[Congressional Record Volume 145, Number 28 (Tuesday, February 23, 1999)]
[Senate]
[Pages S1794-S1799]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
APPRECIATION OF SERVICE OF CHIEF JUSTICE REHNQUIST
Mr. DODD. Mr. President, I rise to extend a word of thanks to Chief
Justice Rehnquist for his distinguished service in presiding over this
trial.
The Supreme Court sits just a few short yards from this Chamber. Yet,
its Justices and its working remain largely unknown to those of us who
serve here. Perhaps that conceptual distance successfully reflects the
Framers' construct of legislative and judicial branches that act for
the most part independently of one another.
Suffice it to say that our knowledge of the Chief Justice was rather
limited prior to the commencement of the impeachment trial. We knew of
his reputation as a formidable intellect, as a scholar--including on
the topic of impeachment--, and as an efficient manager of courtroom.
We did not as a group know much more about him.
What we learned during that course of that trial is that the Chief
Justice brought his many estimable qualities to bear on this unique
legal challenge. He brought a deep historical understanding of the
impeachment process. He instilled confidence in each Senator that he
would conduct himself in a manner faithful to the role prescribed for
the chief justice by the Framers. All all times, he guided the trial
with a firm and fair hand-not hesitating to use his judgment and common
sense when appropriate, but never pressing a point of view on matters
better left to the collective judgment of the Senate. He demonstrated a
continuing respect and appreciation for the workings of this body. Last
but not least, he brought a refreshing sense of humor to his task,
which made our task as triers of fact somewhat more bearable.
Although this was an historic occasion, no one who took part in it
relished doing so. There is collective relief, I think, that this
constitutional ordeal is now behind us. But as we look back at these
past remarkable weeks, we can all take comfort and pride in knowing
that this second impeachment trial in our nation's history was presided
over by an individual of great intelligence, historical knowledge, and
wit.
These qualities made him uniquely suited to his task. The Senate and
the entire nation owe a debt of thanks to Chief Justice Rehnquist for
rendering such value and distinguished service.
APPENDICES A-L TO SENATOR LEVIN'S IMPEACHMENT TRIAL STATEMENT OF
FEBRUARY 12, 1999
Mr. LEVIN. Mr. President, as we close this chapter in the Senate's
life and prepare our records for the annals of history, there are
several points which I wish to highlight in a series of appendices.
I ask unanimous consent that the appendices be printed in the Record.
There being no objection, the appendices were ordered to be printed
in the Record, as follows:
Appendix A
The indisputable, underlying reality of the impeachment
case was that Monica Lewinsky's denial of a sexual
relationship with the President was part of a long-term
understanding and pattern, long before the subpoena in the
Paula Jones case.
``Q: Had you talked with him earlier about these false
explanations about what you were doing visiting him on
several occasions?
A: Several occasions throughout the relationship. Yes. It
was a pattern of the relationship to sort of conceal it.''--
Grand Jury Testimony of Monica Lewinsky, Part One;
Independent Counsel Appendices, Page 844.
``A Juror: Did you ever discuss with the President whether
you should deny the relationship if you were asked about it?
A: I think I always offered that.''--Grand Jury Testimony
of Monica Lewinsky, Part One; Independent Counsel Appendices,
Page 1077.
``A: And she [Linda Tripp] told me that I should put it in
a safe deposit box because it could be evidence one day. And
I said that was ludicrous because I would never--I would
never disclose that I had a relationship with the President.
I would never need it.''--Grand Jury Testimony of Monica
Lewinsky, Part One; Independent Counsel Appendices, Page
1107.
``A Juror: And what about the next sentence also? Something
to the effect that if two people who are involved say it
didn't
[[Page S1795]]
happen, it didn't happen. Do you recall him saying that to
you?
A: Sitting here today, very vaguely . . . And this was--I
mean, this was early--obviously not something we discussed
too often, I think, because it was--it's a somewhat
unpleasant thought of having to deny it, having it even come
to that point.
A Juror: Is it possible that you also had these discussions
after you learned that you were a witness in the Paula Jones
case?
A: I don't believe so. No.
A Juror: Can you exclude the possibility?
A: I pretty much can.''--Grand Jury Testimony of Monica
Lewinsky, Part One; Independent Counsel Appendices, Page
1119.
____
Appendix B
Did Ms. Lewinsky think her affidavit in the Paula Jones
case was false when she signed it?
``Ms. L had a physically intimate relationship with the
President. Neither the Pres. nor Mr. Jordan (or anyone on
their behalf) asked or encouraged Ms. L to lie. Ms. L was
comfortable signing the affidavit with regard to the `sexual
relationship' because she could justify to herself that she
and the Pres. did not have sexual intercourse.''--Proffer of
Monica Lewinsky to the Independent Counsel.
``Q: When he said that you might sign an affidavit, what
did you understand it to mean at that time?
A: I thought that signing an affidavit could range from
anywhere between maybe just somehow mentioning, you know,
innocuous things or going as far as maybe having to deny any
kind of relationship.''--Grand Jury Testimony of Monica
Lewinsky, Part One; Independent Counsel Appendices, Page 844.
``Q: You were trying to be truthful throughout [the
proffer]?
A: Exactly.''--Grand Jury Testimony of Monica Lewinsky,
Part One; Independent Counsel Appendices, Page 1142.
``A: But I did some justifying in signing the affidavit,
so--
Q: Justifying--does the word `rationalizing' apply as well?
A: Rationalize, yes.''--Grand Jury Testimony of Monica
Lewinsky, Part One; Independent Counsel Appendices, Page 925.
____
Appendix C
House Managers implied that when the President allegedly
told John Podesta Ms. Lewinsky threatened him, the President
was lying. But Monica Lewinsky did write a threatening letter
to President Clinton.
