Thank you, Mr. Chairman. I welcome this opportunity to appear before
the committee and to provide information relating to the committee's
inquiry into possible impeachable offenses by the president of the
United States. This is my first opportunity to publicly report on
certain issues related to our investigation. I look forward to doing
so and assisting the committee.
I. Introduction
I appreciate both the seriousness of the committee's work and the
gravity of its assignment. I have reviewed the statements made by the
37 committee members in the Oct. 5 hearing. Any citizen who watched
that hearing would have been impressed by the depth and breadth of the
discussion that day, and proud of the diligence with which members of
this committee are approaching this extraordinarily difficult and
unwelcome task. I appear before you today, therefore, fully
recognizing the solemnity and importance of this process.
As you know, in January of this year, Attorney General Reno petitioned
the three-judge panel that oversees independent counsels to authorize
our office to investigate whether Monica Lewinsky or others committed
federal crimes relating to the sexual harassment lawsuit brought by
Paula Jones against President Clinton. Our office conducted a swift
yet thorough investigation. We completed the primary factual
investigation in under eight months, notwithstanding a number of
obstacles in our path.
The law requires an independent counsel to report to the House of
Representatives substantial and credible information that may
constitute grounds for an impeachment. On Sept. 9, pursuant to our
statutory duty, we submitted a referral and backup documentation to
the House. I am here today at your invitation in furtherance of our
statutory obligation.
I recognize that the House of Representatives – not an
independent counsel – has the sole power to impeach. My role here
today is to discuss our referral and our investigation.
II. Lewinsky Investigation
A. Overview
Let me begin with an overview. As our referral explains, the evidence
suggests that the president made false statements under oath and
otherwise thwarted the search for truth in the Jones v. Clinton case.
The evidence further suggests that the president made false statements
under oath to the grand jury on Aug. 17.
That same night, the president publicly acknowledged an inappropriate
relationship, but maintained that his testimony had been legally
accurate. The president also declared that all inquiries into the
matter should end because, he said, it was private.
Shortly after the president's Aug. 17 speech, Sens. Lieberman, Kerrey,
and Moynihan stated that the president's actions were not a private
matter. In our view, they were correct. Indeed, the evidence suggests
that the president repeatedly tried to thwart the legal process in the
Jones case and the grand jury investigation. That is not a private
matter. The evidence further suggests that the president, in the
course of these efforts, misused his authority and power as president
and contravened his duty to faithfully execute the laws. That, too, is
not a private matter.
The evidence suggests that the misuse of presidential authority
occurred in the following 10 ways:
First. The evidence suggests that the president made a series of
premeditated false statements under oath in his civil deposition on
Jan. 17, 1998. The president had taken an oath to tell the truth, the
whole truth, and nothing but the truth. By making false statements
under oath, the president, the chief executive of our nation, failed
to adhere to that oath and to his presidential oath to faithfully
execute the laws.
Second. The evidence suggests that, apart from making false statements
under oath, the president engaged in a pattern of behavior during the
Jones litigation to thwart the judicial process. The president reached
an agreement with Ms. Lewinsky that each would make false statements
under oath. He provided job assistance to Ms. Lewinsky at a time when
the Jones case was proceeding and Ms. Lewinsky's truthful testimony
would have been harmful. He engaged in an apparent scheme to conceal
gifts that had been subpoenaed from Ms. Lewinsky. He coached a
potential witness, his own secretary Betty Currie, with a false
account of relevant events.
Those acts constitute a pattern of obstruction that is fundamentally
inconsistent with the president's duty to faithfully execute the laws.
Third. The evidence suggests that the president participated in a
scheme at his deposition in which his attorney, in his presence,
deceived a United States district judge in an effort to cut off
questioning about Ms. Lewinsky. The president did not correct his
attorney's false statement. A false statement to a federal judge in
order to prevent relevant questioning is an obstruction of the
judicial process.
Fourth. The evidence suggests that on Jan. 23, 1998, after the
criminal investigation had become public, the president made false
statements to his Cabinet and used his Cabinet as unwitting surrogates
to publicly support the president's false story.
Fifth. The evidence suggests that the president, acting in a
premeditated and calculated fashion, deceived the American people on
Jan. 26 and on other occasions when he denied a relationship with Ms.
Lewinsky.
Sixth. The evidence suggests that the president, after the criminal
investigation became public, made false statements to his aides and
concocted false alibis that these government employees repeated to the
grand jury. As a result, the grand jury received inaccurate
information.
Seventh. Having promised the American people to cooperate with the
investigation, the president refused six invitations to testify to the
grand jury. Refusing to cooperate with a duly authorized federal
criminal investigation is inconsistent with the general statutory duty
imposed on all executive branch employees to cooperate with criminal
investigations. It also is inconsistent with the president's duty to
faithfully execute the laws.
Eighth. The president and his administration asserted three different
governmental privileges to conceal relevant information from the
federal grand jury. The privilege assertions were legally baseless in
these circumstances. They were inconsistent with the actions of
Presidents Carter and Reagan in similar circumstances. And they
delayed and impeded the investigation.
Ninth. The president made false statements under oath to the grand
jury on Aug. 17, 1998. The president again took an oath to tell the
truth, the whole truth, and nothing but the truth. The evidence
demonstrates that the president failed to adhere to that oath and thus
to his presidential oath to faithfully execute the laws.
Tenth. The evidence suggests that the president deceived the American
people in his speech on Aug. 17 by stating that his testimony had been
legally accurate.
In addition to those 10 points, it bears mention that well before
January 1998, the president used government resources and prerogatives
to pursue his relationship with Monica Lewinsky. The evidence suggests
that the president used his secretary Betty Currie, a government
employee, to facilitate and conceal the relationship with Monica
Lewinsky. The president used White House aides and the United States
ambassador to the United Nations in his effort to find Ms. Lewinsky a
job at a time when it was foreseeable – even likely – that
she would be a witness in the Jones case. And the president used a
government attorney – Bruce Lindsey – to assist his personal
legal defense during the Jones case.
In short, the evidence suggests that the president repeatedly used the
machinery of government and the powers of his office to conceal his
relationship with Monica Lewinsky from the American people, from the
judicial process in the Jones case, and from the grand jury.
B. Sexual Harassment Law
Let me turn, then, to the legal context in which the Lewinsky issues
first arose. At the outset, I want to emphasize that our referral
never suggests that the relationship between the president and Ms.
Lewinsky in and of itself could be a high crime or misdemeanor.
Indeed, the referral never passes judgment on the president's
relationship with Ms. Lewinsky. The propriety of a relationship is not
the concern of our office.
The referral is instead about obstruction of justice, lying under
oath, tampering with witnesses, and misuse of power. The referral
cannot be understood without appreciating this vital distinction.
This case raises the following initial question: Is a plaintiff in a
sexual harassment lawsuit entitled to obtain truthful evidence from
the defendant, and from associates of the defendant, in order to
support her claim? That should be easy to answer. No citizen who finds
himself accused in a sexual harassment case, or in any other kind of
case, can lie under oath or otherwise obstruct justice and thereby
prevent the plaintiff from discovering evidence and proving her case.
Paula Jones, a former Arkansas state employee, filed a federal sexual
harassment suit against President Clinton in 1994. The president
denied those allegations. We will never know whether a jury would have
credited Ms. Jones' allegations. We also will never know whether the
ultimate decision-maker would have found that the alleged facts, if
true, constitute sexual harassment. When the president and Ms. Jones
settled the case last week, the Eighth Circuit Court of Appeals was
still considering the preliminary legal question whether the facts as
alleged could constitute sexual harassment.
After the suit was first filed in 1994, the president attempted to
delay the trial until his presidency was over. The president claimed a
temporary presidential immunity from civil suit. The case proceeded to
the Supreme Court. At oral argument, the president's attorney
specifically warned our nation's highest court that if Ms. Jones won,
her lawyers would be able to investigate the president's relationships
with other women, as is common in sexual harassment cases. The Supreme
Court rejected the president's constitutional claim – and did so
by a nine to zero vote. The court concluded that the Constitution did
not provide such a temporary immunity from suit.
The idea was simple and powerful: No one is above the law. The Supreme
Court sent the case back for trial with words that warrant emphasis:
"Like every other citizen who invokes" the District Court's
jurisdiction, Ms. Jones "has a right to an orderly disposition of her
claims."
After the Supreme Court's decision, the parties started to gather the
facts. The parties questioned relevant witnesses in depositions. They
submitted written questions. They made requests for documents.
Sexual harassment cases are often "he said-she said" disputes.
Evidence reflecting the behavior of both parties can be critical
– including the defendant's relationships with other employees in
the workplace.
