clinton was
not
more forthcoming (or that he did not have a more precise memory on these issues
),
which is plainly not a ground for alleging perjury.
d. Conversations with Ms. Lewinsky About Her Involvement in the Jones Case
Both the Referral and Mr. Schippers' presentation allege perjury in the Jones
deposition with respect to President Clinton's conversations with Ms. Lewinsky
about
her involvement in the Jones case. See Ref. at 160; Schippers Presentation at
32.
Specifically, it is alleged that the President committed perjury in his deposit
ion
when he failed to (1) acknowledge that he knew that Ms. Lewinsky had been subpo
enaed
at the time he had last seen and spoken to her; and (2) acknowledge that he had
spoken to Ms. Lewinsky about the possibility that she would testify in the Jone
s
case. Ibid. Once again, the charge of false testimony is based on a wholly
inaccurate reading of the President's deposition. The President acknowledged t
hat
he knew that Ms. Lewinsky had been subpoenaed, that he was not sure when was th
e
last time he had seen and spoken with her (but that it was sometime around
Christmas), and that he had discussed with her the possibility that she would h
ave
to testify.
(1) The allegation that the President denied knowing that Ms. Lewinsky had bee
n
subpoenaed the last time he spoke to her illustrates the problem of taking sele
cted
pieces of testimony out of context. Messrs. Starr and Schippers isolate the
following exchange in the deposition:
Q. Did she tell you she had been served with a subpoena in this case?
A. No. I don't know if she had been.
Dep. at 68. From this incomplete excerpt, they claim that the President perjur
ed
himself by denying that he knew that Ms. Lewinsky had been subpoenaed the last
time
he had spoken with her. See Ref. at 163.
The charge is unsupported by the evidence. First, the testimony immediately
following this exchange demonstrates both that the President was not hiding tha
t he
knew Ms. Lewinsky had been subpoenaed by the time of the deposition and that th
e
Jones lawyers were well aware that this was the President's position:
Q. Did anyone other than your attorneys ever tell you that Monica Lewinsky had
been
served with a subpoena in this case?
A. I don't think so.
?
A. Bruce Lindsey, I think Bruce Lindsey told me that she was, I think maybe th
at's
the first person [who] told me she was. I want to be as accurate as I can.
?
Q. Did you talk to Mr. Lindsey about what action, if any, should be taken as a
result of her being served with a subpoena?
A. No.
Dep. at 68-70. It is evident from the complete exchange on this subject that t
he
President was not generally denying that he knew that Ms. Lewinsky had been
subpoenaed in the Jones case./ The questions that the Jones lawyers were askin
g the
President also make clear that this is what they understood the President's
testimony to be.
Second, the President's testimony cannot fairly be read as an express denial of
knowledge that Ms. Lewinsky had been subpoenaed the last time he had spoken to
her
before the deposition. Most importantly, the President was not asked whether h
e
knew that Ms. Lewinsky had been subpoenaed on December 28th, which was the last
time
he had seen her. When the President answered the question, "Did she tell you s
he
had been served with a subpoena in this case?", he plainly was not thinking abo
ut
December 28th. To the contrary, the President's testimony indicates that he wa
s
totally confused about the dates of his last meetings with Ms. Lewinsky, and he
made
that abundantly clear to the Jones lawyers:
Q. When was the last time you spoke with Monica Lewinsky?
A. I'm trying to remember. Probably sometime before Christmas. She came by to
see
Betty sometime before Christmas. And she was there talking to her, and I stuck
my
head out, said hello to her.
Q. Stuck your head out of the Oval Office?
A. Uh-huh, Betty said she was coming by and talked to her, and I said hello to
her.
Q. Was that shortly before Christmas or -
A. I'm sorry, I don't remember. Been sometime in December, I think, and I beli
eve
-- that may not be the last time. I think she came to one of the, one of the
Christmas parties.
Dep. at 68 (emphasis added). His statement that he did not know whether she ha
d
been subpoenaed directly followed this confused exchange and was not tied to an
y
particular meeting with her. By that time it is totally unclear what date the
answer is addressing.
The Referral ignores this confusion by selectively quoting the President as
testifying "that the last time he had spoken to Ms. Lewinsky was in December 19
97 ?
'probably sometime before Christmas.'" Ref. at 163 (quoting Dep. at 68)./ Giv
en
his confusion, which the Jones lawyers made no attempt to resolve, it is diffic
ult
to know what was being said, much less to label it false and perjurious.
(2) The claim that President Clinton did not acknowledge speaking with Ms. Lew
insky
about whether she might have to testify similarly is not a fair or accurate rea
ding
of the deposition. In response to the question, "Have you ever talked to Ms.
Lewinsky about the possibility that she might have to testify in this lawsuit?"
, the
President's answer did not end with the statement "I'm not sure." Instead, the
President continued with the statement "and let me tell you why I'm not sure,"
at
which point he described his recollection of having spoken with Ms. Lewinsky a
bout
how Ms. Jones' lawyers and the Rutherford Institute were going to call every wo
man
to whom he had ever talked. Ibid. It is evident the President's answer referr
ed to
the time period before Ms. Lewinsky was on a witness list -- i.e., when her
participation was still a "possibility" only. Indeed, Ms. Lewinsky confirmed t
he
accuracy of the President's recollection of this conversation in her testimony,
a
fact that also is missing from the Referral. See App. at 1566 (8/24/98 FBI 302
Form
Interview of Ms. Lewinsky) ("LEWINSKY advised CLINTON may have said during this
conversation that every woman he had ever spoken to was going to be on the witn
ess
list.").
Thus, the President did in fact accurately describe a conversation with Ms. Lew
insky
about potential testimony. That the Jones lawyers failed to follow-up with
questions that would elicit whether that was the only conversation, or whether
there
were additional conversations once Ms. Lewinsky was on the witness list and her
testimony was no longer a mere possibility, is not perjury. It is simply a con
fused
deposition record that could have been clarified contemporaneously.
e. Conversations with Mr. Jordan About Ms. Lewinsky
The pattern of mischaracterizing the President's deposition testimony to constr
uct a
perjury charge is repeated in a final perjury allegation regarding the Presiden
t's
deposition answers to questions about conversations with Mr. Jordan about Ms.
Lewinsky. The Referral alleges that the President was "asked during his civil
deposition whether he had talked to Mr. Jordan about Ms. Lewinsky's involvement
in
the Jones case" and that he "stated that he knew Mr. Jordan had talked to Ms.
Lewinsky about her move to New York, but stated that he did not recall whether
Mr.
Jordan had talked to Ms. Lewinsky about her involvement in the Jones case." Re
f. at
186; see also Schippers Presentation at 40. The problem with this allegation i
s
that President Clinton was never asked "whether he had talked to Mr. Jordan abo
ut
Ms. Lewinsky's involvement in the Jones case," and he did not deny doing so.
In support of the charge, the Referral quotes the following exchange from the
President's deposition about who told the President that Ms. Lewinsky had been
subpoenaed:
Q. Did anyone other than your attorneys ever tell you that Monica Lewinsky h
ad
been served with a subpoena in this case?
A. I don't think so.
Ref. at 186 (emphasis added in Referral). This exchange does not address wheth
er
the President spoke with Mr. Jordan about Ms. Lewinsky's involvement in the Jon
es
suit. And the excerpt is itself misleading. The Referral omits the President'
s
next answer, even though it is obvious from the text, and the OIC was told by t
he
President in his grand jury testimony, App. at 518-19, that this answer was int
ended
to finish the President's response to the previous question:
A. Bruce Lindsey, I think Bruce Lindsey told me that she was, I think maybe
that's the first person told me she was. I want to be as accurate as I can.
Plainly, the President was not testifying that no one other than his attorneys
had
told him that Ms. Lewinsky had been subpoenaed. The Jones lawyers did not purs
ue
this by asking logical follow-up questions, such as whether, if Mr. Lindsey was
the
first person were there others, or whether Mr. Jordan had subsequently shared t
hat
information with him. The bottom line is that President Clinton did not deny,
in
the quoted passage or elsewhere, knowing that Mr. Jordan had spoken to Ms. Lewi
nsky
about the Jones matter.
Nor do the other two cited passages of the President's deposition testimony hel
p the
OIC's case. In response to a question about whether in the two weeks before Ja
nuary
17 anyone had reported to him that they had had a conversation with Ms. Lewinsk
y
about the Jones case, the President replied "I don't believe so." Dep. at 72.
The
President was not questioned specifically about whether he had ever spoken to M
r.
Jordan or anyone else about Ms. Lewinsky's involvement in the Jones case. The
President's response, accordingly, did not rule out all conversations with Mr.
Jordan about Ms. Lewinsky's involvement in the case, as the Referral suggests,
but
only in the two-week period prior to the deposition and only conversations rela
ying
accounts of conversations with Ms. Lewinsky. Even conversations with Mr. Jorda
n
about her involvement in the case would not have been covered. The Referral do
es
not identify any reports to the President about any conversation that Mr. Jorda
n had
with Ms. Lewinsky in that time period -- instead, it recounts only that, ten da
ys
before the deposition, Mr. Jordan may have told the President that the affidavi
t was
signed. See Ref. at 187.
Finally, the President's answer to the question whether it had been reported to
him
that Mr. Jordan had "met with Monica Lewinsky and talked about [the Jones] case
,"
Dep. at 72 (emphasis added), obviously cannot be read to support this charge of
perjury. In response to this question, the President acknowledged that he knew
that
Mr. Jordan and Ms. Lewinsky had met. The President's further response -- that
he
believed Mr. Jordan met with Ms. Lewinsky to give her advice about her move to
New
York was fully accurate. Again, the President was not asked whether he was awa
re
that Mr. Jordan had talked to Ms. Lewinsky about her involvement in the Jones c
ase.
Since he was not asked the question, it is implausible to suggest that he lied
in
the answer.
2. Grand Jury Testimony of August 17, 1998
Proponents of impeachment repeatedly contend in the most general terms that
President Clinton committed perjury in the grand jury on August 17, 1998. When
this
allegation is framed in specific terms, it is often based on the false belief t
hat
President Clinton denied in the grand jury having had any sexual contact with M
s.
Lewinsky. For example, in the Committee's perjury hearing held last week, Chai
rman
Hyde discounted the Referral's charge that President Clinton had lied to the gr
and
jury about the commencement date of his relationship with Ms. Lewinsky and then
stated, "I don't rank that up with lying to the grand jury, saying he didn't ha
ve a
sexual relationship." Remarks of Chairman Hyde at Perjury Hearing of December
1,
1998; see also Statement of Judge Charles Wiggins at 2 ("the President was call
ed as
a witness before the grand jury and he repeated his story that he did not have
a
sexual relationship with Monica Lewinsky. Subsequently the President acknowled
ged
that his story was false or misleading and that he in fact had such a relations
hip
with Ms. Lewinsky.")
These accounts of President Clinton's grand jury testimony are not accurate. I
n his
August 17, 1998 grand jury testimony, President Clinton acknowledged that he ha
d
engaged in "inappropriate intimate contact" with Ms. Lewinsky. Section II.C, s
upra.
He also acknowledged that his conduct was "wrong." Ibid. What the President
denied in the grand jury was having "sexual relations" with Ms. Lewinsky only a
s
that term was defined by the Jones lawyers and substantially restricted by Judg
e
Wright. He did not go into the details of those encounters because of privacy
considerations, although he did testify that they did not involve either sexual
intercourse or "sexual relations" as defined at the Jones deposition after Judg
e
Wright struck two-thirds of it. Ms. Lewinsky, on the other hand, was forced by
the
OIC to describe in graphic detail her recollection of these encounters. See
Schippers Presentation at 27./
This simply is not a case of perjury. In addition to the inconsequential subje
ct
matter of the allegation -- the precise nature of the admitted physical contact
between the President and Ms. Lewinsky -- the factual record would not support
a
prosecution for perjury. That record is one essentially of "oath against oath,
" a
formula that centuries of common law jurisprudence has rejected as the basis fo
r
perjury. As the Supreme Court has stated, "equally honest witnesses may well h
ave
differing recollections of the same event," and hence "a conviction for perjury
ought not to rest entirely upon 'an oath against an oath.'" United States v.
Weiler, 323 U.S. 606, 609 (1945); see also Griswold v. Hazard, 141 U.S. 260, 28
0
(1891) (Harlan, J.) ("The difference in recollection of gentlemen ? often happe
ns,
without any reason to suspect that any of them would intentionally deviate from
the
line of absolute truth."). Mr. Starr admitted in his testimony before the Judi
ciary
Committee on November 19, 1998, that the OIC credited Ms. Lewinsky's testimony
only
where there was corroboration. Transcript of November 19, 1998 Hearing at 235-
36.
On the narrow point at issue here, however, there can be no independent
corroboration./
In sum, the facts do not support a perjury count based on the President's grand
jury
testimony. It is hard to imagine how what is at most a difference of recollect
ion
over the precise details of the admitted physical contact between President Cli
nton
and Ms. Lewinsky could be considered grounds for a perjury charge, much less gr
ounds
for impeachment.
VII. THE PRESIDENT DID NOT OBSTRUCT JUSTICE
A. The Elements of Obstruction of Justice
The term "obstruction of justice" usually refers to violations of 18 U.S.C. 15
03,
the "Omnibus Obstruction Provision," which prohibits the intimidation of and
retaliation against grand and petit jurors and judicial officers and contains a
catch-all clause making it unlawful to "influence, obstruct, or impede the due
administration of justice." It may also refer to 18 U.S.C. 1512, which proscr
ibes
intimidating, threatening, or corruptly persuading, through deceptive conduct,
a
person in connection with an official proceeding.
For a conviction under 1503, the government must prove that there was a pendin
g
judicial proceeding, that the defendant knew of the proceeding, and that the
defendant acted "corruptly" with the specific intent to obstruct or interfere w
ith
the proceeding or due administration of justice. See, e.g., United States v. B
ucey,
876 F.2d 1297, 1314 (7th Cir. 1989); United States v. Smith, 729 F. Supp. 1380,
1383-84 (D.D.C. 1990). Thus, if a defendant is unaware of a pending grand jury
proceeding, he cannot be said to have obstructed it in violation of 1503. See
,
e.g., United States v. Brown, 688 F.2d 1391, 1400 (9th Cir. 1992). Perhaps mor
e
significant is the "acting corruptly" element of the offense. Some courts have
defined this term as acting with "evil and wicked purposes," see United States
v.
Banks, 942 F.2d 1576, 1578 (11th Cir. 1991), but at the very least to "act
corruptly" under the statute, a defendant must have acted with the specific int
ent
to obstruct justice. See United States v. Moon, 718 F.2d 1219, 1236 (2d Cir. 1
983);
United States v. Bashaw, 982 F.2d 168, 170 (6th Cir. 1992); United States v.
Anderson, 798 F.2d 919, 928 (7th Cir, 1986); United States v. Rasheed, 663 F.2d
843,
847 (9th Cir. 1981). That is, it is not enough to prove that the defendant kne
w
that a result of his actions might be to impede the administration of justice,
if
that was not his intent.
It is critical to note which actions cannot fall under the ambit of 1503. Fir
st,
false statements or testimony alone cannot sustain a conviction under 1503. S
ee
United States v. Thomas, 916, F.2d 647, 652 (11th Cir. 1990); United States v.
Rankin, 870 F.2d 109, 111 (3d Cir. 1989)./ Moreover, 1503 does not apply to a
party's concealing or withholding discoverable documents in civil litigation./
Most
cases that have found 1503 applicable to civil cases do not involve the produc
tion
or withholding of documents. See United States v. London, 714 F.2d 1558 (11th
Cir.
1983) (attorney forged court order and attempted to enforce it), cited in Richm
ark,
730 F. Supp. at 1532; Sneed v. United States, 298 F. 911 (5th Cir. 1924)
(influencing juror in civil case); cited in Richmark, 730 F. Supp at 1532. Whi
le
1503 can apply to concealment of subpoenaed documents in a grand jury investiga
tion,
the defendant must have knowledge of the pending grand jury investigation, must
know
that the particular documents are covered by a subpoena, and must willfully con
ceal
or endeavor to conceal them from the grand jury with the specific intent to
interfere with its investigation. See United States v. McComb, 744 F.2d 555 (7
th
Cir. 1984).
Section 1512 specifically applies to "witness tampering." To obtain a convicti
on
under 1512, the government must prove that a defendant knowingly engaged in
intimidation, physical force, threats, misleading conduct, or corrupt persuasio
n
with intent to influence, delay, or prevent testimony or cause any person to
withhold objects or documents from an official proceeding. It is clear that a
defendant must also be aware of the possibility of a proceeding and his efforts
must
be aimed specifically at obstructing that proceeding, whether pending or not;
1512
does not apply to defendants' innocent remarks or other acts unintended to affe
ct a
proceeding. See United States v. Wilson, 565 F. Supp. 1416, 1431 (S.D.N.Y. 198
3).
Moreover, it is important to define the terms "corruptly persuade" and "mislead
ing
conduct," as used in 1512. The statute itself explains that "corruptly persua
des"
does not include "conduct which would be misleading conduct but for a lack of a
state of mind." 18 U.S.C. 1515(a)(6). It is also clear from the case law tha
t
"misleading conduct" does not cover scenarios where the defendant urged a witne
ss to
give false testimony without resorting to coercive or deceptive conduct. See,
e.g.,
United States v. Kulczyk, 931 F.2d 542, 547 (9th Cir. 1991) (no attempt to misl
ead;
witnesses knew defendant was asking them to lie); United States v. King, 762 F.
2d
232, 237 (2d Cir. 1985) (defendant who attempts to persuade witness to lie but
not
to mislead trier of fact does not violate 1512).
Subornation of perjury is addressed in 18 U.S.C. 1622. The elements of
subornation are that the defendant must have persuaded another to perjure himse
lf,
and the witness must have actually committed perjury. See, e.g. United States
v.
Hairston, 46 F.3d 361, 376 (4th Cir. 1959), rev'd on other grounds, 361 U.S. 52
9
(1960). If actual perjury does not occur, there is simply no subornation. See
id.
at 376 (reversing conviction for subornation because of conclusion that, in app
lying
Bronston, witness did not commit perjury due to his literally truthful testimon
y).
Moreover, 1622 requires that the defendant know that the testimony of witness
will
be perjurious -- i.e., knowing and willful procurement of false testimony is a
key
element of subornation of perjury. See Rosen v. NLRB, 735 F.2d 564, 575 n.19 (
D.C.
Cir. 1984) ("a necessary predicate of the charge of subornation of perjury is t
he
suborner's belief that the testimony sought is in fact false").
B. Specific Claims of Obstruction
The Referral alleges various actions that it claims amount to obstruction of
justice. Evidence that is contained in the Appendices and Supplements -- altho
ugh
omitted from the Referral -- thoroughly undermines each of these claims.
1. There Is No Evidence that the President Obstructed Justice in Connection wit
h
Gifts Given to Ms. Lewinsky
"The President and Ms. Lewinsky met and discussed what should be done with the
gifts
subpoenaed from Ms. Lewinsky."
Independent Counsel Kenneth Starr 11/19/98 Statement Before the Committee on th
e
Judiciary U.S. House of Representatives at 15.
"[H]e really didn't -- he really didn't discuss it."
Monica Lewinsky's 8/20/98 grand jury testimony. App. at 1122.
The Referral claims that President Clinton endeavored to obstruct justice by
engaging in a pattern of activity to conceal evidence, particularly gifts, rega
rding
his relationship with Monica Lewinsky. Ref. at 165. See also Schippers
Presentation at 34-35.
