[Congressional Record Volume 145, Number 29 (Wednesday, February 24, 1999)]
[Senate]
[Pages S1916-S1924]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
TRIAL OF PRESIDENT WILLIAM JEFFERSON CLINTON
Mr. REED. Mr. President, I ask unanimous consent that my opinion
memorandum relating to the impeachment of President Clinton be printed
in the Record.
There being no objection, the opinion memorandum was ordered to be
printed in the Record, as follows:
[In the Senate of the United States sitting as a Court of Impeachment]
Opinion Memorandum of United States Senator John F. Reed, February 12,
1999
i. conclusion
Based on the evidence in the record, the arguments of the
House Managers and the arguments of counsels for the
President, I conclude as follows: The President has disgraced
himself and dishonored his office. He has offended the
justified expectations of the American people that the
Presidency be above the sordid episodes revealed in the
record before us. However, the House Managers have failed to
prove that the President's conduct amounts to the
Constitutional standard of ``other high Crimes and
Misdemeanors'' subjecting him to removal from office.
ii. statement of the case
On December 19, 1998, the United States House of
Representatives passed H. Res. 611,\1\ ``Impeaching William
Jefferson Clinton, President of the United States, for high
Crimes and Misdemeanors.'' The House Resolution contains two
Articles of Impeachment declaring that, first, the President
committed perjury before a Federal Grand Jury on August 17,
1998, and, second, the President obstructed justice in
connection with the civil litigation of Paula Jones.\2\
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\1\ H. Res. 611, 105th Cong., 2d Sess., (1998) (enacted).
\2\ In the course of deliberations in the House, no witnesses
to the underlying events were called. The House Judiciary
Committee held four hearings and called only one material
witness, the Independent Counsel, Kenneth Starr. Mr. Starr
testified that he was not present when any of the witnesses
testified before the Grand Jury. The President's attorneys
were allowed two days to present their defense, and they
called a series of expert witnesses.
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Pursuant to Article I, Section 3 of the United States
Constitution, the United States Senate convened a Court of
Impeachment on January 9, 1999, and each Senator took an oath
to render ``fair and impartial justice.'' \3\ As Alexander
Hamilton stated in Federalist No. 65, ``what other body would
be likely to feel confidence enough in its own situation to
preserve, unawed and uninfluenced, the necessary impartiality
between an individual accused and the representatives of the
people, his accusers?'' \4\
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\3\ Rule XXV, Procedure and Guidelines for Impeachment Trials
in the United States Senate, Prepared by Floyd Riddick and
Robert Dove, 99th Cong., 2d Sess., S. Doc. 99-33 (August 15,
1986) at 6.
\4\ The Federalist No. 65, at 398 (Alexander Hamilton)
(Clinton Rossiter, ed., 1961) (Emphasis in original).
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The obligation of the Senate is to accord the President, as
the accused, the right to conduct his defense fairly and,
while respecting the House's exclusive Constitutional
prerogative to bring Articles of Impeachment, to put the
House to the proof of its case. At the core of our task is
the fundamental understanding that our system of government
recognizes the rights of defendants and the responsibilities
of the prosecution to prove its case. Such a basic tenet of
our law and our experience as a free people does not
evaporate in the rarified atmosphere of a Court of
Impeachment simply because the accused is the President and
the accusers are the House of Representatives.
The House of Representatives submitted a certified, written
record of over 6,000 pages. By unanimously adopting S. Res.
16, on January 8, 1999, the Senate agreed to proceed with the
Court of Impeachment based on ``the record which will consist
of those publicly available materials that have been
submitted.'' The Senate Resolution also provided that,
following the presentations of the House managers, the
response of the President's attorneys, and a period of
questions by Senators, it would be in order to consider a
Motion to Dismiss and a Motion to Depose Witnesses.
On January 27, 1999, the Senate voted 56 to 44, against
dismissing the Articles of Impeachment. On the same day, by
the same margin, the Senate passed a resolution, S. Res. 30,
allowing the Managers to depose three witnesses: Ms. Monica
S. Lewinsky,
[[Page S1917]]
Mr. Vernon E. Jordan, Jr., and Mr. Sidney Blumenthal. These
depositions were taken on February 1, 2, and 3, 1999,
respectively.
After Senators were provided an opportunity to view the
videotaped depositions, the Senate reconvened as a Trial of
Impeachment on February 4, 1999. At that time a motion by the
House Managers to call Ms. Lewinsky to the floor of the
Senate as a witness was rejected by a vote of 30 to 70.
Voting 62 to 38, the Senate agreed to permit portions of the
video to be used on the floor of the Senate during both a
six-hour ``evidentiary'' session and for closing arguments.
The White House declined to offer a motion to call witnesses.
The Senate then rejected a motion by Democratic Leader
Daschle to proceed directly to a vote on the Articles of
Impeachment.