Such questions can be uncomfortable, but they occur every day in
courts and law offices around the country. Individuals take an oath to
tell the truth, the whole truth, and nothing but the truth. And no one
is entitled to lie under oath simply because he or she does not like
the questions or because he believes the case is frivolous or
financially motivated or politically motivated. The Supreme Court has
emphatically and repeatedly rejected the notion that there is ever a
privilege to lie. The court has stated that there are ways to object
to questions; lying under oath is not one of them.
During the fact-gathering process, Judge Susan Webber Wright followed
the standard principles of sexual harassment cases.
Over repeated objection from the president's attorneys, the judge
permitted inquiries into the president's relationships with government
employees. On Jan. 8, 1998, for example, Judge Wright stated that
questions as to the president's relationships with other employees
"are within the scope of the issues in this case."
In making these rulings, Judge Wright recognized that the questions
might prove embarrassing. She stated that "I have never had a sexual
harassment case where there was not some embarrassment." She also
stated that she could not protect the parties from embarrassment.
Let me summarize the five points that explain how the president's
relationship with Ms. Lewinsky – what was otherwise private
conduct – became a matter of concern to the courts. This is
critical to fully understand the nature of the committee's inquiry.
One. The president was sued for sexual harassment, and the Supreme
Court ruled that the case should go forward.
Two. The law of sexual harassment and the law of evidence allow the
plaintiff to inquire into the defendant's relationships with other
women in the workplace, which in this case included President
Clinton's relationship with Ms. Lewinsky.
Three. Applying those settled legal principles, Judge Susan Webber
Wright repeatedly rejected the president's objections to such
inquiries. The judge, instead, ordered the president to answer the
questions.
Four. It is a federal crime to commit perjury and obstruct justice in
civil cases, including sexual harassment cases. Violators are subject
to a sentence of up to 10 years imprisonment for obstruction and up to
five years for perjury.
Five. The evidence suggests that the president and Ms. Lewinsky made
false statements under oath and obstructed the judicial process in the
Jones case by preventing the court from obtaining the truth about
their relationship.
At his grand jury appearance, the president invoked a Supreme Court
justice's confirmation hearings as a comparison to his current
situation. The president's use of the analogy did not fit the facts in
the Monica Lewinsky matter, however. The president's having raised the
analogy, let me make it more fitting to the case here.
Suppose that there is a nominee for a high government position. Assume
that there is an allegation of sexual harassment. Suppose that several
women other than the accuser who have worked with the nominee testify
before the Senate Judiciary Committee. Suppose that the nominee
confers with one of those women ahead of time, and that they agree
that they will both lie to the Judiciary Committee about their
relationship. Assume further that they both do lie under oath about
their relationship. And suppose further that a criminal investigation
develops and the nominee again lies under oath to the grand jury. If
that were proved to have happened, what would the Senate Judiciary
Committee do?
Suppose that the lying under oath and obstruction of justice occurs in
a sexual harassment suit brought against the nominee. Suppose further
that the false statements and obstruction continue into a subsequent
criminal investigation. What would this committee do with compelling
evidence of perjury and obstruction of justice committed by, for
example, a justice of the Supreme Court in a sexual harassment suit in
which he was the defendant?
Those hypotheticals – which track the facts of this case –
put in relief the issue before the Committee. Let me again stress that
the House, not an independent counsel, has the sole power to impeach.
I am suggesting that consideration of our referral be focused on the
issues actually presented by the referral.
C. The President's Actions: Dec. 5-Jan. 17
I will next turn to some of the essentials of the referral. That will
include the specifics of Ms. Lewinsky's involvement in the Jones case
and the president's actions in response to that involvement.
The key point about the president's conduct is this. On at least six
different occasions – from Dec. 17, 1997, through Aug. 17, 1998
– the president had to make a decision. He could choose truth, or
he could choose deception. On all six occasions, the president chose
deception – a pattern of calculated behavior over a span of
months.
On Dec. 5, 1997, Ms. Jones's attorneys identified Ms. Lewinsky as a
potential witness. Within a day, the president learned that Ms.
Lewinsky's name was on the witness list.
After learning this, the president faced his first critical decision.
Would he and Monica Lewinsky tell the truth about their relationship?
Or would they provide false information – not just to a spouse or
to loved ones – but under oath in a court of law?
Eleven months ago, the president made his decision. At approximately 2
a.m. on Dec. 17, 1997, he called Ms. Lewinsky at her Watergate
apartment and told her that she was on the witness list. This was news
to Ms. Lewinsky. And it bears noting that the president – not his
lawyer – made this call to the witness.
During this 2 a.m. conversation, which lasted approximately half an
hour, the president could have told Ms. Lewinsky that they must tell
the truth under oath. The president could have explained that they
might face embarrassment but that, as a citizen and as president, he
could not lie under oath and he could not sit by while Monica did so.
The president did not say anything like that.
On the contrary, according to Ms. Lewinsky, the president suggested
that she could sign an affidavit and use – under oath –
deceptive cover stories that they had devised long ago to explain why
Ms. Lewinsky had visited the Oval Office area. The president did not
explicitly instruct Ms. Lewinsky to lie. He did not have to. Ms.
Lewinsky testified that the president's suggestion that they use the
pre-existing cover stories amounted to a continuation of their pattern
of concealing their intimate relationship. Starting with this
conversation, the president and Ms. Lewinsky understood, according to
Ms. Lewinsky, that they were both going to make false statements under
oath.
The conversation between the president and Ms. Lewinsky on Dec. 17 was
a critical turning point. The evidence suggests that the president
chose to engage in a criminal act – to reach an understanding
with Ms. Lewinsky that they would both make false statements under
oath. At that moment, the president's intimate relationship with a
subordinate employee was transformed into an unlawful effort to thwart
the judicial process. This was no longer an issue of private conduct.
Recall that the Supreme Court had concluded that Paula Jones was
entitled to an "orderly disposition" of her claims. The president's
action on Dec. 17 was his first direct effort to thwart the Supreme
Court's mandate.
The story continued: The president faced a second choice. On Dec. 23,
1997, the president submitted under oath a written answer to an
interrogatory. The request stated in relevant part: "Please state the
name ... of (federal employees) with whom you had sexual relations
when you (were) ... president of the United States." In his sworn
answer, the president stated "None."
On Dec. 28, the president faced a third critical choice. On that day,
the president met with Ms. Lewinsky at the White House. They discussed
the fact that Ms. Lewinsky had been subpoenaed for gifts she had
received from the president. According to Ms. Lewinsky, she raised the
question of what she should do with the gifts. Later that day, the
president's personal secretary, Betty Currie, drove to Ms. Lewinsky's
Watergate home. Ms. Lewinsky gave Ms. Currie a sealed box that
contained some of the subpoenaed gifts. Ms. Currie then stored the box
under her bed at home.
In her written proffer on Feb. 1, four weeks after the fact, Ms.
Lewinsky stated that Ms. Currie had called her to retrieve the gifts.
If so, that necessarily meant that the president had asked Ms. Currie
to call. It would directly and undeniably implicate him in an
obstruction of justice. Ms. Lewinsky later repeated that statement in
testimony under oath. Ms. Currie, for her part, recalls Ms. Lewinsky
calling her. But even if Ms. Lewinsky called Ms. Currie, common sense
and the evidence suggest some presidential knowledge or involvement,
as the referral explains.
Let me add another point about the gifts. In his grand jury appearance
in August, the president testified that he had no particular concern
about the gifts in December 1997 when he had talked to Ms. Lewinsky
about them. And he thus suggested that he would have had no reason to
take part in December in a plan to conceal the gifts. But there is a
serious problem with the president's explanation. If it were true that
the president in December was unconcerned about the gifts, he
presumably would have told the truth under oath in his January
deposition about the large number of gifts that he and Ms. Lewinsky
had exchanged. But he did not tell the truth. At that deposition, when
asked whether he had ever given gifts to Monica Lewinsky, and he had
given her several on Dec. 28, the president stated "I don't recall. Do
you know what they were?"
In short, the critical facts to emphasize about the transfer of gifts
are these: First, the president and Ms. Lewinsky met and discussed
what should be done with the gifts subpoenaed from Ms. Lewinsky.
Second, the president's personal secretary Ms. Currie drove later that
day to Ms. Lewinsky's home to pick up the gifts. Third, Ms. Currie
stored the box under her bed.
Meanwhile, the legal process continued to unfold, and the president
took other actions that had the foreseeable effect of keeping Ms.
Lewinsky "on the team." The president helped Ms. Lewinsky obtain a job
in New York. His efforts began after the Supreme Court's decision in
May 1997 – at a time when it had become foreseeable that she
could be an adverse witness against the president. These job-related
efforts intensified in December 1997 after Ms. Lewinsky's name
appeared on the witness list.