The Appendices and Supplements contain a wealth of information contradicting th
is
claim. Upon review, it is clear that the full record simply does not support a
n
obstruction-by-gift-concealment charge at all.
First, among Ms. Lewinsky's ten different accounts of the meeting at which she
and
the President allegedly "discussed" concealing gifts, the Referral selectively
and
prejudicially chooses to cite the version most hurtful to the President (withou
t
disclosing the existence of other, exculpatory accounts of the same events).
Second, the Referral omits other relevant statements by Ms. Lewinsky that would
place the OIC's account in a sharply different light. Third, the Referral
suppresses uncontested statements made by the President and by Ms. Betty Currie
that
contradict the OIC's concealment theory. Fourth, the Referral appropriates for
itself the role of factfinder and -- by misleading characterizations of testimo
ny --
attempts to deceive the Committee into adopting Ms. Lewinsky's version of event
s
where it appears to conflict with Ms. Currie's version. Finally, the Referral
suppresses the OIC's doubts about its own theory -- doubts manifest in grand ju
ry
questioning but not acknowledged in the Referral itself.
Two events form the core of the OIC's allegation that the President orchestrate
d the
concealment of gifts he had given Ms. Lewinsky. The first is Ms. Lewinsky's
December 28, 1997, early morning meeting with the President. The second is Ms.
Currie's receipt of a box of gifts from Ms. Lewinsky, supposedly on the afterno
on of
that day.
The Referral presents these events in a manner that is grossly one-sided and de
eply
prejudicial to the President.
a. Ms. Lewinsky's December 28 Meeting with the President
On December 28, 1997, Ms. Lewinsky came to the White House and met with the
President to pick up her holiday gifts. According to Ms. Lewinsky, that was th
e
only occasion on which an issue of the gifts' relation to her subpoena was rais
ed.
See App. at 1130 (8/20/98 grand jury testimony of Ms. Lewinsky); see also App.
at
1338 (8/26/98 deposition of Ms. Lewinsky).
Ms. Lewinsky was asked several times by the OIC about her December 28, 1997, me
eting
with the President, and in particular about discussions she may have had with t
he
President about gifts she had received from him. In response, Ms. Lewinsky mad
e at
least ten distinct statements/ during the course of her original proffer,
interviews, grand jury testimony and deposition. Although the OIC claims that
there
was a discussion between Ms. Lewinsky and the President on this subject,/ the a
ctual
testimony does not support the OIC's contention.
Ms. Lewinsky's statements are set forth below, listed in the order in which the
y
were given, from earliest to latest in time:
1. Proffer (2/1/98): "Ms. L then asked if she should put away (outside her hom
e)
the gifts he had given her, or maybe, give them to someone else." App. at 715.
2. Lewinsky 7/27/98 Interview Statement: "LEWINSKY expressed her concern about
the
gifts that the President had given LEWINSKY and specifically the hat pin that h
ad
been subpoenaed by PAULA JONES. The President seemed to know what the JONES
subpoena called for in advance and did not seem surprised about the hat pin. T
he
President asked LEWINSKY if she had told anyone about the hat pin and LEWINSKY
denied that she had, but may have said that she gave some of the gifts to FRANK
CARTER. . . . LEWINSKY asked the President if she should give the gifts to som
eone
and the President replied 'I don't know.'" App. at 1395.
3. Lewinsky 8/1/98 Interview Statement: "LEWINSKY said that she was concerned
about
the gifts that the President had given her and suggested to the President that
BETTY
CURRIE hold the gifts. The President said something like, 'I don't know,' or '
I'll
think about it.' The President did not tell LEWINSKY what to do with the gifts
at
that time." App. at 1481.
4. Lewinsky 8/6/98 Grand Jury Testimony: "[A]t some point I said to him, 'Well
, you
know, should I -- maybe I should put the gifts away outside my house somewhere
or
give them to someone, maybe Betty.' And he sort of said -- I think he responde
d, 'I
don't know' or 'Let me think about that.' And left that topic." App. at 872.
5. Lewinsky 8/13/97 Interview Statement: "During their December 28, 1997 meeti
ng,
CLINTON did not specifically mention which gifts to get rid of." App. at 1549.
6. Lewinsky 8/20/98 Grand Jury Testimony: "It was December 28th and I was ther
e to
get my Christmas gifts from him. . . . And we spent maybe about five minutes or
so,
not very long, talking about the case. And I said to him, 'Well do you think'
. .
And at one point, I said, 'Well, do you think I should -- ' I don't think I s
aid
'get rid of,' I said, 'But do you think I should put away or maybe give to Bett
y or
give to someone the gifts?' And he -- I don't remember his response. I think
it
was something like, 'I don't know,' or 'Hmm,' or -- there really was no respons
e."
App. at 1121-22.
7. Lewinsky 8/20/98 Grand Jury Testimony: "A JUROR: Now, did you bring up Bet
ty's
name [at the December 28 meeting during which gifts were supposedly discussed]
or
did the President bring up Betty's name? THE WITNESS: I think I brought it up
The President wouldn't have brought up Betty's name because he really didn't --
he
really didn't discuss it . . ." App. at 1122.
8. Lewinsky 8/20/98 Grand Jury Testimony: "A JUROR: You had said that the
President had called you initially to come get your Christmas gift, you had gon
e
there, you had a talk, et cetera, and there was no -- you expressed concern, th
e
President really didn't say anything." App. at 1126.
9. Lewinsky 8/24/98 Interview Statement: "LEWINSKY advised that CLINTON was si
tting
in the rocking chair in the Study. LEWINSKY asked CLINTON what she should do w
ith
the gifts CLINTON had given her and he either did not respond or responded 'I d
on't
know.' LEWINSKY is not sure exactly what was said, but she is certain that wha
tever
CLINTON said, she did not have a clear image in her mind of what to do next."
App.
at 1566.
10. Lewinsky 9/3/98 Interview Statement: "On December 28, 1997, in a conversat
ion
between LEWINSKY and the President, the hat pin given to LEWINSKY by the Presid
ent
was specifically discussed. They also discussed the general subject of the gif
ts
the President had given Lewinsky. However, they did not discuss other specific
gifts called for by the PAULA JONES subpoena. LEWINSKY got the impression that
the
President knew what was on the subpoena." App. at 1590.
These statements contain certain striking inconsistencies with the version of e
vents
presented by the OIC -- that the President and Ms. Lewinsky "met and discussed
what
should be done with the gifts subpoenaed from Ms. Lewinsky":
In none of the statements did the President initiate a discussion relating to
concealment of gifts.
In none of the statements did the President tell Ms. Lewinsky to conceal gifts.
In none of the statements did the President suggest to Ms. Lewinsky that she co
nceal
gifts.
In none of the statements is the President alleged to have mentioned any gift o
ther
than a hat pin.
The statements also display numerous internal inconsistencies and anomalies tha
t are
significant in light of the charge and that caution against selecting any parti
cular
one:
In seven of the ten statements (numbers 1, 5, 6, 7, 8, 9 and 10) the President
either did not respond at all to Ms. Lewinsky's concealment concerns or was
described by Ms. Lewinsky as having given "no response" or "didn't really say
anything" about what to do with the subpoenaed gifts.
In two statements (numbers 6 and 9), Ms. Lewinsky described the President as bo
th
responding to her concealment comments ("saying something like 'I don't know' o
r
'Hmm,'" 6; "responded 'I don't know,'" 9) and as not responding (there really w
as no
response," 6; "he . . . did not respond," 9).
In five of the ten statements (numbers 2, 3, 4 and 6 and 9) the President respo
nded
"I don't know" to a Lewinsky suggestion that she give someone the gifts.
In two of the ten statements (numbers 3 and 4), the President was made to appea
r to
contemplate further thought by saying in response to a suggestion of possible a
ction
that he will "think about it" or "Let me think about that."
In one statement (number 6), Ms. Lewinsky said that "I don't remember his respo
nse"
to her suggestion that she conceal gifts.
In Ms. Lewinsky's first statement (the 2/1/98 Proffer), she did not describe th
e
President as having made any response to her suggestion of possible action or a
s
having mentioned Ms. Currie.
In Ms. Lewinsky's final statement (her 9/3/98 interview), she described no stat
ement
by the President whatsoever pertaining to any possible action with respect to t
he
gifts.
With all these statements to draw on, the Starr Referral relied on number 4 abo
ve as
if it were Ms. Lewinsky's only statement on the matter and thus characterized t
his
pivotal conversation as follows:
According to Ms. Lewinsky, she and the President discussed the possibility/ of
moving some of the gifts out of her possession:
[A]t some point I said to him, "Well, you know, should I -- maybe I should put
the
gifts away outside my house somewhere or give them to someone, maybe Betty." A
nd he
sort of said -- I think he responded "I don't know" or "Let me think about that
"
And [we] left that topic.
Ref. at 166 (quoting App. at 872 (8/6/98 grand jury testimony of Ms. Lewinsky))
In
making the above statement the centerpiece of the President's supposed assent t
o
engage in concealment, the OIC selected one/ of only two (of Ms. Lewinsky's ten
)
accounts in which the President's alleged comments might support the inference
that
he was even contemplating further thought (though not action) in response to Ms
Lewinsky's suggestion.
In so doing, the Referral failed to inform Congress that, in more than two-thir
ds of
the different accounts given by Ms. Lewinsky, Ms. Lewinsky either described no
response by the President at all or described his comment as "no response" or
"didn't really say anything."/ In other words, to the best of Ms. Lewinsky's
recollection he evidenced no intent to give the subject any thought. The OIC a
lso
failed to acknowledge that in one of her accounts, Ms. Lewinsky stated that she
did
not really remember the President's response. The OIC did not tell Congress th
at in
several accounts, Ms. Lewinsky reported that the President both did and did not
respond to her suggestion. The OIC did not tell Congress that the only person
ever
to link Betty Currie's name with the idea of concealment (and that in only thre
e of
her ten accounts) in the December 28 conversation was Ms. Lewinsky herself. Th
e OIC
did not tell Congress that in none -- not one -- of Ms. Lewinsky's accounts did
the
President initiate discussion relating to concealment of gifts. The OIC did no
t
tell Congress that in none of Ms. Lewinsky's accounts did the President ask or
tell
Ms. Lewinsky to conceal gifts. The OIC did not tell Congress that in none of M
s.
Lewinsky's accounts does the President suggest to Ms. Lewinsky that she conceal
gifts. The OIC did not tell Congress that in only two of Ms. Lewinsky's ten
accounts was there even the suggestion that the President wanted even to "think
about it." And finally, the OIC did not tell Congress that in Ms. Lewinsky's
earliest and latest accounts of the December 28, 1997 meeting, she never mentio
ned
any statement by the President suggesting any concealment of gifts from the Jon
es
subpoena. Instead the OIC simply picked the one account it liked best,
misrepresented it, and presented it as though it were the whole truth.
Those omissions and the resulting account of this "concealment" meeting result
in a
skewed version of events that professional prosecutors would notcondone. Yet t
he
Starr Referral not only presents a distorted picture of the evidence, it recomm
ends
that this Committee vote to impeach the President of the United States on this
demonstrably thin record.
b. Betty Currie's Supposed Involvement in Concealing Gifts
The other incident said to support the obstruction-by-concealment theory was Ms
Currie's receipt of a box of gifts from Ms. Lewinsky. Again, to support its
position the Starr Referral presents a highly selective and deceptively one-sid
ed
account of the evidence. That account is distinguished by: (1) minimization o
f
evidence favorable to the President concerning the origin of the idea of pickin
g up
gifts; (2) an outright falsehood as to the date of the gift pickup -- a falseho
od
obviously intended to suggest deep Presidential involvement in the events; and
(3) a
deceptive attempt to elevate the Referral's theory through misleading and impro
per
bolstering of one witness's credibility.
1) Whether Gifts Were Picked Up at the Suggestion of Ms. Lewinsky or the Presid
ent
Mr. Starr takes the position that the President told or suggested to Ms. Currie
that
she contact Ms. Lewinsky and pick up the gifts. Ref. at 167. But the Presiden
t
twice denied ever telling Ms. Currie to contact Ms. Lewinsky about the gifts.
App.
at 502 (President's 8/17/98 grand jury testimony); App. at 565-66 (same). Ms.
Currie herself has repeatedly said that it was Ms. Lewinsky (not the President)
who
asked her to pick up the gifts. Supp. at 581 (5/6/98 grand jury testimony of B
etty
Currie); Supp. at 582 (same); Supp. at 706 (7/22/98 grand jury testimony of Bet
ty
Currie); Supp. at 531 (1/24/98 FBI Form 302 Interview of Betty Currie). In sho
rt,
the only two parties who could possibly have direct knowledge of such an instru
ction
by the President have denied it.
Ms. Lewinsky stated that Ms. Currie told her that the President had told her to
contact Ms. Lewinsky. See App. at 715 (2/1/98 Proffer): "Ms. Currie called Ms
L
later that afternoon and said that the Pres. had told her Ms. L wanted her to h
old
onto something for her."/ But this statement was contradicted by Ms. Currie's
repeated statements that Ms. Lewinsky called her and asked her to pick up the g
ifts
because people were asking "questions about stuff she had gotten." Supp. at 55
7
(1/27/98 grand jury testimony of Ms. Currie). The Referral does acknowledge on
e
occasion on which Ms. Currie contradicted Ms. Lewinsky on this point, see Ref.
at
167 (citing Supp. at 557 (1/27/98 grand jury testimony of Ms. Currie)):
Q. Did Ms Lewinsky tell you why she wanted to give you this box of items?
A. I think she was just getting concerned. I think people were asking question
s
about stuff she had gotten.
But the Referral fails to quote Ms. Currie's repeated contradicting of Ms. Lew
insky
on this point. First, in her January 24 interview Ms. Currie said that:
"LEWINSKY called CURRIE and advised she had to return all the gifts CLINTON had
given LEWINSKY as there was talk going around about the gifts." Supp. at 531
(1/24/98 FBI 302 Form Interview of Ms. Currie). Then, before the grand jury:
Q. What exactly did Monica say when-
A. The best I remember she said that she wanted me to hold these gifts -- ho
ld
this -- she may have said gifts, I'm sure she said gifts, box of gifts -- I
don't
remember -- because people were asking questions. And I said, "Fine."
Supp. at 581 (5/6/98 grand jury testimony of Ms. Currie). And then again befor
e the
grand jury:
Q. . . . Just tell us from moment one how this issue first arose and what you d
id
about it and what Ms. Lewinsky told you.
A. The best I remember it first arose with a conversation. I don't know if it
was
over the telephone or in person. I don't know. She asked me if I would pick
up a
box. She said Isikoff had been inquiring about gifts.
Supp. at 582 (5/6/98 grand jury testimony of Ms. Currie). This fact -- that Ms
Currie early on and then thereafter repeatedly insisted that Ms. Lewinsky raise
d the
issue of the gifts -- is not to be found in the Referral.
The Referral also omits Ms. Lewinsky's own testimony that it was she, and not t
he
President, who first raised the prospect of Ms. Currie's involvement.
A JUROR: Now, did you bring up Betty's name or did the President bring up Bett
y's
name?
[MS. LEWINSKY]: I think I brought it up. The President wouldn't have brought
up
Betty's name because he really didn't -- he didn't really discuss it. . . .
App. at 1122 (8/20/98 grand jury testimony of Ms. Lewinsky); see also App. at 1
481
(8/1/98 FBI Form 302 Interview of Ms. Lewinsky) ("LEWINSKY . . . suggested to
the
President that Betty Currie hold the gifts.") This fundamental and important f
act
-- that Ms. Lewinsky herself testified that the idea of Ms. Currie's involvemen
t
originated with Ms. Lewinsky (and not with the President) -- is nowhere to be f
ound
in the Referral's obstruction discussion.
Finally, as to whether Ms. Currie ever spoke of gifts to the President after sh
e had
picked up the gifts, the President denied ever speaking with Ms. Currie and as
to
Ms. Currie, she recalled only one circumstance relevant to this issue. In the
course of questioning Ms. Currie about a January 21, 1998 telephone call she
received from the President, a juror (not the OIC) put the following question t
o Ms.
Currie:
A JUROR: During this conversation with the President, did you discuss the fact
that
you had a box of Monica's belongings under your bed?
THE WITNESS: I'm sure not.
BY [THE OIC]: Why didn't you tell him that.
A. I didn't see any reason to. . . .
Supp. at 705 (7/22/98 grand jury testimony of Ms. Currie). This exchange, and
the
fact that Ms. Currie stated her recollection with palpable certainty, are also
entirely missing from the Referral.
In view of the foregoing distortions and omissions, no fair-minded factfinder c
ould
conclude from the evidence that the President instructed Ms. Currie to retrieve
gifts from Ms. Lewinsky./
2) Whether Gifts Were Picked Up on December 28
The Referral implies that the President told Ms. Currie to retrieve the gifts o
n
Sunday, December 28, 1997, Ref. at 166 (and that she in fact retrieved the gift
s on
December 28), the same day he supposedly discussed the gifts issue at a morning
meeting with Ms. Lewinsky. Ref. at 167. The plain purpose of this allegation
is to
suggest prompt action by the President to effectuate a concealment plan suppose
dly
hatched with Ms. Lewinsky at that morning's visit.
In support of that theory, the Referral makes the following assertion:
According to both Ms. Currie and Ms. Lewinsky, Ms. Currie drove to Ms. Lewinsky
's
home [to pick up the box of gifts] later on December 28 . . . .
Ref. at 167 & n.237. This assertion -- that "[a]ccording to . . . Ms. Currie"
she
picked up gifts on December 28 -- is not true. The Referral's (only) authority
is
page 108 of Ms. Currie's May 6, 1998 grand jury testimony. That page of transc
ript
reads as follows:
A. . . . [108] I drove to her -- outside of her residence and picked up the bo
x.
Q. How many times had you been to her residence before?
A. Twice. I took her home one day after work, but never inside her residence.
I
just dropped her off in front of the Watergate. And then when I picked up the
box.
So twice, that I remember, just twice.
Q. Did you go with anyone to pick up the box?
A. It was after work and I was by myself.
Q. So it would be fair to say it was pretty important to pick it up.
A. I wouldn't say that.
Q. And it was the only other time you'd ever been to her apartment.
A. I could have picked it up probably any time, but I was -- she called me and
asked
me to come by on my way home and pick it up.
Q. And then what did you do with it?
A. Put it under my bed?
Q. What was the occasion when you took Monica home?
A. What was the occasion?
Q. Yes.
A. After one of her meetings. The best I remember, if she was leaving and I wa
s
leaving at the same time, I'd offer [109] to give her a ride home.
Supp. at 581 (5/6/98 grand jury testimony of Ms. Currie). Nowhere on that page
or
anywhere else does Ms. Currie say that she picked up the gifts on December 28.
This was no mere typographical error. For in Ms. Currie's first interview with
the
OIC, she recalled that Ms. Lewinsky called her to pick up the gifts sometime in
December. Supp. at 531 (1/24/98 FBI Form 302 Interview of Ms. Currie). And ju
st a
few pages earlier in her grand jury testimony, Ms. Currie told the grand jury t
hat
her best estimate was that she had retrieved the gifts "a couple weeks" after M
s.