On Saturday, February 6, 1999, the Senate heard six hours
of presentation, evenly divided, concerning the evidence
obtained in the three depositions. On Monday, February 8,
1999, the Senate heard closing arguments from the House
Managers and Counsel for the President. The following day,
the Senate voted on a motion to open deliberations to the
public. That motion received 59 votes, several short of the
supermajority required to change Senate Impeachment Rules.
The Senate then voted to adjourn to closed deliberations. A
final vote was taken on the Articles on Friday, February 12,
1999.
iii. the constitutional standard
``The Senate shall have the sole Power to try all
Impeachments.'' \5\ With these few words, the Framers of the
Constitution entrusted the Senate with the most awesome power
within a democratic society. We are the final arbiters of
whether the conscious and free choice of the American people
in selecting their President will stand.
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\5\ U.S. Const., art. I, Sec. 3, cl. 7.
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1. ``Other High Crimes and Misdemeanors''
The Constitutional grounds for Impeachment indicate both
the severity of the offenses necessary for removal and the
essential political character of these offenses. ``The
President, Vice President and all civil Officers of the
United States shall be removed from Office on Impeachment
for, and Conviction of, Treason, Bribery, or other high
Crimes and Misdemeanors.'' \6\ The clarity of ``Treason'' and
``Bribery'' is without doubt. No more heinous example of an
offense against the Constitutional order exists than betrayal
of the nation to an enemy or betrayal of duty for personal
enrichment. With these offenses as predicate, it follows that
``other high Crimes and Misdemeanors'' must likewise be
restricted to serious offenses that strike at the heart of
the Constitutional order.
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\6\ U.S. Const., art. II, Sec. 4.
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Certainly, this is the view of Alexander Hamilton, one of
the trio of authors of the Federalist Papers, the most
respected and authoritative interpretation of the
Constitution. In Federalist No. 65, Hamilton describes
impeachable offenses as ``those offenses which proceed from
the misconduct of public men, or, in other words, from the
abuse or violation of some public trust. They are of a nature
which may with peculiar propriety be denominated POLITICAL,
as they relate chiefly to injuries done immediately to the
society itself.'' \7\
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\7\ The Federalist No. 65, at 396 (emphasis in original).
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This view is sustained with remarkable consistency by other
contemporaries of Hamilton. George Mason, a delegate to the
Federal Constitutional Convention, declared that ``high
Crimes and Misdemeanors'' refer to ``great and dangerous
offenses'' or ``attempts to subvert the Constitution.'' \8\
James Iredell served as a delegate to the North Carolina
Convention that ratified the Constitution, and he later
served as a Justice of the United States Supreme Court.
During the Convention debates, Iredell stated:
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\8\ Max Farrand, ed., The Records of the Federal Convention
of 1787, at 550 (1966).
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``The power of impeachment is given by this Constitution,
to bring great offenders to punishment. . . . This power is
lodged in those who represent the great body of the people,
because the occasion for its exercise will arise from acts of
great injury to the community, and the objects of it may be
such as cannot be easily reached by an ordinary
tribunal.''\9\
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\9\ Jonathon Elliot, Debates on the Adoption of the Federal
Constitution at 113 (1974).
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Iredell's understanding sustains the view that an
impeachable offense must cause ``great injury to the
community.'' Private wrongdoing, without a significant,
adverse effect upon the nation, cannot constitute an
impeachable offense. James Wilson, a delegate to the Federal
Constitutional Convention and, like Iredell, later a Supreme
Court Justice, wrote that Impeachments are ``proceedings of a
political nature . . . confined to political characters, to
political crimes and misdemeanors, and to political
punishments.'' \10\
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\10\ Michael J. Gerhardt, The Federal Impeachment Process: A
Constitutional and Historical Analysis at 21 (1996).
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Later commentators expressed similar views. In 1833,
Justice Story quoted favorably from the scholarship of
William Rawle in which Rawle concluded that the ``legitimate
causes of impeachment . . . can have reference only to public
character, and official duty . . . In general, those
offenses, which may be committed equally by a private person,
as a public officer, are not the subject of
impeachment.''\11\
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\11\ 2 Joseph Story, Commentaries on the Constitution
Sec. 799 at 269-70 quoting William Rawle, A View of the
Constitution of the United States at 213 (2d ed. 1829).
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This line of reasoning is buttressed by the careful and
thoughtful work of the House of Representatives during the
Watergate proceedings. The Democratic staff of the House
Judiciary Committee concluded that: ``[b]ecause impeachment
of a President is a grave step for the nation, it is to be
predicated only upon conduct seriously incompatible with
either the constitutional form and principles of our
government or the proper performance of constitutional duties
of president office.''\12\
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\12\ Constitutional Grounds for Presidential Impeachment,
Report by the Staff of the Impeachment Inquiry, House Comm.
on Judiciary, 93rd Cong., 2d Sess. at 26 (1974).