``If you believe the aides testified truthfully to the
grand jury about what the President told them about his
relationship, the President told them many falsehoods,
absolute falsehoods. So when the President described them
under oath to the grand jury as truths, he lied and committed
the crime of perjury. One example of this comes from Deputy
Chief John Podesta. . . [a]nother is Sidney Blumenthal. His
testimony was that on January 23 the President told him that.
. . Lewinsky threatened him and said that she would tell
people that they had had an affair. . .''--House Manager
McCollum, Congressional Record, January 15, 1999, Page S266.
``Q: You mentioned that in that July 3rd letter that you
sent to the President through Betty you made a reference to
the fact that you might have to explain things to your
parents. What did you mean by that?. . . Were you meaning to
threaten the President that you were going to tell, for
example, your father about the sexual relationship with the
President?
A: Yes and no.''--Grand Jury Testimony of Monica Lewinsky,
Part One; Independent Counsel Appendices, Page 807.
____
Appendix D
There was much debate about the consequences of calling
live witnesses. The President's lawyers argued that calling
witnesses would require them to engage in extensive discovery
and would significantly stretch-out the trial. It is relevant
in evaluating that claim to look at the impeachments of Judge
Nixon and Judge Alcee Hastings. In both of those cases, the
Judges' attorneys were given extensive discovery, including
Justice Department files, to prepare their defense. See
letter of Senator Wyche Fowler, Chairman of the Senate
Impeachment Trial Committee, and letter of Professor Terence
Anderson, University of Miami School of Law, below:
U.S. Senate,
Washington, DC, July 18, 1989.
John C. Keeney,
Deputy Assistant Attorney General, Criminal Division,
Department of Justice, Washington, DC.
Dear Mr. Keeney: As Chairman of the Senate Impeachment
Trial Committee on the Articles of Impeachment against Judge
Nixon, I write to request the Department's assistance in the
Committee's efforts to assure that Judge Nixon receives a
fair trial in the Senate. The Committee has determined that
it would make a useful contribution to the trial process if
the Department were willing to permit the Committee, through
its staff, to review the documents (excluding grand jury
materials governed by Rule 6(e)) in the possession of the
Department, including those possessed by the Federal Bureau
of Investigation, that were requested by Judge Nixon in his
June 1, 1989 letter to the Attorney General, which was the
subject of your response on June 21, 1989.
The review would be consistent with that conducted in the
case of the Hastings impeachment matter. That is, the focus
of the review would be to determine if there is evidence that
the investigations were conducted in a manner intended to
mislead a court or trier of fact as to Judge Nixon's guilt or
innocence. In the event that it is determined that particular
documents should properly be made part of the pending
impeachment proceedings, and accordingly made available to
the parties for use at trial, the committee would hear from
the Department prior to disclosing any documents that you
believe contain particularly sensitive matters, so that we
may address any continuing concerns that you have. No
documents or portions of documents would be made available to
the parties without the consent of the Department.
Your expeditious response to this request would be most
helpful to the committee in attempting to complete discovery
by July 31st.
Sincerely,
Wyche Fowler, Jr.
____
The University of Miami School of Law,
Coral Gables, FL, January 28, 1999.
Hon. Carl Levin,
U.S. Senate.
Discovery Precedents From Hastings
Dear Senator Levin: Ms. Linda Gustitus asked that I
describe the process by which and the materials to which I
was given access as counsel for then Judge Hastings during
the impeachment trial proceedings before the United States
Senate. After the matter was referred to an Impeachment Trial
Committee, I submitted requests for production of documents
to the House, to the Investigating Committee of the Judicial
Council of the Eleventh Circuit, to the Federal Bureau of
Investigation, and the Justice Department. Over the initial
objections of the House Managers, at the ``request'' of the
Impeachment Trial Committee I received documents from all but
the Justice Department. In lieu of direct production, the
Impeachment Trial Committee examined the sensitive Justice
Department materials to determine what should be supplied. I
was also permitted to take at least three discovery
depositions. The proceedings that resulted in this production
are reported in Report of the Senate Impeachment Trial
Committee on the Articles of Impeachment Against Judge Alcee
L. Hastings, S. Hrg. 101-194, Pt. I (Pretrial Matters).
By way of illustrations I enclose an appendix to a
memorandum that I submitted to the Impeachment Trial
Committee. That appendix describes in some detail the
materials that I received from the FBI and my estimate that
in the aggregate the production amounted to about 16,000. The
enclosed copy was reproduced from S. Hrg. 101-194, Pt. I at
433-436. Please let me know if I can be of further
assistance.
Sincerely,
Terence J. Anderson.
Professor of Law.
Appendix E
Many of us in the Senate thought the House of
Representatives failed to meet its responsibilities by not
calling witnesses before the House Judiciary Committee. A
review of impeachments shows that in every impeachment but
the one (where the subject of the impeachment was mentally
incompetent and the House relied on the record of his
decisions as a judge), the House called fact witnesses.
According to information obtained by my staff from the
Congressional Research Service, there have been 16
impeachments by the House. 14 of those impeachments have
resulted in trials in the Senate; two did not because the
impeached officials resigned.
15 of those impeachments had fact witnesses in the House;
one didn't. That was the case of Judge Pickering. He was
impeached for being mentally incapacitated. There were
charges of drunkenness and ``ungentlemanly language'' in the
courtroom. The articles against him, however, all dealt with
his rulings and decisions that ``proved'' he was mentally
incompetent. During the House inquiry, a number of affidavits
were presented.
____
Appendix F
Independent counsel Kenneth Starr intervened in the Senate
impeachment trial by obtaining a court order addressed to
Monica Lewinsky requiring her to meet privately with House
Managers, based on a motion and ex parte hearing with no
notice to the Senate counsel or White House counsel. The
independent counsel then mischaracterized his own action in
seeking that order, describing it as seeking an
``interpretation'' rather than an ``order''.
