[Impeachment of President William Jefferson Clinton - The Evidentiary Record Pursuant to S. Res. 16 - Index to Senate Document 106-3, Vols. I-XXIV]
[Volume V - Preliminary Memorandum and Initial Response of President Clinton to Referral of Office of Independent Counsel, House Document 105-317]
[From the U.S. Government Publishing Office, www.gpo.gov]
105th Congress, 2d Session - - - - - - - - - - - House Document 105-317
PRELIMINARY MEMORANDUM OF THE PRESIDENT OF THE UNITED STATES
CONCERNING REFERRAL OF THE OFFICE OF THE INDEPENDENT COUNSEL AND
INITIAL RESPONSE OF THE PRESIDENT OF THE UNITED STATES TO REFERRAL
OF THE OFFICE OF THE INDEPENDENT COUNSEL
__________
COMMUNICATION
from
THE COMMITTEE ON THE JUDICIARY
TRANSMITTING
THE PRELIMINARY MEMORANDUM OF THE PRESIDENT OF THE UNITED STATES
CONCERNING THE REFERRAL OF THE OFFICE OF THE INDEPENDENT COUNSEL AND
THE INITIAL RESPONSE OF THE PRESIDENT OF THE UNITED STATES TO THE
REFERRAL OF THE OFFICE OF THE INDEPENDENT COUNSEL
September 28, 1998.--Ordered released by the Committee on the
Judiciary, and ordered to be printed
PRELIMINARY MEMORANDUM
CONCERNING REFERRAL OF
OFFICE OF INDEPENDENT COUNSEL
David E. Kendall Charles F.C. Ruff
Nicole K. Seligman Cheryl Mills
Emmet T. Flood Lanny A. Breuer
Max Stier OFFICE OF THE WHITE
Glen Donath HOUSE COUNSEL
Alicia L. Marti The White House
WILLIAMS & CONNOLLY Washington, DC 20005
725 12th Street, N.W.
Washington, DC 20005
September 11, 1998
EXECUTIVE SUMMARY
Summary of Key Points of the President's Case in Anticipation of the
Starr Report
1. The President has acknowledged a serious mistake--an
inappropriate relationship with Monica Lewinsky. He has taken
responsibility for his actions, and he has apologized to the
country, to his friends, leaders of his party, the cabinet and
most importantly, his family.
2. This private mistake does not amount to an impeachable
action. A relationship outside one's marriage is wrong--and the
President admits that. It is not a high crime or misdemeanor.
The Constitution specifically states that Congress shall
impeach only for ``treason, bribery or other high crimes and
misdemeanors.'' These words in the Constitution were chosen
with great care, and after extensive deliberations.
3. ``High crimes and misdemeanors'' had a fixed meaning to
the Framers of our Constitution--it meant wrongs committed
against our system of government. The impeachment clause was
designed to protect our country against a President who was
using his official powers against the nation, against the
American people, against our society. It was never designed to
allow a political body to force a President from office for a
very personal mistake.
4. Remember--this report is based entirely on allegations
obtained by a grand jury--reams and reams of allegations and
purported ``evidence'' that would never be admitted in court,
that has never been seen by the President or his lawyers, and
that was not subject to cross-examination or any other
traditional safeguards to ensure its credibility.
5. Grand juries are not designed to search for truth. They
do not and are not intended to ensure credibility, reliability,
or simple fairness. They only exist to accuse. Yet this is the
process that the Independent Counsel has chosen to provide the
``evidence'' to write his report.
6. The law defines perjury very clearly. Perjury requires
proof that an individual knowingly made a false statement while
under oath. Answers to questions that are literally true are
not perjury. Even if an answer doesn't directly answer the
question asked, it is not perjury if it is true--no accused has
an obligation to help his accuser. Answers to fundamentally
ambiguous questions also can never be perjury. And nobody can
be convicted of perjury based on only one other person's
testimony.
7. The President did not commit perjury. Most of the
illegal leaks suggesting his testimony was perjurious falsely
describe his testimony. First of all, the President never
testified in the Jones deposition that he was not alone with
Ms. Lewinsky. The President never testified that his
relationship with Ms. Lewinsky was the same as with any other
intern. To the contrary, he admitted exchanging gifts with her,
knowing about her job search, receiving cards and notes from
her, and knowing other details of her personal life that made
it plain he had a special relationship with her.
8. The President has admitted he had an improper sexual
relationship with Ms. Lewinsky. In a civil deposition, he gave
narrow answers to ambiguous questions. As a matter of law,
those answers could not give rise to a criminal charge of
perjury. In the face of the President's admission of his
relationship, the disclosure of lurid and salacious allegations
can only be intended to humiliate the President and force him
from office.
9. There was no obstruction of justice. We believe Betty
Currie testified that Ms. Lewinsky asked her to hold the gifts
and that the President never talked to her about the gifts. The
President admitted giving and receiving gifts from Ms. Lewinsky
when he was asked about it. The President never asked Ms.
Lewinsky to get rid of the gifts and he never asked Ms. Currie
to get them. We believe that Ms. Currie's testimony supports
the President's.
10. The President never tried to get Ms. Lewinsky a job
after she left the White House in order to influence her
testimony in the Paula Jones case. The President knew Ms.
Lewinsky was unhappy in her Pentagon job after she left the
White House and did ask the White House personnel office to
treat her fairly in her job search. He never instructed anyone
to hire her, or even indicated that he very much wanted it to
happen. Ms. Lewinsky was never offered a job at the White House
after she left--and it's pretty apparent that if the President
had ordered it, she would have been.
11. The President did not facilitate Ms. Lewinsky's
interview with Bill Richardson, or her discussions with Vernon
Jordan. Betty Currie asked John Podesta if he could help her
with her New York job search which led to an interview with
Bill Richardson, and Ms. Currie also put her in touch with her
longtime friend, Mr. Jordan. Mr. Jordan has made it clear that
this is the case, and, as a private individual, he is free to
offer job advice wherever he sees fit.
12. There was no witness tampering. Betty Currie was not
supposed to be a witness in the Paula Jones case. If she was
not called or going to be called, it was impossible for any
conversations the President had with her to be witness
tampering. The President testified that he did not in any way
attempt to influence her recollection.
13. There is no ``talking points'' smoking gun. Numerous
illegal leaks painted the mysterious talking points as the
proof that the President or his staff attempted to suborn the
perjury of Monica Lewinsky or Linda Tripp. The OIC's spokesman
said that the ``talking points'' were the ``key'' to Starr even
being granted authority to investigate the President's private
life. Yet in the end, Ms. Lewinsky has apparently admitted the
talking points were written by her alone [or with Ms. Tripp's
assistance], and the President was not asked one single
question about them in his grand jury appearance.
14. Invocation of privileges was not an abuse of power. The
President's lawful assertion of privileges in a court of law
was only made on the advice of his Counsel, and was in
significant measure validated by the courts. The legal claims
were advanced sparingly and as a last resort after all attempts
at compromise by the White House Counsel's office were rejected
to protect the core constitutional and institutional interests
of this and future presidencies.
15. Neither the President nor the White House played a role
in the Secret Service's lawful efforts to prevent agents from
testifying to preserve its protective function. The President
never asked, directed or participated in any decision regarding
the protective function privilege. Neither did any White House
official. The Treasury and Justice Departments independently
decided to respond to the historically unprecedented subpoenas
of Secret Service personnel and to pursue the privilege to
ensure the protection of this and future presidents.
16. The President did not abuse his power by permitting
White House staff to comment on the investigation. The
President has acknowledged misleading his family, staff and the
country about the nature of his relationship with Ms. Lewinsky,
and he has apologized and asked for forgiveness. However, this
personal failing does not constitute a criminal abuse of power.
If allowing aides to repeat misleading statements is a crime,
then any number of public officials are guilty of misusing
their office for as long as they fail to admit wrong doing in
response to any allegation about their activities.
17. The actions of White House attorneys were completely
lawful. The White House Counsel attorneys provided the
President and White House officials with informed, candid
advice on issues raised during this investigation that affected
the President's official duties. This was especially necessary
given the fact that impeachment proceedings against the
President were a possible result of the OIC's investigation
from Day One. In fact, throughout the investigation, the OIC
relied on the White House Counsel's office for assistance in
gathering information and arranging interviews and grand jury
appearances. The Counsel's office's actions were well known to
the OIC throughout the investigation and no objection was ever
voiced.
This means that the OIC report is left with nothing but the
details of a private sexual relationship, told in graphic
details with the intent to embarrass. Given the flimsy and
unsubstantiated basis for the accusations, there is a complete
lack of any credible evidence to initiate an impeachment
inquiry concerning the President. And the principal purpose of
this investigation, and the OIC's report, is to embarrass the
President and titillate the public by producing a document that
is little more than an unreliable, one-sided account of sexual
behavior.
Where's Whitewater? The OIC's allegations reportedly
include no suggestion of wrongdoing by the President in any of
the areas which Mr. Starr spent four years investigating:
Whitewater, the FBI files and the White House travel office.
What began as an inquiry into a 24 year old land deal in
Arkansas has ended as an inquest into brief, improper personal
encounters between the President and Monica Lewinsky. Despite
the exhaustive nature of the OIC's investigation into the
Whitewater, FBI files and travel office matters, and a constant
stream of suggestions of misconduct in the media over a period
of years, to this day the OIC has never exonerated the
President or the First Lady of wrongdoing.
PRELIMINARY MEMORANDUM CONCERNING REFERRAL OF OFFICE OF INDEPENDENT
COUNSEL
This document is intended to be a preliminary response to
the Referral submitted by the Office of Independent Counsel to
The Congress. Because we were denied the opportunity to review
the content, nature or specifics of the allegations made
against the President by the Office of Independent Counsel
(OIC), we do not pretend to offer a point-by-point refutation
of those allegations, or a comprehensive defense of the
President.
We commend the House of Representatives for the
extraordinary steps it has taken to safeguard the secrecy of
the OIC's allegations. Unfortunately, its efforts were thwarted
by unnamed sources familiar with the details of the OIC's
allegations--sources that could only come from the OIC itself--
who saw fit to leak elements of the allegations to the news
media.
Based on these illegal leaks, as well as our knowledge of
the President's testimony, we offer this document as a summary
outline of his side of the case. We will provide you with a
specific rebuttal as soon as we have had a chance to review the
materials that the OIC has already transmitted to you.
The simple reality of this situation is that the House is
being confronted with evidence of a man's efforts to keep an
inappropriate relationship private. A personal failure that the
President has acknowledged was wrong, for which he apologized,
and for which he accepts complete responsibility. A personal
failure for which the President has sought forgiveness from
members of his family, members of the Cabinet, Members of
Congress, and the American people. Such a personal failing does
not, however, constitute ``treason, bribery and high crimes and
misdemeanors'' that would justify the impeachment of the
President of the United States.
The President himself has described his conduct as wrong.
But no amount of gratuitous details about the President's
relationship with Ms. Lewinsky, no matter how salacious, can
alter the fact that:
(1) The President did not commit perjury;
(2) The President did not obstruct justice;
(3) The President did not tamper with witnesses; and
(4) The President did not abuse the power of his
office.
Impeachment is a matter of incomparable gravity. Even to
discuss it is to discuss overturning the electoral will of the
people. For this reason, the Framers made clear, and scholars
have long agreed, that the power should be exercised only in
the event of such grave harms to the state as ``serious
assaults on the integrity of the processes of government,'' or
``such crimes as would so stain a president as to make his
continuance in office dangerous to public order.'' Charles L.
Black, Impeachment: A Handbook 38-39 (1974). We do not believe
the OIC can identify any conduct remotely approaching this
standard. Instead, from press reports, if true, it appears that
the OIC has dangerously overreached to describe in the most
dramatic of terms conduct that not only is not criminal but is
actually proper and lawful.
The President has confessed to indiscretions with Ms.
Lewinsky and accepted responsibility and blame. The allegations
concerning obstruction, intimidation, perjury and subornation
of perjury that we anticipate from the OIC are extravagant
attempts to transform a case involving inappropriate personal
behavior into one of public misconduct justifying reversal of
the judgment of the electorate of this country.
I. Standards for Impeachment
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, Sec. 4. Of course, there is no suggestion
of treason or bribery present here. Therefore, the question
confronting the House of Representatives is whether the
President has committed a ``high Crime[ ] or Misdemeanor.'' The
House has an obligation to consider the evidence in view of
that very high Constitutional threshold. It should pursue the
impeachment process only if there is evidence implicating that
high standard.
The House must approach the question with solemnity and
with care, for history teaches that an ``impeachable offense''
is no ordinary kind of wrongdoing. The Framers included
specific provisions for impeachment in the Constitution itself
because they understood that the most severe political remedy
was necessary to remedy the most serious forms of public
wrongdoing. Impeachment is a basic constitutional safeguard,
designed both to correct harms to the system of government
itself and to protectthe people from ongoing malfeasance.
Nothing less than the gravest executive wrongdoing can justify
impeachment. The Constitution leaves lesser wrongs to the political
process and to public opinion.
Presidential impeachment is thus a matter of incomparable
gravity. As Professor Charles Black stated,
[t]he presidency is a prime symbol of our national
unity. The election of the president (with his
alternate, the vice-president) is the only political
act that we perform together as a nation; voting in the
presidential election is certainly the political choice
most significant to the American people, and the most
closely attended to by them. No matter, then, can be of
higher political importance than our considering
whether, in any given instance, this act of choice is
to be undone, and the chosen president dismissed from
office in disgrace. Everyone must shrink from this most
drastic of measures.
Impeachment: A Handbook 1 (1974). Presidential impeachment is
thus an ``awful step.'' Ibid. The Framers knew this. For that
reason they framed the constitutional procedure with precision
and specified grounds for impeachment with great care.
The Framers deliberately chose to make ``high Crimes and
Misdemeanors'' the standard of an impeachable offense. They
were familiar with English common law and parliamentary history
and they borrowed the expression directly from the English law
of impeachment. They did so knowing that the expression was a
term of art and they made the choice after deliberate rejection
of alternative formulations of the impeachment standard.
The Framers intended the 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.'' 1 The Framers plainly did
not intend to permit Congress to debilitate the executive by
authorizing impeachment for something short of the most serious
harm to the state. In George Mason's apt phrase, impeachment
was thought necessary to remedy ``[a]ttempts to subvert the
Constitution.''
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\1\ 2 Max Farrand, The Records of the Federal Convention of 1787
550 (Rev. ed. 1966).
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In English practice, the term ``high crimes and
misdemeanors'' had been applied to various offenses, the common
elements of which were their severity and the fact that the
wrongdoing was directed against the state.2 The
English cases included misappropriation of public funds,
interfering in elections, accepting bribes, neglect of duty,
and various forms of corruption. Ibid. 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 impeachable offense was injury to the state.''
3
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\2\ See Raoul Berger, Impeachment: The Constitutional Problems, 67-
73 (1973).
\3\ Michael J. Gerhardt, The Constitutional Limits to Impeachment
and Its Alternatives, 68 Tex. L. Rev. 1, 82 (1989) (emphasis added).
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That is why, at the time of the ratification debates,
Alexander Hamilton described impeachment as a ``method of
NATIONAL INQUEST into the conduct of public men.'' The
Federalist No. 65 at 331 (Gary Wills ed. 1982). This
``inquest'' is perhaps the gravest process known to our
Constitution. No act touches morefundamental questions of
constitutional government than does the process of Presidential
impeachment. No act more directly affects the public interest. No act
presents the potential for greater injustice--injustice both to the
Chief Executive and to the people who elected him.
For these reasons, the impeachment process must be
painstaking and deliberate. It must focus only on such harms as
the Framers intended to be redressed by the incomparably severe
act of impeachment. And most importantly, it must be understood
for what it is--a process of inquiry. That process is itself
the exercise of a public trust ``of delicacy and magnitude.''
4 Accordingly, if the process is begun it is only
just that the members engaged in this solemn task withhold
judgment until the process is complete and all the facts are
known. Our Constitution's most basic values and the
requirements of simple justice together demand no less.
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\4\ Joseph Story, Commentaries on the Constitution Sec. 745 (1st
Ed. 1833); Federalist 65 at 331.
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The President is sole head of one branch of our
government--indeed, in a certain sense the President is the
Executive Branch. The Constitution provides that ``[t]he
executive Power shall be vested in a President of the United
States of America.'' U.S. Const. art. II, Sec. 1. The President
is the only government official to have been popularly elected
by all the American people. When the people elect a President,
the popular will is expressed in its most important, most
visible and most unmistakable form.5 The impeachment
process, by definition, threatens to undo the popular will.
Impeachment presents the prospect of reversing the electoral
mandate that brought the executive to office. Conviction upon
articles of impeachment actually does so.
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\5\ Of course that election takes place through the mediating
activity of the Electoral College. See U.S.Const. art. II, Sec. 1,
cl.2-3 and amend. XII.
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For these reasons, impeachment is limited to only certain
forms of potential wrongdoing 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 which 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.
Federalist 65 at 330-31.
The Framers and early commentators on the Constitution are
in accord on the question of impeachment's intended
consequence. In Justice James Wilson's words, impeachments are
``proceedings of a political nature . . . confined to political
characters'' charging only ``political crimes and
misdemeanors'' and culminating only in ``political
punishments.'' J. Wilson, Works 426 (R. McCloskey, ed. 1967)
And as Justice Story put the matter, ``the [impeachment] power
partakes of a political character, as it respects injuries to
the society in its political character.'' Joseph Story,
Commentaries on the Constitution Sec. 744 (1st Ed.
1833).6 That understanding of the Framers and early
commentators reflected the historical understanding of
impeachable offenses in England. `` `High crimes and
misdemeanors' were a category of political crimes against the
state.'' Berger, Impeachment, at 61 (emphasis in original).
Therefore, the Framers ``intended that a president be removable
from office for the commission of great offenses against the
Constitution.'' 7
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\6\ At the time of the Constitution's framing, ``[c]ognizable `high
Crimes and Misdemeanors' in England, . . . generally concerned
perceived malfeasance--which may or may not be proscribed by common law
or statute--that damaged the state or citizenry in their political
rights.'' Julie O'Sullivan, The Interaction Between Impeachment and the
Independent Counsel Statute, 86 Geo. L.J. 2193, 2210 (1998) (emphasis
added) (forthcoming).