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This view was echoed by many on the Republican side.
Minority members of the Judiciary Committee declared: ``the
Framers . . . were concerned with preserving the government
from being overthrown by the treachery or corruption of one
man. . . . [I]t is our judgment, based upon this
constitutional history, that the Framers of the United States
Constitution intended that the President should be removable
by the legislative branch only for serious misconduct
dangerous to the system of government.''\13\
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\13\ Impeachment of Richard M. Nixon, President of the United
States, Report of the House Comm. on the Judiciary, 93rd
Cong., 2d Sess., H. Rep 93-1305 at 364-65 (Aug. 20, 1974)
(Minority Views of Messrs. Hutchinson, Smith, Sandman,
Wiggins, Dennis, Mayne, Lott, Moorhead, Maraziti and Latta).
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2. The Constitutional Debates
Adding impressive support to these consistent views of the
meaning of the term, ``high Crimes and Misdemeanors,'' is the
history of the deliberations of the Constitutional
Convention. This history demonstrates a conscious movement to
narrow the terminology as a means of raising the threshold
for the Impeachment process.
Early in the debate on the issue of Presidential
Impeachment in July of 1787, it was suggested that
impeachment and removal could be founded on a showing of
``malpractice,'' ``neglect of duty'' or ``corruption.''\14\
By September of 1787, the issue of Presidential Impeachment
had been referred to the Committee of Eleven, which was
created to resolve the most contentious issues. The Committee
of Eleven proposed that the grounds for Impeachment be
``treason or bribery.''\15\ This was significantly more
restricted than the amorphous standard of ``malpractice,''
too restricted, in fact, for some delegates. George Mason
objected and suggested that ``maladministration'' be added to
``treason and bribery.''\16\ This suggestion was opposed by
Madison as returning to the vague, initial standard. Mason
responded by further refining his suggestion and offered the
term ``other high Crimes and Misdemeanors against the
State.''\17\ The Mason language was a clear reference to the
English legal history of Impeachment. And, it is instructive
to note that Mason explicitly narrowed these offenses to
those ``against the State.'' The Convention itself further
clarified the standard by replacing ``State'' with the
``United States.''\18\
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\14\ 2 Farrand, The Records of the Federal Convention of
1787, at 64-69.
\15\ Id.
\16\ Id.
\17\ Id. (emphasis added).
\18\ Id.
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At the conclusion of the substantive deliberations on the
Constitutional standard of Impeachment, it was obvious that
only serious offenses against the governmental system would
justify Impeachment and subsequent removal from office.
However, the final stylistic touches to the Constitution were
applied by the Committee of Style. This Committee has no
authority to alter the meaning of the carefully debated
language, but could only impose a stylistic consistency
through, among other things, the elimination of redundancy.
In their zeal to streamline the text, the words ``against the
United States'' were eliminated as unnecessary to the meaning
of the passage.\19\
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\19\ Id.
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The weight of both authoritative commentary and the history
of the Constitutional Convention combines to provide
convincing proof that the Impeachment process was reserved
for serious breaches of the Constitutional order which
threaten the country in a direct and immediate manner.
3. The Independence of Impeachment and Criminal Liability
Article One, Section three of the United States
Constitution provides that ``[j]udgment in Cases of
Impeachment shall not extend further than to removal from
Office, and disqualification to hold and enjoy any Office or
honor, Trust or Profit under the United States: but the Party
convicted shall nevertheless be liable and subject to
Indictment, Trial, Judgment and Punishment, according to
Law.'' \20\ As James Wilson wrote, ``[i]mpeachments, and
offenses and offenders impeachable, [do not] come . . .
within the sphere of ordinary jurisprudence. They are founded
on different principles; are governed by different maxims;
and are directed to different objects; for this reason, the
trial and punishment of an offense on an impeachment, is no
bar to a trial and punishment of the same offence at common
law.'' \21\ The independence of the Impeachment process from
the prosecution of crimes underscores the function of
Impeachment as a means to remove a President from office, not
because
[[Page S1918]]
of criminal behavior, but because the President poses a
threat to the Constitutional order. Criminal behavior is not
irrelevant to an Impeachment, but it only becomes decisive if
that behavior imperils the balance of power established in
the Constitution.
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\20\ U.S. Const., art. I Sec. 3, cl. 7 (emphasis added).
\21\ James D. Andrews, ed., The Works of James Wilson at 408
(1896).