See the letters to Kenneth Starr, Robert Bittman, Jacob
Stein, & Robert Bittman; the Emergency Motion on Immunity
Agreement; the letter to Congressman Henry Hyde; the letter
to Sen. Daschle; Congressman Hyde's press release; the order
of Judge Norma Holloway Johnson and the transcript of Mr.
Starr's remarks as follow:
Washington, DC,
January 21, 1999.
Hon. Kenneth W. Starr,
Office of Independent Counsel,
Washington, DC.
Re: Interview of Monica Lewinsky.
Dear Independent Counsel Starr: I am writing to you as the
Lead Manager of the Managers of the Impeachment Trial of
William Jefferson Clinton, currently underway in the United
States Senate. We are in the
[[Page S1796]]
process of selecting witnesses for testimony in these
proceedings. The attorneys for Monica Lewinsky have declined
to make her available for an interview.
We have reviewed a copy of Ms. Lewinsky's Immunity
Agreement. Pursuant to paragraph 1(c) of that Agreement, it
would appear that she is required to submit to interviews and
debriefings if so requested by the Office of Independent
Counsel.
We would like to arrange an interview with Ms. Lewinsky
prior to any such testimony. We would be happy to accommodate
her wishes as to the precise time and location of that
interview. However, it is important that this interview be
scheduled to take place on the earliest possible date,
specifically Friday, Saturday, or Sunday. Your assistance
with this interview will be appreciated.
Thank you for your prompt attention.
Sincerely,
Henry H. Hyde,
On Behalf of the Managers
on the Part of the House.
____
Law Offices of
Plato Cacheris,
Washington, DC, January 21, 1999.
Robert J. Bittman, Esquire
Deputy Independent Counsel, Office of the Independent
Counsel, Washington, DC.
Dear Bob: In your call today you mentioned that the
managers requested Ms. Lewinsky's cooperation by way of an
interview. As I told you, we believe it is inappropriate for
Ms. Lewinsky to be placed in the position of a partisan--
meeting with one side and not the other--in this unique
proceeding. Therefore, we have recommended against interviews
with either side.
Sincerely,
Jacob A. Stein.
Plato Cacheris.
____
Independent Counsel,
Washington, DC, January 21, 1999.
Jacob A. Stein, Esq.
Stein, Mitchell & Mezines,
Washington, DC.
Plato Cacheris, Esq.
Law Offices of Plato Cacheris,
Washington, DC.
Dear Jake and Plato: Pursuant to her Immunity Agreement
with this Office, we hereby request that Monica Lewinsky meet
for an interview with the House of Representatives'
Impeachment Managers this Friday, Saturday, or Sunday,
January 22, 23, or 24, 1999.
As you will recall, both parties contemplated congressional
proceedings at the time we entered into the Immunity
Agreement. The Agreement specifically requires Ms. Lewinsky
to ``testify truthfully . . . in any . . . congressional
proceedings.'' It further requires Ms. Lewinsky to ``make
herself available for any interviews upon reasonable
request,'' and stipulates that these interviews may include
``representatives of any other institutions as the OIC may
require.''
While I understand Ms. Lewinsky's misgivings, I must
disagree with one statement in your letter to me today: your
assertion that submitting to an interview would make Ms.
Lewinsky into a partisan. The Managers are acting on behalf
of the House of Representatives as a whole, not on behalf of
a political party. There task is constitutional in nature.
Please feel free to call me if you have any questions.
Sincerely,
Robert J. Bittman,
Deputy Independent Counsel.
____
Stein, Mitchell & Mezines,
Washington, DC, January 22, 1999.
Robert J. Bittman, Esquire
Office of the Independent Counsel
Washington, DC.
Dear Bob:
1. We have your January 21, 1999 letter.
2. The Agreement does not require Ms. Lewinsky to be
interviewed by the House Managers or any Congressional body.
3. Paragraph 1.C. of the Agreement states: ``Ms. Lewinsky
will be fully debriefed concerning her knowledge of and
participation in any activities within the OIC's
jurisdiction. This debriefing will be conducted by the OIC,
including attorneys, law enforcement agents, and
representatives of any other institutions as the OIC may
require. Ms. Lewinsky will make herself available for any
interviews upon reasonable requests.''
4. This paragraph deals with OIC debriefings, not OIC's
acting as an agent for others.
5. The Senate itself has provided its own rules for witness
interviews. As we understand them, there first must be a
deposition with equal access. As of now the Senate has not
voted for depositions.
6. Ms. Lewinsky will, of course, respond to a subpoena to
appear and testify before the Senate. Yesterday, we raised
with you the issue of immunity for any proposed congressional
testimony. You opined that your office could grant such
immunity in conformance with Title 18 U.S.C. Sec. Sec. 6002,
6005. It is our understanding that only the Senate by
majority vote can do that. We would appreciate your supplying
your legal authority for your position.
Sincerely,
Jabob A. Stein.
Plato Cacheris.
____
[In the United District Court for the District of Columbia, Misc. No.
99- (NHJ)]
In Re Grand Jury Proceedings
emergency motion of the united states of america for enforcement of
immunity agreement
The United States of America, by Kenneth W. Starr,
Independent Counsel, respectfully submits this motion for an
order requiring Ms. Lewinsky to comply with the terms of her
Immunity Agreement (the ``Agreement'') with the Office of the
Independent Counsel (``OIC''). Ms. Lewinsky has refused an
OIC request that she be debriefed by the House of
Representatives, as required by the Agreement. The United
States respectfully requests that this Court orders Ms.
Lewinsky to comply with the Agreement by allowing herself to
be debriefed.