Lewinsky's December 28 visit to the President. Supp. at 581 (5/6/98 grand jury
testimony of Ms. Currie). Additionally, in her first (late-January 1998)
appearance before the grand jury, Ms. Currie's best recollection was that the g
ifts
were picked up sometime within the previous six months. Supp. at 556-57 (1/27/
98
grand jury testimony of Ms. Currie). Finally, Ms. Currie told the grand jury t
hat
she picked up the gifts on a workday, Supp. at 582, and December 28 was a Sunda
y.
Although Ms. Currie never pinpointed a date, the record is clear that -- contra
ry to
the Referral's false assertion -- she never placed the date of the gift pickup
on
December 28.
The Referral's deceptive attempts to bind Ms. Currie to its version of events -
-
effected by misstatement and omission -- are significant. They are explainable
only
by a willful attempt to bend the facts to fit the Referral's theory. Other tha
n Ms.
Lewinsky's own (as shown below, uncertain) accounts, the notion that the gifts
were
picked up on December 28 has no foundation in the record.
3) The Referral's Deceptive Attempt to Bolster the Credibility of One Witness t
o the
Detriment of Others Is Improper
The Referral usurps the role of the fact-finder and substitutes its judgment fo
r
Congress' by resolving evidentiary conflicts in favor of Ms. Lewinsky's recolle
ction
and against Ms. Currie's where that resolution hurts the President. The Referr
al
states that Ms. Currie's memory of the crucial conversation "generally has been
hazy
and uncertain," Ref. at 170, while Ms. Lewinsky's testimony "is consistent and
unequivocal." Ref. at 169. The statement that Ms. Lewinsky's testimony was
consistent and unequivocal is just not true. Indeed, Ms. Lewinsky actually tol
d the
grand jurors at one point that she could not remember Ms. Currie saying that th
e
President told her to call about the gifts:
A JUROR: At the top of page 7 [of the 2/1/98 Proffer, App. 715], where you say
in
your proffer that when Ms. Currie called later that afternoon she said, at leas
t I
think you mean that she said that the President had told her Ms. L wanted her t
o
hold on to something for her. Do you remember Betty Currie saying that the
President had told her to call?
THE WITNESS: Right now. I don't. I don't remember . . . .
App. at 1141 (8/20/98 grand jury testimony of Ms. Lewinsky) (emphasis added).
The
Referral's assertion to the contrary -- that "Ms. Lewinsky's testimony on the i
ssue
is consistent and unequivocal" -- is utterly untrue. Ms. Lewinsky simply did n
ot
have the unwavering conviction the Referral attributes to her.
Indeed Ms. Lewinsky's testimony concerning her February 1, 1998 proffer (which
was
not, as the OIC characterizes it, "testimony," Ref. at 169) was fraught with
uncertainty. As Ms. Lewinsky herself told the grand jury:
The other thing, and this is something that I was thinking about this morning i
n
relation to the proffer, that I had written this proffer obviously being truthf
ul,
but I think that when I wrote this, it was my understanding that this was to br
ing
me to the step of getting an immunity agreement, and so I think that sometimes
to --
that I didn't know this was going to become sort of this staple document, I thi
nk,
for everything, and so there are things that can be misinterpreted from in here
,
even from me re-reading it, the conditions -- some of the conditions maybe unde
r
which I wrote it.
App. at 1141 (8/20/98 grand jury testimony of Ms. Lewinsky) (emphasis added).
Yet
neither the Referral, nor any of its supporting materials, reflect any effort b
y the
OIC to have Ms. Lewinsky clarify the "things that can be misinterpreted" in her
proffer. Nor did the Referral inform the House of Ms. Lewinsky's own doubts ab
out
the February 1 proffer.
The Referral then aggravates its own deceptions and omissions still further by
twice
quoting a statement of Ms. Currie to the effect that "[Ms. Lewinsky] may rememb
er
better than I. I don't remember." Ref. at 167, 170. That quotation is thoroug
hly
misleading in view of the foregoing statements by Ms. Lewinsky (omitted from th
e
Referral) which made clear that her memory was certainly no better than Ms.
Currie's.
Finally, the OIC's account of the differences in Ms. Currie's and Ms. Lewinsky'
s
recollections is aggravated by another, very curious fact. As the Referral onc
e
mentions, and as Ms Currie repeatedly stated, Ms. Lewinsky had said that she "w
as
uncomfortable retaining the gifts" not because the President asked her to conce
al
them from Paula Jones' lawyers, but "because people were asking questions about
the
stuff she had gotten." Ref. at 167 and citations in Part VI.B.1.b.1, above. T
hat
statement presents a rather different explanation then the one offered up in th
e
Referral. Yet neither the Referral, nor 3183 pages of Appendices, nor 4610 pag
es of
Supplement contain any evidence that Ms. Lewinsky has ever contradicted Ms. Cur
rie's
account of that statement. The absence of contradictory evidence is itself a
significant piece of evidence supportive of the view that Ms. Currie's recollec
tion
is the correct one.
But the importance of this runs much deeper. Notwithstanding that she testifie
d
twice before the grand jury, was deposed once, and was interviewed by the OIC a
t
least 18 different times,/ Ms. Lewinsky was apparently never asked whether she
ever
stated to Ms. Currie that people were asking questions about the President's gi
fts.
Indeed, in all the time following Ms. Currie's January 27 testimony, the OIC
apparently never asked Ms. Lewinsky to reconcile the basic tensions in the
conflicting accounts. Rather than attempting to determine the truth of this
important issue, the OIC preferred to leave this crucial difference unexplored
and
then argue the relative credibility of the witnesses to Congress and conclude
without reason that Ms. Lewinsky's recollection "makes more sense." In view of
the
OIC's statutory duty to provide any "substantial and credible information"
pertaining to impeachment, the insidious refusal to elicit direct evidence on t
his
sensitive point is extraordinary -- and wholly unfair.
c. The Referral Suppresses Other Evidence Casting Doubt on Its Concealment-of-G
ifts
Obstruction Theory
The Referral says, and it is not disputed, that the President gave Ms. Lewinsky
a
number of gifts during their December 28, 1997 meeting. Ref. at 166. This fac
t
alone obviously undermines the Referral's theory that he sought to conceal gift
s to
her on that same day. The Referral goes on to say that Ms. Lewinsky was "asked
why
the President gave her more gifts on December 28 when he understood she was und
er an
obligation to produce gifts in response to the subpoena." Ibid. But the actua
l
question posed was this: "What do you think the President was thinking when he
is
giving you gifts when there's a subpoena covering the gifts? I mean, does he t
hink
in any way, shape or form that you're going to be turning these gifts over?" A
pp.
at 886 (8/6/98 grand jury testimony of Ms. Lewinsky).
In response, the Starr Referral inserted Ms. Lewinsky's speculation about why t
he
President may have given her the gifts, quoting from her August 6 testimony, an
d
adding a certain emphasis:
You know, I can't answer what [the President] was thinking, but to me, it was -
-
there was never a question in my mind and I -- from everything he said to me, I
never questioned him, that we were never going to do anything but keep this pri
vate,
so that meant deny it and that meant do -- take whatever appropriate steps need
ed to
be taken, you know for that to happen.
Ref. at 166 (quoting App. at 886-87 (8/6/98 grand jury testimony of Ms. Lewins
ky)
(emphasis added by OIC)).
This explanation of the December 28 gift-giving is severely unfair. First, the
addition of the emphasis suggests that the President had explained to Ms. Lewin
sky
that gifts, including gifts given on December 28, were going to be concealed.
There
is no support for this, and as we have established above, all the evidence is t
o the
contrary.
Second, the OIC's account relies on Ms. Lewinsky's speculation when the Preside
nt's
own testimony was available. In that testimony, given before the grand jury on
August 17, the President -- responding to questions about the December 28 meeti
ng --
stated that "this gift business . . didn't bother me," App. at 496, and that
"I
wasn't troubled by this gift issue," App. at 497. The President went on to say
that
he "fe[lt] comfortable giving [Ms. Lewinsky] gifts in the middle of discovery i
n the
Paula Jones case" because "there was no existing improper relationship at that
time"
and that he "wasn't worried about it [and] thought it was an all right thing to
do."
App. at 498. The Referral obscures these direct statements in favor of Ms.
Lewinsky's speculation.
Strikingly absent from the Referral is any discussion of the fact that, under i
ts
own misleading theory, the President was both giving gifts and taking them back
on
the very same day. The Referral makes no effort to explain this dramatic anoma
ly
and does not convey to Congress any sense of the fact that such behavior is --
and
must seem -- very odd under the Referral's theory.
That omission is all the more conspicuous in view of the OIC's questions and
comments on this issue during the President's and Ms. Lewinsky's grand jury
testimony. Sensing the difficulty for its own theory, the OIC asked: "Mr.
President, if your intent was, as you earlier testified, that you didn't want
anybody to know about this relationship you had with Ms. Lewinsky, why would yo
u
feel comfortable giving her gifts in the middle of discovery in the Paula Jones
case?" App. at 498. The President answered that he was not troubled by the gi
fts
because at the time he gave them there was no improper relationship. App. at 4
98.
No mention of this exchange appears in the Referral.
Again, during Ms. Lewinsky's first grand jury appearance the OIC prosecutor rem
arks:
"Although, Ms. Lewinsky, I think what is sort of -- it seems a little odd and,
I
guess really the grand jurors wanted your impression of it, was on the same day
that
you're discussing basically getting the gifts to Betty to conceal them, he's gi
ving
you a new set of gifts." App. at 887-88 (emphasis added)./ And again, no ment
ion
is made in the Referral of the fact that the OIC and the grand jurors regarded
it as
"odd" that there was gift-giving on the same day the President allegedly caused
his
gifts to be recovered. A fair prosecutor would have acknowledged this "oddity"
and
reported the President's answers to this "oddity," answers which resolve the
apparent "oddity," and undermine the prosecutor's theory. The OIC did neither.
The Referral concludes that "[g]iven his desire to conceal the relationship, it
makes no sense that the President would have given Ms. Lewinsky more gifts on t
he
28th unless he and Ms. Lewinsky understood that she would not produce all of he
r
gifts in response to her subpoena." Ref. at 171. This statement is directly
contrary to the only available evidence touching on this issue -- namely the
President's own testimony that he simply was not troubled by the gifts. App. a
t
494-98. The OIC has suppressed relevant direct evidence and then asked Congres
s to
draw negative inferences from circumstantial theorizing.
Ultimately, the Referral's failure to include or even refer to the President's
directly material testimony in the "impeachable acts" discussion of supposed
"concealment" of gifts has no legitimate explanation. The
obstruction-by-gift-concealment charge rests on an unjustifiable six-prong stra
tegy
unworthy of any fair prosecutor. The Referral first presents a highly argument
ative
and one-sided account of disputed facts. Second, it flatly misrepresents certa
in
key dates and events in an effort to heighten that prejudicial effect. Third,
it
suppresses numerous facts contradicting the Referral's concealment theory. Fou
rth,
the Referral artificially engineers the impression that one witness is more cre
dible
than the other -- in stark defiance of record facts and in the apparent hope t
hat
its sophistries would go unnoticed by the factfinder. Fifth, the Referral sugg
ests
a false clarity about important evidentiary issues which are in fact fundamenta
lly
ambiguous. The Referral's authors clearly chose to leave these ambiguities
unexplored where honest investigation would have resolved them. Finally, the
Referral suppresses record evidence reflecting its authors' own doubts about th
e
theory advanced.
Impeachment on such distorted "evidence" of obstruction as the Referral present
s
would be a travesty.
2. The President Did Not Obstruct Justice in Connection with Ms. Lewinsky's Job
Search
a. The Direct Evidence Contradicts the Referral's Jobs -- Obstruction Theory an
d the
Referral Presents a Misleading Picture Based on Carefully Selected Circumstanti
al
Evidence
The OIC alleges that the President "endeavored to obstruct justice by helping [
Ms.]
Lewinsky obtain a job in New York at a time when she would have been a witness
against him were she to tell the truth during the Jones case." Ref. at 181. T
o
support this claim, the OIC has created a wholly misleading chronology of event
s
that omits crucial facts, presents only partial accounts of others, and places
artificial weight on selected events occurring in late December 1997 and early
January 1998. The OIC's account relies almost exclusively on the testimony of
one
witness yet conceals that witness' contradictory statements. The effect is to
try
to create a sense that Ms. Lewinsky's interest in a New York job arose in react
ion
to her involvement in the Jones suit and that the President's efforts to help h
er
were excessive and performed with intent somehow to buy her silence, when the a
ctual
evidence is to the contrary.
There is no direct evidence that the President or Mr. Jordan assisted Ms. Lewin
sky
with her job search in exchange for silence or false testimony. Indeed, all th
e
direct evidence is to the contrary. As Ms Lewinsky unequivocally stated: "[N]o
one
ever asked me to lie and I was never promised a job for my silence." App. at 1
161
(8/20/98 grand jury testimony of Ms. Lewinsky). Mr. Jordan's testimony was als
o
clear and unequivocal:/ "As far as I was concerned, [the job and the affidavit
]
were two very separate matters." Supp. at 1737 (3/5/98 grand jury testimony of
Vernon Jordan)./ The Referral must therefore resort to selective citation to
circumstantial evidence to try to make its case. But, as we establish in detai
l
below, the circumstantial "evidence" does not support the notion that a job was
procured for Ms. Lewinsky in an effort to obstruct justice in the Jones litigat
ion.
It supports the direct evidence to the contrary.
The Referral poses the job-search issue as "whether the President's efforts in
obtaining a job for Ms. Lewinsky were to influence her testimony or simply to h
elp
an ex-intimate without concern for her testimony." Ref. at 185. Mr. Starr
acknowledges that there is no direct evidence that the President assisted Ms.
Lewinsky in obtaining a job in exchange for her lying or remaining silent. Ref
at
185 n.361. The OIC also acknowledges that the "case" is entirely circumstantia
l;
rests on an interpretation of selected circumstances it describes as "key event
s."
Ref. at 181. The centerpiece of the charge is the notion that the President
employed Mr. Vernon Jordan to place Ms. Lewinsky in an out-of-town job so as to
induce Ms. Lewinsky either to leave town, to file a false affidavit, or to rema
in
silent in such a way as to obstruct justice in the Jones case./
Here is the Referral's key passage, a chronology manifestly constructed to crea
te a
false impression of obstruction:
On January 5, 1998, Ms. Lewinsky declined the United Nations job. On January 7
,
1998, Ms. Lewinsky signed the affidavit denying the relationship with President
Clinton (she had talked on the phone to the President on January 5 about it).
Mr.
Jordan informed the President of her action.
The next day, on January 8, 1998, Ms. Lewinsky interviewed with MacAndrews & Fo
rbes,
a company recommended by Vernon Jordan. The interview went poorly. Mr. Jordan
then
called Ronald Perelman, the Chairman of the Board of MacAndrews & Forbes. Mr.
Perelman said Ms. Lewinsky should not worry, and that someone would call her ba
ck
for another interview. Mr. Jordan relayed this message to Ms. Lewinsky, and so
meone
called back that day.
Ms. Lewinsky interviewed again the next morning, and a few hours later received
an
informal offer for a position. She told Mr. Jordan of the offer, and Mr. Jorda
n
then notified President Clinton with the news: "Mission accomplished."
Ref. at 183-84 (footnotes omitted) (emphasis in original). As we will show, th
is
passage is woefully misleading. In fact, the timing of Ms. Lewinsky's January
8th
interview had nothing to do with the Jones matter. And the fact of Mr. Jordan'
s
January 8 call to Mr. Perelman was never communicated to the Revlon executive w
ho
scheduled Ms. Lewinsky's January 9 interview and who decided to hire her that v
ery
day.
Indeed, closer inspection of the evidence contained in the appendices and
supplements gives the lie to the Referral's theory and makes the following fact
s
absolutely clear:
? Ms. Lewinsky's desire to leave Washington arose long before her involvement i
n the
Jones case;
? the President provided Ms. Lewinsky with only modest assistance;
? the job assistance provided by friends and associates of the President was in
no
way unusual;
? no pressure was applied to obtain Ms. Lewinsky a job;
? there was no timetable for Ms. Lewinsky's job search, let alone any timetable
linked to her involvement in the Jones case; and
? none of Ms. Lewinsky's job-searching and job-obtaining measures were in any w
ay
linked to her involvement in the Jones case.
When the events leading up to Ms. Lewinsky's job offer are reconstructed in ful
ler
detail,/ when the one-sidedness of the Referral's account is recognized, and wh
en
its crucial omissions are exposed, it becomes plain that there was no improprie
ty
and no obstruction of justice in connection with her job search. The case for
obstruction simply evaporates.
b. A More Complete Narrative of Events
Ms. Lewinsky worked in the White House from late 1995 until early April 1996.
In
early April, she was advised by Mr. Tim Keating that she was being transferred
from
the White House to the Pentagon; Mr. Keating told her that she might be able to
return to the White House after the November 1996 election. App. at 1503-04 (8
/3/98
FBI Form 302 Interview of Ms. Lewinsky). Following the 1996 election, Ms. Lewi
nsky
tried for months throughout 1997 to get a job in the White House or in the Old
Executive Office Building. During that period, the President told her that Mr.
Bob
Nash and later Ms. Marsha Scott were the people who could help her get a job in
the
White House. App. at 1458 (7/31/98 FBI Form 302 Interview of Ms. Lewinsky). M
s.
Lewinsky wrote to and met several times with Ms. Scott in 1997 about a White Ho
use
job. App. at 1458-59 (7/31/98 FBI Form 302 Interview of Ms. Lewinsky). The
President was aware of Ms. Lewinsky's continuing efforts to work in the White H
ouse.
App. at 564-65 (President's 8/17/98 grand jury testimony). While still hoping
for
a White House job, Ms. Lewinsky began to think about working in New York.
Ultimately, Ms. Lewinsky was never offered another White House job, and when (i
n
early October 1997) it became clear to her that she would not be offered one, s
he
turned her focus entirely to New York.
On July 3, 1997, Ms. Lewinsky notified the President that she was thinking of m
oving
to New York. App. at 1414 (7/29/98 FBI 302 Interview of Ms. Lewinsky). She to
ld
him of her interest in a United Nations job and explicitly asked for his help i
n
getting a position in New York. App. at 788 (8/6/98 grand jury testimony of Ms
Lewinsky). Ms. Lewinsky again raised the prospect of moving to New York in a
September 2, 1997 e-mail message to a friend. App. at 2811. According to Ms.
Lewinsky, by October 6, 1997, she was "mostly resolved to look for a job in the
private sector in New York." App. at 1544 (8/13/98 FBI Form 302 Interview of M
s.
Lewinsky). On October 9th or 11th, Ms. Lewinsky asked the President if Mr. Ver
non
Jordan might be able to assist her with her New York job search, App. at 822-24
(8/6/98 grand jury testimony of Ms. Lewinsky); 1079 (8/20/98 grand jury testimo
ny of
Ms. Lewinsky). The idea of obtaining Mr. Jordan's assistance may have originat
ed
with Ms. Tripp. App. at 822-24 (8/6/98 grand jury testimony of Ms. Lewinsky).
Ms. Lewinsky believed that her discussions with the President about a job were
"part
of her relationship with" the President. App. at 1461 (7/31/98 FBI From 302
Interview). According to Ms. Lewinsky, she prepared a list of jobs she was
interested in the private sector in New York. App. at 824 (8/6/98 grand jury
testimony of Ms. Lewinsky); App. at 1585. In early November, Ms. Lewinsky met
with
Mr. Jordan who agreed to help her at that time. App. at 824 (8/6/98 grand jury
testimony of Ms. Lewinsky). All of these events took place long before Ms.