\7\ John R. Labovitz, Presidential Impeachment 94 (1978).
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Impeachment therefore addresses public wrongdoing, whether
denominated a ``political crime[ ] against the state,''
8 or ``an act of malfeasance or abuse of office,''
9 or a ``great offense[s] against the federal
government.'' 10 In short, impeachment is a
necessary Constitutional check by a coordinate branch of
government upon serious and aggravated abuses of executive
power that, given the President's four-year term, might
otherwise go unchecked.
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\8\ Berger, Impeachment at 61.
\9\ Ronald D. Rotunda, An Essay on the Constitutional Parameters of
Federal Impeachment, 76 Ky. L.J. 707, 724 (1987/1988).
\10\ Gerhardt, 68 Tex. L. Rev. at 85.
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Holders of public office are therefore not to be impeached
for private conduct, however wrongful. To the contrary, only
``serious assaults on the integrity of the processes of
government,'' 11 and ``such crimes as would so stain
a president as to make his continuance in office dangerous to
public order'' 12 should constitute impeachable
offenses. Conduct which is not an ``offense[ ] against the
government,'' 13 or ``malfeasance or abuse of
office,'' 14 and which bears no ``functional
relationship'' 15 to public office, does not
constitute grounds for impeachment. Allegations concerning
private conduct--private sexual conduct in particular--simply
do not implicate high crimes or misdemeanors.
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\11\ Charles L. Black, Impeachment: A Handbook 38-39 (1974).
\12\ Id.
\13\ Labovitz at 26.
\14\ Rotunda at 726.
\15\ Id.
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Private misconduct, or even public misconduct short of an
offense against the state, 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 their public trust and duties.'' Story,
Commentaries Sec. 744 (emphasis added). Impeachment is a
political act in the sense that its aims are public; it
attempts to rein in abuses of the public trust committed by
public officeholders in connection with conduct in public
office. As one scholar has 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 public office--and the ultimate issue to be
resolved--whether they have forfeited through that conduct
their right to continued public trust.'' 16
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\16\ Julie O'Sullivan, The Interaction Between Impeachment and the
Independent Counsel Statute, 86 Geo. L.J. at 2220.
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Impeachment's public character is further evidenced by the
fact that, as Justice Story expressed it, the process is
conducted ``by the representatives of the nation, in their
public capacity,'' and ``in the face of the nation.'' Story,
Commentaries Sec. 686. Constitutionally, impeachment's public
function demands public accountability. Elected officials are
no more qualified than ordinary voters to assess the private
wrongs of public officeholders. The Constitution's impeachment
mechanism does not exist to punish such wrongs.
The public character of impeachable wrongs is also
reflected in the fact that the remedy imposed for commission of
impeachable acts is a wholly public one. Impeachment results in
removal from office and possible disqualification from further
office. U.S. Const. art. I, Sec. 3, cl. 7.
To say that impeachment is fundamentally a ``political''
process, however, is not to say that it is ``partisan'' in
nature. Indeed, the Framers warned against the spirit of
partisanship in impeachment proceedings. In Federalist 65,
Hamilton wrote that the impeachment process threatened to
``agitate the passions of the whole community . . . to divide
it into parties . . . [to] connect itself with pre-existing
factions [and] to enlist their animosities, partialities,
influence and interest.'' Id. at 331. Justice Story warned of
the danger that ``the decision [to impeach] will be regulated
more by the comparative strength of the parties, than by the
strength of the proofs.'' Commentaries Sec. 744. Only
substantial evidence of presidential wrongdoing that threatened
the processes of government or the public order can justify
this grave and ideally bipartisan process.
What is ultimately intended by impeachment's truly
``political'' nature is the manner of limitation the
Constitution allows one elected (political) branch to place on
the other elected (political) branch, the Presidency.
Impeachment is necessarily a public act conducted by public
bodies (the Houses of Congress exercising their
constitutionally allotted portion of impeachment power) against
a public officeholder (here, the President). Exercise of that
limiting function is justified only when the people's
representatives conclude that the people themselves must be
protected from their own elected executive.
Impeachment must therefore be approached with the utmost
solemnity. The process must focus on public acts, performed in
the President's public capacity, and affecting the public
interest. Cognizant of the enormous harm that must follow the
bare suggestion of formal impeachment processes, the House
should pursue an impeachment inquiry if and only if there is
credible evidence of actions constituting fundamental injuries
to the governmental process. Indeed, the Committee should
consider and approve articles of impeachment only for such acts
as have,in its judgment, so seriously threatened the integrity
of governmental processes as to have made the President's continuation
in office a threat to the public order.
Impropriety falling short of that high standard does not
meet the constitutional measure. It must be left to the court
of public opinion and the judgment of history.
II. The Relevant Factual Background
The Monica Lewinsky investigation is the most recent phase
of an amorphous, languorous, expensive, and seemingly
interminable investigation into the affairs of a small Arkansas
real estate firm, Whitewater Development Company, Inc. In
January, 1994, Attorney General Reno made an administrative
appointment (the Ethics in Government Act of 1978 having
expired) of Robert B. Fiske, Jr., to investigate the
relationship of the President and Mrs. Clinton to Whitewater,
Madison Guaranty Savings & Loan Association, and Capital
Management Services. After the reenactment of the Ethics in
Government Act, the Special Division for the Purpose of
Appointing Independent Counsels of the Court of Appeals
appointed Kenneth W. Starr, a former high official in two
Republican administrations, to replace Mr. Fiske on August 5,
1994, and gave him a generally similar grant of investigatory
jurisdiction.
During the past four and a half years, the President has
cooperated extensively with this investigation. He has given
testimony by deposition at the White House to the Independent
Counsel on four separate occasions, and on two other occasions,
he gave videotaped deposition testimony for Whitewater
defendants and was cross-examined by the Independent Counsel.
He has submitted written interrogatory answers, produced more
than 90,000 pages of documents and other items, and provided
information informally in a variety of ways. The OIC subpoenaed
from the President, and reviewed, virtually every personal
financial record and gubernatorial campaign finance record that
exists for the period from the mid-1980s to the present, in its
endless search to find something to use against the President.
This comprehensive and thorough financial review yielded the
OIC nothing.
In May 1994, President Clinton was sued civilly by Ms.
Paula Jones, who made various claims arising out of an
encounter on May 8, 1991, when the President was Governor of
Arkansas. Various constitutional questions were litigated, and
it was not until the Supreme Court's decision on May 27, 1997
17 that the case proceeded to discovery. The
Independent Counsel had no jurisdiction with respect to the
Jones case, but there were occasional press reports that the
OIC was in fact investigating the President's personal
life.18
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\17\ Clinton v. Jones, ________ U.S. ________, 117 S.Ct. 1636
(1997).
\18\ See, e.g., ``Starr Probes Clinton Personal Life--Whitewater
Prosecutors Question Troopers About Women,'' The Washington Post (June
25, 1997), at A1.
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III. The President's Testimony About Ms. Lewinsky
In his grand jury testimony on August 17, 1998, the
President acknowledged having had an improperly intimate
relationship with Ms. Lewinsky. This is enormously difficult
for any person to do even in private, much less in public.
It is important to recognize that the improper relationship
with Ms. Lewinsky ended in early 1997, at the President's
behest. It therefore had been over for almost a year at the
time of the President's deposition in the Jones case. From
feelings both of friendship and responsibility, the President
remained in touch with Ms. Lewinsky after the improper
relationship ended and tried to help her: none of this help was
improper or conditioned on her behaving (or testifying) in any
particular way.
It is not true that the President had an improper 18-month
relationship with Ms. Lewinsky, as several media reports have
alleged. In his grand jury deposition, he testified that on
certain occasions in early 1996 and once in early 1997, he
engaged in improper conduct with Ms. Lewinsky. These encounters
did not consist of sexual intercourse, and they did not consist
of ``sexual relations'' as he understood that term to be
defined at his Jones deposition on January 17, 1998 (explained
infra), but they did involve inappropriate intimate contact.
These inappropriate encounters ended, at the President's
insistence, in early 1997, not because of the imminence of
discovery, not because of the Jones case (which the Supreme
Court had not yet decided), but because he knew they were
wrong. On August 17, 1998, the President expressed regret to
the grand jury and, later, to the country, that what began as a
friendship came to include this conduct, and he took full
responsibility. He has frequently, to different audiences, made
similar expressions of regret and apology.
In this investigation, no stone has been left unturned--or
(we believe) unthrown. In simple fairness, therefore, it is
important to distinguish between what the President has
acknowledged and what the OIC merely alleges (on the basis of
evidence we have not yet seen).
IV. The Nature of the OIC'S Evidence
Use of a federal grand jury to compile evidence for
possible impeachment proceedings in Congress raises numerous
troubling questions regarding the credibility of that evidence.
Indeed, given the limited role of a grand jury in our system
and the total absence of procedural protections in the process,
the Independent Counsel's insistence that his investigation has
been a search for ``truth'' is deeply misleading. In fact, it
has been a one-sided effort to present the worst possible
version of a limited set of facts.
Section 595(c) requires the OIC to provide the House with
``substantial and credible information . . . that may
constitute grounds for impeachment.'' But a grand jury is a
totally unsuitable vehicle for generating information that can,
without more, be taken as credible beyond challenge. The grand
jury's historic role is not to determine the truth but rather
to act as an accusatory body. United States v. Williams, 504
U.S. 36, 51 (1992). The process excludes contrary views of the
information gathered and fails to identify the kinds of
exculpatory information that might have been elicited or
presented had a targeted individual, and not just the OIC, had
an opportunity to cross-examine and the ability to compel
responses.
Because it is inherently so one-sided and untested by
cross-examination, it normally is not permissible to use grand
jury testimony as a basis for anything other than permitting a
grand jury to indict or decline to indict. It may constitute
nothing more than hearsay, Costello v. United States, 350 U.S.
359, 364 (1956), or even multiple hearsay--evidence which would
likely be excluded from a trial. Indeed, the information a
grand jury gathers is not circumscribed by the Federal Rules of
Evidence at all, see Fed. R. Evid. 1101(d)(2), nor delimited by
the other safeguards of reliability which would be enforced at
trial. The testimony a grand jury elicits is not subject to
impeachment by interested parties, and such testimony may come
from immunized witnesses, from witnesses who fear prosecution,
from witnesses prepared by the prosecution, from witnesses with
a history of untruthfulness--or from disinterested witnesses.
On the record of the grand jury there need be no distinction
among these sources, despite the fact that their reliability
varies greatly.
In its day-to-day operations, no judge presides over grand
jury proceedings. United States v. Williams, 504 U.S. 36, 48
(1992). Grand jury witnesses do not have counsel present. Fed.
R. Crim P. 6(d). The Double Jeopardy Clause does not prevent a
grand jury from returning an indictment after a first grand
jury has declined to do so. Ex Parte United States, 287 U.S.
241, 250-51 (1932). The exclusionary rule does not apply to
grand jury proceedings. United States v. Calandra, 414 U.S.
338, 349 (1974). Grand jury witnesses have no right to respond
with information, however related, if it is not called for by
the prosecution, and targets and subjects of its inquiry have
no compulsory process to gather and present their side of the
matter. Nor does the target of a grand jury inquiry have any
right to offset potentially incriminating information with
exculpatory information in his possession. Williams, 504 U.S.
at 55. In short, the most basic techniques our adversary system
of justice employs for testing and assuring the reliability of
evidence are completely missing in the grand jury context.
As a consequence, ``reliability'' simply is not the
touchstone of a grand-jury inquiry. The Supreme Court itself
has said that ``the mere fact that evidence is unreliable is
not sufficient to require a dismissal of [an] indictment.''
Bank of Nova Scotia v. United States, 487 U.S. 250, 261 (1988).
The same is true of ``inadequate or incompetent'' evidence. Its
presence will not justify dismissal of an indictment. Calandra,
414 U.S. at 345; see also Holt v. United States, 218 U.S. 245
(1910) (same).
It must therefore be recognized that it is not the grand
jury's function to provide information about anything that can
be taken as true on its face. Its function is not to get atthe
ultimate truth. The grand jury's inquisitorial powers serve but one
end: to empower a body of citizens to make a threshold decision whether
to initiate the search for truth that is the purpose of adversarial
proceedings or to decline to indict and thereby forego that search
altogether. Only after the grand jury renders that threshold decision
does the search for truth really commence because only then are the
adversary system's credibility-assessing mechanisms available.
The grand jury secrecy rule, Rule 6(e), Fed. R. Crim. P.,
is justified--indeed, mandated--by this reality. Grand jury
information is to be kept secret largely because it has been
generated without the protections of the adversarial system.
Unlike information presented in a trial setting, grand jury
information presents an enormous risk that persons' reputations
will be injured or destroyed on the basis of non-credible or
insubstantial assertions. That harm may damage both witnesses
and persons who are subjects of witness testimony. That is why,
when a grand jury elects to indict, grand jury materials are
sealed and withheld from the petit jury ultimately convened to
find the truth and render a verdict.
Accordingly a fair report from the OIC would, inter alia,
provide all exculpatory evidence, assess the credibility of
witnesses in terms of bias, reason to falsify, prior
inconsistent statements, etc., and draw reasonable inferences.
A fair report would identify shortcomings in the investigation
itself, including any excesses, mistakes, errors in judgment,
or impermissible tactics. A fair report would demonstrate that
every possible effort had been made to identify all possibly
exculpatory evidence, and that all such evidence had been given
appropriate weight. And a fair report would address honestly
and answer truthfully the following questions:
(1) What were Linda Tripp's motives in seeking out the OIC
in January, 1998? Did she articulate a fear of being prosecuted
in Maryland under that State's anti-taping laws? Why did she
request immunity from prosecution? Why was she given immunity?
(2) What role did the OIC play in arranging for Ms. Tripp
to meet with the Jones lawyers on Friday, January 16, 1998, the
evening before the President's deposition? Did anyone from the
OIC drive Ms. Tripp to this meeting? Did the OIC warn Ms. Tripp
about the criminal law pertaining to sharing with third parties
the fruits of illegal tapings or even communicating the fact
that illegal tapes exist? Has anyone at the OIC made any
assessment of what impact Ms. Tripp's conduct might have on any
federal immunity deal Ms. Tripp might have obtained from the
OIC?
(3) What authority did the OIC have to wire Linda Tripp and
attempt to develop evidence before obtaining permission to
expand its jurisdiction from the Attorney General or the
Special Division? What prevented the OIC from going directly to
the Attorney General upon receiving the tapes from Ms. Tripp?
If the primary basis for the expansion of the OIC's
jurisdiction was evidence that was obtained in an ultra vires
manner by the OIC, does that taint other information obtained
by the OIC?
(4) What assessment has the OIC made of Ms. Tripp's
ideological motivations? Was the OIC aware she had submitted an
anti-Clinton book proposal to avowed Clinton hater Lucianne
Goldberg? Was the OIC aware of Goldberg's role in Ms. Tripp's
taping and arrangement for Ms. Lewinsky's use of a messenger
service?
(5) How many statements on the Tripp-Lewinsky tapes are
false or exaggerated? How many statements contradict assertions
in the OIC's report?
(6) When Ms. Tripp was asked to record Ms. Lewinsky
surreptitiously, was this because the OIC was concerned about
the legality of Ms. Tripp's previous telephone tapes of Ms.
Lewinsky?
(7) What was Ms. Tripp's motivation in initiating the
surreptitious recording of her conversations with Ms. Lewinsky?
Did Tripp steer the taped conversations with Ms. Lewinsky to
obtain details about Ms. Lewinsky's sexual activities? Was the
taping connected in any way to her relationship with Lucianne
Goldberg? If Ms. Tripp began to tape Ms. Lewinsky with an
unlawful purpose, did she commit a violation of the federal
wiretapping statute (Title III)? If the tapes were obtained in
violation of federal law, can the tapes or evidence derived
from them be part of any official proceeding in Congress (see
18 U.S.C. Sec. 2515)?
(8) What, if anything, did the OIC offer the press to keep
secret its investigation into Ms. Lewinsky?
(9) Why was the OIC in such haste to petition the Attorney
General for an expansion of jurisdiction? Precisely what was
the Attorney General told about Ms. Tripp's telephone taping of
Ms. Lewinsky? Did the ``talking points'' play any role in the
application? What particular alleged crimes did the OIC seek
authorization to investigate?
(10) Ms. Lewinsky's lawyers, William Ginsburg and Nathaniel
Speights, wrote in an essay in Time (Feb. 16, 1998) that the
OIC informed them on Friday, January 16, 1998, ``We've got a
deal, and we want to wire her and record some phone calls;''
these lawyers also wrote in that essay that ``[The OIC] wanted
her [Ms. Lewinsky] wired, and they wanted her to record
telephone calls with the President of the U.S., Vernon Jordan
and others--at their will.'' What persons did the OIC intend
Ms. Lewinsky to record surreptitiously?
(11) In a letter from the Independent Counsel to the
President's personal counsel, dated February 6, 1998, the
Independent Counsel wrote: ``From the beginning, I have made
the prohibition of leaks a principal priority of the Office. It
is a firing offense, as well as one that leads to criminal
prosecution.'' However, Chief Judge Johnson has entered a
series of orders finding prima facie reason to believe that
persons in the OIC violated Rule 6(e), Fed. R. Crim. P., by
illegal leaking (for example, ``[t]he Court finds that the
serious and repetitive nature of disclosures to the media of
Rule 6(e) material strongly militates in favor of conducting a
show cause hearing'' (June 19, 1998, Order, at 5)). Has anyone
been fired or disciplined by the OIC for illegal leaking? What
steps have been taken to investigate and discipline OIC
personnel who have engaged in illegal leaking?
V. Likely OIC Allegations of Obstruction of Justice, Subornation of
Perjury, and Intimidation of Witnesses
The OIC obtained jurisdiction on January 16, 1998 to
investigate possible obstruction of justice, subornation of
perjury, and intimidation of witnesses in the Jones case. These
crimes are quite specifically defined in the law, and the
elements do not always have an obvious meaning. We consider
first the definition and then the possible conduct to which
these definitions might be applied.
The term ``obstruction of justice'' usually refers to
violations of 18 U.S.C. Sec. 1503, the ``Omnibus Obstruction
Provision,'' which prohibits the intimidation 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. Sec. 1512, which proscribes
intimidating, threatening, or corruptly persuading, through
deceptive conduct, a person in connection with an official
proceeding.