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4. Conclusion
Authoritative commentary on the Constitution, together with
the structure of the Constitution allowing independent
consideration of criminal charges, makes it clear that the
term, ``other high Crimes and Misdemeanors,'' encompasses
conduct that involves the President in the impermissible
exercise of the powers of his office to upset the
Constitutional order. Moreover, since the essence of
Impeachment is removal from office rather than punishment for
offenses, there is a strong inference that the improper
conduct must represent a continuing threat to the people and
the Constitution. It cannot be an episode that either can be
dealt with in the Courts or raises no generalized concerns
about the continued service of the President.
iv. judicial impeachments
The House Managers urge that the standards applied to
judges must also be applied identically to the President.
Their argument finds particular urgency with respect to
Article I and its allegations of perjury. Several judges have
been removed for perjury, and the House Managers suggest that
this experience transforms perjury into a per se impeachable
offense.\22\
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\22\ For example, both Judge Walter L. Nixon, Jr. and Judge
Alcee L. Hastings were convicted on charges based in perjury.
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This reasoning disregards the unique position of the
President. Unlike Federal judges, the President is elected by
popular vote for a fixed term. Popular elections are the most
obvious and compelling checks on Presidential conduct. No
such ``popular check'' is imposed on the Judiciary. Federal
judges are deliberately insulated from the public pressures
of the moment to ensure their independence to follow the law
rather than a changeable public mood. As such, Impeachment is
the only means of removing a judge. Moreover, the removal of
one of the 839 Federal judges can never have the traumatic
effect of the removal of the President. To suggest that a
Presidential Impeachment and a judicial Impeachment should be
treated identically strains credulity.
There is an additional Constitutional factor to consider.
The Constitution requires that judicial service be
conditioned on ``good Behavior.'' \23\ This adds a further
dimension to the consideration of the removal of a judge from
office. Although ``good Behavior'' is not a separate grounds
for Impeachment, this Constitutional standard thoroughly
permeates any evaluation of judicial conduct.
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\23\ ``The Judges, both of the supreme and inferior Courts,
shall hold their Offices during good Behavior . . .'' U.S.
Const., art. III, Sec. 1.
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We expect judges to be above politics. We expect them to be
inherently fair. We expect their judgment to be unimpeded by
personal considerations. And, we demand that their conduct,
both public and private, reflect these lofty expectations.
Judges are subject to the most exacting code of conduct in
both their public life and their private life.\24\ Without
diminishing the expectations of Presidential conduct, it is
fair to say that we expect and demand a more scrupulous
standard of conduct, particularly personal conduct, from
judges. A large part of these heightened expectations for
judges emerges directly from their particular role in our
government. They immediately and critically determine the
rights of individual citizens. The fates and lives of
individual Americans are literally in their hands. They
personify more dramatically than anyone, including the
President, the fairness and reasonableness of the law. Should
they falter, the foundation of ``equal justice under law'' is
more seriously strained than the failings of any other
citizen.
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\24\ The Judicial Conference of the United States publishes a
Code of Conduct for United States Judges, as prepared by the
Administrative Office of the United States Courts. Cannon 2
of the Code requires federal judges to ``avoid impropriety
and the appearance of impropriety in all activities.''
(March, 1997). This Cannon requires a Judge to act at all
times in ``a manner that promotes public confidence in the
integrity and impartiality of the judiciary.'' Perceived
violations of the Code could result in a complaint to the
Judicial Conference, which can make referrals to the House
Judiciary Committee.
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The differences between a Presidential Impeachment and a
judicial Impeachment are not merely theoretical. The Senate
treats a Presidential Impeachment differently from a judicial
Impeachment in both procedure and substance. The Senate
routinely allows a select committee to receive testimony in
the trial of a judge.\25\ Such a delegation of responsibility
would be unthinkable in the trial of a President. But of even
more telling effect are the substantive differences between
Presidential and judicial Impeachments. For example, Judge
Harry Claiborne was Impeached and removed subsequent to his
criminal conviction for filing a false income tax return.\26\
In contrast, the inquiry into the Watergate break-in
disclosed similar violations of the Federal Tax Code by
President Nixon. Yet, the Judiciary Committee of the House of
Representatives declined to approve an Article of Impeachment
with respect to President Nixon's apparent violation of the
Internal Revenue Code. A major factor in declining to press
this Article was the widespread feeling that such private
misconduct was not relevant to a Presidential Impeachment.
According to Representative Ray Thornton (D-AR), ``there
[had] been a breach of faith with the American people with
regard to incorrect income tax returns . . . But . . . these
charges may be reached in due course in the regular process
of law. This committee is not a tax court nor should it
endeavor to become one.'' \27\ Republican Representative Tom
Railsback (R-IL) pointed out that there was ``a serious
question as to whether something involving [the President's]
personal tax liability has anything to do with his conduct of
the office of the President.'' \28\
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\25\ Rule XI, Procedure and Guidelines for Impeachment Trials
in the United States Senate, Prepared by Floyd Riddick and
Robert Dove, 99th Cong., 2d Sess., S. Doc. 99-33 (August 15,
1986) at 4.