Lewinsky's name ever appeared on any witness list in the Jones matter. Indeed,
it
could not be clearer that Ms. Lewinsky's wish to move to New York and her effor
ts to
involve the President and others in that search antedated and were unrelated to
the
Jones matter.
As to the actual job interviews and offers Ms. Lewinsky later obtained, no rele
vant
circumstances reflect any attempt to obstruct justice. A fuller account of Ms.
Lewinsky's job search makes this absolutely plain.
1) The United Nations Job
Ms. Lewinsky interviewed for and was ultimately offered a job at the United Nat
ions.
That job interview was arranged by Mr. John Podesta acting at the behest of Ms
Betty Currie. Supp. at 3404 (4/30/98 grand jury testimony of Bill Richardson).
Ms.
Currie testified that she was acting on her own in undertaking these efforts.
Supp.
at 592 (5/6/98 grand jury testimony of Betty Currie). In the course of a casua
l
conversation with Ambassador Richardson, Mr. Podesta suggested that Ambassador
Richardson interview a former White House employee who was moving to New York.
Supp. at 3395 (1/28/98 FBI Form 302 Interview of Bill Richardson). It was not
uncommon for Ambassador Richardson to interview persons on a courtesy basis. S
upp.
at 3418 (4/30/98 grand jury testimony of Bill Richardson. He was impressed wit
h Ms.
Lewinsky's resume. Supp. at 3411 (4/30/98 grand jury testimony of Bill Richard
son).
Ambassador Richardson never spoke to the President about Ms. Lewinsky. He nev
er
spoke to Mr. Jordan about Ms. Lewinsky. Supp. at 3422 (4/30/98 grand jury test
imony
of Bill Richardson). Ambassador Richardson felt no pressure to hire Ms. Lewins
ky.
Supp. at 3423 (4/30/98 grand jury testimony of Bill Richardson). Ms. Lewinsky
was
interviewed on October 31, 1997, long before her name appeared on the witness l
ist
in the Jones case. Supp. at 3718 (5/27/98 grand jury testimony of Mona Sutphen
).
She was offered a job at the U.N. and ultimately refused it. There is no evide
nce
that the job offer was related to the Jones case and no suggestion that she was
coerced or even encouraged to take it. Moreover, there is no evidence that the
U.N.
job interview and subsequent offer were part of any effort to silence Ms. Lewin
sky,
or induce her to leave Washington, or cause her to lie in connection with the J
ones
case.
2) Private Sector Efforts
Ms. Lewinsky obtained help in finding a private-sector job from several sources
In
late October-early November 1997, Ms. Lewinsky informed her then-boss at the
Pentagon, Mr. Kenneth Bacon, that she wanted to seek employment in New York. S
upp.
at 11 (2/26/98 FBI Form 302 Interview of Kenneth Bacon). This was well before
her
name appeared on the witness list in the Jones case. She told Mr. Bacon that h
er
mother was moving to New York and that she wanted to work in public relations.
Id.
Mr. Bacon then had a conversation with Mr. Howard Paster, the Chairman and CEO
of
Hill & Knowlton about Ms. Lewinsky's job search. Mr. Paster said that Ms. Conn
ie
Chung may have been looking for a researcher. Id. On November 24, 1997, Mr. B
acon
wrote to Mr. Paster enclosing Ms. Lewinsky's resume and thanking him for his
willingness to talk to Ms. Chung about Ms. Lewinsky. Id. Mr. Bacon's involvem
ent
reflects several fundamental facts concerning Ms. Lewinsky's search for a New Y
ork
job: (1) the effort was initiated by her; (2) the effort predated the relevant
period in the Jones matter; and 3) the effort proceeded on multiple fronts -- w
ith,
as we will see, only very limited involvement by the President.
At the heart of the Referral's obstruction charge is the notion that the Presid
ent
used Mr. Jordan to obtain a job for Ms. Lewinsky in New York in order to silenc
e her
or induce her to lie in the Jones case. However, the person who contacted Mr.
Jordan on Ms. Lewinsky's behalf was Ms. Currie. Supp. at 592-93 (5/6/98 grand
jury
testimony of Betty Currie); Supp. at 1704 (3/3/98 grand jury testimony of Verno
n
Jordan); see also Supp. at 1755 (3/5/98 grand jury testimony of Vernon Jordan).
Ms.
Currie took an active role with Mr. Jordan. They were old friends, and she fel
t
comfortable approaching him to help Ms. Lewinsky. Supp. at 592-94 (5/6/98 gran
d
jury testimony of Betty Currie).
The Referral says that Mr. Jordan contacted people from three private companies
with
recommendations for Ms. Lewinsky. Ref. at 93. Those people were Mr. Peter
Georgescu, the Chairman and CEO of Young & Rubicam (the parent of
Burson-Marsteller); Ms. Ursula Fairbairn, the Executive Vice President of Human
Resources at American Express; and Mr. Richard Halperin, the Executive Vice
President and Special Counsel at MacAndrews & Forbes, the parent company of Rev
lon.
Ms. Lewinsky applied for positions with all three companies. As the record mak
es
clear, neither the President nor Mr. Jordan put any pressure on these companies
to
hire Ms. Lewinsky or tried to engineer the timing of her hiring to coincide wit
h
activity in the Jones case.
Burson Marsteller. Mr. Jordan telephoned Mr. Georgescu in early December 1997,
asking him to take a look at a young White House person for a job. Mr. Jordan
did
not, in Mr. Georgescu's words, engage in a "sales pitch" about Ms. Lewinsky. S
upp.
at 1222 (3/25/98 FBI Form 302 Interview of Peter Georgescu). Mr. Georgescu tol
d Mr.
Jordan that the company "would take a look at Ms. Lewinsky in the usual way," S
upp.
at 1219 (1/29/98 FBI Form 302 Interview of Peter. Georgescu), and that his own
involvement would be "arm's length," Supp. at 1222 (3/25/98 FBI Form 302 Inter
view
of Peter Georgescu). After Mr. Georgescu set up the initial interview, Ms. Lew
insky
would be "on [her] own from that point." Ibid. Ms. Lewinsky then interviewed
with
a Ms. Celia Berk of Burson-Marsteller. According to Ms. Berk, her company's ac
tions
in Ms. Lewinsky's interviewing process were handled "by the book." Supp. at 11
1
(3/31/98 FBI Form 302 Interview of Celia Berk). Ms. Lewinsky's "recruitment
process," she said, "was somewhat accelerated, but it went through the normal
stops." Ibid. Burson-Marsteller never offered Ms. Lewinsky a job.
American Express. The person Mr. Jordan spoke with at American Express was Ms.
Ursula Fairbairn, the head of Human Resources. Ref. 93. According to Ms Fairb
airn,
there was nothing unusual for board members or company officers to recommend
talented people for work at American Express. Supp. at 1087 (1/29/98 FBI Form
302
Interview of Ursula Fairbairn). Indeed Mr. Jordan had recently made another
employment recommendation to Ms. Fairbairn at American Express. Supp. at 1087
(1/29/98 FBI Form 302 Interview of Ursula Fairbairn). Ms. Fairbairn felt that
no
pressure was exerted by Mr. Jordan. Supp. at 1087 (1/29/98 FBI Form 302 Interv
iew
of Ursula Fairbairn).
The person Ms. Lewinsky interviewed with was an American Express official in
Washington named Mr. Thomas Schick. Ref. at 95. According to Mr. Schick, he n
ever
talked to Mr. Jordan at any time during this process. He also said that he fel
t
absolutely no pressure to hire Ms. Lewinsky. Supp. at 3521 (1/29/98 FBI Form 3
02
Interview of Thomas Schick). Ms. Lewinsky interviewed with Mr. Schick on Decem
ber
23, 1997. According to Ms. Lewinsky's account of that interview, she was told
that
she lacked the qualifications necessary for the position. App. at 1480 (8/1/98
FBI
Form 302 Interview of Ms. Lewinsky). Ms. Lewinsky was never offered a job at
American Express. Supp. at 1714 (3/3/98 grand jury testimony of Vernon Jordan)
MacAndrews & Forbes/Revlon. The person Mr. Jordan first contacted at MacAndrew
s &
Forbes was an Executive Vice President named Mr. Richard Halperin. Ref. at 93.
It
was not unusual for Mr. Jordan to call him with an employment recommendation.
Supp.
at 1281 (1/26/98 FBI Form 302 Interview of Richard Halperin); see also Supp. a
t
1294 (4/23/98 grand jury testimony of Richard Halperin) (same). In fact, Mr. J
ordan
had recommended at least three other person besides Ms. Lewinsky to MacAndrews
&
Forbes. Supp. at 1746-47 (3/5/98 grand jury testimony of Vernon Jordan). On
this
occasion, Mr. Jordan told Mr. Halperin that Ms. Lewinsky was bright, energetic
and
enthusiastic and encouraged him to meet with Ms. Lewinsky. Supp. at 1286 (3/27
/98
Interview of Richard Halperin). Mr. Halperin did not think there was anything
unusual about Mr. Jordan's request. Id. In Mr. Jordan's telephone call, Mr.
Halperin testified that Mr. Jordan did not "ask [Halperin] to work on any parti
cular
kind of timetable," Supp. at 1294 (4/23/98 grand jury testimony of Richard
Halperin), and Mr. Halperin said that "there was no implied time constraint or
requirement for fast action." Supp. at 1286 (3/27/98 FBI Form 302 Interview of
Richard Halperin).
Ms. Lewinsky interviewed with Mr. Halperin on December 18, 1997, in New York.
Supp.
at 1282 (1/26/98 FBI Form 302 Interview of Richard Halperin). At the end of t
he
Lewinsky interview, Mr. Halperin thought Ms. Lewinsky would be "shipped to Revl
on"
for consideration of opportunities there. Supp. at 1287 (3/27/98 FBI Form 302
Interview of Richard Halperin). Earlier that week, Mr. Halperin had sent Ms.
Lewinsky's resume to Mr. Jaymie Durnan of MacAndrews & Forbes for his considera
tion.
Ibid.
Mr. Durnan became aware of Ms. Lewinsky in mid-December 1997. Supp. at 1053
(3/27/98 FBI Form 302 Interview of Jaymie Durnan). At that time, he reviewed h
er
resume and decided to interview her after the first of the year. Ibid. (He w
as
going on vacation the last two weeks of December.) Ibid. When he returned fro
m
vacation, he had his assistant schedule an interview with Ms. Lewinsky for Janu
ary
7, 1998, but, because of scheduling problems, he rescheduled the interview for
the
next day January 8, 1998. Supp. at 1049 (1/26/98 FBI Form 302 Interview of Jay
mie
Durnan). Mr. Durnan's decision to interview Ms. Lewinsky was made independentl
y of
the decision by Mr. Halperin to interview her. Indeed, only when Mr. Durnan
interviewed Ms. Lewinsky in January did he discover that she had had a December
interview with Mr. Halperin. Ibid.
Ms. Lewinsky interviewed with Mr. Durnan on the morning of January 8th. Mr. Du
rnan
thought she was impressive for entry level work. Supp. at 1049 (1/26/98 FBI Fo
rm
302 Interview of Jaymie Durnan). After that interview, Mr. Durnan concluded th
at
Ms. Lewinsky would have "fit in" at the parent company (MacAndrews & Forbes), b
ut
that there was nothing available at the time that matched her interest. He als
o
thought she might be suitable for MacAndrews & Forbes' subsidiary Revlon. Supp
at
1054 (3/27/98 FBI Form 302 Interview of Jaymie Durnan). He decided to send her
resume to Revlon. He left a message for Ms. Allyn Seidman (Senior VP of Corpor
ate
Communications) at Revlon and forwarded Ms. Lewinsky's resume to her. Supp. at
1049-50 (1/26/98 FBI Form 302 Interview of Jaymie Durnan).
That same day, Mr. Jordan spoke to Mr. Ronald Perelman, CEO of MacAndrews & Fo
rbes,
by telephone and mentioned to Mr. Perelman that Ms. Lewinsky had interviewed wi
th
MacAndrews & Forbes. However, Mr. Jordan made no specific requests and did not
ask
Mr. Perelman to intervene. Supp. at 3273 (1/26/98 FBI Form 302 Interview of R
onald
Perelman); Supp. at 3276 (3/27/98 FBI Form 302 Interview of Ronald Perelman).
Later
that day, Mr. Durnan spoke to Mr. Perelman, who mentioned that he had had a cal
l
from Mr. Jordan about a job candidate. Mr. Perelman simply told Mr. Durnan "le
t's
see what we can do," and Mr. Perelman later told Mr. Jordan that they would do
what
they could. Mr. Jordan expressed no time constraint to Mr. Perelman. Ibid.
By the time Mr. Perelman spoke to Mr. Durnan, Mr. Durnan had already passed on
Ms.
Lewinsky's resume to Ms. Seidman at Revlon. Supp. at 1049-50 (1/26/98 FBI Form
302
Interview of Jaymie Durnan). After speaking with Mr. Perelman, Mr. Durnan actu
ally
spoke to Ms. Seidman about Ms. Lewinsky for the first time. Supp. at 1054-55
(3/27/98 FBI Form 302 Interview of Jaymie Durnan). Upon speaking to Ms. Seidma
n
about Ms. Lewinsky, Mr. Durnan did not tell Ms. Seidman that CEO Perelman had
expressed an interest in Lewinsky. Supp. at 1055 (3/27/98 FBI Form 302 Intervi
ew of
Jaymie Durnan). Rather, he simply told Ms. Seidman that if she liked Ms. Lewin
sky,
she should hire her. Supp. at 1050 (1/26/98 FBI Form 302 Interview of Jaymie
Durnan).
According to Mr. Durnan, Mr. Perelman never said or implied that Ms. Lewinsky h
ad to
be hired. Indeed, Mr. Durnan concluded that Ms Lewinsky's hiring was not manda
tory.
Supp. at 1055 (3/27/98 FBI Form 302 Interview of Jaymie Durnan). According to
Ms.
Seidman, Mr. Durnan told Ms. Seidman that he thought she should interview Ms.
Lewinsky because he thought she was a good candidate. Supp. at 3634 (4/23/98 g
rand
jury testimony of Allyn Seidman). In fact, there is nothing in the record to
suggest that Ms. Seidman even knew that Mr. Perelman had any interest at all in
Ms.
Lewinsky. Supp. at 3643 (4/23/98 grand jury testimony of Allyn Seidman). And
there's no evidence that Mr. Perelman instructed or suggested to Ms. Seidman th
at
she conduct that interview. Supp. at 3642 (4/23/98 grand jury testimony of All
yn
Seidman). Having seen his name in Ms. Lewinsky's application materials, Ms. Se
idman
was aware that Ms. Lewinsky had some connection with Mr. Jordan, but there is n
o
evidence that Ms. Seidman was aware of Mr. Jordan's January 8th call to Mr.
Perelman. Supp. at 3643 (4/23/98 grand jury testimony of Allyn Seidman).
In fact, the next day when Ms. Seidman interviewed Ms. Lewinsky, she liked her
so
well she decided to hire her that very day. Supp. at 3643 (4/23/98 grand jury
testimony of Allyn Seidman). And when Ms. Seidman decided to hire Ms. Lewinsky
,
there is no evidence that Mr. Perelman or Mr. Durnan or Mr. Halperin told her t
o do
that. Supp. at 3643 (4/23/98 grand jury testimony of Allyn Seidman). The deci
sion
to hire Ms. Lewinsky was made by Ms. Seidman completely unaware of Mr. Jordan's
January 8 telephone call.
c. The Referral Falsely Suggests Obstruction by Suppressing Crucial Facts
As the foregoing narrative establishes, there was a great deal more to Ms.
Lewinsky's job search that the Referral acknowledges. Indeed, the events of
December and January (upon which the Referral's obstruction theory places such
reliance) assume quite a different cast when the details are filled in. It bec
omes
clear that the Referral has completely suppressed a host of pertinent facts, ev
ery
one of them relevant to the question whether Ms. Lewinsky's job was procured at
a
crucial time in the Jones case in exchange for a false affidavit or to buy her
silence. Among those set forth in the above narrative, those omitted facts inc
lude
the following:
that Ms. Lewinsky believed that her discussions with the President about a job
were
"part of her relationship with" the President. App. at 1461 (7/31/98 FBI From
302
Interview).
that Ms. Lewinsky raised the prospect of moving to New York in a September 2, 1
997
e-mail message to a friend. App. at 2811;
that the idea of obtaining Mr. Jordan's assistance may have originated with Ms.
Tripp. App. at 822-24 (8/6/98 grand jury testimony of Ms. Lewinsky);
? that Ms. Lewinsky was simultaneously pursuing New York jobs through avenues o
ther
than the President and his associates, Supp. at 11 (2/26/98 FBI Form 302 Interv
iew
of Kenneth Bacon);
? that those efforts occurred well before her name appeared on the witness list
in
the Jones case, Supp. at 11 (2/26/98 FBI Form 302 Interview of Kenneth Bacon);
? that Mr. Jordan put no pressure on Mr. Peter Georgescu of Young & Rubicam/Bur
son
Marsteller and that Mr. Georgescu told Mr. Jordan that the company "would take
a
look at Ms. Lewinsky in the usual way." Supp. at 1219 (1/29/98 FBI Form 302
Interview of Peter Georgescu), that Mr. Georgescu's involvement would be "arm's
length," and that after he set up the initial interview, Ms. Lewinsky would be
"on
[her] own from that point," Supp. at 1222 (3/25/98 FBI Form 302 Interview of Pe
ter
Georgescu);
? that Ms. Lewinsky's interview with a Ms. Celia Berk of Burson-Marsteller was
handled "by the book", Supp. at 111 (3/31/98 FBI Form 302 Interview of Celia B
erk),
and that it "went through the normal stops." Ibid.;
? that Burson-Marsteller never offered Ms. Lewinsky a job;
? that Ms. Lewinsky's initial contact with American Express was not extraordina
ry
because according to Ms. Ursula Fairbairn, there was nothing unusual for board
members or company officers to recommend talented people for work at American
Express, Supp. at 1087 (1/29/98 FBI Form 302 Interview of Ursula Fairbairn);
? that Mr. Jordan had recently made another employment recommendation to Ms.