For a conviction under Sec. 1503, the government must prove
that there was a pending judicial proceeding, that the
defendant knew of the proceeding, and that the defendant
acted``corruptly'' with the specific intent to obstruct or interfere
with the proceeding or due administration of justice. See, e.g., United
States v. Bucey, 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 Sec. 1503. See, e.g., United States
v. Brown, 688 F.2d 1391, 1400 (9th Cir. 1992). Perhaps more 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). Four
federal courts of appeals have held that to ``act corruptly'' under the
statute, a defendant must have acted with the specific intent to
obstruct justice. See United States v. Moon, 718 F.2d 1219, 1236 (2d
Cir. 1983); 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 knew 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 Sec. 1503. First, false statements or testimony alone
cannot sustain a conviction under Sec. 1503. See United States
v. Thomas, 916, F.2d 647, 652 (11th Cir. 1990); United States
v. Rankin, 870 F.2d 109, 111 (3d Cir. 1989). For instance, in
United States v. Wood, 6 F.3d 692, 697 (10th Cir. 1993), the
United States Court of Appeals for the Tenth Circuit found that
a defendant's false statements to the Federal Bureau of
Investigation during a grand jury investigation did not violate
Sec. 1503, because they did not have the natural and probable
effect of impeding the due administration of justice. Moreover,
Sec. 1503 does not apply to a party's concealing or withholding
discoverable documents in civil litigation. See, e.g., Richmark
v. Timber Falling Consultants, 730 F. Supp. 1525, 1532 (D. Or.
1990) (because of the remedies afforded by the Federal Rules of
Civil Procedure, Sec. 1503 does not cover party discovery in
civil cases, and ``[t]he parties have not cited and the court
has not found any case in which a person was charged with
obstruction of justice for concealing or withholding discovery
in a civil case'').\19\ Most cases that have found Sec. 1503
applicable to civil cases do not involve the production 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 Richmark, 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. While Sec. 1503 can apply to concealment of
subpoenaed documents in a grand jury investigation, 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 conceal 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 (7th Cir. 1984).
---------------------------------------------------------------------------
\19\ Cf. United States v. Lundwall, 1 F. Supp. 2d 249, 251-54
(S.D.N.Y. 1998) (noting that ``[c]ases involving prosecutions for
document destruction during civil pre-trial discovery are notably
absent from the extensive body of reported Sec. 1503 case law,'' and
that ``there are a great many good reasons why federal prosecutors
should be reluctant to bring criminal charges relating to conduct in
ongoing civil litigation,'' but concluding that systematic destruction
of documents sought during discovery should satisfy Sec. 1503).
---------------------------------------------------------------------------
Section 1512 specifically applies to ``witness tampering.''
However, by its terms, it does not purport to reach all forms
of witness tampering, but only tampering by specified means. In
order to obtain a conviction under Sec. 1512, the government
must prove that a defendant knowingly engaged in intimidation,
physical force, threats, misleading conduct, or corrupt
persuasion with intent to influence, delay, or prevent
testimony or cause any person to withhold objects or documents
from an official proceeding. While there is no ``pending
proceeding'' requirement for convictions under Sec. 1512, it is
clear that a defendant must be aware of the possibility of a
proceeding and his efforts must be aimed specifically at
obstructing that proceeding, whether pending or not; Sec. 1512
does not apply to defendants' innocent remarks or other acts
unintended to affect a proceeding. See United States v. Wilson,
565 F. Supp. 1416, 1431 (S.D.N.Y. 1983).
Moreover, it is important to define the terms ``corruptly
persuade'' and ``misleading conduct,'' as used in Sec. 1512.
The statute itself explains that ``corruptly persuades'' does
not include ``conduct which would be misleading conduct but for
a lackof a state of mind.'' 18 U.S.C. Sec. 1515(a)(6). It is
also clear from the caselaw that ``misleading conduct'' does not cover
scenarios where the defendant urged a witness 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
mislead 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 Sec. 1512).
Subornation of perjury is addressed in 18 U.S.C. Sec. 1622.
The elements of subornation are that the defendant must have
persuaded another to perjure himself, 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. 529 (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
applying Bronston, witness did not commit perjury due to his
literally truthful testimony). Moreover, Sec. 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 the
suborner's belief that the testimony sought is in fact
false'').
Based upon illegal OIC leaks and press reports, we believe
that the OIC's principal claims of obstruction, intimidation
and subornation--the three prongs of the January 1998 expansion
of jurisdiction--appear to arise out of:
(1) ``Talking Points''
The so-called ``talking points'' \20\ have been widely
hailed as the linchpin of any charge of subornation of perjury
or obstruction of justice. Not only were they touted as the
``smoking gun'' of the investigation, they were instrumental in
the OIC efforts to secure an expansion of its jurisdictional
authority. Charles Bakaly, the OIC spokesman, appearing on Meet
the Press, emphasized the critical nature of this document to
the expansion of the OIC jurisdiction:
---------------------------------------------------------------------------
\20\ The term ``talking points'' refers to a document apparently
provided by Ms. Lewinsky to Ms. Tripp in January 1998 regarding
possible testimony in the Jones case.
Tim Russert. How important is it that we find out who
is the author of those talking points?
Charles Bakaly. Well, in the grant of jurisdiction
that the special division of the D.C. Circuit Court of
Appeals gave to Judge Starr after the request of the
Attorney General, that was the key mandate to look
into, those kinds of issues of subornation of perjury
and obstruction of justice.
NBC Meet the Press, July 5, 1998 (emphasis added).
The ``talking points'' were the basis of thinly veiled
smears, groundless speculation, and allegations against
President Clinton, White House aides and others close to the
President:
``And NBC News has learned more about another
critical piece of evidence. A memo first discovered by
Newsweek that Linda Tripp claims was given to her by
Monica Lewinsky. . . . Sources in Starr's office and
close to Linda Trippsay they believe the instructions
came from the White House. If true, that could help support a case of
obstruction of justice.''--NBC Nightly News, February 4, 1998.
``Prosecutors suspect the President and his longtime
friend, Vernon Jordan, tried to cover up allegations
that Mr. Clinton was involved sexually with former
White House intern Monica Lewinsky and other women--
which is why this document, obtained last night by NBC
News, could be a smoking gun. It's called `Points to
Make in Affidavit.' Prosecutors say it might as well be
called `How to Commit Perjury in the Paula Jones Case.'
''--NBC News at Sunrise, January 22, 1998.
``A three page summary telling Linda R. Tripp how to
lie in the Paula Jones sexual misconduct lawsuit
remains a key reason why independent counsel Kenneth
Starr wants to question top White House aides in the
Monica Lewinsky sex-and-lies grand jury investigation.
Mr. Starr, according to lawyers and other close to the
grand jury probe, wants to know what White House Deputy
Counsel Bruce R. Lindsey and senior aide Sidney
Blumenthal know about the source of the summary, or
`talking points,' that were given to Mrs. Tripp by Miss
Lewinsky, the former White House intern. The summary,
which prosecutors are convinced was not written by Miss
Lewinsky, could corroborate accusations of a White
House attempt to obstruct justice and suborn perjury in
the Jones suit, sources said.''--Washington Times, May
18, 1998.
``Because of Lindsey's earlier discussions with Tripp
about the Willey incident, prosecutors appear to be
trying to learn whether he had any role in helping
Lewinsky prepare the three-page document. Lindsey, who
has been summoned to the grand jury twice, has denied
any connection to the talking points.''--Washington
Post, March 10, 1998.
`` `If the author of the talking points is anywhere
near the president,' said Jonathan Turley, law
professor at George Washington University in
Washington, `this case will take a dramatic turn
against the White House.' ''--USA Today, July 1, 1998.
``The document has emerged as possible evidence of
obstruction of justice as Starr investigates whether
Clinton or his associates made attempts to conceal the
president's encounters with women.''--USA Today, June
29, 1998.
``Based largely on two pieces of evidence--those
talking points and the secret tapes made by Ms. Tripp
of her conversations with Ms. Lewinsky--Mr. Starr is
trying to determine whether the President, Mr. Jordan,
Ms. Lewinsky or others set about to obstruct justice in
the Jones case by lying, concealing evidence and
tampering with witnesses. These are the central charges
in the case, and the participants' versions appear to
diverge.''--New York Times, March 7, 1998.
``Starr wants to find out if anyone in the White
House was involved in preparing the talking points.''--
The Plain Dealer, February 19, 1998.
``The evidence that strikes dread in the White House
is a three-page document called `the talking points.' .
. . The author of the talking points will most likely
be found, is in real danger of going to jail and may
not want to go alone for long.''--William Safire, New
York Times, February 12, 1998.
The memo is a critical piece of evidence to
Whitewater independent counsel Kenneth Starr because it
could be proof of an effort to induce Tripp to lie
under oath. Starr's investigators are exploring whether
anyone close to Clinton prepared or knew about the
talking points.--USA Today, February 6, 1998.
And the ``talking points'' were regarded throughout the
investigation as the critical piece of evidence in any charge
of subornation of perjury or obstruction of justice:
``It seems clear that Starr's focus is now on
building a case that Clinton or his agents tried to
sway the testimony of witnesses in the Jones case. A
critical piece of evidence is the `talking points' memo
that Lewinsky gave her friend Linda Tripp, apparently
advising Tripp on how to fudge her testimony. The
document is the only known physical evidence of witness
tampering, and its authorship remains one of the great
mysteries of the Lewinsky matter.''--Chicago Tribune,
April 3, 1998 (emphasis added).
``The talking points, which seemed intended to coach
Ms. Tripp in possible testimony about Mr. Clinton, are
central to Mr. Starr's effort to determine whether
obstruction of justice occurred.''--New York Times,
July 27, 1998.
``Prosecutors regard the legalistic, three-page
talking points--intended to guide Tripp's testimony in
the Jones lawsuit--as a key piece of evidence in a
possible case of obstruction of justice. . . . `Anyone
who wrote a document like that is out of is mind,' one
prosecutor said. `Those talking points are the smoking
gun.' ''--Pittsburgh Post-Gazette, February 8, 1998
(emphasis added).
``Leakers from the Starr chamber have implied that
the talking points are instructions to lie. But lawyers
routinely give there clients talking points before a
grand jury. The Lewinsky case is about something else,
spelled S-E-X.''--Clarence Page, Sun-Sentinel, June 4,
1998 (emphasis added).
``But a three page document known as the `talking
points' may prove to be the most important . . . `The
talking points are the closest thing to a smoking gun
in this case . . .' legal scholar Paul Rothstein said
Tuesday.''--USA Today, July 1, 1998.
``The talking points memorandum and the Tripp-
Lewinsky tapes form the backbone of the independent
counsel's inquiry into whether anyone lied or
obstructed justice over Ms. Lewinsky's relationship
with President Clinton.''--New York Times, June 11,
1998.
``The talking points memo, whose authorship is
unknown, is of keen interest to Starr.''--Baltimore
Sun, February 26, 1998.
``It is unclear who wrote the talking points and
whether they were given to Ms. Tripp on Jan. 14 to
encourage her to give false testimony in the Paula
Corbin Jones sexual misconduct lawsuit against the
President. These are questions of intense interest to
the independent counsel Kenneth W. Starr, said lawyers
close to his investigation. . . . The talking points
could be an important piece of physical evidence
showing that there were unlawful efforts to encourage
false testimony in the Jones case.''--New York Times,
February 19, 1998.
``That suggests one particular piece of evidence will
play a huge role: the list of written talking points
Lewinsky gave her friend Linda Tripp on how to testify
in the Paula Jones sexual harassment case. Who wrote
the document is one of the key questions, whoever did
could be charged with obstruction of justice.''--
Chicago Tribune, February 15, 1998.
After all of the rumor and speculation regarding a
connection between the White House and the ``talking points,''
President Clinton was not asked one single question relating to
the talking points during his August 17 deposition. Ms.
Lewinsky is reported to have testified that she wrote the
document without any assistance other than conversations she
had with Linda Tripp. In the venerable tradition of Whitewater
allegations, the ``talking points'' were surfaced as important
and damning evidence of wrongdoing, but in the fullness of time
and after investigation, have apparently vanished entirely.
Only the stigma remains.
(2) Ms. Lewinsky's Transfer of Gifts to Betty Currie
The President frequently gives gifts to and receives gifts
from friends and supporters; he gave Ms. Lewinsky the same kind
of gifts he has shared with others. He was not concerned about
the Jones lawyers' knowledge of the gifts. In the Jones
deposition, he acknowledged knowing Ms. Lewinsky, acknowledged
seeing her, acknowledged she had given him gifts, and
acknowledged he had given her gifts. Moreover, in his grand
jury testimony, he acknowledged giving Ms. Lewinsky good-bye
gifts on December 28, 1997, shortly before she moved to New
York, a date which we believe to be after Ms. Currie picked up
the box of gifts from Ms. Lewinsky. The gifts simply were not a
concern to him.
It is our understanding that Ms. Lewinsky may have
testified that she raised with the President a concern about
theJones lawyers' request for gifts from the President and
that, shortly thereafter, Ms. Currie appeared at her home stating that
she understood Ms. Lewinsky had something for her. Ms. Lewinsky
apparently testified that she then provided to Ms. Currie for
safekeeping a box containing some of the gifts received from the
President.
For Ms. Lewinsky's account to be credible, Ms. Currie must
have been asked by the President to contact Ms. Lewinsky for
the box. However, her account conflicts directly both with that
of the President and with what we believe to be Ms. Currie's
testimony. The President told Ms. Lewinsky she would have to
produce what she had in response to a request. He did not ever
suggest that gifts from him should be disposed of, and he did
not ever ask or instruct Ms. Currie to pick up the gifts from
Ms. Lewinsky. We believe that Ms. Currie's testimony
corroborates this recollection. Ms. Currie has apparently
testified that Ms. Lewinsky initiated the contact with her
about the box, asking Ms. Currie to come by her apartment
building, giving a sealed box to her, and asking her to hold on
to it. Ms. Currie has no knowledge that the President ever even
knew about the box prior to public disclosures about it, and
the President testified that he did not learn about the box
until after the OIC investigation became public.
(3) Job Assistance to Ms. Lewinsky
The President made certain efforts to try to assure that
Ms. Lewinsky had a fair shot at a job other than her Pentagon
position, where she was not happy, and he generally was aware
of other efforts by his secretary Ms. Currie and his friend Mr.
Jordan. These actions were totally appropriate. At no time did
the President ask that Ms. Lewinsky be accorded specially
favorable or unfavorable treatment because of his relationship
with her or for any other reason. These actions began well
before Ms. Lewinsky was ever named a witness in the Jones
litigation, and they were in no way intended to influence Ms.
Lewinsky to keep secret what was at that time an already
terminated relationship. There is no evidence of any link
whatsoever between the President's actions and possible
testimony by Ms. Lewinsky in the Jones case.
In April 1996, Ms. Lewinsky was reassigned from the White
House to the Pentagon. Although the transfer was viewed as a
promotion, the President became aware that Ms. Lewinsky was
upset about it, did not see it as a positive change, and feared
that the transfer would be appear to be a demotion or ``black
mark'' on her resume. To the extent that Ms. Lewinsky was
criticized for spending more time in the West Wing than was
required by her responsibilities in the Office of Legislative
Affairs, the President felt responsible.
In the summer of 1997, the President spoke to Marsha Scott,
the deputy personnel director at the White House, and inquired
about the possibility of a position being available for Ms.
Lewinsky in the White House. He never ordered Ms. Scott or
anyone else to provide her special treatment or directed that
she be given a job at the White House. He simply wanted to
assure that she had been treated fairly and asked only that Ms.
Scott look into the possibility of a position at the White
House for Ms. Lewinsky if it was appropriate. Ms. Lewinsky was
never offered an opportunity to return to the White House--as a
result of that conversation or otherwise.
In the fall of 1997, Ms. Betty Currie spoke to Mr. John
Podesta about finding a job for Ms. Lewinsky in New York, and
Mr. Podesta ultimately spoke to Ambassador Bill Richardson
about the matter. The Ambassador agreed to interview Ms.
Lewinsky for a position in his New York office. The President
was not involved in arranging the Richardson interview. When
Ms. Lewinsky indicated to Ms. Currie that she preferred a job
in the private sector, Ms. Currie contacted Mr. Jordan, her
long-time friend, to see whether he would be willing to make
inquiries regarding a job opportunity for Ms. Lewinsky in the
private sector. Mr. Jordan referred her for interviews at
American Express and Revlon, and to the advertising agency of
Young & Rubicam. As Mr. Jordan said in his January 22, 1998
statement on the matter:
Throughout my professional career, I have been
privileged to assist people with their vocational
aspirations. I have done so for two reasons. first, I
stand on the shoulders of many individuals who have
helped me. Second, I believe ``to whom much is given
much is required'' so I have tried to lend a helping
hand.
For many years now . . . I am consulted by
individuals, young and old, male and female, black and
white, Hispanic and Asian, rich and poor, cabinet
members and secretaries, for assistance. And I have met
with some success, from paralegals to mailroom clerks,
to corporate directors, to CEO's.I was pleased to be
helpful to Ms. Lewinsky whose drive, ambition, and personality were
impressive. She was referred by Ms. Betty Currie, a secretary to the
president.
Mr. Jordan is a private individual who is free to offer job
assistance to whomever he chooses.
Questions have been raised about a connection between the
timing of Ms. Lewinsky's affidavit (which was executed January
7 and filed January 16) and the timing of any job offer. There
was no connection. Francis Carter, Esq., Ms. Lewinsky's
attorney at the time she executed the affidavit, apparently has
stated that Ms. Lewinsky never asked him to delay the filing of
an affidavit until after she had secured a job in New York and
never suggested when the affidavit should be filed. The
Washington Post, June 19, 1998. Indeed, Mr. Carter has reported
that he himself delayed the filing of the affidavit while he
attempted to persuade the Jones attorneys to withdraw the
subpoena to Ms. Lewinsky. Ibid.
Indeed, it was totally appropriate for Mr. Jordan to refer
Ms. Lewinsky to Francis Carter to represent her in the Jones
litigation. Mr. Carter is a highly respected lawyer who would
owe his duty to Ms. Lewinsky and represent her interests.