Vernon Jordan, who had been enlisted in the job search for Ms.
Lewinsky, testified that he kept the president informed of the status
of Ms. Lewinsky's job search and her affidavit. On Jan. 7, 1998, Mr.
Jordan told the president that Ms. Lewinsky had signed the affidavit.
Mr. Jordan stated to the president that he was still working on
getting her a job. The president replied, "Good." In other words, the
president, knowing that a witness had just signed a false affidavit,
encouraged his friend to continue trying to find her a job. After Ms.
Lewinsky received a job offer from Revlon on Jan. 12, Vernon Jordan
called the president and said: "Mission accomplished.
As is often the situation in cases involving this kind of financial
assistance, no direct evidence reveals the president's intent in
assisting Ms. Lewinsky. Ms. Lewinsky testified that no one promised
her a job for silence; of course, crimes ordinarily do not take place
with such explicit discussion. But federal courts instruct juries that
circumstantial evidence is just as probative as direct evidence. And
the circumstantial evidence here is strong. At a bare minimum, the
evidence suggests that the president's job assistance efforts stemmed
from his desire to placate Ms. Lewinsky so that she would not be
tempted – under the burden of an oath – to tell the truth
about the relationship. Monica Lewinsky herself recognized that at the
time, saying to a friend, "Somebody could construe or say, 'Well, they
gave her a job to shut her up. They made her happy."'
And given that the president's plan to testify falsely could succeed
only if Ms. Lewinsky went along, the president naturally had to be
concerned that Ms. Lewinsky at any time might turn around and decide
to tell the truth. Indeed, some wanted her to tell the truth. For
example, one friend talked to Ms. Lewinsky about the Dec. 28 meeting
with the president. The friend stated that she was concerned because
she "didn't want to see (Monica) being like Susan McDougal" and did
not want Monica to lie to protect the president. Needless to say, any
sudden decision by Ms. Lewinsky to tell the truth, whether out of
anger at the president or simple desire to be law-abiding, would have
been very harmful to the president. That helps to explain his motive
in providing job assistance.
In mid-January, Ms. Lewinsky finalized her false affidavit with her
attorney, who sent it to Judge Wright's Court. The affidavit falsely
denied a sexual relationship with the president and essentially
recounted the cover stories they had discussed in their
middle-of-the-night conversation on Dec. 17.
Let me turn to the president's Jan. 17 deposition. Some have suggested
that the president might have been surprised or ambushed at his
deposition. Those suggestions are wrong. The president had clear
warning that there would be questions about Monica Lewinsky. She had
been named on the Dec. 5 witness list. On Jan. 12, only five days
before the deposition, Ms. Jones' attorneys identified Ms. Lewinsky as
a trial witness. In response, Judge Wright approved her as a witness.
Two days later, on Jan. 14, the president's private attorney asked Ms.
Lewinsky's attorney to fax Ms. Lewinsky's affidavit. During the
deposition itself, the president's attorney stated that the president
was "fully familiar" with Ms. Lewinsky's affidavit.
At the outset of his Jan. 17 deposition, therefore, the president
faced a fourth critical decision. Fully aware that he would likely
receive questions about Ms. Lewinsky, would the president continue to
make false statements under oath – this time in the presence of a
United States District judge?
At the start of the deposition, Judge Susan Webber Wright administered
the oath. The president swore to tell the truth, the whole truth, and
nothing but the truth. As his testimony began, the president, in
response to a question from Ms. Jones' attorneys, stated that he
understood he was providing his testimony under the penalty of
perjury.
The president was asked a series of questions about Ms. Lewinsky.
After a few questions, the president's attorney – Mr. Bennett
– objected to the questioning about Ms. Lewinsky, referring to it
as "innuendo." Mr. Bennett produced Ms. Lewinsky's false affidavit.
Mr. Bennett stated to Judge Wright that Ms. Lewinsky's affidavit
indicated that "there is absolutely no sex of any kind in any manner,
shape, or form." Mr. Bennett stated that the president was "fully
aware of Ms. Lewinsky's affidavit." During Mr. Bennett's statements,
the president sat back and let his attorney mislead Judge Wright. The
president said not a word – to the judge or, so far as we are
aware, to his attorney.
Judge Wright overruled Mr. Bennett's objection. The questioning
continued. In response, the president made false statements not only
about his intimate relationship with Ms. Lewinsky, but about a whole
host of matters. The president testified that he did not know that
Vernon Jordan had met with Ms. Lewinsky and talked about the Jones
case. That was untrue. He testified that he could not recall being
alone with Ms Lewinsky. That was untrue. He testified that he could
not recall ever being in the Oval Office hallway with Ms. Lewinsky
except perhaps when she was delivering pizza. That was untrue. He
testified that he could not recall gifts exchanged between Ms.
Lewinsky and him. That was untrue. He testified – after a
14-second pause – that he was "not sure" whether he had ever
talked to Ms. Lewinsky about the possibility that she might be asked
to testify in the lawsuit. That was untrue. The president testified
that he did not know whether Ms. Lewinsky had been served a subpoena
at the time he last saw her in December 1997. That was untrue. When
his attorney read Ms. Lewinsky's affidavit denying a sexual
relationship, the president stated that the affidavit was "absolutely
true." That was untrue.
The evidence thus suggests that the president – long aware that
Ms. Lewinsky was a likely topic of questioning at his deposition
– made not one, or two, but a series of false statements under
oath. The president further allowed his attorney to use Ms. Lewinsky's
affidavit, which the president knew to be false, to deceive the court.
This evidence suggests that the president directly contravened the
oath he had taken – as well as the Supreme Court's mandate, in
which the court had stated that Ms. Jones was entitled, like every
other citizen, to a lawful disposition of her case.
D. The President's Actions: Jan. 17-21
As our referral outlines, the president's deposition did not mark the
end of the scheme to conceal. During his deposition testimony, the
president referred to his secretary Betty Currie. The president
testified, for example, that Ms. Lewinsky had come to the White House
to see Ms. Currie, not him; that Ms. Currie had been involved in
assisting Ms. Lewinsky in her job search; and that Ms. Currie had
communicated with Vernon Jordan about Mr. Jordan's assistance to Ms.
Lewinsky. In response to one question at the deposition, the president
said he did not know the answer and "you'd have to ask Betty."
Given the president's repeated references to Ms. Currie and his
suggestion to Ms. Jones' attorneys that they contact her, the
president had to know that Ms. Jones' attorneys might want to question
Ms. Currie. Shortly after 7 p.m. on Saturday, Jan. 17 – just two
and a half hours after the deposition – the president attempted
to contact Ms. Currie at her home. The president asked Ms. Currie to
come to the White House the next day, which she did, although it was
unusual for her to come in on a Sunday. According to Ms. Currie, the
president appeared concerned and made a number of statements abut Ms.
Lewinsky to Ms. Currie. The statements included:
"You were always there when she was there, right? We were never really
alone."
"You could see and hear everything."
Ms. Currie concluded that the president wanted her to agree with him
when he made these statements. Ms. Currie stated that she did in fact
indicate her agreement – although she knew that the president and
Ms. Lewinsky had been alone and that she could not hear or see them
when they were alone.
Ms. Currie further testified that the president ran through the same
basic statements with her again on January 20 or 21.
What is important with respect to these two episodes is that at the
time the president made these statements, he knew that they were
false. He knew he had been alone with Ms. Lewinsky. He knew Ms. Currie
could not see or hear everything. The president thus could not have
been trying to refresh his recollection, as he subsequently suggested.
That raises the question: Is there a legitimate explanation for the
president to have said those things in that manner to Ms. Currie? The
circumstances suggest not. The facts suggest that the president was
attempting to improperly coach Ms. Currie, at a time when he could
foresee that she was not a potential witness in Jones v. Clinton.
E. The President's Actions: Jan. 21-Aug. 17
The president's next major decision came in the days immediately after
Jan. 21. On the 21st, The Washington Post publicly reported the story
of Ms. Lewinsky's relationship with the president. After the public
disclosure of his relationship with Ms. Lewinsky and the ongoing
criminal investigation, the president faced a decision. Would he admit
the relationship publicly, correct his testimony in Ms. Jones' case,
and ask for the indulgence of the American people? Or would he
continue to deny the truth?
For this question, the president consulted others. According to Dick
Morris, the president and he talked on Jan. 21. Mr. Morris suggested
that the president publicly confess. The president replied "But what
about the legal thing? You know, the legal thing? You know. Starr and
perjury and all." Mr. Morris suggested they take a poll. The president
agreed. Mr. Morris called with the results. He stated that the
American people were willing to forgive adultery but not perjury or
obstruction of justice. The president replied, "Well, we just have to
win, then."