Fairbairn at American Express, Supp. at 1087 (1/29/98 FBI Form 302 Interview of
Ursula Fairbairn);
? that Ms. Fairbairn felt that no pressure was exerted by Mr. Jordan, Supp. at
1087
(1/29/98 FBI Form 302 Interview of Ursula Fairbairn);
? that the person Ms. Lewinsky interviewed with at American Express, an officia
l
named Mr. Thomas Schick, never talked to Mr. Jordan at any time during this pro
cess,
Supp. at 3521 (1/29/98 FBI Form 302 Interview of Thomas Schick);
? that Mr. Schick stated that he felt absolutely no pressure to hire Ms. Lewins
ky,
Supp. at 3521 (1/29/98 FBI Form 302 Interview of Thomas Schick);
? that during Ms. Lewinsky's interview with Mr. Schick on December 23, 1997, s
he
was told that she lacked the qualifications necessary for the position, App. 14
80
(8/1/98 FBI Form 302 Interview of Ms. Lewinsky);
? that Ms. Lewinsky was never offered a job at American Express;
? that the person Mr. Jordan first contacted at MacAndrews & Forbes/Revlon was
an
Executive Vice President named Mr. Richard Halperin who said that it was not un
usual
for Mr. Jordan to call him with an employment recommendation, Supp. at 1281 (1/
26/98
FBI Form 302 Interview of Richard Halperin), and that he did not think there wa
s
anything unusual about Mr. Jordan's request, Supp. at 1286 (3/27/98 FBI Form 30
2
Interview of Richard Halperin);
? that in Mr. Jordan's call to Mr. Halperin, Mr. Jordan did not "ask [Halperin]
to
work on any particular kind of timetable," Supp. at 1294 (4/23/98 grand jury
testimony of Richard Halperin), and that "there was no implied time constraint
or
requirement for fast action," Supp. at 1286 (3/27/98 FBI Form 302 Interview of
Richard Halperin);
? that Ms. Lewinsky's interview with Mr. Halperin was scheduled for December 18
,
1997 in New York at her request, Supp. at 1282 (1/26/98 FBI Form 302 Interview
of
Richard Halperin);
? that earlier that week, Mr. Halperin, with no input from Mr. Jordan or MacAnd
rews
and Forbes CEO Ronald Perelman, had sent Ms. Lewinsky's resume to Jaymie Durna
n for
his consideration, Ibid.;
? that Mr. Durnan became aware of Ms. Lewinsky in mid-December 1997, Supp. at 1
053
(3/27/98 FBI Form 302 Interview of Jaymie Durnan), and that at that time, he
reviewed her resume and decided to interview her after the first of the year,
Ibid.;
? that when Mr. Durnan returned from vacation, he had his assistant schedule an
interview with Ms. Lewinsky for January 7, 1998, but, because of scheduling
problems, he rescheduled the interview for the next day January 8,1998, Supp. a
t
1049 (1/26/98 FBI Form 302 Interview of Jaymie Durnan);
? that Mr. Durnan's decision to interview Ms. Lewinsky was made independently o
f the
decision by Mr. Halperin to interview her;
? that when Ms. Lewinsky interviewed with Mr. Durnan on the morning of January
8th,
Mr. Durnan thought she was impressive for entry level work, Supp. at 1049 (1/26
/98
FBI Form 302 Interview of Jaymie Durnan);
? that Mr. Durnan concluded that Ms. Lewinsky would have "fit in" at the parent
company (MacAndrews & Forbes Holdings) but that there was nothing available at
the
time that matched her interest and so, for that reason, he referred her to Revl
on,
thinking she might be suitable for that company, Supp. at 1054 (3/27/98 FBI For
m 302
Interview of Jaymie Durnan). He decided to send her resume to Revlon;
? that, as the Referral makes so much of, Mr. Jordan did speak to CEO Ronald
Perelman on January 8, 1998, but that Mr. Jordan made no specific requests and
did
not ask Mr. Perelman to intervene, Supp. at 3273 (1/26/98 FBI Form 302 Intervie
w of
Ronald Perelman); Supp. at 3276 (3/27/98 FBI Form 302 Interview of Ronald Perel
man);
? that in that call, Mr. Jordan did not say that there was any time constraint
involved in considering Ms. Lewinsky for a job, Supp. at 3276 (3/27/98 FBI Form
302
Interview of Ronald Perelman);
? that on that same day, Mr. Perelman spoke to Mr. Durnan about Ms. Lewinsky, b
ut he
simply told Mr. Durnan "let's see what we can do," Ibid., and later told Mr. J
ordan
only that they would do what they could, Ibid.;
? that at the time Mr. Perelman spoke to Mr. Durnan, Mr. Durnan had already pas
sed
Ms. Lewinsky's resume over to Ms. Allyn Seidman (Senior VP Corporate Communicat
ions)
at Revlon, Supp. at 1049-50 (1/26/98 FBI Form 302 Interview of Jaymie Durnan);
? that upon first speaking to Ms. Seidman about Ms. Lewinsky, Mr. Durnan did n
ot
tell Ms. Seidman that CEO Perelman had expressed an interest in Lewinsky. Supp
at
1055 (3/27/98 FBI Form 302 Interview of Jaymie Durnan). Rather, he simply told
Ms.
Seidman that if she liked ML, she should hire her, Supp. at 1050 (1/26/98 FBI F
orm
302 Interview of Jaymie Durnan);
? that Mr. Perelman never said or implied that Ms. Lewinsky had to be hired and
that
Mr. Durnan concluded that Ms Lewinsky's hiring was not mandatory, Supp. at 1055
(3/27/98 FBI Form 302 Interview of Jaymie Durnan);
? that according to Ms. Seidman, Mr. Durnan told Ms. Seidman that he thought sh
e
should interview Ms. Lewinsky because he thought she was a good candidate, Supp
at
3634 (4/23/98 grand jury testimony of Allyn Seidman);
? that according to Ms. Seidman, when she interviewed Ms. Lewinsky, she liked h
er a
great deal and so decided to hire her that very day, Supp. at 3643 (4/23/98 gra
nd
jury testimony of Allyn Seidman);
? and that when Ms. Seidman decided to hire Ms. Lewinsky, there is no evidence
that
Mr. Perelman or Mr. Durnan or Mr. Halperin told her to do that, Supp. at 3643
(4/23/98 grand jury testimony of Allyn Seidman).
Every one of the foregoing facts is relevant to the case for obstruction of jus
tice.
Every one of them suggests that there was no obstruction. And every one of th
em is
missing from the Referral.
d. The Referral Omits Ms. Lewinsky's Own Statement of Her Reason for Seeking th
e
President's Help in Obtaining A New York Job
Ms. Lewinsky expressly told the OIC that her principal reason for moving to New
York
was her understanding -- growing throughout 1997 and confirmed on October 6, 19
97 --
that she would never work in the White House again:
"LEWINSKY advised that the main reason she looked for a job in New York was bec
ause
TRIPP said that "KATE at NSC" said LEWINSKY would never get a job in the White
House
. ." LEWINSKY advised TRIPP told LEWINSKY this in an October 6, 1997 telepho
ne
call." App. at 1419-20 (7/29/98 FBI Form 302 Interview of Ms. Lewinsky).
Despite the fact that Ms. Lewinsky stated that this was her "main reason for
look[ing] for a job in New York," that statement is nowhere to be found in the
Referral. And despite the fact that she apparently reached this decision on Oc
tober
6, 1997, that fact too is not part of the Referral's chronology of "key events.
"
These two facts sharply undermine the OIC's insistence that the President's
assistance to Ms. Lewinsky in obtaining a job in New York was motivated by an i
ntent
to obstruct justice in the Jones case's December-January discovery proceedings,
but
they are missing from the Referral.
e. The Referral Leaves Out Direct Evidence Contradicting the Notion that Ms.
Lewinsky's Job Was Procured in Exchange for Silence or for a False Affidavit
The OIC's chronology of key events plainly intends to suggest that Ms. Lewinsky
's
Jones affidavit was signed in exchange for a New York job. What the chronology
omits are the following statements made by Ms. Lewinsky showing that there simp
ly
was no job-for-affidavit deal of any kind:
"[t]here was no agreement with the President, JORDAN, or anyone else that LEWIN
SKY
had to sign the Jones affidavit before getting a job in New York. LEWINSKY nev
er
demanded a job from JORDAN in return for a favorable affidavit. Neither the
President nor JORDAN ever told LEWINSKY that she had to lie." App. at 1398 (7/
27/98
FBI Form 302 Interview of Ms. Lewinsky);
and that the only person who suggested that she sign the affidavit in exchange
for a
job was Ms. Tripp:
"TRIPP told LEWINSKY not to sign the affidavit until LEWINSKY had a job." App.
at
1493 (8/2/98 FBI Form 302 Interview of Ms. Lewinsky);
Ms. Tripp made Ms. Lewinsky promise her not to sign an affidavit without first
telling Jordan "no job, no affidavit." App. at 900 (8/6/98 grand jury testimon
y of
Ms. Lewinsky);
Ms. Tripp said to Ms. Lewinsky: "Monica, promise me you won't sign the affidav
it
until you get the job. Tell Vernon you won't sign the affidavit until you get
the
job because if you sign the affidavit before you get the job they're never goin
g to
give you the job." App. at 902 (8/6/98 grand jury testimony of Ms. Lewinsky);
Ms. Lewinsky reiterated that, "as I mentioned earlier, she [Tripp] made me prom
ise
her that I wouldn't sign the affidavit until I got the job." App. at 933 (8/6/
98
grand jury testimony of Ms. Lewinsky);
"I [Ms. Lewinsky] told Mr. Jordan I wouldn't sign the affidavit until I got a j
ob.
That was definitely a lie, based on something Linda had made me promise her on
January 9th." App. at 1134 (8/20/98 grand jury testimony of Ms. Lewinsky).
Five distinct statements by Ms. Lewinsky make Ms. Tripp the sole source of the
job-for-affidavit notion which the OIC holds out as the heart of the obstructio
n
case. Ms. Lewinsky's recitation of Ms. Tripp's statements are the only direct
evidence contained in the appendices bearing on that idea. Yet these statement
s are
nowhere to be found in the Referral.
f. The Referral Suppresses Directly Exculpatory Statements of Ms. Lewinsky
Finally, the OIC's chronology of key events fails to include the following thre
e
statements of Ms. Lewinsky bearing directly on the core of this issue. The fir
st
was made in Ms. Lewinsky's original proffer on February 1, 1998:
"Neither the Pres[ident] nor Mr. Jordan (or anyone on their behalf) asked or
encouraged me to lie." App. at 718.
The second was made in her very first interview with the OIC:
[t]here was no agreement with the President, JORDAN, or anyone else that LEWINS
KY
had to sign the Jones affidavit before getting a job in New York. LEWINSKY nev
er
demanded a job from JORDAN in return for a favorable affidavit. Neither the
President nor JORDAN ever told LEWINSKY that she had to lie.
App. at 1398 (7/27/98 FBI Form 302 Interview of Ms. Lewinsky). The third was m
ade
at the close of Ms. Lewinsky's grand jury testimony in response to a question f
rom a
grand juror:
Q. Monica, is there anything that you would like to add to your prior testimony
. .
anything that you think needs to be amplified on or clarified?
A. . . . I would just like to say that no one ever asked me to lie and I was ne
ver
promised a job for my silence.
App. at 1161 (8/20/98 grand jury testimony of Ms. Lewinsky).
From initial proffer to the last minutes of her grand jury appearance, the test
imony
of Ms. Lewinsky (the OIC's principal witness) has been clear and consistent on
this
obstruction issue: she was never asked or encouraged to lie or promised a job
for
silence or for a favorable affidavit.
g. Conclusion
There was no obstruction of justice in connection with Ms. Lewinsky's job searc
h.
That search was undertaken long before her involvement in the Jones case was kn
own
to anyone. It involved individuals other than the President and his friends.
It
resulted in several dead ends. It was not conducted according to any timetable
,
explicit or tacit. It was completed without pressure of any kind and without
reference to the Jones case.
The Referral's insinuations to the contrary are just that. When the omissions
and
falsely suggestive juxtapositions are examined, the truth becomes clear: The
jobs-based obstruction charge lacks even the most basic circumstantial support.
3. The President Did Not Have an Agreement or Understanding with Ms. Lewinsky t
o Lie
Under Oath
The Committee appears to be considering an article of impeachment concerning th
e
assertion in the Referral that President Clinton and Ms. Lewinsky had an
understanding or agreement that they would lie under oath in the Jones case abo
ut
their relationship. Ref. at 173; see also Schippers Presentation at 13 ("the t
wo
agreed that they would employ the same cover story in the Jones case"). Both t
he
Starr Referral and the Majority's presentation simply ignore the fact that neit
her
Ms. Lewinsky nor the President testified that they had any such agreement regar
ding
their testimony in the Jones case. To the contrary, Ms. Lewinsky stated repeat
edly
that she was neither asked nor encouraged to lie, by the President or anyone el
se on
his behalf. And Ms. Lewinsky never testified that the President ever discussed
with
her in any way the substance or content of his own testimony. There simply was
no
such agreement, and neither the OIC nor the majority have cited any testimony b
y
either of the supposed conspirators that supports one. This allegation of
obstruction of justice attempts to rest solely on the shaky basis that the Pres
ident
and Ms. Lewinsky attempted to conceal the improper nature of their relationship
while it was on-going.
In the Referral, Mr. Starr inexplicably never once quotes Ms. Lewinsky's repeat
ed,
express denials that anyone had told her to lie in the Jones case and therefore
does
not even attempt to reconcile them with his theory of obstruction:
"Neither the Pres[ident] nor Mr. Jordan (or anyone on their behalf) asked or
encouraged Ms. L[ewinsky] to lie." App. at 718 (2/1/98 Proffer).
"I think I told [Tripp] that -- you know at various times the President and Mr.
Jordan had told me I had to lie. That wasn't true." App. at 942 (Ms. Lewinsky
's
8/6/98 grand jury testimony).
"I think because of the public nature of how this investigation has been and wh
at
the charges aired, that I would just like to say that no one ever asked me to l
ie
and I was never promised a job for my silence." App. at 1161 (Ms. Lewinsky's
8/20/98 grand jury testimony).
"Neither the President nor Jordan ever told Lewinsky that she had to lie." App
at
1398 (7/27/98 FBI Form 302 Interview of Ms. Lewinsky).
"Neither the President nor anyone ever directed Lewinsky to say anything or to
lie
?" App. at 1400 (7/27/98 FBI Form 302 Interview of Ms. Lewinsky).
The Referral alleges that during the course of their admittedly improper
relationship, the President and Ms. Lewinsky concealed the nature of their
relationship from others. This is hardly a remarkable proposition. The use of
"cover stories" to conceal such a relationship, apart from any proceeding, is,
however unpraiseworthy, not unusual and certainly not an obstruction of justice
Ms. Lewinsky's explicit testimony clearly indicates that the conversations she
said
she had with the President about denying the relationship had occurred long bef
ore
her involvement in the Jones case. The following exchange occurred between Ms.
Lewinsky and a grand juror:
Q: Is it possible that you had these discussions [about denying the relations
hip]
after you learned that you were a witness in the Paula Jones case?
A: I don't believe so. No.
Q: Can you exclude that possibility?
A: I pretty much can?.
App. at 1119 (8/20/98 grand jury testimony of Ms. Lewinsky).
The Starr Referral cites only one specific statement that Ms. Lewinsky claims t
he
President made to her regarding the substance of her testimony. Ms. Lewinsky
testified that "At some point in the conversation, and I don't know if it was b
efore
or after the subject of the affidavit came up, [the President] sort of said, '
You
know, you can always say you were coming to see Betty or that you were bringing
me
letters.'" App. at 843 (8/6/98 grand jury testimony of Ms. Lewinsky). As an
initial matter, the President stated in his grand jury testimony that he did no
t
recall saying anything like that in connection with Ms. Lewinsky's testimony in
the
Jones case:
Q. And in that conversation, or in any conversation in which you informed her
she
was on the witness list, did you tell her, you know, you can always say that
you
were coming to see Betty or bringing me letters? Did you tell her anything li
ke
that?
A. I don't remember. She was coming to see Betty. I can tell you this. I
absolutely never asked her to lie.
App. at 568. The President testified that he and Ms. Lewinsky "might have talk
ed
about what to do in a non-legal context at some point in the past," but that he
had
no specific memory of that conversation. App. at 569.
Even if that conversation did take place, neither of those two ambiguous statem
ents
would be false, and neither statement was ever made by Ms. Lewinsky in the Jone
s
case. Ms. Lewinsky stated on several occasions that the so-called "cover stori
es"
were not false. In her handwritten proffer, Ms. Lewinsky stated that the Presi
dent
told her if anyone asked her about her visits to the Oval Office, that she coul
d say
"she was bringing him letters (when she worked in Legislative Affairs) or visit
ing
Betty Currie (after she left the White House)." App. at 709 (2/1/98 Proffer).
Ms.
Lewinsky expressly told the OIC: "There is truth to both of these statements."
App. at 709 (2/1/98 Proffer) (emphasis added). Ms. Lewinsky also said that thi
s
conversation took place "prior to the subpoena in the Paula Jones case." App.
at
718 (2/1/98 Proffer) (emphasis added). Ms. Lewinsky alleged that the President
mentioned these explanations again after the President told her she was on the
witness list and reiterated that "[n]either of those statements [was] untrue."
App.
at 712 (2/1/98 Proffer) (emphasis added). Ms. Lewinsky also stated in her prof
fer
that "[t]o the best of Ms. L's memory, she does not believe they discussed the
content of any deposition that Ms. L might be involved in at a later date." Ap
p. at
712 (2/1/98 Proffer).
Ms. Lewinsky testified to the grand jury that she did bring papers to the Oval
Office and that on some occasions, she visited the Oval Office only to see Ms.
Currie:
Q: Did you actually bring [the President] papers at all?
A: Yes.
Q: All right. And tell us a little about that.
A: It varied. Sometimes it was just actual copies of letters. . . .
App. at 774-75 (8/6/98 grand jury testimony of Ms. Lewinsky).
I saw Betty on every time that I was there ? most of the time my purpose was to
see
the President, but there were some times when I did just go see Betty but the
President wasn't in the office.
App. at 775 (8/6/98 grand jury testimony of Ms. Lewinsky).
Mr. Starr and the Schippers' presentation ignore Ms. Lewinsky's assertion that
the
so-called "cover stories" were literally true, attempting instead to build an
obstruction case on the flimsy assertions that (1) her White House job never
required her to deliver papers for the President's signature; and (2) her true
purpose in visiting the Oval Office was to see the President, and not Ms. Curri
e.
Ref. at 176-77. In other words, the OIC suggests that these responses might ha
ve
been misleading. But literal truth is a critical issue in perjury and obstruct
ion
cases, as is Ms. Lewinsky's belief that the statements were, in fact, literally
true.
4. The President Did Not Obstruct Justice by Suggesting Ms. Lewinsky Could File
an
Affidavit
The Starr Referral alleges that President Clinton endeavored to obstruct justic
e
based on Ms. Lewinsky's testimony that the President told her, "Well maybe you
can
sign an affidavit" in the Jones case. See App. at 843; Ref. at 173. The Presi
dent
never told Ms. Lewinsky to file a false affidavit or otherwise told her what to
say
in the affidavit -- indeed the OIC makes no contention that the President ever
told
Ms. Lewinsky to file a false affidavit. But a suggestion that perhaps she coul
d
submit written testimony in lieu of a deposition, if he made it, is hardly impr
oper
-- let alone an obstruction of justice. The President was aware that other
potential deponents in the Jones case had filed affidavits in an attempt to avo
id
the expense, burden, and humiliation of testifying in the Jones case, and that
there
was a chance that doing so might enable Ms. Lewinsky to avoid testifying. Even
if
the affidavit did not disclose every possible fact regarding their relationship
,
since the Jones case concerned allegations of nonconsensual sexual solicitation
, a
truthful albeit limited affidavit might have allowed her to have avoided giving
a
Jones deposition.
The President's testimony overwhelmingly indicates that he had no intention tha
t Ms.
Lewinsky file a false affidavit -- and no testimony to the contrary has been
presented. No fewer than eight times in his testimony to the grand jury, the
President explained that he thought she could and would execute a truthful affi
davit
that would establish she was not relevant to the Jones case:
"Q: Did you talk with Ms. Lewinsky about what she meant to write in her affidav
it?
A: I didn't talk to her about her definition. I did not know what was in this
affidavit before it was filled out specifically. I did not know what words wer
e
used specifically before it was filled out, or what meaning she gave to them.