Assuring a witness has her own counsel in whom she may confide
is the surest and most appropriate way to protect the integrity
of the process. As Mr. Jordan indicated in his January 22
statement, the referral was ``at her request'' and Mr. Jordan
simply ``took her to Mr. Carter's office, introduced them, and
returned to my office.'' Ms. Lewinsky paid Mr. Carter herself.
Mr. Carter has said that Mr. Jordan brought Ms. Lewinsky to his
office, introduced them, and told him that she had been
subpoenaed in the Jones case and needed an attorney. The
Washington Post, June 19, 1998. According to Mr. Carter, Mr.
Jordan did not suggest what should be done or how the matter
should be handled, but promptly left. Ibid. Mr. Carter has
stated, ``I never received any kind of information from [Ms.
Lewinsky] at any time that contradicted anything that's in that
affidavit.'' Ibid.
Finally, in January of 1998, the President asked Mr.
Erskine Bowles whether the legislative affairs office where Ms.
Lewinsky once had worked would be able to give Ms. Lewinsky a
reference that would not be negative. The President understood
from Ms. Lewinsky that she thought she could get a good
reference from The Department of Defense but hoped for a White
House reference that was at least neutral. The President did
not instruct anyone to provide such a reference and did not
follow up on the inquiry. This innocuous query for an honest
reference cannot conceivably be a basis for any charge of
wrongdoing.
VI. ``Abuses of Power''
From the very beginning, the Lewinsky investigation has
been about potential impeachment--a direct attack by the OIC on
the constitutional status of the President. It is in that
context that the OIC's allegations of abuse of power must be
judged.
Any charge the OIC might make that the President has abused
the powers of his office through the assertion of privileges--
privileges that were asserted at the initiation and
recommendation of the Counsel's Office, not by the President
himself--is utterly baseless. Indeed, those charges are more a
reflection of the OIC's unfettered abuse of his authority and
his wholesale abandonment of any prosecutorial judgment in his
campaign to prevent the President from consulting with his most
senior advisors in confidence. No prosecutor, not even during
Watergate, ever has contemplated the sort of sweeping intrusion
into the President's ability to obtain advice that has been
undertaken by the OIC. At bottom, the Independent Counsel
believes that, merely because he demands confidential
information, the President may not defend himself against
impeachment without raising a charge that he is thereby abusing
his power.
Before moving to these issues, one other point is worthy of
note. It has been suggested in media reports that one of the
grounds for impeachment advanced by the OIC is that the
President abused his power by denying to his staff, in the days
immediately following disclosure of the Lewinsky investigation,
that he had engaged in any improper conduct when he knew that
they might be called as witnesses before the grand jury and
knew that they were making public statements in his defense. If
this allegation were not so serious, such a suggestion would be
ludicrous.
Implicit in the allegation is the notion that any official,
in any branch of the government, who makes a statement about
his own conduct, or indeed any other matter, that is not
absolutely true is liable for misusing his office for so long
as he fails to admit wrongdoing, for the official's staff will
inevitable repeat his explanation in any number of forums. It
would follow, therefore, according to what appears to be the
OIC's reasoning, that no official could mount a defense to
impeachment, or to ethics charges, or to a criminal
investigation while remaining in office, for anything other
than an admission of guilt will be treated as an abuse of his
official powers.
1. The President's Decision to Litigate Privilege Issues Cannot Be
Compared to the Abuses of Power Alleged during Watergate
The Independent Counsel apparently attempts to evoke images
of Watergate by charging that the President has abused the
powers of his office. This allegation is simply meritless. In
the Federalist Papers, Alexander Hamilton described abuse of
power as the ``corrupt use of the office for personal gain or
some other improper purpose.'' Former President Nixon's use of
the Central Intelligence Agency (CIA) to thwart a major
criminal investigation by the Federal Bureau of Investigation
(FBI) of a crime in which he was involved, to take but one
example, fits squarely within that definition. President
Clinton's lawful assertion of privileges in a court of law and
the Counsel's Office conduct of its official duties plainly
does not.
There is no comparison between the claimed abuses of power
by President Nixon and the public and lawful assertion of
privileges during the OIC investigation. Indeed, comparing this
White House with President Nixon's diminishes the historical
significance of the unprecedented claims of abuse of power by
the Nixon administration and attempts to criminalize the proper
exercise of presidential prerogatives. The specious nature of
the OIC's allegations reveal the OIC's true motive: to create
an offense where none exists.
In July 1974, the House Judiciary Committee lodged serious
and significant abuse of power charges against President Nixon,
alleging that President Nixon, among other things:
Engaged in an elaborate cover-up scheme that included
using his secret intelligence operation to pay both for
illegal activities and subsequent blackmail money for
the cover-up;
Paid hush money to his advisor;
Instructed administration officials on how to commit
perjury;
Violated grand jury secrecy rules by obtaining 6(e)
material from the Justice Department and passing it on
to presidential advisors, who were targets of the
investigation;
Attempted to subvert the IRS and CIA;
Authorized illegal intelligence gathering activities;
Directly interfered with the Justice Department's ITT
investigation; and,
Pressured the CIA to interfere with the FBI's
investigation of the Watergate break-in--a conversation
caught on tape.
In contrast, the OIC apparently has made such charges of
abuse against President Clinton, however erroneously, for
purportedly encouraging the Secret Service to assert privilege
claims over their testimony and invoking attorney-client and
executive privileges. President Clinton's privilege claims have
been open and lawful, and were reviewed and in significant
measure validated by the courts. Thus, the Nixon investigation
and precedent stand in sharp contrast to the OIC's
investigation and baseless charges in this matter.
2. The United States Secret Service's Decision to Pursue A Protective
Privilege Was the Proper Exercise of Its Own Authority And In
No Way an Abuse of Power By the President
The assertion of a protective function privilege by the
Secret Service cannot possibly serve as a basis for the OIC's
allegations of abuse of power. As a factual matter, the
President never asked, directed, or participated in any
decision regarding the protective function privilege. Moreover,
no one at the White House asked, directed, participated or had
any role in such decisions. The Treasury and Justice
Departments independently decided to pursue a privilege for the
Secret Service to ensure the protection of this and future
presidents.
Second, ignoring significant security concerns expressed by
the Secret Service, the Independent Counsel sought testimony
from agents about non-criminal events they may have witnessed
as well as non-criminal conversations they may have overheard
in the course of protecting the President. For the first time
in the history of the Independent Counsel statute, the
Independent Counsel sought to use the protective service as a
source of intelligence for admittedly non-criminal activities
ofa protectee. In the wake of this unprecedented demand, it was
and continues to be the reasoned judgment of career professionals in
the Secret Service that the absence of a protective privilege would
severely impair agents' ability to fulfill their mission to protect
this and future Presidents (as well as other protectees). The Secret
Service's position was supported by former presidents and by former
agents assigned to protect presidents in both Republican as well as
Democratic administrations.
Thus, the Justice and Treasury Departments' assertion of a
protective privilege advanced valid concerns about the Secret
Service's ability to perform its function. The OIC's suggestion
that the assertion of this privilege constituted an abuse of
power not only insults the integrity of career law enforcement
officials, but that of congressional policy makers too. Indeed,
because of the Independent Counsel's unorthodox overreaching,
Senator Hatch vowed to seek legislation to enact the type of
limited privilege asserted by the Secret Service in response to
the Independent Counsel's sweeping actions. Congressional Press
Releases, Senator Orrin Hatch, July 17, 1998.
3. The President's Assertions of Executive and Attorney/Client
Privilege were Valid and Necessary
Any charge by the OIC that the President's assertion of
privileges constitutes an abuse of power is equally baseless.
The White House advanced claims of privilege only sparingly and
as a last resort to protect the core constitutional and
institutional interests of this and future presidencies. In
pursuing his attack on the institution of the Presidency, the
OIC took the extreme position that executive privilege was
inapplicable and that the governmental attorney-client
privilege did not exist in the face of grand jury subpoena. The
OIC now seeks to penalize the President for disagreeing with
its interpretations of the law, despite the fact that the
courts (and the Department of Justice) both also disagreed with
the OIC.
A. The President Followed the Advice of White House Counsel
Regarding the Assertion of Official Privileges
A necessary component of the OIC's abuse of power
allegation is that the President initiated the White House's
claims of privilege--both executive and attorney-client--with
intent to impede the OIC's investigation. The record completely
refutes this premise.
The privilege issue initially arose when the OIC served on
Bruce Lindsey, Assistant to the President and Deputy Counsel, a
subpoena seeking his testimony before the grand jury.
Declaration of Charles F.C. Ruff (``Ruff Dec.'') para.31. Prior
to Mr. Lindsey's appearance, the White House Counsel met with
the OIC to discuss privilege issues and to ask the OIC to
describe with particularity possible areas of inquiry to
determine whether they would encompass privileged information.
Id. para.32. The OIC declined to discuss this issue, and later
stated that it intended to question Mr. Lindsey on areas
implicating a wide array of privileges because it believed that
executive and attorney-client privileges were inapplicable to
information relating to the Lewinsky investigation. Id.
para.para.32-34. The White House offered, in good faith, to
provide the OIC with any factual testimony regarding the
Lewinsky investigation. Id. para.para.45-50. The OIC rejected
this offer. Id. para.51.
Instead, the OIC suddenly filed motions to compel the
testimony of Mr. Lindsey and other senior staff. Id. After
careful deliberations, the White House Counsel notified the
President of the privilege issue, explained the failed
accommodation effort, and recommended that he invoke privilege.
As he did in every instance, the President accepted the White
House Counsel's recommendation and authorized the Counsel to
make the claim of privilege. Id. para.56. Thus, the President's
decision to claim privilege was never the result of his own
initiative, but of his Counsel's advice.
B. The President's Executive Privilege Assertions Were
Upheld by the Court
To put the OIC's apparent abuse of power charges in
context, it is important to recognize that the OIC took the
extraordinary position that executive privilege was
inapplicable in the face of a grand jury subpoena and that it
therefore was entitled to immediate and full disclosure of all
strategic and political communication among the President's
most senior advisors. This position was squarely at odds with
the law of the Supreme Court, and of course, the D.C. Circuit.
Executive privilege is constitutionally-based and covers
communications relating to the President's official duties and
the effective functioning of the executive branch. It ensures
that the President receives frank and candid advice and
recommendations,which ultimately fosters more informed and
effective decision-making.
Here, the President asserted executive privilege over
communications that relate to matters that affect the
performance of his official duties. In re Grand Jury
Proceedings, 1998 U.S. Dist. Lexis 7736, * 7 (D.D.C. 1998);
Ruff Dec. para.para. 16-30. Indeed, some of these
communications related to the President's decision whether to
invoke privilege over other communications. Id. para.para. 26-
28.
Rather than acknowledge the presumptively privileged nature
of the information, the OIC maintained that the privilege was
inapplicable and that it did not have to demonstrate any need
for the information. Chief Judge Johnson rejected the OIC's
position holding that the communications were presumptively
privileged. In re Grand Jury Proceedings, 1998 U.S. Dist. Lexis
at * 3-10. The Court then required the OIC to make a showing
that its need for the information was sufficient to overcome
the privilege. Id. at * 13-21. Although the Court concluded
that the OIC had met its burden, the Court at no time even
suggested that the President's assertion of executive privilege
was groundless, improper, or made in bad faith. In those
circumstances, it cannot seriously be argued that assertion of
the privilege was an abuse of power.
C. The President's Assertion of the Attorney-Client
Privilege was Solidly Grounded in the Law of this
Circuit
For centuries, the law has recognized the attorney-client
privilege as absolute in protecting the confidentiality of
communications between lawyers and their clients. The D.C.
Circuit has also recognized that the attorney-client privilege
protects confidential communications between government lawyers
and officials. E.g. Mead Data Control, Inc. v. Dep't of the Air
Force, 566 F.2d 242 (D.C. Cir. 1977). Courts recognize that a
government official, like any other citizen, must be able to
provide information to and seek advice from government lawyers
without fear of public disclosure. Ultimately, the privilege
serves an important governmental function by fostering well-
advised and fully-informed decision-making. The possibility
that those communications may be disclosed will forfeit the
benefits the privilege was intended to protect.
Despite the law in the D.C. Circuit recognizing the
attorney-client privilege in the governmental context, the
Independent Counsel pushed to breach the bonds of the
governmental attorney-client privilege. Unlike his
predecessors, who have respected the professional obligation of
government attorneys to provide confidential legal advice on
official matters, the Independent Counsel has insisted that
government attorneys and clients do not have the right to
discuss legal issues in confidence. In this context, the White
House's assertion of the attorney-client privilege was not only
appropriate, but it was an ethical and institutional
obligation.
Prior to the D.C. Circuit litigation, the OIC was well
aware that the White House fundamentally disagreed with the OIC
regarding the applicability and scope of the governmental
attorney-client privilege. In the Eighth Circuit, the OIC had
attempted to obtain a White House lawyer's notes that reflected
confidential communications. In re Grand Jury Subpoena Duces
Tecum, 112 F.3d 910 (8th Cir. 1997). At the time of that
litigation, which the White House resisted and the OIC won,
there was no authority rejecting the existence of a
governmental attorney-client privilege.
Two years later, the OIC, in the Lewinsky investigation,
sought to compel the disclosure of confidential communications
between the President and his official lawyers in which legal
advice was either being sought by or provided to the President
regarding official matters. In view of the law of the D.C.
Circuit, which recognized an absolute governmental attorney-
client privilege, the White House Counsel recommended, and the
President asserted, the privilege.
A recent Supreme Court ruling that rejected the OIC's
sweeping attack on the attorney-client privilege provided
additional support for the President's position. In Swidler &
Berlin v. United States, ________ U.S. ________ (1998); 1998
U.S. Lexis 4214 (1998), the OIC argued that the personal
attorney-client privilege should automatically give way to the
needs of acriminal investigation. The Court rejected the OIC's
position and stated that ``there is no case authority for the
proposition that the privilege applies differently in criminal and
civil cases,'' id. at * 7, supporting the principle that the privilege
remains absolute in a grand jury context. Accordingly, the President's
position on the applicability of the privilege in this context had a
substantial basis in the decisions of both this Circuit and the Supreme
Court.
Undaunted, the OIC argued that, based upon the non-binding
Eighth Circuit opinion, the governmental attorney-client
privilege is inapplicable in a grand jury context. 112 F.3d 910
(8th Cir. 1997). From an institutional standpoint, the OIC's
position stripped the President of any ability to obtain
confidential advice from government lawyers about official
matters in the event that the OIC made a referral to Congress
for possible impeachment hearings. In an impeachment context,
the President is entitled to rely on Counsel's Office lawyers
to provide critical legal guidance. Without the ability to
receive such confidential advice, he is left without any legal
guidance regarding the conduct of his official duties.
The District Court rejected the OIC's position and held
that the President had a valid, though qualified, governmental
attorney-client privilege. In re Grand Jury Proceedings, 1998
U.S. Dist. Lexis at * 21-52. Performing a need analysis similar
to executive privilege, the Court balanced the President's
interests against those of the grand jury and ultimately
determined that the grand jury was entitled to the information.
Once again, the District Court did not suggest that the
privilege claim was spurious or made in bad faith.
On appeal, a divided D.C. Circuit Court of Appeals ruled
that the President had an attorney-client privilege with White
House Counsel in some contexts, but not this one. In re: Bruce
R. Lindsey, 1998 U.S. App. Lexis 17066, * 7-43 (D.C. Cir.
1998). Judge David Tatel, whose dissenting opinion in the Court
of Appeals' decision in Swidler & Berlin was adopted by the
Supreme Court, dissented here as well. Consistent with his
analysis in Swidler & Berlin, Judge Tatel found that the
Court's opinion did not account for ``the unique nature of the
Presidency, its unique need for confidential legal advice, or
the possible consequences of abrogating the attorney-client
privilege for a President's ability to obtain such advice.''
Id. at * 54. Judge Tatel's recognition of the validity of the
absolute nature of the privilege and the President's need to
assert this and belies the notion that the assertion was in any
way an abuse of power.
The OIC's apparent argument that the assertions of
privilege were for purposes of delay lacks any evidentiary
support and, more significantly, overlooks the OIC's own
dilatory conduct. After Mr. Lindsey was subpoenaed and before
he was scheduled to testify, the Office of the President
attempted to avoid litigating these issues by reaching an
accommodation that would provide the OIC with access to the
information to which it was entitled while maintaining the
legitimate confidentiality interests of the President. Id.
para.para. 31-32. The OIC rejected those efforts and instead
filed its motion to compel. Id. para. 51. The OIC has continued
to reject any attempt by the White House to compromise,
choosing instead to litigate these issues. The Office of the
President has sought to avoid any delay by agreeing to
expedited briefing schedules involving privilege litigation,
and the courts, appreciating the time-sensitivity of the
issues, have ruled swiftly on these matters.
In any event, any delay that might have been caused by the
White House had no substantive impact on the OIC's
investigation. Privilege claims have been advanced as to only a
narrow portion of the testimony of three witnesses. The OIC
originally filed motions to compel the testimony of two senior
staff members and one Counsel's Office lawyer. The litigation
only temporarily postponed the testimony of the two senior
staffers; in March, they both appeared before the grand jury
and testified fully. The privilege assertions ultimately
involved the testimony of only three Counsel's Office lawyers.
Each of these individuals has testified at length regarding any
facts they may have possessed about whether the President had a
relationship with Ms. Lewinsky. The questions as to which they
asserted privilege were narrow in scope and irrelevant to the
matters being investigated.
Finally, substantial delay in the investigation has been
self-inflicted. The OIC has wandered aimlessly down more alleys
and byways than any federal prosecutor would appropriatelydo.
The OIC has called current and former White House staffers before the
grand jury, and interviewed many others. The OIC has called
presidential advisers before the grand jury four, five and six times;
sometimes for only one- or two-hour sessions. Some witnesses appeared
to testify only to find themselves waiting for hours and then being
told to return on another day. The OIC has also insisted on exploring
such irrelevant subjects as White House contacts with the press, and
has required testimony from attorneys whose primary function was to
deal with the OIC. Such actions are highly unusual, if not
unprecedented.
4. White House Lawyers Played an Appropriate Role in the Investigation
Finally, the open and lawful efforts of the White House
lawyers to assist White House staff obtain lawyers, to speak
with witnesses and their lawyers, and to provide advice on the
ramifications of the investigation also cannot be considered an
abuse of power.