Over the next several months, it became apparent that the strategy to
win had many prongs. First, the president denied the truth publicly
and emphatically. Second, he publicly promised to cooperate with the
investigation. Third, the president deflected and diverted the
investigation by telling aides false stories that were then relayed to
the grand jury. Fourth, he refused invitations to testify to the grand
jury for over six months. Fifth, his administration delayed the
investigation through multiple privilege claims, each of which has
been rejected by the federal courts. Sixth, surrogates of the
president attacked the credibility and legitimacy of the grand jury
investigation. Seventh, surrogates of the president attempted to
convince the Congress and the American people that the matter was
unimportant.
The first step was for the president to deny the truth publicly. For
this, political polling led to Hollywood staging. The president's
California friend and producer Harry Thomason flew to Washington and
advised that the president needed to be very forceful in denying the
relationship. On Monday, Jan. 26, in the Roosevelt Room, before
members of Congress and other citizens, the president provided a clear
and emphatic public statement denying the relationship.
The president also made false statements to his Cabinet and aides.
They then spoke publicly and professed their belief in the president.
The second step was to promise cooperation. The president told the
American people on several television and radio shows on Jan. 21 and
22 that "I'm going to do my best to cooperate with the investigation."
The third step was the president's refusal to provide testimony to the
grand jury despite six invitations to do so and despite his public
promise to cooperate. Refusing invitations to provide information to a
grand jury in a federal criminal investigation authorized by the
attorney general of the United States – and one in which there is
a high national interest in prompt completion – was inconsistent
with the president's initial January promise to cooperate and with the
general statutory duty of all government officials to cooperate with
federal criminal investigations.
As a fourth step, the president not only refused to testify himself,
but he authorized the use of various governmental privileges to delay
the testimony of many of his taxpayer-paid assistants. The extensive
use of governmental privileges against grand jury and criminal
investigations has, of course, been a pattern throughout the
administration. Most notably, the White House cited privilege in 1993
to prevent Justice Department and Park Police officials from reviewing
documents in Vincent Foster's office in the days after his death.
In the Lewinsky investigation, the president asserted two privileges,
executive privilege and a government attorney-client privilege. A
subordinate administration official, without objection from the
president, claimed a previously unheard-of privilege that was called
the protective function privilege. The privileges were asserted to
prevent the full testimony of several White House aides and the full
testimony of the sworn law enforcement officers of the Secret Service.
In asserting executive privilege, the president was plowing headlong
into the Supreme Court's unanimous decision 24 years ago in United
States v. Nixon. There, the Supreme Court ruled that executive
privilege was overcome by the need for relevant evidence in criminal
proceedings. And thus, it came as no surprise that Chief Judge Norma
Holloway Johnson rejected President Clinton's effort to use executive
privilege to prevent disclosure of relevant evidence.
In asserting protective function and government attorney-client
privileges, the administration was asking the federal courts to make
up one new privilege out of whole cloth and to apply another privilege
in a context in which no federal court had ever applied it before. And
thus it again came as little surprise that the federal courts rejected
the administration's claims. Indeed, as to the government
attorney-client claim, the D.C. Circuit and the District Court, like
the Eighth Circuit a year ago, stated that the president's position
not only was wrong but would authorize a "gross misuse of public
assets." The Supreme Court refused to grant review of the cases
notwithstanding the administration's two strongly worded petitions.
This point bears emphasis: The administration justified its many
privilege claims by claiming an interest in protecting the presidency,
not the president personally. But that justification is dubious for
two reasons. First, Presidents Carter and Reagan waived all government
privileges at the outset of criminal investigations in which they were
involved. The examples set by those two presidents demonstrate that
such privilege claims in criminal investigations are manifestly
unnecessary to protect the presidency. Second, these novel privilege
claims were quite weak as a matter of law.
And that raises a question: What was it about the Monica Lewinsky
matter that generated the administration's particularly aggressive
approach to privileges? The circumstantial evidence suggests an
answer: delay. Indeed, when this office sought to have the Supreme
Court decide all three privilege claims at once this past June, the
Administration opposed expedited consideration.
Not only did the administration invoke these three losing privileges,
but the president publicly suggested that he had not invoked executive
privilege when in fact he had. On March 24, 1998, while traveling in
Africa, the president was asked about executive privilege. He stated
in response: "You should ask someone who knows. I haven't discussed
that with the lawyers. I don't know." But White House Counsel Charles
Ruff had filed an affidavit in federal court only seven days earlier
in which he swore that he had discussed the assertion of executive
privilege with the president and the president had approved its
invocation.
After Chief Judge Johnson ruled against the president, the president
dropped the executive privilege claim in the Supreme Court. In August,
the president explained to the grand jury why he dropped it. The
president stated: "I didn't really want to advance an executive
privilege claim in this case beyond having it litigated."
But this statement – to the grand jury – was inaccurate. In
truth, the president had again asserted executive privilege only a few
days earlier. And a few days after his grand jury testimony, the
president again asserted executive privilege to prevent the testimony
of Bruce Lindsey. These executive privilege cases continue to this
day; indeed, one case is now pending in the D.C. Circuit.
When the president and the administration assert privileges in a
context involving the president's personal issues; when the president
pretends publicly that he knows nothing about the executive privilege
assertion; when the president and the administration rebuff our
office's efforts to expedite the cases to the Supreme Court; when the
president contends in the grand jury that he never really wanted to
assert executive privilege beyond having it litigated – despite
the fact that he had asserted it six days earlier and will do so again
four days afterwards, there is substantial and credible evidence that
the president has misused the privileges available to his office. And
the misuse delayed and impeded the federal grand jury's investigation.
The fifth tactic was diversion and deflection. The president made
false statements to his aides and associates about the nature of the
relationship – with knowledge that they could testify to that
effect to the grand jury sitting here in Washington. The president did
not simply say to his associates that the allegations were false or
that the issue was a private matter that he did not want to discuss.
Instead, the president concocted alternative scenarios that were then
repeated to the grand jury.
The final two tactics were related: (i) to attack the grand jury
investigation, including the Justice Department prosecutors in my
office – to declare war, in the words of one presidential ally
– and (ii) to shape public opinion about the proper resolution of
the entire matter. It is best that I leave it to someone outside our
office to elaborate on the war against our office. But no one really
disputes that those tactics were employed – and continue to be
employed to this day.
F. The President's Actions: Aug. 17
This strategy proceeded for nearly seven months. It changed course in
August after Monica Lewinsky reached an immunity agreement with our
office, and the grand jury, after deliberation, issued a subpoena to
the president.
The president testified to the grand jury on Aug. 17. Beforehand, many
in Congress and the public advised that the president should tell the
whole truth. They cautioned that the president could not lie to the
grand jury. Senator Hatch, for example, stated that "So help me, if he
lies before the grand jury, that will be grounds for impeachment."
Senator Moynihan stated simply that perjury before the grand jury was,
in his view, an impeachable offense.
The evidence suggests that the president did not heed this senatorial
advice. Although admitting to an ambiguously defined inappropriate
relationship, the president denied that he had lied under oath at his
civil deposition. He also denied any conduct that would establish that
he had lied under oath at his civil deposition. The president thus
denied certain conduct with Ms. Lewinsky and devised a variety of
tortured and false definitions.
The president's answers have not been well received. Congressman
Schumer, for one, stated that "it is clear that the president lied
when he testified before the grand jury." Congressman Meehan stated
that the president engaged in a "dangerous game of verbal Twister."
Indeed, the president made false statements to the grand jury and then
that same evening spoke to the nation and criticized all attempts to
show that he had done so as invasive and irrelevant. The president's
approach appeared to contravene the oath he took at the start of the
grand jury proceedings. It also disregarded the admonitions of those
members of Congress who warned that lying to the grand jury would not
be tolerated. It also discounted Judge Wright's many orders in which
she had ruled that this kind of evidence was relevant in the Jones
case.
And thus ended the over-eight-month journey that had begun on Dec. 5,
1997, when Monica Lewinsky's name appeared on the witness list. The
evidence suggests that the eight months included false statements
under oath, false statements to the American people, false statements
to the president's Cabinet and aides, witness tampering, obstruction
of justice, and the use of presidential authority and power in an
effort to conceal the truth of the relationship and to delay the
investigation.
III. Jurisdiction
Given the serious nature of perjury and obstruction of justice,
regardless of its setting, it is obvious that the actions of the
president and Ms. Lewinsky to conceal the truth warranted criminal
investigation. Let me explain how the investigation came to be handled
by our office rather than by the Department of Justice or some new
independent counsel. The explanation is straightforward.