\26\ Proceedings of the United States Senate in the
Impeachment Trial of Harry E. Claiborne, A Judge of the
United States District Court for the District of Nevada, 99th
Cong., 2d Sess., S. Doc. No. 99-48 (1986) at 291-98.
\27\ The Evidentiary Record of the Impeachment of President
William Jefferson Clinton, [hereinafter The Record] S. Doc.
106-3, 106th Cong., 1st Sess., Vol. XVII, at 10 (January 8,
1999) (quoting Hearings Before the House Comm. on the
Judiciary Pursuant to H. Res. 803, 93d Cong., 2d Sess. 549
(1974) (Statement of Congressman Ray Thornton)).
\28\ Id. (Statement of Congressman Railsback).
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The reconciliation of this disparate treatment is found by
once again recalling the Constitution and not by simply
adopting the facile notion that if Impeachment applies to
judges then it must apply identically to the President. The
function of Impeachment is to remove a ``civil officer'' who
so abuses the particular duties and responsibilities of his
office that he poses a threat to the Constitutional order.
Furthermore, the Constitution provides an additional
condition on the performance of judges with the ``good
Behavior'' standard. The particular duties of the Judiciary
together with their obligation to demonstrate ``good
Behavior,'' renders comparison with the President inexact at
best.\29\
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\29\ Various legal scholars and authoritative commentary make
this point. In support of the ``Judicial Integrity and
Independence Act,'' which would have established a non-
Impeachment procedure for removing judges, Senator Lott
submitted an article by conservative legal scholars Bruce
Fein and William Bradford Reynolds. Messrs. Fein and Reynolds
concluded ``federal judges are also subject to Article III
Sec. 4, which stipulates that judges shall serve only during
`good Behavior.' This is a stricter standard of conduct than
the Impeachment standard. . . .'' 135 Cong. Rec. S15269
(daily ed. July 19, 1989) (quoting Fein and Reynolds, Judges
on Trial: Improving Impeachment, Legal Times, October 30,
1989.) Senator Lott also submitted a statement, by then
Assistant Attorney General William Rehnquist, supporting
similar legislation in 1970, which stated that ``the terms
`treason, bribery and other high Crimes and Misdemeanors' are
narrower than the malfeasance in office and failure to
perform the duties of the office, which may be grounds for
forfeiture of office held during good behavior.'' 135 Cong.
Rec. S 15270 (daily ed. July 19, 1989) (quoting The Judicial
Reform Act: Hearings on S. 1506 Before the Subcomm. on
Improvements in Judicial Machinery of the Comm. on the
Judiciary, 91st Congress, 2d Sess. (April 9, 1970) (Statement
of Asst. Attorney General William H. Rehnquist, Office of
Legal Counsel)).
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The Managers' argument is ultimately unpersuasive. Rather
than reflexively importing prior decisions dealing with
judicial Impeachments, we are obliged to consider the
President's behavior in the context of his unique
Constitutional duties and without the condition to his tenure
of ``good Behavior.''
V. the standard of proof
Judicial proceedings, by definition, resolve an issue in
dispute. A party seeks an outcome, provided for by the rule
of law, and petitions for that result. The petitioning party
has the burden of producing evidence. After hearing the
evidence, the trier of fact, to some degree of certainty,
reaches a conclusion. The critical factor is often the degree
of certainty necessary.
American jurisprudence utilizes three standards of
certainty: evidence beyond a reasonable doubt, clear and
convincing evidence, and a preponderance of the evidence. The
standard is determined by the gravity of the issue in dispute
and the degree of harm resulting from an incorrect decision.
Generally, proof beyond a reasonable doubt, or to a moral
certainty, is required to convict an individual of a criminal
offense. Black's Law Dictionary defines reasonable doubt as
``a doubt as would cause prudent men to hesitate before
acting in matters of importance to themselves.'' \30\ Sample
federal jury instructions provide that ``[a] reasonable doubt
is a doubt based upon reason and common sense--the kind of
doubt that would make a reasonable person hesitate to act.
Proof beyond a reasonable doubt, must, therefore, be proof of
such a convincing character that a reasonable person would
not hesitate to rely and act upon it in the most important of
his or her own affairs.'' \31\
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\30\ Black's Law Dictionary at 1265 (6th ed. 1990) (citing
U.S. v. Chas. Pfizer & Co., Inc., 367 F.Supp. 91, 101(S.D.
N.Y. 1973)).
\31\ Edward J. Devitt, Charles B. Blackmar, Michael A. Wolff,
Kevin F. O'Maley, Federal Jury Practice and Instructions,
Sec. 12.10 Presumption of Innocence, Burden of Proof, and
Reasonable Doubt (West 1992).