As a threshold matter, when there is an official nexus
between the duties of the President and an ongoing
investigation, which certainly exists here, it is the duty of
government attorneys to represent their official client. The
specter of impeachment loomed from the day the Lewinsky story
broke in the press. Ruff Dec. para.21. Members of the Congress
asserted that the investigation, which drew explosive media,
public and congressional attention, burdened the President's
ability to perform his constitutional and statutory duties.
Accordingly, the White House Counsel's Office lawyers, among
others, were responsible for providing the President and White
House officials with informed, candid advice on the issues
raised by the investigation that affected the President's
official duties. Id. para.para.16-30.
When it suited the OIC's interests, the OIC recognized the
appropriateness of, and relied on, the White House Counsel's
efforts. From the beginning of this investigation, the OIC
sought--and received--the cooperation of the White House
lawyers in setting up interviews and grand jury appearances of
current and former White House employees. The OIC, however,
refused to allow the White House lawyers to represent even the
most junior, uninvolved witnesses. Thus, all White House
officials, from the most senior to the most junior, were
required to obtain private counsel. White House lawyers also
provided relevant documents to witnesses' attorneys to ensure
complete and accurate testimony, provided privilege
instructions and guidance, and followed-up afterwards to
discuss an individual's interview or grand jury appearance and
any outstanding issues. All of the Counsel's Office activities
were well-known to the OIC, and no objection was ever voiced.
Lastly, it was not uncommon for the White House to be faced
with inaccurate and spurious stories that seemed to be coming
from the OIC or ``sources close to the OIC'' shortly after a
witness testified or was interviewed by the prosecution.
Indeed, Judge Johnson examined media reports, and concluded
that theycontained grand jury material and that there was
evidence that the OIC as the source. In re Grand Jury Proceedings,
Misc. No. 98-55 (D.D.C. June 19, 1998), Mem. Op. at 6. Accordingly,
Judge Johnson held that this evidence established a prima facie case
that the OIC had violated Rule 6(e) and ordered the OIC to appear to
show cause why it should not be held in contempt for Rule 6(e)
violations. These leaks created a deluge of press inquiries to the
White House; not surprisingly, White House Counsel lawyers were
required to gather information and advise senior staff concerning the
appropriate response to these inquiries.
VII. Allegations of Perjury \21\
---------------------------------------------------------------------------
\21\ ``Perjury'' was not even in the original grant of jurisdiction
to the OIC but reportedly is now the crux of the OIC's case.
---------------------------------------------------------------------------
The OIC cannot make out even a colorable claim of perjury.
If answers are truthful or literally truthful but misleading,
there is no perjury as a matter of law, no matter how
misleading the testimony is or is intended to be. The law
simply does not require the witness to aid his interrogator.
The Referral seeks to punish the President for being unhelpful
to those trying to destroy him politically.
A. The Law of Perjury
Perjury requires proof that a defendant, while under oath,
knowingly made a false statement as to material facts.\22\ 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 provided it. See, e.g., United
States v. Dowdy, 479 F.2d 213, 230 (4th Cir. 1973); United
States v. Markiewicz, 978 F.2d 786, 811 (2d Cir. 1992). It is
beyond debate that false testimony provided as a result of
confusion, mistake, faulty memory, carelessness,
misunderstanding, mistaken conclusions, unjustified inferences
testified to negligently, or even recklessness does not satisfy
the ``knowingly'' element. 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.
---------------------------------------------------------------------------
\22\ There are two basic federal perjury statutes: 18 U.S.C.
Sec. 1621, and 18 U.S.C. Sec. 1623. Section 1621 applies to all
material statements or information provided under oath ``to a competent
tribunal, officer, or person, in any case in which a law of the United
States authorizes an oath to be administered.'' Section 1623, in
contrast, applies only to testimony given before a grand jury and other
court proceedings. Although there are differences between the two
statutes, the four basic elements of each are substantially the same.
---------------------------------------------------------------------------
Moreover, it is of course clear that a statement must be
false in order to constitute perjury. It is equally beyond
debate that the following types of answers are not capable of
being false and are therefore by definition non-perjurious:
literally truthful answers that imply facts that are not true,
see, e.g., United States v. Bronston, 409 U.S. 352, 358 (1973),
truthful answers to questions that are not asked, see, e.g.,
United States v. Corr, 543 F.2d 1042, 1049 (2d Cir. 1976), and
failures to correct misleading impressions. See, e.g., United
States v. Earp, 812 F.2d 917, 919 (4th Cir. 1987). The Supreme
Court has made abundantly clear that it is not relevant 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 literally truthful.
Thus, in explaining the law of perjury, the Supreme Court
and numerous lower federal courts have set forth three clear
standards. First, 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 federal
perjury statute. That is so even if the witness intends to
mislead his questioner by his answer and even if the answer is
false by ``negative implication.'' The second clear rule is
that answers to questions that are fundamentally ambiguous
cannot, as a matter of law, be perjurious. Finally, a perjury
conviction under 18 U.S.C. Sec. 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
kind of perjury case based on the testimony of one witness
without independent corroboration--especially if the witness is
immunized, or has any question as to credibility or
truthfulness. As the Supreme Court has made clear, a perjury
case ``ought not to rest entirely upon `an oath against an
oath.' '' United States v. Weiler, 323 U.S. 606, 608-09 (1945).
1. Bronston and ``Literal Truth''
In United States v. Bronston, 409 U.S. 352 (1973), the
leading case on the law of perjury, the United States 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 implication.'' 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 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 personal 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
unresponsively addressed his answer to the company's assets and
not to his own--thereby implying 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 bank account.''
Id. at 358. The Court went so far as to note that Bronston's
answers ``were not guileless but were shrewdly calculated to
evade.'' Id. at 361. However, 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 are not dealing with casual conversation and the statute
does not make it a criminal 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
pains 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 complete 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, regardless of their implications.
First, the Court noted that the burden always rests squarely 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 sanction that
is almost always unwarranted, 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 clear that the definition of perjury must be
carefully limited because perjury prosecutions are dangerous to
the public interest since they ``discourage witnesses from
appearing or testifying.'' Id. at 359.\23\ 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 interracial
couple, and further evidence demonstrated that he had
personally engaged in other 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 perjury,
but the United States Court of Appeals for the Fourth Circuit
reversed his conviction, because ``like the witness in
Bronston, [the defendant's] answers were 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 was literally true that he had never
burned crosses on anyone's lawn. The court noted that ``while
he no doubt knew full well that he had on that occasion tried
to burn a cross, he was not specifically asked either about any
attempted cross burnings.'' Id. Literally every federal court
of appeals in the nation concurs in this reading of
Bronston.\24\
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\23\ While Bronston involved a perjury conviction under the general
perjury statute, 18 U.S.C. Sec. 1621, lower federal courts have
uniformly relied on it in reviewing perjury convictions under
Sec. 1623(a), which makes it unlawful to make any false material
declaration ``in any proceeding before or ancillary to any court or
grand jury of the United States.'' See, e.g., United States v. Porter,
994 F.2d 470, 474 n. 7 (8th Cir. 1993); United States v. Reveron
Martinez, 836 F.2d 684, 689 (1st Cir. 1988); United States v. Lighte,
782 F.2d 367, 372 (2d Cir. 1986).
\24\ See also United States v. Finucan, 708 F.2d 838, 847 (1st Cir.
1983) (intent to mislead is insufficient to support conviction for
perjury); United States v. Lighte, 782 F.2d 367, 374 (2d Cir. 1986)
(literally true answers by definition non-perjurious even if answers
were designed to mislead); United States v. Tonelli, 577 F.2d 194, 198
(3d Cir. 1978) (perjury statute is not to be invoked because a ``wily
witness succeeds in derailing the questioner''). United States v.
Abroms, 947 F.2d 1241, 1245 (5th Cir. 1991) (unambiguous and literally
true answer is not perjury, even if there was intent to mislead);
United States v. Eddy, 737 F.2d 564, 569 (6th Cir. 1984) (``An `intent
to mislead' or `perjury by implication' is insufficient to support a
perjury conviction.''); United States v. Williams, 536 F.2d 1202, 1205
(7th Cir. 1976) (literally true statement cannot form basis of perjury
conviction even if there was intent to mislead); United States v.
Robbins, 997 F.2d 390, 394 (8th Cir. 1993); United States v. Boone, 951
F.2d 1526, 1536 (9th Cir. 1991) (literally true statement is not
actionable); United States v. Larranaga, 787 F.2d 489, 497 (10th Cir.
1986) (no perjury where answer literally truthful and prosecutor's
questioning imprecise); United States v. Shotts, 145 F.3d 1289, 1297
(11th Cir. 1998) (``An answer to a question may be non-responsive, or
may be subject to conflicting interpretations, or may even be false by
implication. Nevertheless, if the answer is literally true, it is not
perjury.''); United States v. Dean, 55 F.3d 640, 662 (D.C. Cir. 1995)
(perjury charge cannot be based upon evasive answers or even misleading
answers so long as such answers are literally true).
---------------------------------------------------------------------------
2. Fundamentally Ambiguous Questions Cannot Produce
Perjurious 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 (1st Cir. 1983); United States v. Lighte, 782 F.2d
367, 375 (2d Cir. 1986); United States v. Tonelli, 577 F.2d
194, 199 (3d Cir. 1978); United States v. Bell, 623 F.2d 1132,
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 perjury. 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 dealing with ambiguous questions in the perjury
context. In Lattimore, a witness was questioned before the
Senate Internal Security Subcommittee about his ties to the
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
United 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
with 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 defined at the time it
were sought and offered as testimony.'' Id. at 110. As the
court explained further:
[The phrase] has no universally accepted definition.
The Government has defined 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 necessitate great ingenuity to think up
definitions differing from those offered either by the
Government or defendant. By groundless surmise only
could the jury determine which 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
trips with Mr. X,'' and she answered ``no.'' The government
could prove that in fact the 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 phrase ``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 with 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 defendant answered negatively a question
whether he had ``handled any pension fund checks.'' The
government then proved that the defendant had actually handled
the transmission of pension fund checks by arranging for others
to send, mail, or deliver the checks. The government charged
the defendant with perjury. The court held that perjury 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 allow 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 penitentiary.''
United States v. Bell, 623 F.2d 1132, 1137 (5th Cir. 1980),
is yet another example 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,'' and the
witness answered, ``No, sir, I do not.'' It was later
established that the witness's files clearly contained relevant
records. Nonetheless, the court held that the question was
ambiguous, and therefore incapable of yielding a perjurious
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.25
---------------------------------------------------------------------------
\25\ Many other cases as well hold that ambiguous questions cannot
produce perjurious answers. See, e.g., Lighte, 782 F.2d at 376
(questions fundamentally ambiguous because of imprecise use of ``you,''
``that,'' and ``again''); United States v. Farmer, 137 F.3d 1265, 1270
(10th Cir. 1998) (question ``Have you talked to Mr. McMahon, the
defendant about your testimony here today?'' ambiguous because phrase
``here today'' could refer to ``talked'' or to ``testimony;''
conviction for perjury could not result from the question); United
States v. Ryan, 828 F.2d 1010, 1015-17 (3d Cir. 1987) (loan application
question asking for ``Previous Address (last 5 years)'' fundamentally
ambiguous because unclear whether ``address'' refers to residence or
mailing address, and ``previous'' could mean any previous address, the
most recent previous address, or all previous addresses; based on
ambiguity, perjury cannot result from answer to question); United
States v. Markiewicz, 978 F.2d 786, 809 (2d Cir. 1992) (question
``[D]id you receive any money that had been in bingo hall'' ambiguous,
and incapable of producing perjurious answer, when it did not
differentiate between witness's personal and business capacities). See
also United States v. Manapat, 928 F.2d 1097, 1099 (11th Cir. 1991);
United States v. Eddy, 737 F.2d 564, 565-71 (6th Cir. 1984); United
States v. Hilliard, 31 F.3d 1509 (10th Cir. 1994).
---------------------------------------------------------------------------
3. A Perjury Case Must Not Be Based Solely Upon the
Testimony of a Single Witness
The law is clear that in a perjury prosecution under 18
U.S.C. Sec. 1621, the falsity of a statement alleged to be
perjurious cannot be established by the testimony of just one
witness. This 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 Sec. 1621. See,
e.g., Weiler v. United States, 323 U.S. 606, 608-610 (1945)
(discussing the history and policy rationales of the two-
witness rule); United States v. Chaplin, 25 F.3d 1373, 1377-78
(7th Cir. 1994) (two-witness rule applies to perjury
prosecutions). The Department of Justice recognizes the
applicability of the two-witness rule to perjury prosecutions
brought under Sec. 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 witnesses, 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 independent
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 Sec. 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.
While 18 U.S.C. Sec. 1623 does not incorporate the ``two-
witness rule,'' it is nonetheless clear from the case law that
perjury prosecutions 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, 608-09 (1945), the United States Supreme Court
observed that ``[t]he special rule which bars conviction for
perjury solely upon the evidence of a single witness is deeply
rooted in past 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 (emphasis added). Indeed, the common law
courts in seventeenth-century England required the testimony of
two witnesses as a preconditionto 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
Sec. 2040(a), at 359-60 (Chadbourne 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 courts of
requiring two witnesses in perjury cases. Id. The English rationale for
the rule is as resonant today as it was in the seventeenth century:
``[I]n all other criminal cases the accused could not testify, and thus
one oath for the prosecution 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 noted above, no
perjury case should rest merely upon ``an oath against an oath.''
B. The Jones Deposition
Without knowledge of the OIC's specific allegations it is
impossible to address why any particular claim of perjury fails
although we are confident that no colorable claim of perjury
can be made out. However, illegal leaks and speculation make
clear that there are certain misperceptions about this
testimony that can immediately be laid to rest. For example,
Allegation: The President falsely testified in his
Jones deposition that he was never alone with Ms.
Lewinsky.
Not so. The President acknowledged in his deposition that he
met with Ms. Lewinsky on up to five occasions while she worked
at the White House. (p. 50). He then referred back to that
testimony when asked if he ever was alone with her in the Oval
Office (p. 52), and again when asked whether he was alone with
her in any room in the White House. (p. 59). The Jones lawyers
did not follow up and ask the President to describe the nature
of any physical contact that may have occurred on these
occasions.
Allegation: The President falsely testified in his
Jones deposition that he never had any improper
physical contact of any kind with Ms. Lewinsky.
Not so. The President was asked whether he had ``an
extramarital sexual affair'' with Ms. Lewinsky (p. 78) and
responded that he did not. That term was undefined and
ambiguous. The President understood the term ``sexual affair''
to involve a relationship involving sexual intercourse. He had
no such relationship with Ms. Lewinsky.
The President also was asked whether he had ``sexual
relations'' with Ms. Lewinsky, ``as that term is defined in
Deposition Exhibit 1, as modified by the Court.'' (p. 59). The
Court explicitly directed the President's attention to
Definition Number 1 on Exhibit 1, which the President had
circled.
The President denied he had ``sexual relations'' with Ms.
Lewinsky under this definition. Although the President's
counsel, Mr. Bennett, had invited the Jones lawyers to ask
specific questions about the President's conduct--``Why don't
they ask the President what he did, what he didn't do, and then
we can argue in Court later about what it means?'' (p. 21)--the
Jones lawyers declined to do so, relying instead on the
definition. The President was not asked any specific questions
at all about his physical contact with Ms. Lewinsky, and in
particular he was not pointedly asked whether he had engaged in
any of the conduct outside the definition provided. The
President's testimony in response to these questions was
accurate. He did not have sexual intercourse with Ms. Lewinsky
or otherwise engage in sexual conduct covered by the
definition, as provided by plaintiff and narrowed by the Court.
The President also testified in the Jones deposition that
Ms. Lewinsky's affidavit, in which she stated she had never had
a ``sexual relationship'' with the President, was accurate (p.
204). He believed this testimony to be truthful. The term
``sexual relationship'' was not defined in the affidavit or in
the deposition. The definition of the different term ``sexual
relations'' utilized by the Jones lawyers did not apply to that
question. The term ``sexual relationship,'' like sexual affair,
has no definitive meaning. To the President, that term
reasonably requires sexual intercourse as a necessary component
of the relationship. Since his relationship with Ms. Lewinsky
did not involve intercourse, he truthfully answered that the
affidavit was accurate.
Allegation: The President falsely testified in his
Jones deposition that his relationship with Ms.
Lewinsky was the same as that with any other White
House intern.
Not so. The President's answers left no doubt that he had a
special relationship with Ms. Lewinsky. He acknowledged knowing
how she had gotten her internship at the White House.
Heacknowledged meeting with her and knowing where she worked after
leaving the White House. He acknowledged exchanging small gifts with
her. He acknowledged that he knew she was moving to New York and that
her mother had moved there. He acknowledged knowing about her job
search in New York, and that she had had an interview with (then) U.N.
Ambassador Bill Richardson. He acknowledged that Mr. Jordan reported on
his meeting with Ms. Lewinsky about her New York job search. He
acknowledged receiving cards and notes from her through Ms. Betty
Currie. The Jones lawyers received affirmative responses to particular
questions. Had they opted to ask precise questions on other matters,
they would have received truthful responses. They did not do so.
VIII. The Lewinsky Expansion of the Whitewater Investigation
The expansion of the Independent Counsel's jurisdiction to
encompass the Jones case and Ms. Lewinsky did not occur by
accident or easily. The OIC deliberately and purposefully
sought this expansion on an emergency basis. Media accounts
that the Attorney General herself requested this expansion are
highly misleading.
On January 16, 1998, upon the OIC's request, the Special
Division of the Court of Appeals for the Purpose of Appointing
Independent Counsels expanded the OIC's jurisdiction to allow
it to investigate ``whether Monica Lewinsky or others suborned
perjury, obstructed justice, intimidated witnesses, or
otherwise violated federal law . . . in dealing with witnesses,
potential witnesses, attorneys, or others concerning the civil
case Jones v. Clinton.'' Order, Div. No. 94-1 (Jan. 16, 1998)
(Div. for Purpose of Appointing Independent Counsel) (D.C.
Cir.). The series of events that led to this expansion of
authority raise serious questions as to the motivations and
manipulations of the OIC in securing this expanded
jurisdiction.