On January 8, an attorney in my office was informed that Linda Tripp,
who had been a witness in prior investigations, had information she
wanted to provide. A message was conveyed back that she should provide
her information directly. Ms. Tripp called our office on Jan. 12. In
that conversation and later, she provided us a substantial amount of
information.
Let me pause here and emphasize that our office, like most law
enforcement agencies, has received innumerable tips about a wide
variety of matters over the past four years – from Swiss bank
accounts to drug smuggling. You name it. We have heard it. In each
case, we must make an initial assessment whether it is a serious tip
or a crank call, as well as an assessment of jurisdictional issues.
We handled the information from Ms. Tripp in this same manner. When we
confirmed that the information appeared credible, we reached out to
the Department of Justice, as we have done regularly during my tenure
as independent counsel. We contacted Deputy Attorney General Eric
Holder within 48 hours after Ms. Tripp provided us information. The
next day, we fully informed the deputy attorney general about Ms.
Tripp's information. About Ms. Tripp's tapes and the questions
concerning their legality under state law. About the consensual FBI
recording of Ms. Tripp and Ms. Lewinsky. About the indications that
Vernon Jordan was providing employment assistance to a witness who had
the potential to harm the president – a fact pattern that we had
seen in the Webster Hubbell investigation, as I shall describe
presently.
We discussed jurisdiction. We noted that it is in everyone's interest
to avoid time-consuming jurisdictional challenges. We stated that the
Lewinsky investigation could be considered outside our jurisdiction as
then constituted. We stressed that someone needed to work the case:
the Justice Department or an independent counsel.
Later that evening, the deputy attorney general telephoned and
reported that the attorney general had tentatively decided to assign
the matter to us. Before her decision was final, we reviewed the
evidence in detail with two experienced career prosecutors in the
department. One senior Justice Department prosecutor listened to
portions of the FBI tape. The attorney general made her final decision
on Friday, Jan. 16. That day, through a senior career prosecutor, the
attorney general asked the three-judge special division to expand our
jurisdiction. The special division granted the request that day.
In short, our entry into this investigation was standard, albeit
expedited, procedure.
IV. Referral Standards
Seven months later, after conducting the factual investigation and
after the president's grand jury testimony, the question we faced was
what to do with the evidence. Section 595(c) of Title 28 in the
independent counsel statute requires an independent counsel
investigating possible crimes to provide to the House of
Representatives – in the words of the statute – "substantial
and credible information that may constitute grounds for an
impeachment."
This reporting provision suggests a statutory preference that possible
criminal wrongdoing by the president be addressed in the first
instance by the House of Representatives. It also requires an analysis
of the law of impeachment.
As we understood the text of the Constitution, its history, and
relevant precedents, it was clear that obstruction of justice in its
various forms, including perjury, "may constitute grounds for an
impeachment." Even apart from any abuses of presidential authority and
power, the evidence of perjury and obstruction of justice required us
to refer this information to the House.
Perjury and obstruction of justice are, of course, serious crimes. In
1790, the first Congress passed a criminal law that banned perjury. A
violation was subject to three years' imprisonment. Today, federal
criminal law makes perjury a felony punishable by five years'
imprisonment.
In cases involving public officials, courts treat false statements
with special condemnation. United States District Judge Royce Lamberth
recently sentenced Ronald Blackley, former chief of staff to the
former secretary of agriculture, to 37 months' imprisonment for false
statements. The court stated that it "has a duty to send a message to
other high-level government officials that there is a severe penalty
to be paid for providing false information under oath."
Although perjury and obstruction of justice are serious federal
crimes, some have suggested that they are not high crimes or
misdemeanors when the underlying events concern the president's
private actions. Under this theory, a president's obstruction and
perjury must involve concealment of official actions. This
interpretation does not appear in the Constitution itself. Moreover,
the Constitution lists bribery as a high crime or misdemeanor. And if
a president involved in a civil suit bribed the judge to rule in his
favor or bribed a witness to provide favorable testimony, there could
be no textual question that he had committed a high crime or
misdemeanor under the plain language of Article II even though the
underlying events would not have involved his official duties. In
addition, virtually everyone agrees that serious crimes such as murder
and rape would be impeachable even though they do not involve official
duties.
Justice Story stated in his famous Commentaries that there is not a
syllable in the Constitution which confines impeachment to official
acts. With respect, an absolute and inflexible requirement of a
connection to official duties appears, fairly viewed, to be an
incorrect interpretation of the Constitution.
History and practice support the conclusion that perjury, in
particular, is a high crime or misdemeanor. Perjury has been the basis
for the removal of several judges. As far as we know, no one
questioned whether perjury was a high crime or misdemeanor in those
cases. In addition, as several of the scholars who appeared before you
testified, perjury seems to have been recognized as a high crime or
misdemeanor at the time of the founding. And the House manager's
report in the impeachment of Judge Walter Nixon for perjury stated,
"It is difficult to imagine an act more subversive to the legal
process than lying from the witness stand." And finally, I note that
the federal sentencing guidelines include bribery and perjury in the
same guideline (2Jl.3), reflecting the common-sense conclusion that
bribery and perjury are equivalent means of interfering with the
governmental process.
For these reasons, we concluded that perjury and obstruction of
justice, like bribery, "may constitute grounds for an impeachment."
Having said that, let me again emphasize my role here. Whether the
president's actions are, in fact, grounds for an impeachment or some
other congressional sanction is a decision in the sole discretion of
the Congress.
A final point warrants mention in this respect. Criminal prosecution
and punishment are not the same as – or a substitute for –
congressionally imposed sanctions. As the Supreme Court stated in a
1993 case, "The framers recognized that most likely there would be two
sets of proceedings for individuals who commit impeachable offenses
– the impeachment trial and a separate criminal trial. In fact,
the Constitution explicitly provides for two separate proceedings. The
framers deliberately separated the two forums to avoid raising the
specter of bias and to ensure independent judgment."
V. The Office of Independent Counsel: 1994-1998
Our job over the past several years has involved far more than simply
the Monica Lewinsky matter. The pattern of obstruction of justice,
false statements, and misuse of executive authority in the Lewinsky
investigation did not occur in a vacuum.
A. Overview
In August 1994, 1 took over the Madison Guaranty investigation from
Bob Fiske. Over the ensuing years, I have essentially become
independent counsel for five distinct investigations; for Madison and
Whitewater, for Foster-related matters, for the Travel Office, for the
FBI files matter, and for the Monica Lewinsky investigation – as
well as for a variety of obstruction and related matters arising from
those five major investigations. A brief overview of those
investigations may assist the committee in its assessment of the
president's conduct.
First, some statistics. Our investigation has resulted in conviction
of fourteen individuals, including the former Associate Attorney
General of the United States Webster Hubbell, the then-sitting
Governor of Arkansas Jim Guy Tucker, and the Clintons' two business
partners Jim and Susan McDougal.
We are proud not only of the cases we have won, but also of our
decisions not to indict. To take one well-known example, the Senate
Whitewater Committee sent our office public criminal referrals on
several individuals. The committee stated in its June 21, 1996, public
letter that the testimony of Susan Thomases was "particularly
troubling and suggests a possible violation of law." But this office
did not seek charges against her.
Apart from our indictments and convictions, this office also has faced
an extraordinary number of legal disputes – on issues of
privilege, jurisdiction, substantive criminal law and the like. By my
count, at least 17 of our cases have been decided by the federal
courts of appeals, and we have won all 17. One privilege case arising
in our Travel Office investigation went to the D.C. Circuit where we
prevailed 2-1 and then to the Supreme Court where we lost 6-3.
We had to litigate in the courts as our investigation ran into
roadblocks and hurdles that slowed us down. It is true that the
administration produced a great amount of information. But unlike the
prosecutors in the investigations involving presidents Reagan and
Carter, we have been forced to go to court time and again to seek
information from the Executive Branch and to fight a multitude of
privilege claims asserted by the administration, every single one of
which we have won.
In sum, this office has achieved a superb record in courts of law
– of significant and hard-fought convictions, of fair and wise
decisions not to charge, of thorough and accurate reports on the
Vincent Foster and Monica Lewinsky matters, of legal victories in
various courts. We go to court and not on the talk show circuit. And
our record shows that there is a bright line between law and politics,
between courts and polls. It leaves the polls to the politicians and
spin doctors. We are officers of the court who live in the world of
the law. We have presented our cases in court, and with very rare
exception, we have won.