I. Factual background
As this Court is no doubt aware, the United States Senate
is currently conducting an Impeachment Trial of the President
of the United States. According to public reports, it is
expected that the House will be required to submit to the
Senate its motion to call witnesses as early as Monday,
January 25. Again according to public reports, some potential
witnesses have spoken with the House Managers as the Managers
attempt to determine which witnesses should be mentioned in
their motion to the Senate.
On January 21, 1999, House Judiciary Committee Chairman
Henry J. Hyde, on behalf of the House of Representatives, as
represented by its duly-appointed Managers, asked for the
OIC's assistance in having Ms. Lewinsky debriefed by the
House. See Letter from Henry J. Hyde to Kenneth W. Starr
(Jan. 21, 1999) (Attachment A). The House stressed that it
needs this debriefing to occur no later than Sunday, January
24.
That same day, the OIC sent a letter to Ms. Lewinsky's
counsel requesting that Ms. Lewinsky allow herself to be
debriefed by the House Managers. See Letter from Robert J.
Bittman, Deputy Independent Counsel, to Jacob A. Stein, Esq.
and Plato Cacheris, Esq. (Jan. 21, 1999) (Attachment C). At
approximately 1:20 p.m. this afternoon, Ms. Lewinsky informed
the OIC that she does not intend to comply with this request.
See Letter from Jacob A. Stein and Plato Cacheris to Robert
J. Bittman (Jan. 22, 1999) (Attachment D).
II. The immunity agreement plainly requires Ms. Lewinsky to
be debriefed by any institution that the OIC specifies
Ordinary contract law principles govern immunity
agreements. See In re Federal Grand Jury Proceedings, Misc.
No. 98-59 (NHJ), slip op. at 12 (D.D.C. May 1, 1998) (under
seal) (``Courts generally interpret immunity and proffer
agreements, like plea agreements, under principles of
contract law.''), appeal dismissed sub nom. In re Sealed
Case, 144 F.3d 74 (D.C. Cir. 1998) (per curiam); accord
United States v. Black, 776 F.2d 1321, 1326 (6th Cir. 1985)
(``Like a plea agreement, an immunity agreement is
contractual in nature and may be interpreted according to
contract law principles.''); United States v. Irvine, 756
F.2d 708, 710 (9th Cir. 1985) (per curiam) (``Generally
speaking, a cooperation-immunity agreement is contractual) in
nature and subject to contract law standards.''); United
States v. Hembree, 754 F.2d 314, 317 (10th Cir. 1985)
(characterizing an immunity agreement as ``simply a
contract'').
Under contract law, an agreement is interpreted according
to its plain terms. See Nicholson v. United States, 29 Fed.
Cl. 180, 191 (1993). The operative portion of the Immunity
Agreement states: ``C. Ms. Lewinsky will be fully debriefed
concerning her knowledge of and participation in any
activities within the OIC's jurisdiction. This debriefing
will be conducted by the OIC, including attorneys, law
enforcement agents, and representatives of any other
institutions as the OIC may require. Ms. Lewinsky will make
herself available for any interviews upon reasonable
request.'' Immunity Agreement para. 1.C (emphasis added)
(Attachment E). This provision follows paragraph 1.B, which
expressly requires Ms. Lewinsky to ``testify truthfully . . .
in . . . congressional proceedings.''
By the plain terms of the Agreement, Ms. Lewinsky has
agreed to be debriefed by representatives of any institution,
when so required by the OIC. She is also required to ``make
herself available for any interviews upon reasonable
request.'' The duly-appointed House Managers represent the
House of Representatives, which plainly is an institution.
The OIC has unambiguously requested that Ms. Lewinsky submit
to each debriefing. Accordingly, Ms. Lewinsky must allow
herself to be debriefed by the House Managers or she will
have violated the Agreement.
To be sure, Ms. Lewinsky has the right to have her
``debriefing . . . conducted by the OIC.'' The OIC, of
course, is fully willing to conduct these debriefings, if Ms.
Lewinsky so desires. The suggestion in her counsel's letter
that this provision is void if the OIC is ``acting as an
agent for other,'' Attachment D at para. 4, is contrary to
the Agreement, as there is no such limitation on Ms.
Lewinsky's duties. A party to an agreement may not invent
clauses to a contract that are not contained therein.
In any event, the OIC is not acting as an agent for the
House Managers. The OIC has its own, continuing duty to
provide the House with information relating to impeachment.
See 28 U.S.C. Sec. 595(c).
Ms. Lewinsky's counsel's other suggestion--that a
debriefing would be contrary to
[[Page S1797]]
Senate Rules, see Attachment D at para. 5--is equally without
merit. Senate Resolution 16 (106th Cong.) states, in relevant
part: ``If the Senate agrees to allow either the House or the
President to call witnesses, the witnesses shall first be
deposed and the Senate shall decide after deposition which
witnesses shall testify, pursuant to the impeachment rules.''
Although it is plain that depositions may not be conducted
absent a vote of the Senate, nothing in this resolution
restricts the ability of the House to debrief witnesses in a
non-deposition setting. Indeed, it would be strange for the
Senate to prohibit the House and the President from doing the
investigation necessary to determine whether they wish to
call witnesses and which witnesses to list in their motions.
III. This court should grant an order requiring Ms. Lewinsky
to comply with the immunity agreement or forfeit its
protection
Under the Agreement, this Court has the authority to
determine whether Ms. Lewinsky has ``violated any provision
of this Agreement.'' Immunity Agreement para. 30. ``[A]
declaratory judgment will ordinarily be granted only when it
will either serve a useful purpose in clarifying the legal
relations in issue or terminate and afford relief from the
uncertainty, insecurity, and controversy giving right to the
proceeding.'' Tierney v. Schweiker, 718 F.2d 456 (D.C. Cir.
1983) (internal quotation marks omitted). In this case, a
declaratory judgment will resolve the uncertainty arising
from this controversy between the OIC and Ms. Lewinsky by
settling whether she has the right to refuse to be debriefed
without forfeiting the protections of the Agreement.