Under the Independent Counsel statute, if the ``independent
counsel discovers or receives information about possible
violations of criminal law by [covered persons], which are not
covered by the prosecutorial jurisdiction of the independent
counsel, the independent counsel may submit such information to
the Attorney General.'' 28 U.S.C. Sec. 593 (c)(2)(A). The
Attorney General is then to conduct a preliminary
investigation. 28 U.S.C. Sec. 592. The statute did not give the
OIC authority to conduct its own preliminary investigation in
order to gather or create evidence to present to the Attorney
General to support a request for an expansion of jurisdiction.
According to media reports, Ms. Linda Tripp contacted the
OIC on Monday, January 12, 1998. There was no particular logic
to this contact, and she could easily have taken her concerns
to state or federal authorities. In any event, the OIC arranged
for Ms. Tripp to wear an F.B.I. recording device and tape
surreptitiously a conversation that she had with Ms. Lewinsky
the next day, Tuesday, January 13, 1998 (Ms. Lewinsky had not
yet filed an affidavit in the Jones case). On Friday, January
16, 1998, at the OIC's request, Ms. Tripp lured Ms. Lewinsky to
a meeting, where she was apprehended by OIC agents, who
confronted her and attempted to pressure her into doing
surreptitious taping herself. She was informed that an immunity
agreement was contingent on her not contacting her
lawyer.26
---------------------------------------------------------------------------
\26\ Time, Feb. 16, 1998, at 49.
---------------------------------------------------------------------------
That same day, the Special Division agreed to expand the
OIC's authority, based upon the Independent Counsel's earlier
application to the Attorney General and on the tapes that the
OIC had already created: ``In a taped conversation with a
cooperating witness, Ms. Lewinsky states that she intends to
lie when deposed. In the same conversation, she urges the
cooperating witness to lie in her own upcoming deposition. . .
. Independent Counsel Starr has requested that this matter be
referred to him.'' (Text of Attorney General's Petition to
Special Division, The Associated Press, January 29, 1998.)
The Independent Counsel later suggested that the expansion
of authority prior to the taping was unnecessary, as it was
already within his jurisdiction. However, the Lewinsky matter
had no connection whatsoever to the Whitewater activities, or
any other activities, then being investigated by the OIC. In
addition, the Attorney General specifically stated in her
referral to the Special Division that she was seeking an
expansion of the Independent Counsel's jurisdiction. Or, as
former independent counsel Michael Zeldin pointed out, ``If he
had jurisdiction to investigate it when he wired her, why did
he have to go to court to get it afterward? In some ways, he is
talkingout of both sides of his mouth. . . . It seems to me
arguable that he obtained evidence unlawfully. . . .'' Chicago Tribune,
January 25, 1998. And former independent counsel Lawrence Walsh
declared, ``A prosecutor has no business getting into that case [Paula
Jones] unless there's something terrible happening. I question Starr's
judgment in going into it so hard.'' Chicago Tribune, January 25, 1998.
Furthermore, the sequence of events suggests that
Independent Counsel Starr deliberately delayed requesting the
expansion of jurisdiction. Neither Monica Lewinsky nor
President Clinton had made any statements under oath in the
Jones case (at least that had been filed with any court) when
Linda Tripp approached the OIC on January 12. The only evidence
the OIC possessed at that time were tapes illegally created by
Tripp. The OIC itself proceeded to tape the Tuesday, January 13
conversation between Tripp and Lewinsky. Ms. Lewinsky's
affidavit was not filed in the Jones case until January 16, and
the OIC had petitioned the Attorney General the day before for
an expansion of authority based on the evidence (the Tripp
tapes and the OIC's tape) that he had acquired without any
authority to do so.
Ms. Tripp remained through the day at the hotel where Ms.
Lewinsky was apprehended by the OIC on Friday, January 16,
1998.27 During that day, Ms. Jones' lawyers
repeatedly tried to contact Ms. Tripp for a meeting, but she
was unavailable. Ibid. Late in the afternoon, when it became
clear that Ms. Lewinsky would not cooperate in the
surreptitious taping of others, the Jones lawyers received a
call arranging a meeting with Ms. Tripp for that night, so she
could help them prepare for the President's deposition next
day. Ibid.28 It seems probable that Ms. Tripp, who
was acting as the OIC's agent under an immunity agreement, must
have gotten approval for this briefing from the OIC. Ms. Tripp
met with the Jones lawyers at her home in Maryland that night
and briefed them on the illegal tapes she had made of Ms.
Lewinsky, 29 so they could use the contents of those
tapes in their questioning of the President.30 Ms.
Tripp is under investigation in the state of Maryland because
she secretly recorded Ms. Lewinsky and then shared the
existence and contents of those tapes with the Jones lawyers.
It is a crime in that state, punishable by imprisonment up to
five years and a fine of up to $10,000, for a person to
``wilfully'' record a conversation without the consent of both
parties or to ``wilfully'' disclose the contents of such an
illegally recorded conversation. Md. Code Ann. Sec. 10-402
(1997).31
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\27\ ``Linda Tripp Briefed Jones Team on Tapes,'' The Washington
Post, Feb. 14, 1998, at A1.
\28\ The Washington Times, Feb. 15, 1998, at A1, reported:
``Yesterday, a source close to Mrs. Jones' legal team
confirmed that on Jan. 16, the day before Mrs. Jones'
lawyers took a deposition from Mr. Clinton, Mrs. Tripp met
for two hours with those lawyers at her suburban Maryland
home and discussed at length what Miss Lewinsky had said in
some 20 hours of secretly recorded conversations. Mrs.
Tripp had already given those tapes to Mr. Starr's
investigators.
With the information from Mrs. Tripp, the Jones lawyers
were able to ask Mr. Clinton in his deposition specific
questions about his relationship with and gifts to Miss
Lewinsky, according to a person informed about the
President's testimony.''
\29\ Under the Maryland electronic surveillance statute, which
criminalizes taping without the consent of both parties, it is a
violation of the statute simply to disclose that an illegal tape has
been made, since the term ``Contents'', as used in the statute to
define what may not be disclosed, is defined to include ``any
information concerning the identity of the parties to the communication
or the existence, substance, purport, or meaning of that
communication.'' Md. Code Ann. Sec. 10-401(7) (1997) (emphasis added).
\30\ There is no doubt that the Jones lawyers believed they had a
significant tactical advantage due to their knowledge of the Tripp
tapes. They may also have known that Ms. Tripp was an OIC agent. After
being asked a highly specific series of questions about Ms. Lewinsky,
the President replied, ``I don't even know what you're talking about, I
don't think,'' and one of the Jones lawyers, James Fisher, responded,
``Sir, I think this will come to light shortly, and you'll understand''
(p. 85).
\31\ Recent news reports indicate that Ms. Tripp was specifically
warned at the Radio Shack store where she brought her tape recorder
that it was illegal to tape in Maryland without the consent of the
other party. See, e.g., ``Tripp Was Told of Law at Store,'' The
Baltimore Sun, Aug. 28, 1998, at A1.
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On January 17, armed with the information obtained from
Ms. Tripp, Ms. Jones' attorneys deposed President Clinton in
great detail regarding Ms. Lewinsky. At about this time, the
OIC sought to prevent press coverage of its attempt to have Ms.
Lewinsky cooperate in secret taping.32
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\32\ ``Pressgate'', Brill's Content, August 1998, at 128.
---------------------------------------------------------------------------
This entire sequence of events--the OIC's delay in
requesting jurisdiction, the OIC's pressure on reporters to
withhold public disclosure of the matter,33 the
OIC's unwillingness to permit Ms. Lewinsky to contact her
lawyer, and the OIC's dispatch of Ms. Tripp to brief the Jones
lawyers about the fruits of her illegal taping the day before
they were to depose the President--suggests an intention by the
OIC to ensure that the expansion of jurisdiction was kept a
secret until the President and Ms. Lewinsky had given testimony
under oath and (if Ms. Lewinsky could be so persuaded) she had
been enlisted to do surreptitious taping. In other words,
rather than taking steps to defer or avoid any possible
interference with the Jones case, the OIC did everything in its
power--and some things outside its authority--to set up a case
against the President.
---------------------------------------------------------------------------
\33\ See, e.g., Stephen Brill, ``Pressgate'' in Brill's Content
(August 1998) at 127 (``Isikoff says that when he talked to Starr
deputy Jackie Bennett, Jr., on Thursday [January 15], Bennett begged
him to wait until Friday before trying to call Jordan, the White House,
or Lewinsky about his story. . . . Isikoff says he agreed to hold off
in exchange for getting a full report on how the stings had gone.'').
INITIAL RESPONSE
TO REFERRAL OF
OFFICE OF INDEPENDENT COUNSEL
David E. Kendall Charles F.C. Ruff
Nicole K. Seligman Cheryl Mills
Emmet T. Flood Lanny A. Breuer
Max Stier OFFICE OF THE WHITE
Glen Donath HOUSE COUNSEL
Alicia L. Marti The White House
WILLIAMS & CONNOLLY Washington, DC 20005
725 12th Street, N.W.
Washington, DC 20005
September 12, 1998
On May 31, 1998, the spokesman for Independent Counsel
Kenneth W. Starr declared that the Office's Monica Lewinsky
investigation ``is not about sex. This case is about perjury,
subornation of perjury, witness tampering, obstruction of
justice. That is what this case is about.'' 1 Now
that the 450-page Referral to the United States House of
Representatives Pursuant to Title 28, United States Code
Sec. 595(c) (the ``Referral'') is public, it is plain that
``sex'' is precisely what this four-and-a-half year
investigation has boiled down to. The Referral is so loaded
with irrelevant and unnecessary graphic and salacious
allegations that only one conclusion is possible: its principal
purpose is to damage the President.
---------------------------------------------------------------------------
\1\ CNN Late Edition with Wolf Blitzer (May 31, 1998). Other
commentators and journalists have made similar assertions. See, e.g.,
The Washington Times (March 19, 1998); The New York Times (March 29,
1998); ABC Nightline (April 15, 1998); The Washington Times (July 29,
1998).
---------------------------------------------------------------------------
The President has acknowledged and apologized for an
inappropriate sexual relationship with Ms. Lewinsky, so there
is no need to describe that relationship in ugly detail. No one
denies that the relationship was wrong or that the President
was responsible. The Referral's pious defense of its
pornographic specificity is that, in the Independent Counsel's
view:
``the details are crucial to an informed evaluation of
the testimony, the credibility of witnesses, and the
reliability of other evidence. Many of the details
reveal highly personal information; many are sexually
explicit. This is unfortunate, but it is essential.''
Narrative at 20. This statement is patently false. Any fair
reader of the Referral will easily discern that many of the
lurid allegations, which need not be recounted here, have no
justification at all, even in terms of any OIC legal theory.
They plainly do not relate, even arguably, to activities which
may be within the definition of ``sexual relations'' in the
President's Jones deposition, which is the excuse advanced by
the OIC. They are simply part of a hit-and-run smear campaign,
and their inclusion says volumes about the OIC's tactics and
objectives.
Review of a prosecutor's case necessarily starts with an
analysis of the charges, and that is what we offer here. This
is necessarily a very preliminary response, offered on the
basis of less than a day's analysis and without any access to
the factual materials cited in the Referral.
Spectacularly absent from the Referral is any discussion of
contradictory or exculpatory evidence or any evidence that
would cast doubt on the credibility of the testimony the OIC
cites (but does not explicitly quote). This is a failure of
fundamental fairness which is highly prejudicial to the
President and it is reason alone to withhold judgment on the
Referral's allegations until all the prosecutors' evidence can
be scrutinized--and then challenged, as necessary, by evidence
from the President.
The real critique can occur only with access to the
materials on which the prosecutors have ostensibly relied. Only
at that time can contradictory evidence be identified and the
context and consistency (or lack thereof) of the cited evidence
be ascertained. Since we have not been given access to the
transcripts and other materials compiled by the OIC, our
inquiry is therefore necessarily limited. But even with this
limited access, our preliminary review reaffirms how little
this highly intrusive and disruptive investigation has in fact
yielded. In instance after instance, the OIC's allegations fail
to withstand scrutiny either as a factual matter, or a legal
matter, or both. The Referral quickly emerges as a portrait of
biased recounting, skewed analysis, and unconscionable
overreaching.
In our Preliminary Memorandum, filed yesterday, at pages 3-
12, we set forth at some length the various ways in which
impeachable ``high Crimes and Misdemeanors'' have been defined.
Nothing in the Referral even approximates such conduct. In the
English practice from which the Framers borrowed the phrase,
``High Crimes and Misdemeanors'' denoted political offenses,
the critical element of which was injury to the state.
Impeachment was intended to redress public offenses committed
by public officials in violation of the public trust and
duties. Because presidential impeachment invalidates the will
of the American people, it was designed to be justified for the
gravest wrongs--offenses against the Constitution itself. In
short, only ``serious assaults on the integrity of the
processes of government,'' 2 and ``such crimes as
would so stain a president as to make his continuance in office
dangerous to the public order,'' 3 constitute
impeachable offenses. The eleven supposed ``grounds for
impeachment'' set forth in the section of the Referral called
``Acts That May Constitute Grounds for an Impeachment''
(``Acts'') fall far short of that high standard, and their very
allegation demeans the constitutional process. The document is
at bottom overreaching in an extravagant effort to find a case
where there is none.
---------------------------------------------------------------------------
\2\ Charles L. Black, Jr. Impeachment: A Handbook--38-39 (1974)
\3\ Ibid.
---------------------------------------------------------------------------
Allegation I--Perjury in January 17, 1998, Deposition
We begin our response to the OIC's charge that the
President committed perjury in his January 17 deposition in the
Jones case with these simple facts: the President's
relationship with Ms. Lewinsky was wrong; he admitted it was
wrong; and he has asked for the forgiveness of his family and
the American people. The perjury charges in the Referral in
reality serve one principal purpose for the OIC--to provide an
opportunity to lay out in a public forum as much salacious,
gratuitous detail as possible with the goal of damaging the
President and the presidency.
The OIC begins its catalogue of ``acts that may constitute
grounds for impeachment'' with the allegation that ``[t]here is
substantial and credible information that President Clinton
lied under oath as a defendant in Jones v. Clinton regarding
his sexual relationship with Monica Lewinsky.'' Acts at 5. The
OIC contends that, for legal reasons, it must discuss its
allegations of sexual activity in detail and then goes out of
its way to supply lurid detail after lurid detail that are
completely irrelevant to any legal claim, obviously hoping that
the shock value of its footnotes will overcome the absence of
legal foundation for the perjury allegation.
In reaching any fair judgment as to the merits of the OIC's
claim that the President's testimony establishes a basis for
impeachment, it is important to understand a few additional
points. First, the OIC barely acknowledges the elements of
perjury, including, in particular, the substantial burden that
must be met to show that the alleged false statements were made
``knowingly,'' Preliminary Memorandum at 52, or that they were
material to the Jones proceeding.
Second, the OIC ignores the careful standards that the
courts have mandated to prevent the misuse of perjury
allegations. As was set out in detail in our Preliminary
Memorandum, pages 51-64, literally true statements cannot be
the basis for a perjury prosecution, even if a witness intends
to mislead the questioner. Likewise, answers to inherently
ambiguous questions cannot constitute perjury. And, normally, a
perjury prosecution may not rest on the testimony of a single
witness.
Third, by selectively presenting the facts and failing to
set out the full context of the answers that it claims may have
been perjurious, the OIC has presented a wholly misleading
picture. This tactic is most pronounced in the OIC's
astonishing failure to set out the initial definition of
``sexual relations'' presented by the Jones lawyers at
President Clinton's deposition, two parts of which were
eliminated by Judge Wright as being ``too broad.'' 4
The OIC also fails to mention that the Jones lawyers were fully
able, and indeed were invited by President Clinton's counsel,
to ask the President specific questions about his sexual
encounters, but they chose not do so. See Preliminary
Memorandum at 65.
---------------------------------------------------------------------------
\4\ The President was presented with the following definition, as
he understood the court to have amended:
Definition of Sexual Relations
For the purposes of this deposition, a person engages in
``sexual relations'' when the person knowingly engages in or
causes--
(1) contact with the genitalia, anus, groin, breast,
inner thigh, or buttocks of 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.
These surprising and substantial gaps in the Referral, and
the OIC's purposefully incomplete presentation reflect the
extreme weakness of the OIC's contention that the President's
deposition testimony about ``sexual relations'' may constitute
perjury.
As any fair prosecutor would acknowledge, what the OIC
dismisses as a mere ``semantical defense'' is, in fact,
reflective of the great care the courts have taken to ensure
that a witness is not charged with perjury except when the
government can demonstrate a clear intent to provide false
testimony. Thus, in any ordinary prosecutor's office, and
surely in the chambers of the House Judiciary Committee, the
definitions of such terms as ``sexual affair,'' ``sexual
relations,'' and ``sexual relationship'' would be seen as vital
to a determination whether some violation of law had
occurred.5 The burden that must be met by the OIC
extends beyond showing that the President was wrong on the
semantics, it must also show that, because perjury is a
specific intent crime, he knew he was wrong and intended to
lie--something that the OIC could not begin to demonstrate. In
fact, all the OIC has is a witness who gave narrow answers to
ambiguous questions.
---------------------------------------------------------------------------
\5\ For example, dictionary definitions of ``sexual relations''
expressly support the President's interpretation. See, e.g., Webster's
Third International Dictionary (defining ``sexual relations'' as
``coitus'). Yet, apparently, the OIC did not bother to check a
dictionary before leveling its accusations.
---------------------------------------------------------------------------
Lawyers' arguments, however well taken, should not obscure
the President's admission that his relationship with Ms.
Lewinsky was wrong and his acceptance of responsibility for his
conduct. But one example will suffice to demonstrate the
inherent weakness of the OIC's claim. The OIC argues that oral
sex falls within the definition of sexual relations and that
the President therefore lied when he said he denied having
sexual relations. It is, however, the President's good faith
and reasonable interpretation that oral sex was outside the
special definition of sexual relations provided to him. The OIC
simply asserts that it disagrees with the President's
``linguistic parsing,'' and that reasonable people would not
have agreed with him. Acts at 30. This simply is not the stuff
of which criminal prosecutions--and surely impeachment
proceedings--are made.