Madison Guaranty: President Clinton and Susan McDougal
The center of all of this – the core of our Arkansas-based
investigation – was Madison Guaranty Savings and Loan. Madison
was a federally insured savings and loan in Little Rock, Ark., run by
Jim and Susan McDougal. Like many savings and loans in the 1980s,
Madison was fraudulently operated. Mrs. Clinton and other lawyers at
the Rose Law Firm in Little Rock performed legal work for Madison in
the 1980s.
Madison first received national attention in March 1992 when a New
York Times report raised several issues about the relationship between
the Clintons and the McDougals in connection with Madison. Federal
bank regulators examined Madison in 1992 and 1993. The regulators sent
criminal referrals to the Justice Department, and the Justice
Department launched a criminal investigation of Madison in November
1993. In part because of the relationship of the Clintons to the
McDougals, Attorney General Reno appointed Bob Fiske in January 1994.
I was appointed independent counsel in August 1994 to continue the
investigation.
Madison exemplified the troubled practices of savings and loans in the
1980s. The failure of the institution ultimately cost federal
taxpayers approximately $65 million. Congresswoman Waters put it this
way in a 1995 hearing: "By any standard, Madison Guaranty was a
disaster. ... It gambled with investments, cooked the books and
ultimately bilked the taxpayers of the United States. Madison is a
metaphor for the S&L crisis."
The McDougals' operation of Madison raised serious questions whether
bank funds had been used illegally to assist business and political
figures in Arkansas such as Jim Guy Tucker and then Governor Clinton.
As to the Clintons, the question arose primarily because they were
partners with the McDougals in the Whitewater Development Company. The
Whitewater corporation initially controlled and developed
approximately 230 acres of property on the White River in Northern
Arkansas. Given Jim McDougal's role at the center of both institutions
and given Whitewater's constant financial difficulties, there were two
important questions: Were Madison funds diverted to benefit
Whitewater? If so, were the Clintons either involved in or
knowledgeable of that diversion of funds?
These questions were not idle speculation. In early 1994, a Little
Rock judge and businessman David Hale pled guilty to certain unrelated
federal crimes. As part of his plea, David Hale told Mr. Fiske's team
that he had received money as a result of a loan from Madison in 1986
and that his company loaned it to others as part of a scheme to help
some members of the Arkansas political establishment.
One loan of $300,000 went to Susan McDougal's make-believe company,
Master Marketing. Based on our investigation, we now know that some
$50,000 of the proceeds of that loan went to benefit the Whitewater
corporation. David Hale stated that he had discussed the Susan
McDougal loan with Governor Clinton, including at a meeting in 1986
with Jim McDougal and the governor.
In August 1994, when I first arrived in Little Rock, we devised a
plan. First, based on the testimony of David Hale and others, as well
as documentary evidence, we would take steps, if appropriate, to seek
an indictment of Jim and Susan McDougal and others involved in what
clearly appeared to be criminal transactions. If a Little Rock jury
convicted the McDougals or others, we would then obtain their
testimony and determine whether they had other relevant information
– including, of course, whether the McDougals possessed
information that would either exonerate or incriminate the Clintons as
to Madison and Whitewater matters.
This approach was the time-honored and professional way to conduct the
investigation. We garnered a number of guilty pleas in my first year,
including from Webster Hubbell, who had worked at the Rose Law Firm
and was knowledgeable about its work with Madison, including that of
Mrs. Clinton. In addition, Robert Palmer, a real estate appraiser,
pled guilty to fraudulently doctoring Madison documents to deceive
federal bank examiners. Three other associates of McDougal pled guilty
and agreed to cooperate.
In August 1995, a year after I was appointed, a federal grand jury in
Little Rock indicted Jim and Susan McDougal and the then-sitting
Governor of Arkansas Jim Guy Tucker. The case went to trial in March
1996 amid charges by all three defendants – and their allies
– that the case was a political witch hunt. Some predicted that
an Arkansas jury would never convict the sitting governor. Those
expectations were heightened when President Clinton was subpoenaed as
a defense witness. The president testified for the defense from the
Map Room of the White House. During his sworn testimony, the president
testified that did not know about the Susan McDougal loan nor had he
ever been in a meeting with Hale and McDougal about the loan. He also
testified that he had never received a loan from Madison. This was
important testimony. Its truth – or falsity – went to the
core issue of our investigation
On May 28, 1996, all three defendants were convicted – Jim
McDougal of 18 felonies, Susan McDougal of four felonies, and Governor
Tucker of two felonies. Governor Tucker announced his resignation that
day.
After his conviction, Jim McDougal began cooperating with our
investigation. We spent many hours with him gaining additional
insights and facts. He informed our career investigators and
prosecutors that David Hale was accurate. According to Jim McDougal,
President Clinton had testified falsely at the McDougal-Tucker trial.
Jim McDougal testified he had been at a meeting with David Hale and
Governor Clinton about the Master Marketing loan. And Jim McDougal
testified that Governor Clinton had received a loan from Madison. Jim
McDougal said on one of his first sessions with our office that the
president's trial testimony was, in his words, "at variance with the
truth."
In late 1997, we considered whether this evidence justified a referral
to Congress. We drafted a report. But we concluded that it would be
inconsistent with the statutory standard because of the difficulty of
establishing the truth with a sufficient degree of confidence. We also
weighed a prudential factor in reaching that conclusion. There were
still two outstanding witnesses who might later corroborate – or
contradict – the McDougal and Hale accounts: Jim Guy Tucker and
Susan McDougal.
In 1998, we were finally able to obtain information from Governor
Tucker. It had taken four long years to hear from the governor. He
pled guilty in a tax conspiracy case. When Governor Tucker ultimately
testified before the Little Rock grand jury in March and April of this
year, he had little knowledge of the loan to Susan McDougal's
fictitious company and the president's possible involvement in it. He
did shed light on the overall transactions involving Castle Grande and
Madison. Importantly, as to one subject, Governor Tucker exonerated
the president regarding long-standing questions whether the president
and Governor Tucker had a conversation about the Madison referrals in
the White House in October 1993.
The remaining witness who perhaps could shed light on the issue was
Susan McDougal. And therein lies a story that has caused literally
years of delay and added expense to the investigation.
Because the proceeds from the fraudulent loan Susan McDougal received
had benefited the Clintons – the proceeds were used to pay
obligations of the Whitewater Development Company for which the
Clintons were potentially personally liable – Susan McDougal was
subpoenaed to testify before the grand jury in August 1996 and asked
several questions at the heart of the investigation, including:
"Did you ever discuss your loan from David Hale with William Jefferson
Clinton?"
"To your knowledge, did William Jefferson Clinton testify truthfully
during the course of your trial?"
Susan McDougal refused to answer any of the questions. District Judge
Susan Webber Wright then held her in civil contempt, a decision later
upheld by the United States Court of Appeals.
The month of September 1996 thus was a crucial time for our office in
its attempt to obtain Susan McDougal's truthful testimony. On Sept.
23, 1996, just two weeks after Ms. McDougal had been found in contempt
by Judge Wright, President Clinton was interviewed on PBS. The
president said, "There's a lot of evidence to support" various charges
that Susan McDougal had made against this office. But the president
cited no evidence.
The president's comments can reasonably be described as supportive of
Ms. McDougal's decision to disobey the court order. So far as we are
aware, no sitting president has ever publicly indicated his agreement
with a convicted felon's stated reason for refusing to obey a federal
court order to testify. Essentially, the president of the United
States, the chief executive, sided with a convicted felon against the
United States, as represented by United States District Judge Susan
Webber Wright, the United States Court of Appeals for the Eighth
Circuit, and the Office of Independent Counsel.
The president was also asked in this interview whether he would
consider pardoning Ms. McDougal. The president refused to rule out a
pardon.
The president's answers to these questions were roundly criticized. A
New York Times editorial captured the point well, stating that the
president's remarks "undercut a legal process that is going forward in
an orderly way."
C. Madison Guaranty: Mrs. Clinton and Webster Hubbell
A separate area of our original investigation concerned the Rose Law
Firm's work in 1985 and 1986 for Madison. It appeared that Rose may
have assisted Madison in performing legal work concerning a piece of
property (IDC/Castle Grande), which involved McDougal, Madison, and
fraudulent transactions. The complicated real estate deal known as
Castle Grande was structured to avoid state banking regulatory
requirements and involved violations of federal criminal law.
Grand jury subpoenas were issued in 1994 and 1995 to the Rose Law Firm
and to the president and Mrs. Clinton seeking all documents relating
to Madison and Castle Grande. We ultimately learned that Mrs. Clinton
had performed some work related to Madison's IDC/Castle Grande
transactions, but the whole issue remained partially enshrouded in
mystery as our office and the Senate Whitewater Committee investigated
the issue in 1995.
The problem was that some of the best evidence regarding Mrs.