Indeed, declaratory judgment is a common remedy when a
party to a contract intends conduct that may be a breach: ``
`(A) party to a contract is not compelled to wait until he
has committed an act which the other party asserts will
constitute a breach, but may seek relief by declaratory
judgment and have the controversy adjudicated in order that
he may avoid the risk of damages or other untoward
consequence.' '' (Application of President & Directors of
Georgetown College, Inc.) 331 F.2d 1000, 1002 n.6 (D.C. Cir.
1964) (quoting Keener Oil & Gas v. Consolidated Gas Utilities
Corp., 190 F.2d 985, 989 (10th Cir. 1951)); see Gilbert,
Segall & Young v. Bank of Montreal, 785 F. Supp. 453. 462
(S.D.N.Y. 1992); Fine v. Property Damage Appraisers, Inc.,
393 F. Supp. 1304, 1309-10 (E.D. La. 1975). Accordingly, this
Court has the power to issue a declaratory judgment before
Ms. Lewinsky's actions become irreversible.
IV. Conclusion
The Immunity Agreement plainly requires that Ms. Lewinsky
allow herself to be debriefed by any institution at the
request of the OIC. Ms. Lewinsky has the right to insist that
the OIC conduct the debriefing, but she must comply with the
plain terms of the Immunity Agreement. Accordingly, the
United States respectfully requests that this Court enter an
order requiring Ms. Lewinsky to submit to debriefing by the
House.
The Senate's schedule requires the House to submit its
motion to call witnesses as early as Monday, and the House
has stressed its need to debrief Ms. Lewinsky this weekend.
Accordingly, the United States respectfully requests that
this Court act on this motion as an emergency matter.
Specifically, we request a hearing on this matter today.
Respectfully submitted,
Kenneth W. Starr,
Independent Counsel.
Robert J. Bittman,
Deputy Independent Counsel.
Joseph M. Ditkoff,
Associate Independent Counsel.
Richard C. Killough,
Assistant Independent Counsel.
____
Washington, DC,
January 23, 1999.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
Washington, DC.
Dear Mr. Manager Hyde: We understand that the Office of
Independent Counsel, on behalf of the House Managers, sought
a court order to compel Ms. Lewinsky to submit to an
interview with the Managers in preparation for her possible
testimony. We further understand that Chief Judge Norma
Holloway Johnson has granted the order sought by the
Independent Counsel.
As you know, Senate Resolution 16, which was passed by a
100-0 vote just over two weeks ago, expressly deferred any
consideration or action related to additional witness
testimony until after opening presentations, a question-and-
answer period and an affirmative vote to compel such
testimony. These actions by the Managers, undertaken without
notice to the Senate or the President's Counsel, raise
profound questions of fundamental fairness and undermine the
ability of this body to control the discovery procedures that
will take place under the imprimatur of its authority.
In light of these concerns, we ask that you withdraw any
and all requests to Mr. Starr that he assist your efforts to
interview Ms. Lewinsky. The Senate, in a matter of days, will
have an opportunity to formally address this issue pursuant
to the procedures established by Senate Resolution 16.
Moreover, we insist that you take no action related to the
proposed interview of any witness until such time as the
Senate has given you the authority to do so.
Sincerely,
Harry Reid.
[Also signed by 43 Senators.]
____
Washington, DC,
January 23, 1999.
Hon. Tom Daschle,
Democratic Leader, U.S. Senate,
Washington, DC.
Dear Mr. Democratic Leader: I am in receipt of your letter
of today expressing your concern with the House of
Representatives' request to interview Monica Lewinsky.
It has always been the position of the House Managers that
a full trial with the benefit of relevant witnesses is in the
best interest of the Senate and the American people.
Representatives of President Clinton and many Senators have
publicly stated that they want the Senate to preclude the
testimony of witnesses. Many other Senators have made it
clear that they prefer the witness lists for both sides to be
sharply focused and limited to only the most relevant
witnesses. The Managers have been mindful of these Senators'
concerns.
It is clear that the two most important witnesses in this
trial are President Clinton and Ms. Lewinsky. Yesterday, I
wrote to Majority Leader Lott and you to express the
Managers' willingness to participate in the fair examination
of the President if the Senate chooses to invite him to
testify. The presentation of the President's counsel ended
just two days ago. We are in the process of evaluating that
presentation and determining what witnesses we will request
the Senate to call. We believe that interviewing Ms. Lewinsky
will help us make this determination. Counsel for the
President may have already interviewed witnesses or may wish
to interview witnesses they will propose to the Senate. That
is their prerogative. The Senate has required us to submit a
proffer of anticipated testimony of any proposed witnesses.
Interviews of potential witnesses will assist the parties in
providing the Senate with informative proffers.
The House of Representatives has not violated S. Res. 16.
When the House passed H. Res. 10 appointing the Mangers, it
authorized that the Managers may ``in connection with the
preparation and the conduct of the trial, exhibit the
articles of impeachment to the Senate and take all other
actions necessary, which may include * * * sending for
persons and papers . . . .'' Implicit in this authority is
the ability to conduct interviews and gather additional
information relevant to the articles of impeachment.
The Managers, who represent the House of Representatives,
retain powers separate and apart from the Senate. The
Managers are not, just as the President's Counsel are not, an
office or subset of the Senate. The Managers, like the
President's Counsel, may conduct activities, such as further
investigation and legal research, that are not specifically
authorized by the Senate.
Senate Resolution 16 does not prohibit the Managers from
conducting further investigation or interviews of witnesses.
If the resolution was intended to restrict the Managers in
this way, we believe that it would violate principles of
bicameralism, the ability of each House to establish its own
rules of procedure, and would therefore be an
unconstitutional infringement on the prerogatives of the
House.