What is left, then, is a disagreement about the very
specific details of certain encounters that the President has
acknowledged were improper--the very ``oath against oath'' that
the law and experience reject as a basis for a prosecution,
because a perjury conviction cannot rest on simple
inconsistencies and memory disparities between only two
witnesses.
Instead of acknowledging the well-settled legal limits on
perjury cases, or grappling with the important limitations on
perjury prosecutions, the OIC has chosen to fill its report
with unnecessary and salacious sex--details that cause pain and
damage for absolutely no legitimate reason.
------
Allegation II--Perjury in August 17, 1998, Grand Jury Testimony
In its second allegation, the OIC contends that ``[t]here
is substantial and credible information that President Clinton
lied under oath to the grand jury about his sexual relationship
with Monica Lewinsky.'' Acts at 40. In particular, the OIC
alleges that the President committed perjury three times: (1)
when he testified that he believed oral sex was not covered by
any of the terms and definitions for sexual activity used at
the Jones deposition; (2) when he contradicted Ms. Lewinsky's
grand jury testimony on the question whether the President
touched Ms. Lewinsky's breasts or genitalia during their sexual
activity, since ``[t]here can be no contention that one of them
has a lack of memory or is mistaken,'' id.; and (3) when he
testified to a purportedly false date on which his relationship
with Ms. Lewinsky commenced. None of these ``allegations''
makes out a prima facie case of perjury, and none can possibly
constitute a ``ground'' for impeachment.
1. The OIC first claims that the President testified
falsely that he did not believe oral sex to be covered by any
of the terms and definitions for sexual activity used at the
Jones deposition. As noted in response to the first allegation,
supra, the terms ``sexual affair'' and ``sexual relationship''
are inherently ambiguous and, when used without definition,
cannot possibly amount to perjury. The President testified to
the grand jury about what he believed those terms mean. Not
content to accept his explanation, the OIC makes the
extraordinary (and factually unsupported) claim that the
President committed perjury before the grand jury by lying not
about some fact but about his belief about the meaning of
certain words. The OIC then compounds this error by claiming as
perjury the President's explanation of his understanding of the
contorted definition of ``sexual relations'' in the Jones suit,
as modified by the court.
This claim is quite stunning. The OIC charges the President
with perjury, saying it is ``not credible'' that the President
believed oral sex fell outside the definition he was given,
even though it plainly did, and even though many commentators
and journalists have stated that they believe that the
definition of sexual relations in the Jones deposition did not
include oral sex (performed on the President). See, e.g.,
Internight, August 12, 1998 (Cynthia Alksne) (``when the
definition finally was put before the president, 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-approved definition in [the Jones] case, Mr.
Clinton indeed may not have perjured himself back then if, say,
he received oral sex but did not reciprocate sexually.'').
Despite the fact that several reasonable commentators agree
with the President's interpretation, the OIC acts as though the
President's interpretation of the definition in the Jones case
is both unique and untenable. It is in fact the OIC's theory
that is untenable.
It is beyond debate that false testimony provided as a
result of confusion or mistake cannot as a matter of law
constitute perjury. See United States v. Dunnigan, 507 U.S. 87,
94 (1993); Department of Justice Manual, 1997 Supplement, at 9-
69.214. Moreover, if there is any doubt as to the falsity of
testimony, the issue must be resolved in favor of the accused.
See United States v. Chaplin, 25 F.3d 1373, 1380 (7th Cir.
1994) (the government must prove falsity by direct evidence,
and not inferences). The definitions on which the President
relied are shared both by dictionaries, see discussion of
Allegation I, supra, and by commentators. The OIC's very
allegation that the President committed perjury by re-
explaining his belief and interpretation to the grand jury is
yet another indication of the extent of the OIC's overreaching
in this Referral.6
---------------------------------------------------------------------------
\6\ This overreaching is compounded by the complete lack of legal
citation and analysis in the Referral. Perjury is a specific intent
crime, and is an area of the law in which stringent safeguards have
been erected to make perjury prosecutions exceedingly difficult. Rather
than explain how, notwithstanding these safeguards, it has made out a
valid perjury charge, the OIC has elected simply to forego discussing
the law entirely.
---------------------------------------------------------------------------
2. The OIC's next charge--that the President testified
falsely when he contradicted Ms. Lewinsky's grand jury
testimony on the question whether he touched Ms. Lewinsky's
breasts or genitalia during their sexual activity--is
substantially identical to the allegation contained in
Allegation I, supra, and cannot constitute perjury for the same
reason. The critical issue here is not whether the testimony of
the President and Ms. Lewinsky differ but whether there is any
evidence that the President knowingly and intentionally gave
false testimony. It is worthwhile to note, however, the
inaccuracy of the OIC's assertion that ``[t]here can be no
contention that one of them has a lack of memory or is
mistaken'' about the details of their physical relationship.
Acts at 40.
3. The OIC's final allegation here is that the President
made a false statement to the grand jury regarding the timing
of the beginning of his relationship with Ms. Lewinsky. Whereas
the Referral indicates that the President remembers the
improper relationship beginning early in 1996, Ms. Lewinsky has
apparently testified that it began November 15, 1995. As a
legal allegation this claim is frivolous, because the statement
by the President regarding the timing of the relationship (mid-
November 1995 as opposed to January 1996) was utterly
immaterial to the grand jury's investigation. The Supreme Court
has held that ``there is no doubt that materiality is an
element of perjury.'' Johnson v. United States, ______ U.S.
______ , 117 S. Ct. 1544, 1548 (1997). The test for materiality
is whether the statement in question had ``a natural tendency
to influence, or [be] capable of influencing, the decision of
the decisionmaking body to which it was addressed.'' United
States v. Gaudin, 515 U.S. 506, 509 (1995). There is no
conceivable way in which any statement by the President with
regard to the date (within a few weeks) of the commencement of
his relationship with Ms. Lewinsky could possibly have
influenced the grand jury, and the OIC has of course not
identified how the grand jury was ``influenced'' by this
testimony. The President acknowledged to the grand jury his
improper relationship, beginning early in 1996, with Ms.
Lewinsky, and his testimony regarding the date that the
relationship began cannot possibly have influenced the grand
jury in any decisionmaking function. The mere fact that the OIC
would allege perjury as a result of an utterly immaterial
statement speaks volumes about the overreaching in the
Referral.
------
Allegation III--Meetings and Exchanging Gifts With Ms. Lewinsky
In its third allegation, the OIC makes various claims of
perjury based on President Clinton's statements in the Jones
deposition regarding whether he had been alone with Ms.
Lewinsky in the Oval Office and in an adjacent hallway and
whether he and Ms. Lewinsky had exchanged gifts. Like the other
perjury allegations, the OIC fails to offer a credible case.
First and foremost, President Clinton did not deny meeting
alone with Ms. Lewinsky at the White House nor deny that they
exchanged gifts. In essence, the OIC's complaint is that
President Clinton was not more forthcoming, which is plainly
not a ground for perjury, rather than that he knowingly lied
under oath. This is perhaps most clearly seen in the OIC's
heading for this allegation, which sets forth the accusation
that President Clinton ``minimized the number of gifts they had
exchanged,'' Acts at 45, which of course concedes that he
acknowledged that gifts were exchanged. There is not much that
is safe from a perjury prosecution if mere ``minimization''
qualifies for the offense. The transcript makes it clear that,
when asked about particular gifts, the President honestly
stated his recollection of the particular item.
Nor can President Clinton's testimony regarding whether he
was alone with Ms. Lewinsky at various times and places
constitute perjury. The Jones lawyers often failed to follow up
on incomplete or unresponsive answers. Read as a whole, the
deposition makes clear that the President acknowledged being
alone with Ms. Lewinsky on some occasions. The Referral
unfortunately mischaracterizes the testimony to suggest an
absolute denial, for example, transforming a question about
being alone with Ms. Lewinsky in the Oval Office (where the
President did not recall engaging in improper contact) into
being alone at all (``The President lied when he said ``I don't
recall'' in response to the question whether he had ever been
alone with Ms. Lewinsky.'' Acts at 51.). And, surprisingly
since the Jones lawyers had been briefed by Ms. Tripp, the
Jones lawyers never asked the President whether he was alone
with Ms. Lewinsky in the study, where some of the alleged
activity took place. They were free to ask specific follow-up
questions about the nature and locale of any physical contact,
and they did not do so. The OIC cannot now hold the President
to blame for their failure.
------
Allegation IV--Discussions With Ms. Lewinsky About Potential Testimony
The Referral claims that in the following exchange in
President Clinton's January 17 deposition in the Jones case he
committed perjury:
Q: Have you ever talked to Ms. Lewinsky about the
possibility that she might be asked to testify in this
lawsuit?
A: I'm not sure and let me tell you why I'm not sure.
It seems to me the . . . I want to be as accurate as I
can here. Seems to me the last time she was there to
see Betty before Christmas we were joking about how
you-all, with the help of the Rutherford Institute,
were going to call every woman I'd ever talked to and .
. . ask them that, and so I said you would qualify, or
something like that. I don't, I don't think we ever had
more of a conversation than that about it, because when
I saw how long the witness list was, or I heard about
it, before I saw, but actually by the time I saw her
name was on it, but I think that was after all this
happened. I might have said something like that, so I
don't want to say for sure I didn't because I might
have said something like that.
Q: What, if anything, did Monica Lewinsky say in
response?
A: Nothing, that I remember. Whatever she said, I
don't remember. Probably just some predictable thing.
This answer was literally accurate. The President described a
joking conversation that he had with many women about the
possibility that they might be subpoenaed by the Jones lawyers.
He made clear that the recollection of the conversation with
Ms. Lewinsky preceded the appearance of Ms. Lewinsky's name on
the witness list (on December 5), saying: ``by the time I saw
[the witness list on December 6] her name was on it, but I
think that was after all this had happened.'' The President
also stated three different times in that one answer that he
was not certain as to his recollection, saying, ``I'm not
sure,'' ``I don't think,'' and ``I might have said something
like that.'' In his grand jury testimony, additional details of
a December 28 conversation with Ms. Lewinsky were provided by
the President. The testimony that the Referral cites is not
inconsistent--his first answer indicating he was referring to a
conversation that occurred before she had been named a witness,
and his August 17 testimony describing a conversation after she
had been subpoenaed in mid-December. The fact that Ms. Lewinsky
recalls additional conversations on the subject, all occurring
after she had been named on the witness list, does not
establish that the President's answer was inaccurate. This
answer cannot possibly support a perjury charge.
------
Allegation V--Concealing Gifts and an Intimate Note
In its fifth allegation, the OIC contends that President
Clinton obstructed justice by concealing gifts he had given to
Ms. Lewinsky. This claim is wholly unfounded and simply absurd.
On her December 28, 1997 visit, the President gave Ms. Lewinsky
several holiday and going-away gifts. Ms. Lewinsky apparently
testified that, during the visit, she raised a question about
the Jones subpoena and suggested ``put[ting] the gifts away
outside of my house or somewhere or giv[ing] them to someone,
maybe Betty.'' Acts at 74-75. To this suggestion, the
President, according to Ms. Lewinsky's reported testimony,
responded with something like, ``I don't know'' or ``Hmmm'' or
``there really was no response.'' \7\ President Clinton
contradicts this testimony. But even if one accepts Ms.
Lewinsky's testimony, ``I don't know,'' ``Hmmm'' and silence do
not constitute obstruction of justice.
---------------------------------------------------------------------------
\7\ The ambiguity and indeterminacy of Ms. Lewinsky's testimony
here, as quoted by the OIC, dramatically illustrates the need to review
carefully all the materials which the OIC cryptically cites in the
Referral.
---------------------------------------------------------------------------
Moreover, Ms. Lewinsky's testimony is contradicted by Ms.
Currie who testified that it was Ms. Lewinsky, not the
President, who asked her to come get the gifts and keep them.
The OIC tries to impugn Ms. Currie's memory in the quoted
passage, yet her recollection is consistent with the testimony
of one of the two other parties to the events. Indeed, the
OIC's effort to shore up its case by trying to discount Ms.
Currie's testimony on this point is a prime example of the
dangers of relying on the OIC's development and presentation of
the evidence. When confronted with testimony not to its liking
from Ms. Currie, the OIC responded by questioning her in a
manner clearly designed to encourage Ms. Currie to restate her
recollection in a manner consistent with the OIC's theory of
the case. Acts at 77.\8\
---------------------------------------------------------------------------
\8\ The lengths to which the OIC is willing to go to force evidence
into the picture it wants to draw is further revealed by its citation
to the fact that Ms. Currie drove to Ms. Lewinsky's apartment to pick
up the gifts as evidence that Ms. Lewinsky's story, rather than Ms.
Currie's, is the correct one. According to the OIC, ``the person making
the extra effort (in this case, Ms. Currie) is ordinarily the person
requesting the favor.'' Acts at 83. There is no basis in logic or
experience for this position.
---------------------------------------------------------------------------
The OIC's theory of concealment also is belied by Ms.
Lewinsky's decision to turn over some, but not all, of the
gifts she had received from the President to Ms. Currie; if the
purpose of the exercise was to avoid having gifts in her
possession at the time of the deposition (which of course would
not have been proper), retaining some gifts made no sense. But
the OIC is forced to acknowledge that only one of the several
gifts the President gave to Ms. Lewinsky on December 28, 1997
was included in the box she gave to Ms. Currie for safekeeping.
The theory makes no sense.
Ultimately, the only theory that does make sense is the
truth, as testified to by the President and Ms. Currie and as
supported by the fact that the President acknowledged giving
Ms. Lewinsky gifts as early as his January 17, 1998 deposition.
The President was unconcerned about the gifts he had given to
Ms. Lewinsky because he frequently exchanges gifts with
friends. That is why he gave her additional gifts on December
28 even though, according to her testimony, he knew the Jones
lawyers were interested in them. Thus, when she raised a
question, he told Ms. Lewinsky she had to turn over what she
had; they were of no concern to him. Nonetheless, in response
to Ms. Lewinsky's subsequent request, Ms. Currie drove to Ms.
Lewinsky's apartment and picked up a box of gifts from Ms.
Lewinsky and held them for safekeeping. The President did not
direct or encourage Ms. Currie's activities regarding the
gifts. He likewise did not obstruct justice by concealing their
existence.
The OIC also argues that the President obstructed justice
in the Jones case by destroying an intimate note that Ms.
Lewinsky included in a book she left for him on January 4,
1998.\9\ The OIC states in its Referral that the President was
served with a document request from the Jones lawyers on
December 16, 1997, that required him to produce this note to
the Jones lawyers. The disingenuousness of this allegation is
apparent on several levels.
---------------------------------------------------------------------------
\9\ The United States Secret Service WAVES records do not reflect a
clearance request or an entry into the White House complex by Ms.
Lewinsky on this date (or any other date in 1998).
---------------------------------------------------------------------------
As a preliminary matter, the President testified that he
recalled receiving a book from Ms. Lewinsky, that he believed
he had received it in December, and that he did not recall
receiving an accompanying note. Deposition of the President,
August 17, 1998. Contrary to the one-sided presentation of the
purported facts in the OIC's referral, the President may not
even have received that note.
Second, the OIC asserts, without basis, that the President
purposefully destroyed Ms. Lewinsky's note because he did not
want to have to turn it over to the Jones lawyers. The OIC has
absolutely no basis for assuming that the President was aware
of the document request at the time he received the book. Thus,
even assuming the President had received and discarded the
note, his acts would not constitute obstruction of justice.
Finally, setting aside whether the President actually
received Ms. Lewinsky's note, or knew whether it was subject to
a document request, at bottom the OIC is transforming a civil
discovery issue into yet another flimsy criminal charge,
accusing the President with obstruction of justice on the basis
of his alleged failure to produce this note to the Jones
lawyers. As the OIC clearly knows, the obstruction of justice
statute does not apply to a party's concealing or withholding
of discoverable documents in civil litigation. See, e.g.,
Richmark v. Timber Falling Consultants, 730 F. Supp. 1525, 1532
(D. Or. 1990) (``[t]he parties have not cited and the court has
not found any case in which a person was charged with
obstruction of justice for concealing or withholding discovery
in a civil case''). Demonstrable non-compliance with the rules
is sanctioned civilly as an abuse of the discovery process. See
Rule 37, Fed. R. Civ. P. (``Failure to Make Disclosure or
Cooperate in Discovery: Sanctions''). Therefore, even if, as
the OIC alleges, the President received and discarded the note
in the wake of an outstanding request--which the President
testified he did not--those actions would not constitute
obstruction of justice. The OIC's allegation is missing both
the facts and the law.
------
Allegation VI--Concealment of the Relationship
In the sixth allegation, the OIC contends that there is
substantial and credible information that:
(i) President Clinton and Ms. Lewinsky had an
understanding that they would lie under oath in the
Jones case about their relationship; and
(ii) President Clinton endeavored to obstruct justice
by suggesting that Ms. Lewinsky file an affidavit so
that she would not be deposed, she would not contradict
his testimony, and he could attempt to avoid questions
about Ms. Lewinsky at his deposition.
The essence of the OIC's argument is that, because the
President and Ms. Lewinsky attempted to conceal the improper
nature of their relationship while it was going on and because
the President failed affirmatively to assure that each
statement contained in the affidavit filed by Ms. Lewinsky was
true, he therefore obstructed justice. The Referral fails even
to allege facts that, if true, would constitute obstruction of
justice under the law as set out in our Preliminary Memorandum
at pp. 21-25.
First, 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 not unusual and not an obstruction of
justice.
The Referral alleges only one specific statement that Ms.
Lewinsky claims the President made to her regarding the
substance of her testimony. Ms. Lewinsky testified that the
President told her, ``You know, you can always say you were
coming to see Betty or that you were bringing me letters.'' Act
at 98. As an initial matter, the President testified that he
did not recall saying anything like that in connection with Ms.
Lewinsky's testimony in the Jones case. But even if he did,
neither of those two ambiguous statements would be false. And
most importantly, as even the OIC concedes, Narrative at 29,
the President never instructed her to lie.
The Referral also alleges that the President somehow
obstructed justice by suggesting to Ms. Lewinsky that she could
sign an affidavit in the Jones case. But the Referral again
fails to establish how this might constitute obstruction. The
OIC makes no contention that the President ever told Ms.