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Clear and convincing evidence is utilized in cases
involving a deprivation of individual rights not rising to
criminal offenses, such as the termination of parental
rights. Finally, general civil cases, which pit private
parties against each other, are adjudicated on the
preponderance of the evidence, i.e., more likely than not.
Frequently the burden of proof is determinative of the
outcome.
In an Impeachment Trial, each Senator has the obligation to
establish the burden of proof he or she deems proper. The
Founding
[[Page S1919]]
Fathers believed maximum discretion was critical for Senators
confronting the gravest of constitutional choices.
Differentiating Impeachment from criminal trials, Alexander
Hamilton argued, in Federalist No. 65, that Impeachments
``can never be tied down by such strict rules . . . as in
common cases serve to limit the discretion of courts in favor
of personal security.'' \32\ In this regard, Hamilton also
recognized that an Impeached official would be subject to the
comprehensive rules of criminal prosecution after
Impeachment.\33\
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\32\ The Federalist No. 65, at 398.
\33\ Id. at 399.
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Senate precedent maintains this discretion. In the 1986
Impeachment Trial of Judge Claiborne, the Senate
overwhelmingly rejected a motion by the Judge to adopt
``beyond a reasonable doubt'' as the standard of proof
necessary to convict and remove.\34\ That vote has been
interpreted by subsequent courts of Impeachment as ``a
precedent confirming each Senator's freedom to adopt whatever
standard of proof he or she preferred.'' \35\
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\34\ 132 Cong. Rec. S15507 (daily ed. October 7, 1986).
\35\ Gerhardt, The Federal Impeachment Process: A
Constitutional and Historical Analysis, at 42 (1996).
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The constitutional gravity of an Impeachment trial suggests
that the evidentiary bar be high. As I have discussed
previously, the Founders viewed Impeachment as a remedy to be
utilized only in the gravest of circumstances by a
supermajority of Senators. The Constitution gives to the
people the right to remove a President through the electoral
process every four years. Only in the most extreme of
examples, when the constitutional order is threatened, is
Congress to intervene and remove our only nationally
elected representative. Nullification of a popularly
elected President is a grave action only to be taken with
high certainty.
Constitutional analysis strongly suggests that in a
Presidential Impeachment trial a burden of proof at least
equivalent to ``clear and convincing evidence'' and more
likely equal to ``beyond a reasonable doubt'' must be
employed.\36\ Had the charges of this case involved threats
to our constitutional order not readily characterized by
criminal charges, I would have been forced to further parse
an exact standard. However, for all practical purposes, the
Managers have themselves established the burden of proof in
this case.\37\
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\36\ See Charles L. Black, Jr., Impeachment: A Handbook, at
14-19 (1974)
\37\ The adoption of a standard of ``beyond a reasonable
doubt'' in this matter should not be construed as implying
that the same standard must be utilized in each and every
Impeachment proceeding. Conduct of ``civil officers'' in the
performance of their official duties might pose such an
immediate threat to the Constitution that a less exacting
standard could properly be used. Any choice of a standard of
proof must, at a minimum, consider the nature of the
allegations and the impact of the alleged behavior on the
operation of the government.
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The Articles, embodied in H. Res. 611, accuse the President
of perjury and obstruction of justice. This allegation of
specific criminal wrongdoing is repeated in their Trial
Brief.\38\ Indeed, in their presentation, the Managers have
stated, ``none of us, would argue . . . that the President
should be removed from the office unless you conclude he
committed the crimes that he is alleged to have committed. .
. .'' \39\ The House Managers invited the Senate to arrive at
a conclusion beyond a reasonable doubt before voting to
convict the President. I take them at their word.
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\38\ Trial Memorandum of the United States House of
Representatives, In Re Impeachment of President William
Jefferson Clinton, [hereinafter HMTB] (Submitted pursuant to
S. Res. 16) at 1.
\39\ 145 Cong. Rec. S260 (daily ed. Jan. 15, 1999) (Statement
of Mr. Manager McCollum).
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After reading their Trial Brief, listening to their
presentation of the evidence, viewing depositions, and
considering their closing argument, I conclude that the
President is not guilty of any of the allegations beyond a
reasonable doubt. I reach this conclusion mindful of the
admonishment of the Founders that Impeachment is not a
punitive, but rather a constitutional remedy. Having
concluded that the charges, even if proven, do not rise to
the level of ``high Crimes and Misdemeanors'' an analysis of
the specific charges is unnecessary. However, given the
gravity of the charges alleged, an explanation is
appropriate.
vi. perjury allegations of article i
Article I alleges that the President committed perjury
before a federal Grand Jury on August 17, 1998. The charge
must be measured against the fact that the full House of
Representatives rejected an article of Impeachment charging
the President with perjury in a civil deposition. House
Judiciary Committee Republicans, citing case law, have
asserted that ``perjury in a civil proceeding is just as
pernicious as perjury in criminal proceedings.'' \40\ The
Article before the Senate is further undercut by the fact
that the Article fails to site, with specificity, testimony
alleged to be false.