Implicit in the right of the Managers to report to the
House amendments to articles of impeachment, is the right of
the Managers to receive and evaluate additional information.
For example, if the Managers received additional exculpatory
or inculpatory information, they could file amendments to the
articles of impeachment in the House.
Senate Resolution 16 set a schedule for deciding whether to
depose witnesses. The decision to depose witnesses is subject
to a request from the House Managers. The House Managers have
decided that they need to talk with Ms. Lewinsky before
making a recommendation to the Senate to depose her. The
action of the House Managers is not unusual. It is not
unfair, and it is not contrary to the rules of the Senate.
With all due respect to the Senate, the rules and the
constitutional principles of bicameralism do not require that
the House obtain the permission of the Senate merely to
conduct an interview of a potential witness. A decision to
merely interview a witness as opposed to conducting a
deposition, does not interfere with the Senate's ability to
control the procedures set forth under S. Res. 16.
Sincerely,
Henry J. Hyde,
On behalf of the Managers on the
Part of the House of Representatives.
[From the U.S. House of Representatives, Committee on the Judiciary,
Henry J. Hyde, Chairman]
Managers' Response to Judge's Ruling
(Washington, D.C.)--Paul McNulty, chief spokesman for the
House Managers, made the following statement today following
Judge Johnson's ruling that Monica Lewinsky must cooperate
with the managers' request for an interview, in keeping with
her immunity agreement:
``Monica Lewinsky received extraordinary protection in
exchange for her truthful testimony. Judge Johnson ruled that
she has an obligation to cooperate in the search for truth.
``Ms. Lewinsky's testimony has never been more important
than it is now. In the last four days, the White House has
challenged the reliability of her testimony in a number of
key instances relating to her conversations with the
President and Ms. Currie.
[[Page S1798]]
``Ms. Lewinsky can resolve some of these crucial conflicts,
and House Managers have a responsibility to interview her
before deciding to call her as a witness. This is Lawyering
101--any good lawyer would talk to a witness before deciding
to put her on the witness stand. When the House of
Representatives appointed the Managers, it also granted them
the investigative authority necessary to find the truth.
``The White House's protests are psuedo-objections designed
to divert attention from the President's behavior.''
____
[In the United States District Court for the District of Columbia,
Misc. No. 99-32 (NHJ)]
In re Grand Jury Proceedings
order
Upon consideration of the Emergency Motion of the United
States of America for Enforcement of Immunity Agreement, it
is hereby ordered that the Motion is granted. It is further
ordered that Monica S. Lewinsky allow herself to be debriefed
by the House Managers, to be conducted by the Office of the
Independent Counsel if she so requests, or forfeit her
protections under the Immunity Agreement between Ms. Lewinsky
and the OIC.
January 23, 1999.
Norma Holloway Johnson,
Chief Judge.
____
Excerpt from CBS Radio Transcript, January 24, 1999
kenneth starr delivers remarks concerning the upcoming interview with
monica lewinsky; Washington, d.c.
QUESTION: Sir, people are saying on the Capitol Hill that
you're trying to influence the trial by bringing back Monica,
before they had a chance to vote.
What do you say about that?
STARR: Well, as I indicated, we had a request from the Lead
Manager, Chairman Hyde, it was a formal request. And we
responded as I felt that we were obligated to do to that
request. And we then took what I felt was the appropriate
action and we went to court.
I want to make it very clear that Chief Judge Johnson has
only interpreted the agreement between Ms. Lewinsky, who's
advised by her very able lawyers, and our office. She did not
direct an order in any sense other than to interpret the
meaning of the agreement, which we asked her to interpret.
So, I want it to be very, very clear that the judge was
simply acting at our request to interpret the terms of the
agreement, which we believe are quite clear.
QUESTION: Senator Harkin said yesterday that Judge Johnson
may not have acted on, you know, constitutionally. Do you
have any comment on that?
STARR: Well we think that we have taken the appropriate
action in going to the court and the court acted
appropriately in interpreting the agreement, which is all
that she did. So if there is an issue, the issue has to be
one that's entrusted to the wisdom of the Senate. And their
relationship with the House managers.
But from our standpoint, the agreement we felt was clear,
we asked the judge to determine whether our interpretation of
the agreement was clear. And she has issued her ruling.
____
Appendix G
Although the House Managers argued strenuously about the
need to call witnesses in the Senate trial, their position in
the House of Representatives on the same subject was the
opposite.
``Well, they've already testified . . . I don't think we
need to reinvent the wheel. To keep calling people to
reiterate what they've already said under oath.''--Rep. Henry
Hyde, CNN, October 10, 1998.
``I don't really believe that we need more live testimony
from those type of witnesses. We have sworn testimony from
Monica Lewinsky, from Betty Currie, from all the principal
players. We also have sworn testimony from corroborating
witnesses to their testimony . . . And--and . . . I don't
think we need any former witnesses. I don't think we need to
bring any in.''--Rep. Bill McCollum, NBC ``Saturday Today'',
November 28, 1998.
``Bringing in witnesses to rehash testimony that's already
concretely in the record would be a waste of time and serve
no purpose at all.''--Rep. George Gekas, New York Times,
November 6, 1998.
Appendix H
Although the House Managers argued strenuously about the
need to call witnesses in the Senate trial, they also claimed
that the record conclusively proved the President's guilt.
``A reasonable and impartial review of the record as it
presently exists demands nothing less than a guilty
verdict.''--House Manager Bryant, Congressional Record,
January 14, 1999, Page S232.
``Finally, before turning to that merger of the law and the
facts, which I believe will illustrate conclusively that this
President has committed and ought to be convicted on perjury
and obstruction of justice . . .''.--House Manager Barr,
Congressional Record, January 15, 1999, Page S274.
``[L]adies and gentlemen of the Senate, there are
conclusive facts here that support a conviction.''--House
Manager Bryant, Congressional Record, February 8, 1999, Page
S1358.
