The content of the following materials are verbatim as
forwarded President Clinton's attorneys. The conversion to HTML has
altered the pagination and format. As the language contained in the report
is at times graphic, we urge you to exercise caution.
Introduction
Allegation
I - Perjury in Jan 17, 1998, Deposition Allegation
II -- Perjury in August 17, 1998, Grand Jury Testimony Allegation
III - Meeting and Exchanging Gifts with Ms. Lewinsky Allegation
IV - Discussions with Ms. Lewinsky About Potential Testimony Allegation
V -Concealing Gifts and an Intimate Note Allegation
VI - Concealment of the Relationship Allegation
VII - Job Search for Ms. Lewinsky Allegation
VIII - Conversations with Mr. Jordan Allegation
IX - "Witness Tampering" Allegation
X - Refusal to Testify Allegation
XI - Abuse of Power Conclusion
David E. Kendall Nicole K. Seligman Emmet T. Flood Max
Stier Glen Donath Alicia L. Marti WILLIAMS &
CONNOLLY 72512th Street, N.W. Washington, DC 20005 Charles F.C.
Ruff Cheryl Mills Lanny A. Breuer
OFFICE OF THE WHITE
HOUSE COUNSEL The White House 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 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.
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 a 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.
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.
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.
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: (l) 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,
wher used without definition, cannot possibly amount to perdury. 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, eg,
Internight. August 12, 1998 (Cynthia Alksne) ("when the definition
fnally 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 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 decision-making 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 decision-making function. The mere
fact that the OIC would allege perjury as a result of an utterly material
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 per~ury 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 recal1 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, 1998 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.
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)
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, 1998 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 Jone 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.
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
RelationshipIn 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, 'Now 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
nffirmative 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 law 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. LewinskyIn
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. Lewinskywho 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, notwithstan~ling 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. § 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
"corrupty' with the specific intent to obstruct or interfere with the
proceeding or due administration of justice. See e.g., United States v.
Buicev, 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.
JordanThe 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 cl~ims. 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. Lewinslry. 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 snme 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 truthfill -- 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 PowerAs 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 crimina1 investigation while remnining 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 Jurv Proceedings 1998 U.S. Dist. Lexis 7736 (D.D.C.
1998). Astoundingly, however, the OIC simply repeats that claim in the
Referral, Acts at 165, with no acknowledgement that the court agreed with
the White House that the privilege had been properly asserted.(10)
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)
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.
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.
CONCLUSIONIt 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.
NOTES (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).
(2) Charles L. Black, Jr. Impeachment: A Handbook-
38-39 (1974)
(3) Ibid.
(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;
NOTE THESE LINES ARE CROSSED
OUT (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 the person’s body.
"Contact" means intentional touching, either directly or through
clothing.
(5) For example, dictionary definitions of "sexual
relations" expressly support the President's interpretation. - , 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.
(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.
(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.
(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.
(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).
(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.
(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.
(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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