Clinton's work – her Rose Law Firm billing records and her time
sheets for 1985 and 1986 – could not be found. The missing
records raised suspicions by late 1995 and became a public issue.
Webster Hubbell and Vincent Foster had been responsible during the
1992 campaign for gathering information about Mrs. Clinton's work for
Madison. Yet the billing records could not be found. The Rose firm's
work for Madison could not be fully pieced together. The Rose firm no
longer had the records.
On Jan. 5, 1996, the records of Mrs. Clinton's activities at Madison
were finally produced under unusual circumstances. The records
detailed Mrs. Clinton's work on a variety of Madison issues, including
the preparation of an option agreement that Madison used to deceive
federal bank examiners as part of the Castle Grande deal. After a
thorough investigation, we have found no explanation how the billing
records got where they were or why they were not discovered and
produced earlier. It remains a mystery to this day. Then, in the
summer of 1997, a second set of these billing records was found in the
attic of the late Vincent Foster's house in Little Rock. The time
sheets for Rose's 1985-86 Madison work have never been found.
We should note that Webster Hubbell may have additional information
pertaining to Castle Grande – whether exculpatory or inculpatory
– that we have been unable to obtain. Mr. Hubbell was at the Rose
law firm at the relevant time in 1985 and 1986, he gathered
information about the Madison issue in the 1992 campaign, and his
father-in-law Seth Ward was involved in the Castle Grande deal.
Two other important facts suggest that Mr. Hubbell may have additional
information. First, on March 13, 1994, after a meeting at the White
House where it had been discussed that Mr. Hubbell would resign from
the Justice Department, then-Chief of Staff Mack McLarty told Mrs.
Clinton that "We're going to be supportive of Webb."
As this criminal investigation was beginning in 1994 under Bob Fiske
and later my office, Mr. Hubbell received payments totaling nearly
$550,000 from several companies and individuals. Many were campaign
contributors. These individuals had been contacted through the White
House chief of staff, Mr. McLarty. In June 1994, during a week in
which he made several visits to the White House, Indonesian
businessman James Riady met with Webster Hubbell and then wired him
$100,000. One of the individuals who arranged for Mr. Hubbell to
receive a consulting contract was Vernon Jordan. The company that he
convinced to hire Hubbell was MacAndrews & Forbes, parent company of
Revlon – the same company that later hired Monica Lewinsky upon
Mr. Jordan's recommendation. As he was destined later to do with
Monica Lewinsky, Mr. Jordan personally informed the president about
his assistance to Mr. Hubbell.
Most of the $550,000 was given to Mr. Hubbell for little or no work.
This rush of generosity obviously gives rise to an inference that the
money was essentially a gift. And if it was a gift, why was it given?
This money was given despite the fact that Mr. Hubbell was under
criminal investigation for fraudulent billing and was a key witness in
the Madison Guaranty investigation.
Second, as is known to the public, on certain prison tapes while Mr.
Hubbell was in prison, he said to his wife: "I won't raise those
allegations that might open it up to Hillary." On another tape, Mr.
Hubbell said to White House employee Marsha Scott that he might "have
to roll over one more time."
Mr. Hubbell's statements – when combined with the amount of money
he received and the information he was in a position to know –
raise some very troubling questions. Mr. Hubbell is currently under
federal indictment, and it would be inappropriate to say more about
that at this time.
D. Travel Office.
Let me add a few brief words about the Travel Office matter. This
phase of work arose out of investigations by others of the 1993
firings of Billy Dale and six career co-workers. We do not anticipate
that any evidence gathered in that investigation will be relevant to
the committee's current task. The president was not involved in our
Travel Office investigation.
As to the status of that investigation, it was on hold for quite a
while, in part because of litigation. The investigation is not
terminated, but we expect to announce any decisions and actions soon.
E. FBI Files
As to the FBI files matter, there are outstanding issues that we are
attempting to resolve with respect to one individual. But I can
address two issues of relevance to the committee's work. First, our
investigation, which has been thorough, found no evidence that anyone
higher than Mr. Livingstone or Mr. Marceca was in any way involved in
ordering the files from the FBI. Second, we have found no evidence
that information contained in the files of former officials was used
for an improper purpose.
VI. Office of Independent Counsel
A. Staff
Let me now mention a few words about our personnel, about our process,
and about our reflections on this investigation. The character and
conduct of the men and women of our office – career professionals
who take their jobs and their oaths very seriously – have been
badly distorted. Perhaps that is inevitable given the nature of the
issues involved in this case and the fact that the president of the
United States is the subject of a criminal investigation. But it is
regrettable. And so let me offer some truth about the office.
I will start with our personnel. During the Lewinsky investigation, my
staff has included skilled and experienced prosecutors from around the
country. They have brought an enormous amount of experience and
expertise to the office. My colleagues during the past year have
included a former United States attorney; the chief of the public
corruption unit of the United States attorney's office in Los Angeles;
the chief of the public corruption unit of the United States
attorney's office in Miami; the chief of the bank fraud unit of the
United States attorney's office in San Antonio; prosecutors with
lengthy experience in the public integrity section of the Department
of Justice; seasoned federal prosecutors from 10 different states and
the District of Columbia; and veteran state prosecutors from Maryland
and Oregon.
The office also has benefited from the assistance of Sam Dash, chief
counsel to the Senate Watergate Committee, who has offered great
wisdom throughout my tenure as independent counsel. Professor Ronald
Rotunda, constitutional law scholar from the University of Illinois,
similarly has provided important advice on a variety of issues. The
office also has received assistance from professors at the University
of Michigan, the University of Illinois, Notre Dame, and George
Washington. Moreover, former law clerks for six different Supreme
Court justices have served on my staff during the past year.
During the Lewinsky investigation, the office also relied on many
talented investigators with extensive service in the FBI and other law
enforcement agencies. And the FBI laboratory yet again provided superb
assistance, as it has throughout the Madison/Whitewater investigation.
In addition, let me express my great appreciation for the grand jurors
who devoted much time and energy to examining the witnesses and
considering the evidence. Those 23 citizens of the District of
Columbia have performed invaluable service, and I publicly thank them.
This is the rare case where grand jury transcripts become publicly
scrutinized, and as you now know, these grand jurors were active,
knowledgeable, fair, and completely dedicated to uncovering and
understanding the truth.
B. The Process
In all of our investigations, difficult decisions have been taken
through our office's deliberative process. The process calls upon each
attorney – drawing upon his or her background and experience
– to offer views on issues in question. This deliberative process
is laborious, sometimes tedious. But it is an attempt to ensure that
our office makes the best decisions it can. I have drawn upon a vast
array of experienced prosecutors and investigators because I was
sensitive to – and am sensitive to – the fact that an
independent counsel exists outside the Justice Department and is an
unusual entity within our constitutional system.
Throughout this investigation, we have made every effort to follow
Department of Justice practice and policy and to utilize time-honored
law enforcement techniques. Of course, with their vast experience in
the department and FBI, my prosecutors and investigators embody such
policy and practice. Nonetheless, it was often the case during an
all-attorneys meeting that we would repair to the United States
Attorney's Manual to be sure we had it right. It is true that some
traditional law enforcement procedures may not be entirely comfortable
for some witnesses. But the procedures have been refined over decades
of practice in which society's right to detect and prosecute crime has
been balanced against individual liberty. It was not our place to
reinvent the investigative wheel. Nor was it our place to discard law
enforcement practices that are used every day by prosecutors and
police throughout the country.
C. Decisions During the Investigation
With that, let me be the first to say that the Lewinsky investigation,
in particular, presented some of the most challenging issues any
lawyer could face. We had to make numerous difficult decisions –
and often had to do so quickly. Those included factual judgments (is
witness X or witness Y telling us the whole truth?), strategic choices
(do we provide immunity to Ms. Lewinsky in order to obtain her
testimony? Is it appropriate to subpoena the president?), legal
decisions (do we accept the assertion of executive privilege for Bruce
Lindsey or do we go to court to challenge it? What about the asserted
Secret Service privilege?) and historic constitutional judgments (what
is the meaning of Section 595(c) of the independent counsel statute
and how do we write a referral that satisfies its requirements?).
Major decisions during the Lewinsky investigation have not been easy.
And given the hurricane-force political winds swirling about us, we
were well aware that, no matter what decision we made, criticism would
come from somewhere. As Attorney General Reno has said, in
high-profile cases like these, you are damned if you do and damned if
you don't, so you'd better just do what you think is the right and
fair thing.