But
I'm just telling you that it's certainly true what she says here, that we didn'
t
have -- there was no employment, no benefit in exchange, there was nothing havi
ng to
do with sexual harassment. And if she defined sexual relationship in the way t
hat I
think most Americans do, meaning intercourse, then she told the truth." App. a
t
474.
"You know, I believed then, I believe now, that Monica Lewinsky could have swor
n out
an honest affidavit, that under reasonable circumstances, and without the benef
it of
what Linda Tripp did to her, would have given her a chance not to be a witness
in
this case." App. at 521.
"I believed then, I believe today, that she could execute an affidavit which, u
nder
reasonable circumstances with fair-minded, non-politically oriented people, wou
ld
result in her being relieved of the burden to be put through the kind of testim
ony
that, thanks to Linda Tripp's work with you and with the Jones lawyers, she wou
ld
have been put through. I don't think that's dishonest, I don't think that's
illegal." App. at 529.
"But I also will tell you that I felt quite comfortable that she could have exe
cuted
a truthful affidavit, which would not have disclosed the embarrassing details o
f the
relationship that we had had, which had been over for many, many months by the
time
this incident occurred." App. at 568-69.
"I said I thought this could be a truthful affidavit. And when I read it, sinc
e
that's the way I would define it, since -- keep in mind, she was not, she was n
ot
bound by this sexual relations definition, which is highly unusual; I think any
body
would admit that. When she used a different term, sexual relationship, if she
meant
by that what most people meant by it, then that is not an untruthful statement.
"
App. at 474-75.
"I believe that the common understanding of the term, if you say two people are
having a sexual relationship, most people believe that includes intercourse. S
o, if
that's what Ms. Lewinsky thought, then this is a truthful affidavit. I don't k
now
what was in her mind. But if that's what she thought, the affidavit is true."
App.
at 475.
"Q: Did you tell her to tell the truth?
A: Well, I think the implication was she would tell the truth. I've already to
ld
you that I felt strongly that she could issue, that she could execute an affida
vit
that would be factually truthful, that might get her out of having to testify.
Now,
it obviously wouldn't if the Jones people knew this, because they knew that if
they
could get this and leak it, it would serve their larger purposes, even if the j
udge
ruled that she couldn't be a witness in the case. The judge later ruled she
wouldn't be a witness in the case. The judge later ruled the case had no merit
So, I knew that. And did I hope she'd be able to get out of testifying on an
affidavit? Absolutely. Did I want her to execute a false affidavit? No, I di
d
not." App. at 571.
"I believe at the time that she filled out this affidavit, if she believed that
the
definition of sexual relationship was two people having intercourse, then this
is
accurate. And I believe that is the definition that most ordinary Americans wo
uld
give it.
If you said Jane and Harry have a sexual relationship, and you're not talking a
bout
people being drawn into a lawsuit and being given definitions, and then a great
effort to trick them in some way, but you are just talking about people in ordi
nary
conversations, I'll bet the grand jurors, if they were talking about two people
they
know, and said they have a sexual relationship, they meant they were sleeping
together; they meant they were having intercourse together." App. at 473.
There is simply no evidence that contradicts the President's stated intention t
hat
the affidavit be limited but truthful. In other words, there is simply no evid
ence
that the President had any "corrupt" intent, which is a requisite element of
obstruction of justice.
Ms. Lewinsky's repeated statements that she was not asked or encouraged to lie
similarly negate the allegation that the President asked or encouraged her to f
ile a
false affidavit, and yet Mr. Starr omitted these statements from his Referral:
"Neither the Pres[ident] nor Mr. Jordan (or anyone on their behalf) asked or
encouraged Ms. L[ewinsky] to lie." App. at 718 (2/1/98 Proffer).
"I think I told [Tripp] that -- you know at various times the President and Mr.
Jordan had told me I had to lie. That wasn't true." App. at 942 (8/6/98 grand
jury
testimony).
"I think because of the public nature of how this investigation has been and wh
at
the charges aired, that I would just like to say that no one ever asked me to l
ie
and I was never promised a job for my silence." App. at 1161 (8/20/98 grand ju
ry
testimony).
"Neither the President nor Jordan ever told Lewinsky that she had to lie." App
at
1398 (7/27/98 FBI Form 302 Interview of Ms. Lewinsky).
"Neither the President nor anyone ever directed Lewinsky to say anything or to
lie
?" App. at 1400 (7/27/98 FBI 302 Form Interview of Ms. Lewinsky).
Furthermore, Ms. Lewinsky states that she believed, when she executed the affid
avit,
that it was accurate given what she believed to be the definition of a "sexual
relationship":
"Ms. L[ewinsky] was comfortable signing the affidavit with regard to the sexual
relationship because she could justify to herself that she and the Pres[ident]
did
not have sexual intercourse." App. at 718 (2/1/98 Proffer).
"Lewinsky said her use of the term 'having sex' means having intercourse?" App
at
1558 (8/19/98 FBI 302 Form Interview of Ms. Lewinsky).
"I never even came close to sleeping with [the President] ? We didn't have sex
?
Having sex is having intercourse ? Having sex is having intercourse. That's ho
w
most people would -- " Supp. at 2664 (Linda Tripp tape of a conversation betwe
en
Ms. Lewinsky and Ms. Tripp)./
Moreover, Ms. Lewinsky told the OIC that she believed the President himself mad
e
such a distinction: "After having a relationship with him, Lewinsky deduced th
at
the President, in his mind, apparently does not consider oral sex to be sex. S
ex to
him must mean intercourse." App. at 1558 (8/19/98 FBI 302 Form Interview of Ms
Lewinsky).
In short, the President never told Ms. Lewinsky what to say in the affidavit, h
e
knew that Ms. Lewinsky had her own lawyer to protect her interests, and he expr
essly
declined the opportunity to review the content of the affidavit, according to M
s.
Lewinsky, see App. at 1489 (8/2/98 FBI Form 302 Interview of Ms. Lewinsky). Th
e
President repeatedly testified that he did not intend Ms. Lewinsky to file a fa
lse
affidavit, and the above-referenced statements of Ms. Lewinsky indicate that, a
t the
time she executed it, she believed her affidavit was literally true.
The OIC's allegation depends on the argument that it is somehow was an obstruct
ion
of justice to fail to ensure that Ms. Lewinsky volunteered in her affidavit al
l
information that the Jones lawyers might have used to attack the President in t
heir
politically motivated lawsuit. There simply is no such duty under the law, nor
does
the OIC cite any basis for such a duty. Civil litigation is based upon an
adversarial process of determining truth, and a party is under no affirmative
obligation to assist an opponent in every way it can.
The OIC also claims that the President obstructed justice by allegedly suggesti
ng a
misleading answer to a hypothetical question posed to him by Ms. Lewinsky. Ref
at
178. Ms. Lewinsky told the grand jury that in a phone conversation with the
President on January 5, she told him that Mr. Carter had asked her some sample
questions that she was unsure of how to answer. App. at 912-13 (8/6/98 grand j
ury
testimony of Ms. Lewinsky). One of the questions was how she got her job at th
e
Pentagon. Id. Ms. Lewinsky told the grand jury that "when I told him the ques
tions
about my job at the Pentagon, he said, 'Well, you could always say that the peo
ple
in Legislative Affairs got it for you or helped you get it.' And there was a l
ot of
truth to that. I mean, it was a generality, but that was -- I said 'Well that'
s a
good idea. Okay.'" App. at 917 (8/6/98 grand jury testimony of Ms. Lewinsky)
(emphasis added). In her written proffer, Ms. Lewinsky also told the OIC that
the
President told her she could say "The people in Legislative Affairs helped you.
"
App. at 717 (2/1/98 Proffer). She also stated, "this is, in fact, part of the
truth
-- but not the whole truth." Id. A third time, "Lewinsky advised [the OIC] th
at
that explanation was true, but it was not the entire truth." App. at 1489 (8/2
/98
FBI Form 302 Interview of Ms. Lewinsky).
The OIC claims that this conversation recounted by Ms. Lewinsky was an obstruct
ion
of justice because the President encouraged Ms. Lewinsky to file a false affida
vit.
This conclusion ignores the fact that the conversation recounted by Ms. Lewinsk
y had
nothing to do with her affidavit. But that is only the first problem with the
OIC's
claim. The Referral also failed to include any of Ms. Lewinsky's three separat
e
statements that what the President allegedly had told her to say had "a lot of
truth" to it. And, in claiming that that story was misleading because Ms. Lewi
nsky
"in fact had been transferred because she was around the Oval Office too much,"
Ref. at 178, the OIC ignored the fact that the question asked was not why Ms.
Lewinsky was transferred out of the White House but rather how she got her job
at
the Pentagon.
Finally, the OIC suggests that the President was "knowingly responsible" for a
misstatement of fact to a federal judge because he failed to correct a statemen
t
made by his lawyer to the court in the Jones deposition. The President testifi
ed to
the grand jury that the lawyers' argument at the start of the deposition "passe
d
[him] by." There is of course no legal obligation imposed on a client to liste
n to
every word his attorney says, and there is no evidence that the President focus
ed on
or absorbed his attorney's remark. Without any evidence whatsoever, the OIC as
serts
that the President knew what was said, knew he was somehow responsible for it,
knew
it was incorrect, and ignored a duty to correct it. Yet, again, this is a whol
ly
unsupported allegation of obstruction of justice.
5. The President Did Not Attempt to Influence Betty Currie's Testimony
The OIC charges that President Clinton obstructed justice and improperly attemp
ted
to influence a witness when he spoke with Ms. Currie the day after his depositi
on in
the Jones case. The OIC's claims are the product of extraordinary overreaching
and
pejorative conjecture -- a transparent attempt to draw the most negative infere
nce
possible about lawful conduct.
The President's actions could not as a matter of law give rise to either charge
because Ms. Currie was not a witness in any proceeding at the time he spoke wit
h
her; there was no reason to suspect she would play any role in the Jones case;
her
name had not appeared on any of the Jones witness lists; she had not been named
as a
witness in the Jones case; and the discovery period in the case was down to its
final days. Nor did the President have any reason to suspect that the OIC had
embarked on a wholly new phase of its four-year investigation, one in which Ms.
Currie would later be called by the OIC as a witness. To obstruct a proceeding
or
tamper with a witness, there must be both a proceeding and a witness. Here, th
ere
was (as far as the President knew) neither. Furthermore, Ms. Currie testified
that
she felt no pressure to agree with the questions that the President asked her.
Despite the Referral's suggestion to the contrary, there was no reason the Pres
ident
should not have spoken with Ms. Currie about Ms. Lewinsky.
Indeed, it is hardly surprising that the President would have reached out to Ms
Currie after the deposition. As he knew, Ms. Currie was Ms. Lewinsky's friend.
The
President had just faced unexpected, detailed, and hostile questioning from fie
rce
political opponents in the Jones case about Ms. Lewinsky. He was obviously puz
zled
at being asked such precise, and in some cases such bizarrely inaccurate, quest
ions
about a past secret relationship. The President also explained that he was
expecting media questions, based on the Drudge Report indicating that Newsweek
was
pursuing the story of his relationship with Ms. Lewinsky. The President testif
ied:
I do not remember how many times I talked to Betty Currie or when. I don't. I
can't possibly remember that. I do remember, when I first heard about this sto
ry
breaking, trying to ascertain what the facts were, trying to ascertain what Bet
ty's
perception was. I remember that I was highly agitated, understandably, I think
App. at 593. He had no one to whom he could talk freely about the relationship
, but
he nonetheless had a desire to find out what might have transpired with Ms. Lew
insky
(e.g., was she -- to Ms. Currie's knowledge -- aiding his opponents in the Jone
s
case?) and to test whether his recollection was accurate, since he had not
anticipated or prepared for such detailed questions.
The President explained to the grand jury, "[W]hat I was trying to determine wa
s
whether my recollection was right and that she was always in the office complex
when
Monica was there?. I was trying to get the facts down. I was trying to unders
tand
what the facts were. ? I was trying to get information in a hurry. I was
downloading what I remembered." App. at 507-08. It was his belief that Ms. Cu
rrie
was unaware that he had engaged in improper activity with Ms. Lewinsky, since s
he
had not been in the White House complex when Ms. Lewinsky had visited on weeken
ds in
1995-96, and he wanted to reassure himself that that was so. He also recalled
that
in 1997, after the improper relationship ended, he had asked Ms. Currie to try
always to be present when Ms. Lewinsky visited. He wanted to inquire whether t
hat
was also Ms. Currie's recollection. The President testified "I was not trying
to
get Betty Currie to say something that was untruthful. I was trying to get as
much
information as quickly as I could." App. at 508.
Ms. Currie was also asked about this conversation with the President in the gra
nd
jury, and her testimony supports the President's assertion that he was merely t
rying
to gather information. First, Ms. Currie stated in her first interview with th
e OIC
that "Clinton then mentioned some of the questions he was asked at his depositi
on.
Currie advised the way Clinton phrased the queries, they were both statements a
nd
questions at the same time." Supp. at 534 (1/24/98 FBI Form 302 Interview of M
s.
Currie). The interview further reflects that "Currie advised that she responde
d
'right' to each of the statements because as far as she knew, the statements we
re
basically right?" Id. Ms. Currie was asked in the grand jury:
Q: You testified with respect to the statements as the President made them, and
, in
particular, the four statements that we've already discussed. You felt at the
time
that they were technically accurate? Is that a fair assessment of your testimo
ny?
A: That's a fair assessment.
Q: But you suggested that at the time. Have you changed your opinion about it
in
retrospect?
A: I have not changed my opinion, no.
Supp. at 667 (7/22/98 grand jury testimony of Ms. Currie).
Q: Now, back again to the four statements that you testified the President mad
e to
you that were presented as statements, did you feel pressured when he told you
those statements?
A: None whatsoever.
Q: What did you think, or what was going through your mind about what he was d
oing?
A: At that time I felt that he was -- I want to use the word shocked or surpri
sed
that this was an issue, and he was just talking.
* * *
Q: That was your impression that he wanted you to say -- because he would end
each
of the statements with "Right?," with a question.
A: I do not remember that he wanted me to say "Right." He would say "Right" a
nd I
could have said, "Wrong."
Q: But he would end each of those questions with a "Right?" and you could eith
er
say whether it was true or not true?
A: Correct.
Q: Did you feel any pressure to agree with your boss?
A: None.
Supp. at 668 (7/22/98 grand jury testimony of Ms. Currie) (emphasis added). Ms
Currie also testified, "I said 'Right' to him because I thought they were corre
ct,
'Right, you were never alone with Monica.' ? " Supp. at 665 (7/22/98 grand jur
y
testimony of Ms. Currie).
Ms. Currie's testimony supports the President's assertion that he was looking f
or
information as a result of his deposition. Neither the testimony of Ms. Currie
nor
that of the President -- the only two participants in this conversation -- supp
orts
the inference that the conversation had an insidious purpose. Furthermore, at
the
time he discussed Ms. Lewinsky with Ms. Currie, Ms. Currie was not expected to
be,
nor was she, a witness. When the President became aware that the OIC was
investigating his relationship with Ms. Lewinsky, he repeatedly told Ms. Currie
to
tell the truth: "I said, Betty, just don't worry about me. Just relax, go in
there, and tell the truth." App. at 591. The President told the grand jury:
And then I remember when I knew she was going to have to testify to the grand j
ury,
and I, I felt terrible because she had been through this loss of her sister, th
is
horrible accident Christmas that killed her brother, and her mother was in the
hospital. I was trying to do -- to make her understand that I didn't want her
to,
to be untruthful to the grand jury. And if her memory was different than mine,
it
was fine, just go in there and tell them what she thought. So, that's all I
remember.
App. at 593. And when questioned by the OIC shortly thereafter, Ms. Currie in
fact
recounted what she knew about Ms. Lewinsky, unaffected by the conversation at i
ssue.
Neither participant in the conversation intended that it affect her testimony,
and
it did not. Again, the charge is without merit.
6. The President Did Not Attempt to Influence the Testimony of "Potential" Gran
d
Jury Witnesses Through His Denials
The Referral also alleges that the President endeavored to obstruct justice by
denying to several of his aides that he had a sexual relationship with Ms. Lewi
nsky.
Ref. at 197. The statements made to the Presidential aides (Messrs. John Pode
sta,
Erksine Bowles, Harold Ickes, and Sidney Blumenthal) cited in the Referral were
made
either on the day the Lewinsky story broke (January 21, 1998) or within a few d
ays
of that date. Those statements were concurrent in time with the President's
repeated public statements to the country denying "sexual relations" with Ms.
Lewinsky and were virtually identical in substance. Having made this announcem
ent
to the whole country on television, it is simply absurd to believe that he was
somehow attempting to corruptly influence the testimony of aides when he told t
hem
virtually the same thing at the same time.
The Supreme Court has stated that in order to constitute obstruction of justice
,
actions must be taken "with an intent to influence judicial or grand jury
proceedings." United States v. Aguilar, 515 U.S. 592, 599 (1995). There is no
evidence that the President had the intent to do so when he made the alleged
statements to these four individuals. The President spoke with the individuals
regarding the allegations that had been made against him because of the
long-standing professional and personal relationships that he shared with them
and
the responsibility that he felt to address the concerns that he assumed they wo
uld
have after hearing such allegations. There is simply no evidence that he spoke
with
them for any other reason, and certainly not that he spoke with them intending
to
obstruct any proceeding.
The mere repetition of a public denial to these aides could not possibly affect
the
grand jury process. The testimony elicited from these aides in the grand jury
regarding the President's statements was hearsay. The aides were not witnesses
to
any sexual activity, and they had no first-hand knowledge pertinent to the deni
als.
The President never attempted to influence their testimony regarding their own
personal knowledge or observations. Any testimony about the President's remark
s was
merely cumulative of the President's own nationally broadcast statements. The
suggestion that the President violated section 1503's prohibition on "influenc[
ing],
obstruct[ing], or imped[ing] the due administration of justice" is groundless.
Furthermore, the Referral cites no evidence, and there is none, for the asserti
on
that the President knew these individuals were going to be grand jury witnesses
at
that very early stage of the investigation. The Referral does not allege that
any
of them were under subpoena when the statements were made -- indeed they were n
ot.
The Referral cites the President's testimony that he knew it was possible that
if he
provided people with factual details surrounding the allegations that had been
made
that they might be called as witnesses. But his point was that he did not want
to
make them into witnesses through admissions, not that he believed they would be
As
the Supreme Court has made clear, the possibility that one may or may not be a
witness is simply insufficient to establish obstruction in this context. "[I]f
the
defendant lacks knowledge that his actions are likely to affect the judicial
proceeding, he lacks the requisite intent to obstruct." United States v. Aguil
ar,
supra, 515 U.S. at 599 (emphasis added). Because of this requirement, the Supr
eme
Court has held that false statements made to an individual who merely has the
potential to be a witness, even if the individual is a federal investigative or
law
enforcement agent, do not constitute obstruction of justice: "We do not believ
e
that uttering false statements to an investigating agent who might or might not
testify before a grand jury is sufficient to make out a violation of the catcha
ll
provision of 1503 [of the obstruction of justice statute]." Id. at 600. Thus
,
the Referral fails to allege the most essential elements of obstruction.
Nor is there evidence that the President's statements constituted
"witness tampering" in violation of section 1512. To make out such a violation
, the
government must show that the behavior knowingly occurred through one of the
specific means set forth in the statute: intimidation, physical force, threats
,
misleading conduct or corrupt persuasion -- with intent to influence testimony
in a
legal proceeding. None of those requisite means is present or even alleged in
the
Starr Referral. The efforts must be aimed specifically at obstructing a known
legal
proceeding. See United States v. Wilson, 565 F. Supp. 1416, 1431 (S.D.N.Y. 198
3).