Lewinsky to file a false affidavit. A suggestion to submit
written testimony under oath in a judicial proceeding, if he
made it, is hardly improper--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 avoid
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 the true nature of their relationship,'' as the OIC
asserts, 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. But the President never told Ms. Lewinsky what to
say in the affidavit, knew that Ms. Lewinsky had her own lawyer
to protect her interests, and expressly declined the
opportunity to review the content of the affidavit, according
to Ms. Lewinsky. Narrative at 203. The OIC's position appears
to be that this is somehow obstruction of justice--that the
President had an affirmative duty to ensure that Ms. Lewinsky
volunteered in her affidavit all information in which the Jones
lawyers might possibly have an interest. 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.
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 statement made by
his lawyer to the court in the Jones deposition. The President
testified to the grand jury that the lawyers' argument at the
start of the deposition ``passed [him] by;'' he also remarked
that the statement of his lawyer might be literally true. The
OIC distorts this response to suggest the President testified
that he did not correct the statement at the January deposition
because it might have been true. We do not believe the
testimony would support that claim.
There is of course no legal obligation imposed on a client
to listen to every word his attorney says, and the OIC has no
evidence that the President even focused on or absorbed his
attorney's remark. Without any evidence whatsoever, the OIC
asserts 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, the OIC has made a wholly
unsupportable allegation of obstruction of justice.
------
Allegation VII--Job Search for Ms. Lewinsky
In its seventh allegation, the Referral contends that
certain actions taken on behalf of Ms. Lewinsky in her job
efforts amounted to obstruction of justice. The Referral
acknowledges that the case for obstruction based on the job
search is wholly circumstantial and that there is absolutely
``no evidence'' of any ``arrangement . . . explicitly spelled
out.'' Acts at 113 n.361. Noting that the critical issue
centers on the intent of the party providing the assistance,
the Referral asks that ``inferences be drawn'' from the
circumstantial evidence set forth in the Referral chronology.
Id. at 113.
But that chronology presents precious little in the way of
Presidential involvement and nothing that supports an inference
of any intent to obstruct justice by helping Ms. Lewinsky (to
the limited extent he did) in her job efforts. It may be the
OIC's view that the President should have cast Ms. Lewinsky off
and refused to assist her in any way, simply because the Jones
case was filed. Fortunately the law requires no such callous
absurdity.
The Referral states that the President agreed to help Ms.
Lewinsky look for a job, Acts at 105; that he said he would
take care of finding her a reference from someone in the White
House, Id. at 105; and that after Ms. Lewinsky obtained a job,
the President asked Erskine Bowles ``could we see if [John
Hilley] could recommend her, if asked,'' Id. at 111-12. There
is no suggestion that he ever ordered or directed anyone to
assist Ms. Lewinsky or asked anyone to give her special
advantages or disadvantages because of their relationship or
that he ever linked his relatively insubstantial assistance to
a requirement that she act--or testify--in a certain way. The
kinds of actions that are alleged simply do not constitute
obstruction of justice.
Indeed, upon close reading, the Referral itself
acknowledges the following facts, which, if taken as true, are
all at odds with the notion that the President acted with
corrupt intent:
that it was Ms. Lewinsky who initiated
discussions about a job in New York; Acts at 104,
Narrative at 117;
that the subject of a job in New York was
raised on July 3, 1997--more than three months before
the President was served with interrogatories in the
Jones case, and more than five months before Ms.
Lewinsky's name appeared on a witness list; Acts at
104;
that it was Ms. Lewinsky who broached the
subject of receiving the President's help in obtaining
a job in New York; Acts at 104-05;
that Ms. Lewinsky presented the President
with a list of jobs in which she was interested; Acts
at 105;
that Ms. Lewinsky suggested that a White
House job reference would be useful; Acts at 105;
that Ms. Lewinsky suggested that Vernon
Jordan might be able to help her; Acts at 105; and
that, notwithstanding the Referral's
insinuations to the contrary, the President and
Ambassador Bill Richardson testified that they never
discussed Ms. Lewinsky with each other; Narrative at
145.
This account fails to allege facts supporting a case of
obstruction of justice under the only statute that could
conceivably apply here, 18 U.S.C. Sec. 1503. Under that
provision, the government must prove obstruction of justice by
establishing that there was a pending judicial proceeding, that
the defendant knew of the proceeding, and that the defendant
acted ``corruptly'' with the specific intent to obstruct or
interfere with the proceeding or due administration of justice.
See, e.g., United States v. Buicey, 876 F.2d 1297, 1314 (7th
Cir. 1989); United States v. Smith, 729 F. Supp. 1380 (D.C.C.
1990). Four federal courts of appeals have held that the ``act
corruptly'' element of the crime requires that the defendant
have acted with the specific intent to obstruct justice. See,
e.g., United States v. Moon, 718 F.2d 1219, 1236 (2d Cir.1983);
United States v. Bashaw, 982 F.2d 168, 170 (6th Cir. 1992);
United States v. Rasheed, 663 F.2d 843, 847 (9th Cir. 1981). It
is simply not enough that the effects of a person's actions may
have had the effect of somehow impeding justice if that was not
the intent of the person accused. And here it is not even clear
how the President's limited assistance was meant to or did
obstruct anything.
------
Allegation VIII--Conversations with Mr. Jordan
The OIC asserts in its eighth allegation 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 did not recall whether Mr.
Jordan had talked to Ms. Lewinsky about her involvement in the
Jones case.'' Acts at 115. This account of the question and
answer is simply false. The President was not asked that
question, and he did not give that answer.
To bolster this extraordinary claim, the OIC misrepresents
certain of the President's deposition responses. First, the OIC
quotes one question and answer--
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. (emphasis added in Referral)
but omits the next question and answer, even though it is
apparent from the text, and the OIC was told by the President,
that the next question and answer were a continuation:
Q. Did you ever talk with Monica Lewinsky about the
possibility that she might be asked to testify in this
case?
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.
This unresponsive answer reflects the President's effort to
recall, in response to the prior question, where he had first
learned about the subpoena, but the word ``first'' implies
there were other people (perhaps Mr. Jordan) who told him. The
Jones lawyers simply did not pursue this by asking the logical
follow-up questions.
Nor do the remaining two passages state what the OIC
claims. The next passage asked whether, in the past two weeks
(before January 17) anyone had reported to the President that
they had had a conversation with Ms. Lewinsky about the
lawsuit, to which the President replied he did not believe so.
This response of course does not rule out all conversations
with Mr. Jordan about Ms. Lewinsky's involvement in the case,
as the OIC would suggest, but only in the two-week period and
only accounts of conversations with Ms. Lewinsky, not
conversations simply about her involvement in the case.
Moreover, the OIC's 252-page Narrative does not identify
reports to the President about conversations that Mr. Jordan
had with Ms. Lewinsky in that time period--instead, it recounts
only that, 10 days before the deposition, Mr. Jordan left word
for the President that the affidavit was signed. The last
passage on which the OIC relies simply asked whether the
President had heard that Mr. Jordan and Ms. Lewinsky met to
discuss the case; the President recounted his belief that the
two had met to discuss the job search--about which the
President readily acknowledged an awareness. The OIC's
assertion that the President ``did not recall whether Mr.
Jordan had talked to Ms. Lewinsky about her involvement in the
Jones case,'' is simply not supported by the testimony. This
allegation is a fabrication by the OIC.
------
Allegation IX--``Witness Tampering''
In its ninth allegation the OIC charges that President
Clinton obstructed justice and improperly influenced a witness
when he spoke with Ms. Currie the day after his deposition in
the Jones case. The OIC's claims are wrong and, again, the
product of extraordinary overreaching and pejorative
conjecture--a transparent attempt to draw the most negative
inference 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 with her: her name had not
appeared on any of the Jones witness lists; she had not been
named as a witness in the Jones case; there were just two weeks
of discovery left in the case; and there was no reason to
suspect she would play any role in that case. The President had
no 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
witness and a proceeding. Here, there was neither. Despite the
OIC's far-fetched suggestion to the contrary, there was no
reason the President 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. Ms. Currie
was Ms. Lewinsky's friend. The President had just faced
unexpected and hostile questioning by his fierce political
opponents in the Jones case about Ms. Lewinsky. He was
obviously puzzled at being asked such detailed (and in some
cases such bizarrely inaccurate) questions about a past secret
relationship. 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. Lewinsky and to test his
recall, since he had not anticipated such detailed questions or
prepared for them. It was his belief that Ms. Currie was
unaware that he had engaged in improper activity with Ms.
Lewinsky. 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 that was
also Ms. Currie's recollection. The President's actions were
hardly surprising since he had just undergone hostile and
unexpected questioning in a bitterly contested civil suit.
Whatever his reasons, however, one simple fact remains. At
the time he discussed Ms. Lewinsky with Ms. Currie, Ms. Currie
was not expected to be, nor was she, a witness. Again, the OIC
has wholly overreached to make baseless allegations of criminal
conduct.
------
Allegation X--Refusal To Testify
The tenth allegation is premised on the OIC's
misrepresentation of the facts. The assertion that ``[the
President] simultaneously lied to potential grand jury
witnesses,'' ``[w]hile refusing to testify for seven months''
is a gross distortion of the Referral's own citations.
The statements to Presidential aides cited by the Referral
were made either on the day the Lewinsky story broke (January
21, 1998) or within a few days 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 they were virtually identical in substance.
Having announced to the whole country on live television that
he was not having sexual relations with Ms. Lewinsky, it is
simply absurd to believe that he was somehow attempting to
corruptly influence the testimony of aides when he told them
virtually the same thing at the same time.
And in any event, the mere repetition of a public denial to
these aides could not have affected the grand jury process. The
elicited testimony was hearsay. The aides were not witnesses to
any sexual activity, and they had no first-hand knowledge
pertinent to the denials. Their testimony as to what they heard
from the President was truthful--the President in no
conceivable way sought to alter any other perceptions or
information they might have had. Their testimony thus 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.
There is and could be no evidence that the President had a
specific intent to obstruct justice by his aides' repetition of
his own denials.
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. A defendant must
be aware of the legal proceeding's existence, and his efforts
must be aimed specifically at obstructing that proceeding. See
United States v. Wilson, 565 F. Supp. 1416, 1431 (S.D.N.Y.
1983). In fact, the President simply repeated to aides
substantially the same statement he made to the whole country.
There was no action here intended specifically to influence the
grand jury through the testimony of Presidential aides. Under
the OIC's theory, it could have subpoenaed to the grand jury
any citizen who heard the President's denial and thus have
created a new violation of law.
In sum, the President's statements to his aides could not
have obstructed justice 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 with Ms. Lewinsky somehow
contributed to an obstruction of justice because it affected
how 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 grand jury absent compulsion
and every reason not to do so, given the OIC's tactics, illegal
leaking, and manifest intent to cause him damage.
------
Allegation XI--Abuse of Power
As the Office of Independent Counsel itself acknowledges,
Acts at 148, from the very beginning, its investigation was
focused on the prospect that the information it was gathering
would be transmitted to the Congress. It is in this context,
with the threat of impeachment on the horizon, that the OIC's
last allegation of an abuse of power must be judged.
The OIC begins with the charge that the President's false
denial that he had an improper relationship with Ms. Lewinsky--
something that he has now admitted and apologized for--was
itself an abuse of power because it served to deceive the
American people. Implicit in this charge is the notion that any
official, in any branch of the government, who makes a public
statement about his own conduct, or indeed any other matter,
that is not true may be removed from office. It would follow,
therefore, that no official could mount a defense to
impeachment, or to ethics charges, or to a criminal
investigation while remaining in office, for anything other
than an immediate admission of guilt will necessarily be
misleading.
In the Federalist Papers, Alexander Hamilton described
abuse of power as the ``corrupt use of the office for personal
gain or some other improper purpose.'' Twenty-four years ago,
President Nixon's false statements to the public and to the
courts, which were part of a scheme to obstruct justice through
the perjury of his senior staff, through payoffs to criminal
defendants, and through use of the Central Intelligence Agency
(CIA) to thwart an FBI investigation into crimes in which he
was involved, fit squarely within that definition. Merely to
describe that conduct makes clear how different it is from that
of President Clinton and how far the OIC has been willing to go
to synthesize its charges of impeachable conduct.
The manifest desire to create improprieties where none
exist and to transform personal misconduct into impeachable
official malfeasance is evident also in the OIC's claim that
the President's assertion of executive privilege was somehow
unlawful. Oddly enough, the OIC finds abuse of power both in
the assertion of the privilege and its withdrawal--surely
evidence of an overwrought imagination or of a conceit that any
legal position other than the OIC's is presumptively
obstructive. In truth, the OIC's decision to invade the
confidential relationship between the President and his most
senior advisors and lawyers was unprecedented. It reflects a
patent abuse of authority by the OIC and a wholesale
abandonment of any prosecutorial judgment in a campaign to
prevent the President from consulting meaningfully with his
advisors. At bottom, the Independent Counsel seems to believe
that, merely because he chooses to seek confidential
information from the Office of the President, the President may
not contest that demand without risking a charge that he is
abusing his power.
Reading the OIC's Referral, one would never know which
party to the executive privilege litigation was right and which
was wrong on the basic question whether the privilege applied
to the communications the OIC was seeking to obtain. In the
District Court, the OIC took the position that executive
privilege was simply inapplicable in the face of its grand jury
subpoena because the communications at issue related to the
President's private conduct, but Chief Judge Johnson rejected
that claim out of hand. In re Grand Jury Proceedings, 1998 U.S.
Dist. Lexis 7736 (D.D.C. 1998). Astoundingly, however, the OIC
simply repeats that claim in the Referral, Acts at 155, with no
acknowledgement that the court agreed with the White House that
the privilege had been properly asserted. 10
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\10\ Judge Johnson then asked the OIC to make a showing of its need
for the information and found that that showing was sufficient to
overcome the privilege. At that point, the White House elected not to
pursue the issue as to the non-lawyer advisors, and they testified at
length before the grand jury.
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More importantly, the OIC's abuse-of-power allegation must
necessarily rest on the assumption that the President initiated
the executive privilege claim with intent to impede the OIC's
investigation. Yet, the record is clear that it was only after
extensive negotiations in which the White House offered to make
available to the OIC factual information concerning the
President's conduct and had its offer rejected out of hand,
that the White House Counsel notified the President of the
OIC's demands, explained the failed accommodation effort, and
recommended that he invoke the privilege. Counsel gave that
advice because he believed it important to protect the
constitutional interests of the presidency. Thus, the
President's decision to claim privilege was not the result of
his own initiative, much less of any intent to obstruct the
grand jury investigation, but rather was the result of his
Counsel's advice.11
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\11\ Similarly, the OIC misleads the Congress and the public by
blaming the President for pursuing an appeal from rulings of the
District Court involving executive privilege claims by lawyers in the
White House Counsel's Office. It does so without acknowledging the fact
that White House Counsel had informed Independent Counsel Starr, in a
letter dated September 4, that those appeals had been taken only to
preserve an issue raised for the first time by the Court of Appeals in
a recent opinion dealing with the attorney-client privilege.
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Even more egregiously misleading is the claim that the
President abused his power by ``acquiescing'' in the efforts of
the Secret Service to assert a protective function privilege.
First, the OIC characterizes that assertion as frivolous even
though it reflected the judgment of the law enforcement
professionals charged with protecting this and future
presidents and was supported by President Bush.12
Further, the OIC charges the President with abusing his power
despite the fact that the OIC knew that he had nothing to do
with the decision to assert the privilege or to pursue the
appeal from Judge Johnson's decision. Indeed, the OIC itself
had argued (in contesting the claim of the Secret Service in
the district court) that the failure of the President to
involve himself in the matter was itself a reason for the court
to reject the Service's claim. The OIC cannot have it both
ways.
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\12\ The OIC also argues that Chief Justice Rehnquist's decision to
deny a stay reflects a judgment that the Service's claim was frivolous,
but fails to disclose that the Chief Justice specifically left open the
prospect that the Court would decide to hear an appeal on the merits.
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Last, the OIC charges that it was an abuse of power for the
President, at a time when both his personal and official
interests were in the balance, not to testify before the grand
jury until August--surely a claim that must astound lawyers and
laymen alike. Could the OIC truly be taking the position that
any government official who is the subject of a criminal
investigation must immediately come forward and testify at a
prosecutor's whim or risk impeachment? To state the question is
to answer it.
CONCLUSION
It has come down to this.
After four years, scores of FBI agents, hundreds of
subpoenas, thousands of documents, and tens of millions of
dollars. After hiring lawyers, accountants, IRS agents, outside
consultants, law professors, personal counsel, ethics advisers,
and a professional public relations expert. After impaneling
grand juries and leasing office space in three jurisdictions,
and investigating virtually every aspect of the President's
business, financial, political, official and, ultimately,
personal life, the Office of Independent Counsel has presented
to the House a Referral that no prosecutor would present to any
jury.
The President has admitted he had an improper relationship
with Ms. Lewinsky. He has apologized. The wrongfulness of that
relationship is not in dispute. And yet that relationship is
the relentless focus of virtually every page of the OIC's
Referral.
In 445 pages, the Referral mentions Whitewater, the failed
land deal which originated its investigation, twice. It never
once mentions other issues it has been investigating for
years--matters concerning the firing of employees of the White
House travel office and the controversy surrounding the FBI
files. By contrast, the issue of sex is mentioned more than 500
times, in the most graphic, salacious and gratuitous manner.
The Office of Independent Counsel is asking the House of
Representatives to undertake its most solemn and consequential
process short of declaring war; to remove a duly, freely and
fairly elected President of the United States because he had--
as he has admitted--an improper, illicit relationship outside
of his marriage. Having such a relationship is wrong. Trying to
keep such a relationship private, while understandable, is
wrong. But such acts do not even approach the Constitutional
test of impeachment--``Treason, Bribery, or other high Crimes
and Misdemeanors.''
The founders were wise to set such a high standard, and
were wise to vest this awesome authority in the hands of the
most democratic and accountable branch of our Government, and
not in the hands of unaccountable prosecutors.
We have sought in this Initial Response to begin the
process of rebutting the OIC's charges against the President--
charges legal experts have said would not even be brought
against a private citizen. The President did not commit
perjury. He did not obstruct justice. He did not tamper with
witnesses. And he did not abuse the power of the office of the
Presidency.