Appendix I
At times, the House Managers took different and oft-time
conflicting positions on the need to call witnesses in the
Senate trial.
``I submit that the state of the evidence is such that
unless and until the President has the opportunity to
confront and cross-examine witnesses like Ms. Lewinsky, and
himself, to testify if he desires, there could not be any
doubt of his guilt on the facts.''--House Manager Bryant,
Congressional Record, January 14, 1999, Page S232.
``[I]f we had Mr. Jordan on the witness stand--which I hope
to be able to call Mr. Jordan--you would need to probe where
his loyalties lie, listen to the tone of his voice, look into
his eyes and determine the truthfulness of his statements.
You must decide whether he is telling the truth or
withholding information.''--House Manager Hutchinson,
Congressional Record, January 14, 1999, Page S234.
``The case against the President rests to a great extent on
whether or not you believe Monica Lewinsky. But it is also
based on the sworn testimony of Vernon Jordan, Betty Currie,
Sidney Blumenthal, John Podesta and corroborating witnesses.
Time and again, the President says one thing and they say
something entirely different . . . . But if you have serious
doubts about the truthfulness of any of these witnesses, I,
again, as all my colleagues do, encourage you to bring them
in here.''--House Manager McCollum, Congressional Record,
January 15, 1999, Page S266.
``[O]n the record, the weight of the evidence, taken from
what we have given you today, what you can read in all these
books back here . . . I don't know what the witnesses will
say, but, I assume if they are consistent, they'll say the
same that's in here.''--House Manager McCollum, Congressional
Record, January 15, 1999, Page S266-S267.
``[N]o one in this Chamber at this juncture does not know
all the facts that are pertinent to this case. That is a
magnificent accomplishment on the part of the managers.''--
House Manager Gekas, Congressional Record, January 15, 1999,
Page S267.
____
Appendix J
The House of Representatives articles were intended to
charge President Clinton with specific crimes.
``[T]his honorable Senate must do the right thing. It must
listen to the evidence; it must determine whether William
Jefferson Clinton repeatedly broke our criminal laws and thus
broke his trust with the people.''--House Manager
Sensenbrenner, Congressional Record, January 14, 1999, Page
S227.
``Moreover, in engaging in this course of conduct,
referring here to the words of the obstruction statute found
at section 1503 of the Criminal Code, the President's actions
constituted an endeavor to influence or impede the due
administration of justice in that he was attempting to
prevent the plaintiff in the Jones case from having a `free
and fair opportunity to learn what she may learn concerning
the material facts surrounding her claim'. These acts by the
President also constituted an endeavor to `corruptly persuade
another person with the intent to influence the testimony
they might give in an official proceeding'. Such are the
elements of tampering with witnesses found at section 1512 of
the Federal Criminal Code.''--House Manager Barr,
Congressional Record, January 15, 1999, Page S274-S275.
``Under both sections of the Federal Criminal Code, that
is, 1503, obstruction, and 1512, obstruction in the form of
witness tampering, the President's conduct constituted a
Federal crime and satisfies the elements of those statutes.--
House Manager Barr, Congressional Record, January 15, 1999,
Page S275.
``The evidence, however, clearly establishes that the
President's statement constitutes perjury, in violation of
section 1623 of the U.S. Federal Criminal Code for the simple
reason the only realistic way Ms. Lewinsky could get out of
having to testify based on her affidavit. There was no other
way it could have happened. The President knew this. Ms.
Lewinsky knew this. And the President's testimony on this
point is perjury within the clear meaning of the Federal
perjury statute. It was willful, it was knowing, it was
material, and it was false.--House Manager Barr,
Congressional Record, January 15, 1999, Page S275.
``Please keep in mind also, it is not required that the
target of the defendant's actions actually testify falsely.
In fact, the witness tampering statute can be violated even
when there is no proceeding pending at the time the defendant
acted in suggesting testimony. As the cases discussed by
Manager Cannon demonstrate, for a conviction under either
section 1503, obstruction, or 1512, obstruction by witness
tampering, it is necessary only to show it was possible the
target of the defendant's actions might be called as a
witness. That element has been more than met under the facts
of this case.--House Manager Barr, Congressional Record,
January 15, 1999, Page S276.
``In my opening statement before this body, I outlined the
four elements of perjury: An oath, intent, falsity,
materiality. In this case, all those elements have been
met.''--House Manager Chabot, Congressional Record, February
8, 1999, Page S1341.
``In the past month, you have heard much about the
Constitution; and about the law. Probably more than you'd
prefer; in a dizzying recitation of the U.S. Criminal Code:
18 U.S.C. 1503. 18 U.S.C. 1505. 18 U.S.C. 1512. 18
[[Page S1799]]
U.S.C. 1621. 18 U.S.C. 1623. Tampering. Perjury. Obstruction.
That is a lot to digest, but these are real laws and they are
applicable to these proceedings and to this President.''--
House Manager Barr, Congressional Record, February 8, 1999,
Page S1342.
____
Appendix K
Though written in his diary almost 200 hundred years ago,
John Quincy Adams' thoughts on the impeachment of Justice
Samuel P. Chase, who was acquitted, are relevant to the
impeachment of President Clinton.
On the day that Justice Chase was acquitted in 1805, John
Quincy Adams wrote the following:
``. . . This was a party prosecution, and is issued in the
unexpected and total disappointment of those by whom it was
brought forward. It has exhibited the Senate of the United
States fulfilling the most important purpose of its
institution. . . It has proved that a sense of justice is yet
strong enough to overpower the furies of factions; but it
has, at the same time, shown the wisdom and necessity of that
provision in the Constitution which requires the concurrence
of two-thirds for conviction upon impeachments.''