As explained above, any statements made to those individuals were made for reas
ons
wholly separate from and unrelated to any legal proceedings. Again, there is s
imply
no evidence that when the President repeated to aides substantially the same
statement he made to the whole country that he had any thought whatsoever of th
e
grand jury proceedings, let alone the corrupt intent to influence the grand jur
y
through the testimony of Presidential aides who were not even witnesses at that
time. Under the Referral's theory, the OIC could have subpoenaed to the grand
jury
any citizen who heard the President's denial and thus have created a new violat
ion
of law.
In sum, the President's statements to his aides could not have obstructed justi
ce as
a matter of law. Their legal duty was to answer the prosecutor's questions and
to
tell the truth honestly as they knew it, and the President's comments in no
conceivable way affected that duty.
The OIC suggests that the President's delay in acknowledging a relationship wit
h Ms.
Lewinsky somehow contributed to an obstruction of justice because it affected h
ow
the prosecutors would conduct the investigation. This claim is unfounded, as a
matter of law. The President had no legal obligation to appear before the gran
d
jury absent compulsion and every reason not to do so, given the OIC's tactics,
illegal leaking, and manifest intent to cause him damage.
VIII. THE PRESIDENT DID NOT ABUSE POWER
The Independent Counsel's allegation that the President's assertions of privile
ge
constituted an abuse of power is baseless and disingenuous. As the Framers
recognized, impeachment is justified only for "the abuse or violation of some p
ublic
trust."/ The record is devoid of any such improper conduct, a conclusion tha
t Mr.
Schippers apparently also reached as demonstrated by his not including an abuse
of
office charge in his presentation to the Committee. To the contrary, the recor
d
demonstrates that the White House acted at all times based upon a good faith be
lief
that its narrow assertions of privilege were appropriate and its claims were we
ll
founded in existing law. The OIC misstates the record with respect to the
litigation over privilege and entirely omits reference to the occasions when th
e
White House privilege claims were vindicated.
From the inception of the Lewinsky investigation, the OIC's objective was clear
--
to send Congress information that it believed constituted grounds for impeachme
nt.
Public commentators and members of Congress alike raised the issue of impeachme
nt
within days of the investigation becoming public./ Indeed, Congressman Barr ha
d
already introduced a resolution on impeachment even before the Lewinsky
investigation began./ Thus, from the outset, the White House reasonably viewed
impeachment proceedings as an imminent possibility. With that in mind, the
President consulted with his lawyers and senior staff, and they consulted among
themselves, about political and strategic issues with the expectation that thes
e
conversations were, and would remain, confidential./ The President had every r
ight
and institutional obligation to seek to preserve the confidentiality of these
strategic deliberations.
At no time was executive privilege asserted with any intention of preventing Wh
ite
House staff from providing the grand jury with the facts surrounding the Presid
ent's
relationship with Ms. Lewinsky. Rather, it was asserted to protect the
confidentiality of conversations dealing with the President's official function
s as
he carried out his duties under the very real threat of impeachment. These
conversations included discussions about whether and to what extent privileges
should be asserted. White House Counsel consistently attempted to ensure that
the
OIC had all of the information necessary to complete its investigation. Becaus
e the
OIC adopted the wholly untenable and absolutist position that no executive priv
ilege
existed whatsoever with respect to its investigation, the White House had no ch
oice
but to assert privilege as narrowly as possible and allow the courts to uphold
precedent and resolve the legal dispute between the White House and the OIC.
In short, White House claims of privilege have always reflected a fundamental a
nd
good faith disagreement over legal questions. The sole reason for the assertio
n of
privilege was to protect this President and future Presidents from unwarranted
intrusions into confidential communications among senior staff.
A. The President Properly Asserted Executive Privilege to Protect the
Confidentiality of Communications with His Staff
It is indisputable that the President of the United States, if he is to perform
his
constitutionally assigned duties, must be able to obtain the most candid,
forthright, and well-informed advice from a wide range of advisors on an even w
ider
array of subjects on a daily basis. Only last year, the United States Court of
Appeals for the District of Columbia Circuit reaffirmed that principle, emphasi
zing
the importance of preserving the confidentiality of presidential communications
"to
ensure that presidential decision-making is of the highest caliber, informed by
honest advice and full knowledge." In re Sealed Case, 121 F.3d 729, 750 (D.C.
Cir.
1997). The subjects over which the President is entitled to receive confidenti
al
advice include national security interests but -- contrary to the unsupported v
iew
of the OIC -- are not limited to issues of national security. Under these
well-established principles, the OIC's apparent belief that the assertion of
executive privilege over discussions about political and strategic decisions in
the
face of impending impeachment proceedings is per se an abuse of power is ludicr
ous.
Indeed, Chief Judge Johnson upheld the White House's claim that the communicati
ons
over which it was asserting privilege were presumptively privileged and thus
required the OIC to make a showing of need sufficient to overcome the privilege
Although she ultimately determined that the OIC had made that showing, Chief Ju
dge
Johnson never suggested in any way that the President's assertion of executive
privilege was groundless, improper, made in bad faith, or in any way an "abuse
of
power."
1. The White House Made Every Effort at Accommodation and Ultimately Asserted t
he
Privilege as Narrowly as Possible
From the outset, the White House Counsel believed that the OIC's invasion of th
e
President's confidential communications with his advisors was both inappropriat
e and
unnecessary. Counsel reasonably relied upon the long-standing principle that a
President is entitled to receive the frank, candid, and confidential advice tha
t is
essential to the execution of his constitutional, official, statutory, and othe
r
duties. Nevertheless, White House Counsel recognized its obligation to try to
reach
an accommodation with the OIC, as it had on numerous other occasions in this an
d
other Independent Counsel investigations as well as Congressional inquiries. T
hus,
the White House attempted in good faith to initiate a process by which the OIC
could
obtain all of the information it deemed necessary for a prompt resolution to it
s
investigation, without unnecessarily intruding into the domain of confidential
presidential communications. This is precisely the process in which the White
House
attempted to engage when the OIC subpoenaed Bruce Lindsey, Assistant to the
President and Deputy Counsel.
Prior to Mr. Lindsey's grand jury appearance, White House Counsel met with the
OIC
on February 3, 1998, to discuss ways in which to ensure the OIC received all of
the
information it needed without unnecessarily encroaching upon areas subject to
executive privilege./ At that time and subsequently, the White House made clea
r
that no factual information regarding the President's relationship with Ms. Lew
insky
would be withheld on the basis of privilege. Unfortunately, the OIC refused al
l
efforts to devise a workable compromise -- insisting on an absolutist position
that
no privilege applied./ The White House sought to protect internal discussions
about
how to handle press inquiries, what political strategies to consider, and how t
o
advise the President concerning available political strategies./ The White Hou
se
also sought to protect the discussions about legal strategy, i.e., whether and
to
what extent to assert various privileges, and the political consequences of suc
h
strategies. None of this information was critical to the OIC's understanding o
f the
President's relationship with Ms. Lewinsky or any of the factual allegations it
was
investigating. Rather, the discussions related to the President's capacity to
govern in the face of an ongoing investigation -- to pursue his legislative age
nda,
to ensure the continued leadership of the United States in the world community,
and
to maintain the confidence and support of the people who elected him./
Despite the admittedly private nature of the Lewinsky allegations, the White Ho
use
Counsel's Office was faced with strategic decisions involving official duties o
f the
Presidency. For example, advisors had to deliberate among themselves and provi
de
advice to the President about responses to the daily press inquiries, the State
of
the Union Address which was to be given within days of the public disclosure of
the
investigation, and the visit by Prime Minister Blair with its accompanying pres
s
conference./ While these deliberations were important to the functioning of th
e
Presidency and illustrated the President's need for candid advice, they were no
t
relevant to the OIC's investigation. The OIC's concerted effort to learn about
the
internal deliberations of White House Counsel and other advisors on political a
nd
legal strategy -- whether to assert privilege or not, how to handle the volumin
ous
media inquiries, whether to refer to the Lewinsky matter during the State of th
e
Union, and how to assure foreign leaders that the leadership of the country wou
ld be
stable -- does not render the substance of those deliberations relevant.
Shortly after this meeting with the OIC on February 3, the White House reiterat
ed
its willingness to ensure that any facts -- as opposed to internal deliberation
s --
would be made available to the OIC./ On March 4, the White House again propo
sed
to allow senior advisors to testify about any factual information they had abou
t the
Lewinsky matter, including any information the President had communicated to th
em.
Id. The only communication with non-attorneys sought to be protected were stra
tegic
deliberations and discussions. Id. The OIC flatly rejected this and all other
overtures aimed at resolving the sensitive issue of executive privilege. Id.
White House Counsel had hoped to resolve potential privilege issues related to
Mr.
Lindsey and other senior advisors by asking the OIC to describe with particular
ity
possible areas of inquiry so that counsel could determine whether they would
implicate privileged information./ Given Mr. Lindsey's role as a key advisor an
d
counsel to the President on a variety of issues, as well as his service as an
intermediary between the President and his private counsel, the White House was
justified in raising its concerns with the OIC./ As noted, however, the OIC fla
tly
rejected the request./ The OIC had no interest in resolving the issues of privi
lege
with the White House by a reasonable compromise.
Instead, the OIC filed motions to compel the testimony of Mr. Lindsey and other
senior staff. Id. In the face of this absolutist position by the OIC, White H
ouse
Counsel believed it had no choice but to proceed to seek a judicial resolution
of
the executive privilege claims. This decision was not made lightly, but was ma
de
with full recognition that it would not be politically popular and would subjec
t the
White House to accusations of delay. Nevertheless, because of the grave
institutional concerns, i.e., to protect the ability of this President and futu
re
Presidents to receive confidential advice, White House Counsel felt obligated t
o
recommend that the President assert privilege over a few narrow conversations.
Thus, White House Counsel notified the President of the privilege issues, expla
ined
the OIC's unwillingness to engage in the traditional accommodation process, and
recommended that he invoke the presidential communications privilege to protect
the
institutional needs of the Presidency. The President accepted this recommendat
ion
and authorized the Counsel to assert the privilege./ Thus, contrary to the OIC
's
allegations, the President's decision was not made on his own initiative to del
ay
the investigation, but was made on the recommendation of counsel to protect the
Presidency as an institution.
It is important to note that the scope of the assertion was narrow: these
communications ultimately involved the limited testimony of only three senior
Counsel's Office lawyers. Each testified fully with respect to issues that did
not
implicate confidential advice and decision-making. Many current and former Whi
te
House staff members, including many senior advisors, testified without assertin
g any
privilege whatsoever. The ensuing litigation on executive privilege was based
on
principles that were critical to the institution of the Presidency.
2. The Court's Ruling Upholding the White House's Assertion of Executive Privil
ege
Squarely Rebuts the OIC's Abuse of Power Claim
Despite the narrowness of the privilege asserted by the White House, the OIC to
ok
the position that executive privilege was inapplicable in the face of a grand j
ury
subpoena because the discussions the OIC sought related in some way to the
President's personal conduct. The OIC argued, therefore, that it did not have
to
demonstrate any need for the information and that it was entitled to immediate
and
full disclosure of all strategic and political communications./ This position,
which was squarely at odds with decisions of the Supreme Court and the D.C. Cir
cuit,
was rejected by Chief Judge Johnson.
She upheld the White House's claim that the communications over which it was
asserting privilege were indeed presumptively privileged and flatly rejected th
e
OIC's absolutist position. In re Grand Jury Proceedings, 5 F. Supp.2d 21, 25-2
7
(D.D.C 1998). Having found that the communications were presumptively privileg
ed,
the Court required the OIC to make a showing of need sufficient to overcome the
privilege. Id. at 28-29. After reviewing the OIC's factual proffer, the Court
concluded that the OIC had met its burden with respect to the areas identified
to
the Court. At no time, however, did the Court suggest that the President's
assertion of executive privilege was groundless, improper, made in bad faith, o
r in
any way an abuse of power./
We respectfully suggest that the White House's claim of executive privilege
furnishes no ground for impeachment. The facts the OIC selectively omits from
the
Referral, as recounted above, unequivocally support the legitimacy of the White
House's decision to raise the issue of executive privilege. The OIC not only
continues to reiterate its claim that executive privilege is inapplicable in a
grand
jury context but also omits the critical fact that Judge Johnson validated the
White
House's assertion of the privilege and required the OIC to demonstrate a suffic
ient
showing of need before it obtained the information.
B. The President Was Entitled to Assert Attorney-Client Privilege to Protect th
e
Right of Presidents to Request and Receive Confidential and Candid Legal Advice
from
White House Counsel
Impeachment is, of course, the ultimate threat to a President's constitutional
status. It is hardly surprising, therefore, that the President would need to
consult with his staff to discuss how to address that threat. Because impeachm
ent
implicates the interests of the President in his official capacity as opposed t
o his
personal capacity, he must rely on Counsel's Office lawyers to advise him. Whi
te
House Counsel took the position that, in the impeachment context, the governmen
t
attorney-client privilege should apply to communications between the President
or
his advisors and the Counsel's Office on matters relating to his official dutie
s.
This advice was based on sound policy: without an assurance of confidentiality
, the
President's access to official legal advice suffers because both he and his law
yers
necessarily avoid communicating candidly if their discussions may be disclosed.
It
is hardly "abuse of office" for a President to follow advice based on a well-fo
unded
interpretation of law and important institutional considerations.
1. The Governmental Attorney-Client Privilege Claim Was Grounded in the Law of
the
D.C. Circuit and the Supreme Court
The OIC challenged sound legal authority recognizing the attorney-client privil
ege
in the governmental context and sought to compel access to all confidential
communications between the President and his government lawyers. The White Hou
se
Counsel's decision to assert the governmental attorney-client privilege was bas
ed
upon a careful consideration of the applicable law, the likelihood of impeachme
nt
proceedings, and the important ethical and institutional obligations of the
Counsel's Office to the Office of the President.
For centuries, the law has recognized that the attorney-client privilege is abs
olute
in protecting the confidentiality of attorney-client communications. The D.C.
Circuit has also upheld the attorney-client privilege in the context of confide
ntial
communications between government lawyers and the government officials they
represented. See, e.g., Mead Control, Inc. v. Dept. of the Air Force, 566 F.2d
242
(D.C. Cir. 1977). Courts recognize that a government official, like every othe
r
citizen, must be able to provide information to and seek advice from government
lawyers without fear of public disclosure to ensure well-advised and fully-info
rmed
decision-making.
A recent Supreme Court case, which was decided during the courts' consideration
of
the White House's privilege claims, rejected the OIC's sweeping attack on the
attorney-client privilege and further supported the White House's position. In
Swidler & Berlin v. United States, U.S. , 1998 U.S. Lexis 4214, *7
(1998), the OIC argued that the personal attorney-client privilege should
automatically give way to the needs of a criminal investigation. The Court rej
ected
the OIC's position and found "no case authority for the proposition that the
privilege applies differently in a criminal and civil context," id. at *7, thus
supporting the principle that the privilege remains absolute in a grand jury
context. Accordingly, the President's position with respect to the absolute na
ture
of governmental attorney-client privilege had a substantial legal basis.
2. The Courts' Rulings Squarely Rebut the OIC's Claims of Abuse of Power
The rulings of both the District Court and Court of Appeals belie any notion th
at
the claim of attorney-client privilege was an abuse of power. The District Cou
rt
rejected the OIC's position that government attorneys and clients are not entit
led
to have confidential communications. In re Grand Jury Proceedings, 5 F.Supp.2d
21,
31-32 (D.D.C. 1998). To the contrary, the Court held that such conversations a
re
covered by the attorney-client privilege. Ibid. Performing a need analysis si
milar
to that which it employed with respect to the executive privilege claim, the Co
urt
balanced the President's interests against those of the grand jury and ultimate
ly
determined that the grand jury was entitled to the information. Id. at 32-39.
Thus, despite the fact that the Court ultimately ruled in favor of the OIC, the
Court never suggested -- or even hinted -- that the privilege claim was anythin
g but
legitimate.
On appeal, a sharply divided D.C. Circuit ruled that the President had an
attorney-client privilege with White House Counsel in the civil context, but no
t in
response to a grand jury subpoena. In re Lindsey, 158 F.3d 1263, 1271-78 (D.C.
Cir.
1998). Judge Tatel dissented, finding that the Court's opinion did not account
for
"the unique nature of the Presidency, its unique need for confidential legal ad
vice,
or the possible consequences of abrogating the attorney-client privilege for a
President's ability to obtain such advice." Id. at 1286. Judge Tatel's recogn
ition
of the validity of the privilege demonstrates that the President's position was
not
frivolous and necessarily negates any claim that the President abused the power
of
his Office by advancing such a claim. This point is brought home by Justice
Breyer's dissent from the denial of certiorari, joined by Justice Ginsburg, tha
t
"[t]he divided decision of the Court of Appeals makes clear that the question
presented by this petition has no clear legal answer and is open to serious leg
al
debate." Office of the President v. Office of Independent Counsel, No. 98-316,
67
U.S.L.W. 3321 (Nov. 10, 1998).
One further point is worth noting. Conspicuously absent from the Referral is a
ny
mention of the President's personal attorney-client privilege claim concerning
the
communications that Mr. Lindsey had with the President's private counsel, Rober
t
Bennett. The White House argued that these communications were covered by the
President's personal attorney-client privilege because Mr. Lindsey was acting a
s an
intermediary between the President and Mr. Bennett -- a position rejected by th
e
OIC. In re Lindsey, 158 F.3d at 1279-80.
The Court of Appeals rejected the OIC's position. The Court recognized the
"tradition of federal courts' affording 'the utmost deference to Presidential
responsibilities.'" Id. at 1280 (quoting Clinton v. Jones, 117 S. Ct. 1636, 16
52
(1997)). The Court also acknowledged "the President's undisputed right to have
an
effective relationship with personal counsel, consonant with carrying out his
official duties." Id. at 1282. Given the "unavoidable, virtually full-time de
mands
of the office [of the President]," id. at 1280, the Court found that the Presid
ent's
use of Mr. Lindsey as an intermediary was "at least reasonably necessary." Ibi
d.
Thus, the Court held that "while acting in this capacity [Mr. Lindsey's]
communications came within the President's personal attorney-client privilege."
Ibid. The Court remanded the case to the District Court so it could determine
in
which instances Mr. Lindsey was serving as an intermediary so that he could cla
im
privilege, on the President's behalf, over those communications.
C. The Privilege Litigation Did Not Delay the OIC's Investigation
The OIC also claims that the invocation of privilege was intended to delay its
investigation. Ref. at 207 n.473. If delay occurred, the OIC has only itself
to
blame. First, the procedural history recounted above establishes that the Whit
e
House attempted to reach a reasonable accommodation before any witnesses testif
ied.
The OIC rejected that offer, choosing instead to litigate these issues. Throug
hout
the litigation, the Office of the President frequently sought to avoid any dela
y by
proposing and/or agreeing to expedited briefing schedules involving privilege
litigation, and the courts ruled swiftly.
Second, privilege claims were advanced only as to a narrow portion of the testi
mony
of three witnesses. The OIC originally filed motions to compel the testimony o
f two
senior staff members and one Counsel's Office lawyer. The litigation only
temporarily postponed the testimony of the two senior staff members; they both
appeared and testified fully. The privilege assertions ultimately involved the
testimony of only three senior Counsel's Office lawyers. Each of these individ
uals
testified at length regarding any facts they may have possessed about their
knowledge of the President's relationship with Ms. Lewinsky. Moreover, the
questions as to which they asserted privilege were narrow in scope.