We also attempted to be thorough. But we did not invent that approach
just for the Lewinsky case. To take just one previous example, in
investigating matters relating to the death of Vincent Foster, we were
painstaking in examining evidence, questioning witnesses, and calling
upon experts in homicide and suicide. We were criticized during that
investigation for being too thorough, taking too long. But time has
proved the correctness of our approach. After an extensive
investigation, the office produced a report that addressed the many
questions, confronted the difficult issues, laid out new evidence, and
reached a definitive conclusion. Over time, the controversy over the
Foster tragedy has dissipated because we insisted on being
uncompromisingly thorough both in the investigation and in our report.
After the attorney general and the Court of Appeals assigned us the
Lewinsky investigation, the office again received criticism for being
too thorough. But the Lewinsky investigation could not be properly
conducted in a slapdash manner. It was our duty to be meticulous, to
be careful. We were. And in the process, we uncovered substantial and
credible evidence of serious legal wrongdoing by the president. Some
then suggested that the report we submitted to Congress was too
thorough. But bear in mind that we submitted the referral, as we were
required by statute, to the House of Representatives, not to the
public. And we must dispute the suggestion that a report to the House
suggesting possible impeachable offenses committed by the president of
the United States should tell something less than the full story. The
facts, the story, are critical – they affect credibility, they
are necessary to avoid a distorted picture, they ultimately are the
basis for a just conclusion. As a result, just as the jurors found the
details of specific land deals critical in our trial of Governor Jim
Guy Tucker and the McDougals, just as the Supreme Court includes the
details of grisly murders in its death penalty cases, so too the
details of the president's relationship with Ms. Lewinsky became
relevant – indeed, critical – in determining whether and the
extent to which the president made false statements under oath and
otherwise obstructed justice in both the Jones v. Clinton case and
then again in his grand jury testimony.
As you know, by an overwhelming bipartisan vote, the House immediately
disclosed our referral to the public. But I want to be clear that the
public disclosure or nondisclosure of the referral and the backup
materials was a decision our office did not make – and lawfully
could not make. We had no way of knowing in advance of submitting the
referral, and we did not know, whether the House would publicly
release both the report and the backup materials; would release
portions of one or both; would release redacted versions of the report
and backup documents; would prepare and release a summary akin to Mr.
Schippers' oral presentation; or would simply keep the referral and
backup materials under seal just as Special Prosecutor Jaworski's
submission in 1974 remained under seal. As a result, we respectfully
but firmly reject the notion that our office was trying to inflame the
public. We are professionals, and we were trying to get the relevant
facts, the full story, to the House of Representatives. That was our
task. And that is what we did.
In fact, the referral has served a purpose. There has been virtually
no dispute about a good many of the factual conclusions in the report.
In the wake of the referral, for example, few have ventured that the
president told the truth, the whole truth, and nothing but the truth
in his civil case and before the grand jury. A key reason, we submit,
is that we insisted – as we have in our other investigations
– that we be exhaustive in the investigation and that we document
the facts and conclusions in our report.
D. Reflections
I want to be absolutely clear on one point, however. Any suggestion
that the men and women of our office enjoyed or relished this
investigation is wrong. It is nonsense. In at least three ways, the
Lewinsky investigation caused all of us considerable dismay – and
continues to do so.
First, none of us has any interest whatsoever in investigating the
factual details underlying the allegations of perjury and obstruction
of justice in this case. My staff and I agree with the sentiments
expressed by Chairman Hyde in the Nov. 9 hearing when he said "I'd
like to forget all of this. I mean, who needs it?" But the
Constitution and the criminal law do not have exceptions for unseemly
or unpleasant or difficult cases. The attorney general and the Court
of Appeals assigned us a duty to pursue the facts. And we did so.
Second, this investigation has proved difficult for us because it
centered on legal wrongdoing by the president of the United States.
The presidency is an office that we – like all Americans –
revere and respect. No prosecutor is comfortable when he or she
reports wrongdoing by the president. All of us want to believe that
our president has at all times acted with integrity – and
certainly that he has not violated the criminal law.
Everyone in my office therefore envies the position years ago of Paul
Curran, the distinguished counsel appointed by Attorney General
Griffin Bell to investigate certain financial transactions involving
President Carter. Mr. Curran received complete cooperation from
President Carter, found no wrongdoing, and promptly returned to
private life. I would like to do the same.
Third, this investigation was unpleasant because our office knew that
some Americans, for a variety of reasons, would be opposed to our
work. But we would not, could not, allow ourselves to be deterred from
doing our work. As I have said, our office was assigned a specific
duty to gather the facts and then, if appropriate, to make decisions
and report the facts as quickly as we possibly could. In the end, we
tried to adhere to the principle Congressman Graham discussed on Oct.
5: Thirty years from now, not 30 days from now, we want to be able to
say that we did the right thing.
E. The Independent Counsel
At the end of the day, I – and no one else – was responsible
for our key decisions. And my background thus warrants brief note.
I came to this job as a product of the judicial process, of the
courts. I began my legal career in 1973 as a law clerk, first for
Judge David Dyer on the Fifth Circuit Court of Appeals and then for
two years for Chief Justice Warren Burger. Following my clerkships, I
was in private law practice in Los Angeles and Washington, during
which time I worked on all manner of litigation matters – civil,
administrative, and criminal.
After William French Smith took office as attorney general in January
1981, I served as counselor to the attorney general from 1981 to 1983.
In that capacity, I experienced firsthand the varied and difficult
judgment calls that faced the attorney general every day –
whether it was dealing with the aftermath of the attempted
assassination of President Reagan or selecting a Supreme Court
nominee, in that case Justice Sandra Day O'Connor. I took away from
the experience an admiration that has continued to this day for the
career Justice Department lawyers, prosecutors, and law enforcement
officials who toil without fanfare, and for whom the guiding
principles are fairness and respect for the law.
In 1983, President Reagan nominated and the Senate confirmed me to be
a judge on the United States Court of Appeals for the District of
Columbia Circuit. I became a colleague on a court with truly great
judges – from J. Skelley Wright to Antonin Scalia, from Ruth
Ginsburg to Robert Bork – and tackled the important and intricate
issues that came before the D.C. Circuit. The cases included issues as
diverse as the constitutional right of a military serviceman to wear a
yarmulke (a right I supported in vain) and the right of a newspaper,
in that case The Washington Post, to be free under the First Amendment
from the crushing threat of liability under the libel laws.
In 1989, I accepted appointment as solicitor general of the United
States. The solicitor general is, as you know, the lawyer who
represents the United States in arguments before the Supreme Court. A
distinguished predecessor, Thurgood Marshall, often stated that being
solicitor general was the greatest job a lawyer could have, bar none.
Justice Marshall had it right. As solicitor general, I argued 25 cases
before the Supreme Court. The arguments covered the spectrum of our
law including whether flag burning is a protected right under the
Constitution, whether there is a constitutional right to refuse
unwanted medical treatment near the end of one's life, and whether the
Senate's decision to convict and remove an impeached judge is subject
to judicial review. While I was solicitor general, my overarching goal
was to run an office faithful to the law, not to political or
ideological opinion – and I think the record shows that I did
just that.
In 1993, I left my second tour of duty in the Justice Department and
returned to private practice and teaching constitutional law. In the
period before I was named independent counsel in August 1994, I was
not completely absent from public service, however. In late 1993, I
was asked by the Senate Ethics Committee, chaired by Nevada's
Democratic Sen. Richard Bryan, to review Senator Packwood's diaries as
part of the Ethics Committee's investigation.
Every person is, of course, deeply affected by his or her experiences.
For my part, my experience is in the law and the courts. I am not a
man of polls, public relations, or politics – which I suppose is
obvious at this point. I am not experienced in political campaigns.
As a product of the law and the courts, I have come to an unyielding
faith in our court system – our system of judicial review, the
independence of our judges, our jury system, the integrity of the
oath, the sanctity of the judicial process. The phrase on the facade
of the Supreme Court "Equal Justice Under Law," the inscription inside
the Justice Department building, "the United States wins its point
when justice is done its citizens in the courts," are more than
slogans. They are principles that the courts in this country apply
every day. Our office saw that firsthand in the trial of Governor Jim
Guy Tucker, Jim McDougal, and Susan McDougal. A juror said afterwards
that they fought for the defendants' liberty, but were overwhelmed by
the evidence. It is our judicial process that helps make this country
distinct. And my background, my instincts, my beliefs have instilled
in me a deep respect for the legal process that is at the foundation
of our republic.
President Lincoln asked that "reverence for the laws be proclaimed in
legislative halls and enforced in courts of justice." Mr. Chairman, my
office and I revere the law. I am proud of what we have accomplished.
We were assigned a difficult job. We have done it to the very best of
our abilities. We have tried to be both fair and thorough.
I thank the committee and the American people for their attention.