---------------------------------------------------------------------------
\40\ Impeachment of William Jefferson Clinton, President of
the United States, Report of the Comm. on the Judiciary,
105th Cong. 2d Sess., H. Rep. 105-830 (December 15, 1998) at
118 [hereafter Clinton Report].
---------------------------------------------------------------------------
Perjury is a statutory crime, set forth in the U.S. Code at
18 U.S.C. Sec. 1621, Sec. 1623. It requires proof that an
individual has, while under the oath of an official
proceeding, knowingly made a false statement about facts
material to the proceeding. As seasoned federal prosecutors
testified before the House Judiciary Committee, perjury is a
specific intent crime requiring proof of the defendant's
state of mind, i.e., the charge cannot be based solely upon
unresponsive, misleading, or evasive answers.\41\ Both the
House Managers and Counsel for the President have referred to
the statutes referenced above and agree on the elements
necessary to convict on a charge of perjury.
---------------------------------------------------------------------------
\41\ The Record, supra note 27, Volume X at 284 (Statement of
Thomas P. Sullivan, Former U.S. Attorney, Northern District
of Illinois).
---------------------------------------------------------------------------
I find it hard to accept the proposition by the President's
Counsel that Mr. Clinton ``testified truthfully before the
Grand Jury.'' \42\ Rather than truthful, his testimony
appears to be motivated by a desire not to commit perjury,
i.e., making intentionally false statements about material
facts. This dance with the law is not what one expects of a
President. However, it is important to realize that in
beginning his Grand Jury testimony, the President read a
statement in which he admitted being ``alone'' with Ms.
Lewinsky and engaging in ``inappropriate intimate'' \43\
contact with her. Thus, unlike the testimony he provided in
the Jones civil deposition, the President admitted an
improper, consensual relationship with Ms. Lewinsky. It is
against this backdrop that the House Mangers allege perjury.
---------------------------------------------------------------------------
\42\ Trial Memorandum of President William Jefferson Clinton,
In Re Impeachment of President William Jefferson Clinton,
[hereinafter PCTB] (Submitted January 13, 1999, pursuant to
S. Res. 16) at 38.
\43\ The full text of the President's statement before the
Grand Jury can be found in The Record, supra note 27, Volume
III, Part 1 of 2, at 460-62; See also PCTB, supra note 42, at
39; See also HMTB, supra note 38, at 52-60.
---------------------------------------------------------------------------
The Managers allege in H. Res. 611, which reported the
Articles of Impeachment to the Senate, that the President
``willfully provided perjurious . . . testimony . . .
concerning one or more of the following: (1) the nature and
details of his relationship with'' Ms. Lewinsky; (2)
``prior perjurious . . . testimony'' given in the Jones
deposition; (3) ``prior false and misleading statements he
allowed his attorney to make'' in the Jones deposition;
and (4) ``his corrupt efforts to influence the testimony
of witnesses and to impede the discovery of evidence'' in
Jones. The facts refute some of these charges, while legal
analysis, precedent and common sense preclude pursuit of
the others.
1. The Nature and Details of the Clinton/Lewinsky
Relationship
With regard to the first charge of perjury, the Managers
fail to cite specific perjurious language in the Article;
however, their Trial Brief provides several allegations. It
asserts that the President's denial that he touched Ms.
Lewinsky in certain areas with a specific intent is
``patently false.'' \44\
---------------------------------------------------------------------------
\44\ HMTB, supra note 38, at 53.
---------------------------------------------------------------------------
The most troubling evidence that the President lied in this
instance is Ms. Lewinsky's testimony to the contrary. While
Ms. Lewinsky has more credibility than the President
concerning the intimacies of their relationship, experienced
prosecutors, appointed by both Democrats and Republicans,
have testified that conflicting testimony of this type would
not be prosecuted for two reasons. First, ``he said, she
said'' discrepancies regarding perjury are difficult to prove
beyond a reasonable doubt without third party
corroboration.\45\ This is particularly true in this case,
where first Independent Counsel Starr and now the House
Managers choose to believe Ms. Lewinsky when she helps their
case, but impugn her testimony when she refutes their
accusations. Second, testimony concerning sex in a civil
proceeding would not normally warrant criminal
prosecution.\46\ Indeed, in her Senate deposition, Ms.
Lewinsky was unwilling to portray the President's testimony
as untruthful.\47\
---------------------------------------------------------------------------
\45\ The Trial Brief of the House Managers states that the
President's testimony is ``directly contradicted by the
corroborated testimony of Monica Lewinsky.'' Id. By
``corroborated'' the Managers refer to the fact that the
Office of Independent Counsel (OIC) was extremely thorough in
questioning all of Ms. Lewinsky's friends and associates to
whom she described the intimate details of her contact with
the President. Legally, the fact that Ms. Lewinsky relayed
her recollection of the facts to various third parties does
not provide additional, independent evidence of the nature of
her contact with the President.