Finally, independent of any litigation, substantial delay in the overall
investigation has been self-inflicted. The OIC has called presidential advisor
s
before the grand jury as many as six times, sometimes for only one- or two-hour
sessions. Some witnesses appeared to testify only to wait for hours and then b
e
told to return on another day.
The OIC also has expended substantial time and effort exploring irrelevant subj
ects,
such as White House contacts with the press or matters of personal opinion. Fo
r
example, the OIC asked Mr. Lindsey, "[W]hat do you think about learning that th
e
President lied to you personally about this matter?" When Mr. Lindsey question
ed
the relevance of an inquiry into his personal feelings, the OIC lawyer persiste
d and
asked, "So are you just too embarrassed to answer the question, sir?" Supp. at
2447
(8/28/98 grand jury testimony of Bruce Lindsey). Such lines of inquiry serve n
o
legitimate purpose and appear designed simply to create a confrontation or emba
rrass
and humiliate a witness.
Another aspect of the OIC's allegation is its claim that the President misused
his
presidential prerogative by asserting and then withdrawing privilege claims in
order
to delay the investigation. Ref. at 206-209. The OIC specifically cites to th
e
privilege claim raised, and subsequently withdrawn, relating to the testimony o
f
Nancy Hernreich, Director of Oval Office Operations, as a basis for this conten
tion.
Transcript of November 19, 1998 Hearing at 197-98. The OIC argues that an
executive privilege claim with respect to Ms. Hernreich was illegitimate becaus
e she
"does have an important function at the White House; she manages the Oval Offic
e
operations . . . [B]ut that is not the kind of function that the principle of
executive privilege was meant to protect." Id. at 198. This contention is bot
h
legally and factually incorrect.
First, an individual's title or job description does not determine whether her
communications fall within executive privilege. As set forth in the Court of
Appeals decision in In re Sealed Case, virtually any individual who participate
s in
the deliberative process can take part in a communication or provide informatio
n
that becomes subject to executive privilege; e.g., the information provided by
a
paralegal that becomes part an advisor's recommendation. In re Sealed Case, 12
1
F.3d at 752-53. Thus, neither Ms. Hernreich's role nor her title precludes her
conversations from being subject to executive privilege.
Moreover, the OIC disregards the unique events surrounding this privilege claim
Ms. Hernreich was one of the first individuals subpoenaed by the OIC whose test
imony
would potentially raise privilege concerns. Because the OIC refused to describ
e the
areas of inquiry with respect to Ms. Hernreich, the White House was unable to g
ive
her any guidance in advance of her testimony. Thus, at her first grand jury
appearance, Ms. Hernreich took the precautionary step of preserving the privile
ge.
Subsequently, the White House voluntarily and unilaterally narrowed the scope o
f the
communications over which privilege was being asserted and offered to allow Ms.
Hernreich, along with other non-lawyer advisors, to testify fully about any fac
tual
information she possessed./
On March 6, some ten days after Ms. Hernreich's appearance, and without notice
to
the White House, the OIC filed its motion to compel her testimony, despite the
fact
that the White House had already informally indicated to the OIC that no privil
ege
would be asserted with respect to her testimony. On March 17, in response to t
he
OIC's motion (and before the Court had ruled on the issue), the White House
formally withdrew its privilege claims with respect to Ms. Hernreich's testimon
y.
At that point, Ms. Hernreich could have testified before the grand jury about t
hose
communications. Yet, the OIC waited two full months before requesting Ms. Hern
reich
to return to the grand jury. Such conduct by the OIC illustrates the hollownes
s of
the OIC's claim of delay caused by the President.
D. Mr. Starr Misrepresents the Record to Claim that the President Deceived the
American Public About the Executive Privilege Litigation
The OIC attempts to buttress its abuse of power claim by arguing that the Presi
dent
deceived the American public by feigning ignorance of the executive privilege
litigation. The OIC bases its contention upon the following statement in its
Referral:
On March 24, while the President was traveling in Africa, he was asked about th
e
assertion of Executive Privilege. He responded, "You should ask someone who kn
ows."
He also stated, "I haven't discussed that with the lawyers. I don't know."
Ref. at 156; Transcript of November 19, 1998 Hearing at 611-62. The OIC comple
tely
misstates the question posed to the President and, by carefully selecting a por
tion
of the President's answer, takes his response entirely out of context. The act
ual
exchange follows, with the omitted portion in bold:
Q. Mr. President, we haven't yet had the opportunity to ask you about your deci
sion
to invoke executive privilege, sir. Why shouldn't the American people see that
as
an effort to hide something from them?
The President. Look, that's a question that's being asked and answered back hom
e by
the people who are responsible to do that. I don't believe I should be discuss
ing
that here.
Q. Could you at least tell us why you think the First Lady might be covered by
that
privilege, why her conversation might fall under that?
The President. All I know is -- I saw an article about it in the paper today.
I
haven't discussed it with the lawyers. I don't know. You should ask someone w
ho
does./
The full question and answer establish that the President was not being asked a
bout
"the assertion of Executive Privilege," but about the very narrow issue of the
privilege vis--vis the First Lady, which was one of the many press rumors in
circulation when the story broke.
As the OIC well knows, at this time, the OIC had refused to describe the areas
of
its inquiry to determine which, if any, raised privilege concerns. Consequentl
y,
the White House Counsel's discussion with the President about possible privileg
e
claims was limited to possible issues that might arise during a witness's testi
mony
and did not identify particular individuals who might claim privilege. Thus, t
he
President could not possibly have known what conversations the First Lady
participated in, if any, which might have fallen within the scope of executive
privilege.
E. The President's Decision Not to Testify Before the Grand Jury Voluntarily Wa
s Not
an Abuse of Power
The OIC also contends that it was an abuse of power for the President, at a tim
e
when both his personal and official interests were at stake, not to volunteer t
o
testify before the grand jury until August. Ref. at 159-61. This claim is who
lly
unfounded.
The OIC apparently believes that any government official who is the subject of
a
criminal investigation must immediately testify or risk impeachment. Because h
e was
initially invited to appear voluntarily, the President had the right to decide
the
timing of his testimony. It became clear early in the OIC's investigation that
this
was not a run-of-the-mill grand jury investigation but was instead a focused ef
fort
to target the President himself. The President's decision to decline invitatio
ns to
testify was entirely appropriate, given the nature of the OIC's investigation.
F. False Public Denials About an Improper Relationship Do Not Constitute an Abu
se of
Office
President Clinton has acknowledged that he misled the American public when he d
enied
having an improper relationship with Lewinsky. However, his public denial of t
his
relationship does not warrant impeachment. A comparison to Watergate is
illuminating, for false statements allegedly made by President Nixon were an
important part of that inquiry.
Twenty-four years ago, Chairman Rodino stated that the Judiciary Committee's
approach during the Nixon inquiry would be to consider "whether or not serious
abuses of power or violations of the public trust have occurred, and if they ha
ve,
whether under the Constitution, they are grounds for impeachment"/ The Waterga
te
impeachment investigation focused on whether President Nixon's allegedly false
public statements rose to the level of abuse of power, but the subject matter w
as
quite different. President Nixon's statements related to official matters of s
tate
and were allegedly part of a comprehensive scheme to undermine the political pr
ocess
and to obstruct justice by encouraging and condoning perjury by senior members
of
his administration, paying hush money to criminal defendants, and using the CIA
to
thwart the FBI investigation. This Committee finally charged that his false
statements were calculated to lull the public into believing that the administr
ation
was adequately investigating alleged governmental wrongdoing -- in other words,
he
lied about his official actions.
President Clinton's misleading public denial of an improper relationship with M
s.
Lewinsky, although admittedly wrong, is not such an abuse of power. President
Clinton did not misuse the FBI, conceal governmental law-breaking, or misuse th
e
official powers of the President. To the contrary, the underlying conduct addr
essed
by his public statements was indisputably private.
1. Subjecting a President to Impeachment Would Disrupt Our Constitutional Gover
nment
To consider the President's misleading public denials of an improper relationsh
ip
impeachable would radically lower the constitutional bar to impeachment. For b
etter
or worse, allegations of public untruthfulness by Presidents -- often on import
ant
matters of state -- have been levelled at most Presidents. President Reagan fa
ced
accusations about his truthfulness regarding Iran-Contra. President Bush confr
onted
similar charges, with The New York Times characterizing his statements on the
subject as "incredible."/ President Johnson faced a "credibility gap" regardin
g his
statements about the Viet Nam war. President Kennedy lied about the Bay of Pig
s,
and President Eisenhower lied about Gary Powers and the U2 incident. And many
have
suggested that Presidents Wilson and Franklin Roosevelt were less than fully ca
ndid
about the prospective involvement of the United States in World Wars I and II.
These examples demonstrate how dangerous it would be to make it an impeachable
offense to lie to the public. All of these alleged misstatements related to pu
blic
policy. If they were in fact untrue, they denied the public and Congress an
opportunity to exercise their democratic prerogative to affect those policies.
Accordingly, if false public statements are to satisfy the constitutional stand
ard
for impeachment, it is difficult to conceive of a single Presidency in the last
century that would not have been subject to potential impeachment proceedings.
In hotly contested policy disputes, accusations often fly regarding the truthfu
lness
of a President's statements. Such accusations may or may not be justified. Bu
t to
devalue the impeachment currency by making lack of truthfulness, real or percei
ved,
an impeachable offense would potentially inflate many policy disagreements into
impeachment inquiries.
This danger is compounded by the inevitable uncertainty regarding the type of
statements that would be penalized. Would it be impeachable to promise to take
an
action before an election, such as raising taxes or staying out of war, and the
n to
reverse position after the election? Or to fail to disclose a physical infirmi
ty?
Would all Presidential untruths be impeachable?
Surely misstatements about public policy are more significant than misstatement
s
about private indiscretions. False public statements about sexual indiscretion
s or
other personal activities simply do not affect policymaking and do not implicat
e the
powers of the presidency.
2. The President's Denial of an Improper Relationship Is Not Comparable to Pres
ident
Nixon's Denials of Involvement in the Watergate Burglary and Cover-up
President Clinton's conduct differs markedly from the gross abuses of power all
eged
by this Committee to have been committed by President Nixon. The charges again
st
President Nixon were based upon his public misstatements involving official
misconduct. One of the nine means by which this Committee asserted that Presid
ent
Nixon had violated his Oath of Office was by
making false or misleading public statements for the purpose of deceiving the p
eople
of the United States into believing that a thorough and complete investigation
had
been conducted with respect to allegations of misconduct on the part of personn
el of
the executive branch of the United States and personnel of the Committee for th
e
Re-election of the President, and that there was no involvement of such personn
el in
such misconduct./
For more than two years, President Nixon repeatedly denied any personal or Whit
e
House involvement in or responsibility for (1) the burglary of the DNC headquar
ters
to obtain political intelligence regarding the Presidential election, (2) the
subsequent cover-up, involving misuse of law enforcement, and (3) the scope of
other
illegal activities involving presidential powers carried out by and for the for
mer
President./ The first such false statement was made on June 22, 1972, when Nix
on
publicly characterized as accurate his Press Secretary's statement that "The Wh
ite
House has no involvement whatever in this particular incident" (referring to th
e
Watergate break-in)./
More than two months later, on August 29, 1972, the President held another pres
s
conference, during which he discussed the various pending investigations. In
attempting to persuade the public that no special prosecutor was necessary, the
President stated
The other point I should make is that these investigations, the investigation b
y the
GAO, the investigation by the FBI, by the Department of Justice, have, at my
direction had the total cooperation of the -- not only the White House -- but a
lso
of all agencies of the Government. In addition to that, within our own staff,
under
my direction, Counsel to the President, Mr. Dean, has conducted a complete
investigation of all leads which might involve any present members of the White
House Staff or anybody in the Government. I can say categorically that this
investigation indicates that no one in the White House Staff, no one in this
Administration, presently employed was involve in this very bizarre incident .
. .
I think under these circumstances we are doing everything we can to take this
incident and to investigate it and not to cover it up./
At the time he made this statement, the President knew that Mr. Dean had conduc
ted
no investigation, had not concluded that members of the White House or
administration were beyond suspicion, and in fact was working to thwart the FBI
's
investigation./ In other words, President Nixon used his Presidential powers t
o
conceal governmental law-breaking.
This Committee's investigation ultimately revealed/ that President Nixon engage
d in
an elaborate cover-up scheme that included using his secret intelligence operat
ion
to pay both for illegal activities and subsequent blackmail money for the cover
-up.
On March 21, 1973, President Nixon urged the paying of hush money to Mr. E. How
ard
Hunt, and instructed Administration witnesses on how to commit perjury./ He al
so
used people within the Justice Department to give him information about what wa
s
transpiring within the grand jury, then passed that information along to Messrs
Haldeman and Ehrlichman, whom he knew to be targets of the investigation, in
violation of Rule 6(e) of the Federal Rules of Criminal Procedure./ He used hi
s
"plumbers" group to subvert the IRS and CIA, authorized illegal intelligence
gathering activities, attempted to use CIA funds to pay off the Watergate burgl
ars,
directly interfered with the Justice Department's ITT investigation, and ordere
d the
FBI to interfere with the Watergate Special Prosecution Force by sealing the WS
PF
offices after the Saturday Night Massacre. He also pressured the CIA to interf
ere
with the FBI's investigation of the Watergate break-in -- a conversation captur
ed on
tape. And he used the IRS to investigate his "enemies" and the FCC to try to t
ake
away the broadcasting licenses of press organizations investigating him./
These plain abuses of power cannot be equated with President Clinton's attempt
to
keep a private indiscretion secret. Unlike the series of lies told by Presiden
t
Nixon, President Clinton's denials bore no relationship to his use of the power
s of
the presidency. They did not deal with policy or governmental action but were
designed to protect himself and his family from embarrassment caused by a purel
y
personal indiscretion. Whereas President Nixon used governmental agencies incl
uding
the CIA and FBI to thwart the investigation into his lies, President Clinton di
d
nothing of the sort. Thus, while the pervasive and persistent lies of Presiden
t
Nixon to the American public about the nature and extent of official law enforc
ement
activities could reasonably have been viewed as affecting the nature of our
Constitutional government and thus warranting impeachment, President Clinton's
denial of a private indiscretion cannot.
IX. CONCLUSION
Short of committing force of arms in defense of the Nation, the Framers of the
Constitution did not contemplate a more solemn or awesome responsibility than t
he
impeachment of the President. The Framers rejected amorphous and vague standar
ds
such as "maladministration" or "corruption" in favor of "Treason, Bribery or ot
her
High Crimes and Misdemeanors," which has always been taken to mean offenses aga
inst
the constitutional system itself. Indeed, Benjamin Franklin once referred to
impeachment as the constitutional alternative to assassination. So it is with
the
utmost gravity that we submit this brief. We believe a careful and fair review
of
the real record of this case - not the political attacks, but the real record -
cannot justify the impeachment of the President.
Once again, we rely on the judgment of the House, as did the Framers, to separa
te
fact from myth, the record from the rhetoric, and the sinful from the impeachab
le.
On behalf of the President, we thank the Committee for reviewing this brief.
Finally, we conclude where the President asked us to begin: by conveying to yo
u his
profound and personal sense of contrition. Let nothing in this brief, nothing
in
our defense, nothing in your analysis of the facts or our arguments on the law
confuse the reality that what the President did was wrong. For his wrongs he h
as
admitted his regret, and he has sought the forgiveness of his family, friends,
and
fellow Americans.
The sole duty, the solemn obligation of the House is not to sit in judgment of
the
morality of the President's conduct, but rather to decide whether or not you wi
ll
call upon the Senate to remove from office the duly elected President of the Un
ited
States. On that issue, and that issue alone, we believe there is no cause -- o
n the
facts, on the law, or under the Constitution -- to overturn the national electi
on
and impeach the President.
Respectfully submitted,
David E. Kendall Gregory B. Craig Charles F.C. Ruff
Nicole K. Seligman Special Counsel to Cheryl D. Mills
Emmet T. Flood the President Lanny A. Breuer
Max Stier The White House Office of the White
Alicia L. Marti Washington, D.C. 20502 House Counsel
Williams & Connolly The White House
725 12th Street, N.W. Washington, D.C. 20502
Washington, D.C. 20005
December 8, 1998
1/ Charles L. Black, Impeachment: A Handbook 1 (1974).
1/ Id.
1/ Committee on Federal Legislation of the Bar Ass'n of the City of New York,
The
Law of Presidential Impeachment 44 (1974) (hereinafter "New York Bar Report").
1/ Preliminary Memorandum Concerning Referral of Office of Independent Counsel
(September 11, 1998)(73 pages); Initial Response to Referral of Office of
Independent Counsel (September 12, 1998)(42 pages); Memorandum Regarding Standa
rds
of Impeachment (October 2, 1998)(30 pages).
1/ Referral from Independent Counsel Kenneth W. Starr in Conformity with the
Requirements of Title 28, United States Code, Section 595(c), House Doc. 105-31
0
for impeachment proceedings and conversations regarding strategy are presumably
covered by executive, not attorney-client, privilege").
1/ Ruff Dec., Exhibit 6.
1/ White House Press Release: Remarks by the President in Photo Opportunity w
ith
President Museveni of Uganda, 1 (March 24, 1998).
1/ Cong. Record 2350, February 6, 1974.
1/ Editorial, "What the President Knew," The New York Times (Oct. 19, 1992) at
A16.
1/ Nixon Report at 2.
1/ Nixon Report at 27-34.
1/ Nixon Report at 27, 47.
1/ Nixon Report at 27.
1/ Nixon Report at 59-60.
1/ Nixon Report at 3-4.
1/ Nixon Report at 98-99.
1/ Nixon Report at 103.
1/ Nixon Report at 161-70, 177-79.
- 5 -
29-30. 1/ Id. at 26-30. 1/ Id. at 19-25. 1/ Id. at 23-25. 1/ Id. at
45-51. 1/ Id. at 32. 1/ Id. at 41. 1/ Id. at 51. 1/ Id. at 56. 1/ Cf.,
In re Sealed Case, 121 F.3d at 744-45 (explaining need requirement set
forth in United States v. Nixon). 1/ The Court of Appeals in dicta
also validated the appropriateness of the executive privilege claim,
although the White House appeal was limited to the attorney-client
privilege issue and did not include the executive privilege claim. See
In re Lindsey, 158 F.3d 1263, 1277 (D.C. Cir. 1998) ("information
gathered in preparation for impeachment proceedings and conversations
regarding strategy are presumably covered by executive, not
attorney-client, privilege"). 1/ Ruff Dec., Exhibit 6. 1/ White House
Press Release: Remarks by the President in Photo Opportunity with
President Museveni of Uganda, 1 (March 24, 1998). 1/ Cong. Record
2350, February 6, 1974. 1/ Editorial, "What the President Knew," The
New York Times (Oct. 19, 1992) at A16. 1/ Nixon Report at 2. 1/ Nixon
Report at 27-34. 1/ Nixon Report at 27, 47. 1/ Nixon Report at 27. 1/
Nixon Report at 59-60. 1/ Nixon Report at 3-4. 1/ Nixon Report at
98-99. 1/ Nixon Report at 103. 1/ Nixon Report at 161-70, 177-79. - 5
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