Appendix L
Additional Statement of Senator Carl Levin regarding the Independent
Counsel
Mr. President, four and one half years ago, the Special
Court under the independent counsel law appointed Kenneth
Starr to investigate certain specific and credible
allegations concerning President Clinton's involvement in the
Madison Guaranty Savings and Loan Association of Little Rock,
Arkansas. Three and half years later--and after what appears
to be the most thorough criminal investigation of a sitting
President, Mr. Starr was unable to find any criminal
wrongdoing on the part of the President in what came to be
known as ``Whitewater.'' A similar conclusion was reached by
Mr. Starr with respect to additional investigations assigned
to Mr. Starr along the way--namely, allegations with respect
to the White House use of FBI files and the discharge of
White House employees from the White House Travel Office.
A year ago Mr. Starr's investigation was coming to an end.
That's when Linda Tripp walked through Mr. Starr's door with
promises of taped phone conversations between Ms. Tripp and
Monica Lewinsky about Ms. Lewinsky's sexual relationship with
President Clinton. And what was the alleged crime? That
President Clinton and Ms. Lewinsky were about to lie about
their relationship--if they were asked about it by the
attorneys for Paula Jones in her sexual harassment case
against President Clinton. Mr. Starr had to know that the
relationship between President Clinton and Monica Lewinsky
had been a consensual one. Mr. Starr had to know that,
because Ms. Tripp was informed by Ms. Lewinsky of every
aspect of her relationship with President Clinton. And at
this point--January 12, 1998--neither Monica Lewinsky nor
President Clinton had been deposed.
I am convinced that no ordinary federal prosecutor, if
confronted with the same situation involving a private
citizen, would have pursued this case. But Mr. Starr was no
ordinary federal prosecutor. Without jurisdiction with
respect to these matters, he immediately gave Ms. Tripp
immunity in exchange for access to her tapes, and he wired
her to tape a private luncheon conversation with Ms.
Lewinsky. Shortly after Mr. Starr wired Ms. Tripp, he
confronted Ms. Lewinsky and, according to her, threatened her
with 27 years in prison and the prosecution of her mother in
order to get her cooperation and to tape Betty Currie, the
President, and/or Vernon Jordan. Mr. Starr brought his
enormous criminal investigative resources to bear on
testimony yet to be given in a civil lawsuit involving a
consensual, sexual relationship.
At the time Ms. Lewinsky was threatened by Mr. Starr, her
affidavit in the Jones case had not been filed. She was still
in a position to retrieve it or amend it. Also, President
Clinton had not been deposed. He had not given his testimony
in the Paula Jones suit. In effect, Mr. Starr and his agents
lay in wait--waiting for the President to be surprised at the
Jones deposition with information about Monica Lewinsky. And
how did that information about Monica Lewinsky get in the
hands of the Jones attorneys? Ms. Tripp gave them the
information. And she was able to do that even though she was
under an immunity arrangement with Mr. Starr, because--as Mr.
Starr acknowledged to the House Judiciary Committee under
questioning--Mr. Starr's agents never directed Ms. Tripp to
keep her information confidential, even though Mr. Starr had
a major concern that the Lewinsky matter would leak to the
press. Mr. Starr's agents did not tell Ms. Tripp not to talk
to the Jones attorneys or anyone else in order to ensure that
the story would not leak to the press.
So the enormous criminal investigative resources of the
federal government were brought to bear on the President of
the United States to catch him by surprise in a future
deposition in a civil proceeding on a matter peripheral to
the lawsuit, prior to any of the suspected unlawful conduct.
Once the President testified in that civil suit, Mr. Starr
convened a grand jury to investigate the truthfulness of Mr.
Clinton's testimony. Again, using the virtually unlimited
resources of the federal government with respect to a
criminal investigation, Mr. Starr called countless witnesses
before the grand jury--recalling numerous witnesses multiple
times. Betty Currie testified on 5 different occasions; so
did Vernon Jordan. Monica Lewinsky testified 3 times and was
interviewed over 20 separate times. I don't believe any
regular prosecutor would have invested the time and money and
resources in the kind of investigation that Kenneth Starr
did.
At the end, Mr. Starr wrote a report arguing for
impeachment to the House of Representatives. He didn't just
impartially forward evidence he thought may demonstrate
possible impeachable offenses.
The Starr report spared nothing. Lacking good judgment and
balance, the Starr report contained a large amount of
salacious detail, and skipped over or dismissed important
exculpatory evidence, such as Monica Lewinsky's statement
that no one asked her to lie and no one promised her a job
for her silence. Mr. Starr violated the standards enunciated
by Judge Sirica when he addressed the status of the grand
jury report in the Watergate matter. In that case, Judge
Sirica wrote in granting Leon Jaworski, the Watergate
prosecutor, the right to forward grand jury information to
the House of Representatives:
``It draws no accusatory conclusions. . . It contains no
recommendations, advice or statements that infringe on the
prerogatives of other branches of government. . . It renders
no moral or social judgments. The Report is a simple and
straightforward compilation of information gathered by the
Grand Jury, and no more. . . The Grand Jury has obviously
taken care to assure that its Report contains no
objectionable features, and has throughout acted in the
interests of fairness. The Grand Jury having thus respected
its own limitations and the rights of others, the Court ought
to respect the Jury's exercise of its prerogatives.'' (In re
Report and Recommendation of June 5, 1972, Grand Jury
Concerning Transmission of Evidence to the House of
Representatives, U.S. District Court, District of Columbia,
March 18, 1974.)
What a far cry the Watergate grand jury report was from Mr.
Starr's. The Starr Report violates almost every one of the
standards laid out by Judge Sirica in the Watergate case.
The House of Representatives the Judiciary Committee then
almost immediately released the Starr report and the
thousands of pages of evidence to the public.
Because of that release--enormous damage had been done to
the public's sense of decorum and to appropriate limits
between public and private life.
____________________