\46\ The Record, supra note 27, Volume X at 284 (Statement of
Thomas P. Sullivan, Former U.S. Attorney, Northern District
of Illinois); see also Id. at 325, 332, 333 (testimony of
Ronald K. Noble and William F. Weld).
\47\ During her Senate deposition, Manager Bryant asked Ms.
Lewinsky if, contrary to his defense, the President's contact
with her fit into that described in the Jones deposition. In
response Ms. Lewinsky said, ``I'm not trying to be difficult,
but there is a portion of . . . [the] definition [used in the
Jones deposition] that says, you know, with intent, and I
don't feel comfortable characterizing what someone else's
intent was. I can tell you that I--my memory of this
relationship and what I remember happened fell within that
definition . . . but I'm just not comfortable commenting on
someone else's intent or state of mind or what they
thought.'' 145 Cong. Rec. S1221 (daily ed. Feb. 4, 1999)
(Senate deposition of Ms. Lewinsky).
---------------------------------------------------------------------------
In further support of the perjury allegation regarding the
``nature and details'' of the Clinton-Lewinsky relationship,
the Managers also alleged that the President's Grand Jury
testimony concerning his relationship with Ms. Lewinsky was
perjurious because (1) his recollection of when the
approximately two-year affair began differs from Ms.
Lewinsky's by a few months; (2) he admitted to occasionally
having inappropriate banter on the phone with Ms. Lewinsky
when
[[Page S1920]]
it occurred as many as seventeen times; and (3) he described
his relationship with Ms. Lewinsky as beginning as a
``friendship.'' \48\
---------------------------------------------------------------------------
\48\ See HMTB, supra note 38, at 57; see also Clinton Report,
supra note 40 at 34.
---------------------------------------------------------------------------
Disregarding the futility of attempting to judge the
veracity of these statements, they appear to be totally
immaterial to the Grand Jury given that the President
admitted an affair with Ms. Lewinsky. Indeed, the triviality
of these charges are indicative of the inability of the House
Managers to utilize any sense of proportionality in
adjudicating the unacceptable behavior of the President. This
weakness is magnified by the fact that the House Managers
have asserted that conviction on any one of their allegations
of perjury warrant conviction.\49\
---------------------------------------------------------------------------
\49\ H. Res. 611.
---------------------------------------------------------------------------
It is difficult to believe that anyone would charge an
individual with perjury, never mind advocate the removal of a
popularly-elected President, based upon an interpretation of
the words ``occasionally'' or ``friendship.'' It is
staggering that the Managers, after forcing Ms. Lewinsky to
testify under oath during this trial, would press her on the
details and timing of her first intimate contacts with the
President in order to ``prove'' the relationship did not
begin as a ``friendship.'' \50\ As demonstrated by the
frustration of the American people with this line of inquiry,
the resources, both human and financial, expended by the
Managers were not warranted by the substance of the charge.
---------------------------------------------------------------------------
\50\ 145 Cong. Rec. S1213 (daily ed. Feb. 4, 1999)
(Transcript of Lewinsky Deposition in which Mr. Manager
Bryant is questioning Ms. Lewinsky about the timing and
intimate details of her relationship).
---------------------------------------------------------------------------
2. Perjury Concerning the President's Deposition Testimony in
Jones
The Managers' second charge of perjury is that before the
Grand Jury the President repeated false testimony he gave in
the Jones deposition. This argument appears an attempt to
convict the President for lies he told in his Jones
deposition, an Article which the full House of
Representatives rejected. Ultimately, this subsection of
Article I collapses on itself.
In their Trial Brief the Managers also assert that the
President reaffirmed or adopted his entire deposition
testimony before the Grand Jury. This is simply not true. To
make this assertion the Managers use the President's Grand
Jury testimony that ``I was determined to walk through the
mine field of this deposition without violating the law, and
I believe I did.'' \51\ Before the Grand Jury the President
refuted his deposition testimony that he was never alone with
Ms. Lewinsky.\52\ In addition to being inaccurate, these
charges were rejected by the full House. Not even Independent
Prosecutor Starr alleged that the President committed perjury
concerning this issue.
---------------------------------------------------------------------------
\51\ HMTB, supra note 38, at 60.
\52\ In his opening statement before the Grand Jury the
President began, ``When I was alone with Ms. Lewinsky. . .
.'' The Independent Counsel followed-up and asked if he was
alone with Ms. Lewinsky. The President answered, ``yes.'' The
Record, supra note 43 at 460-62, 481.
---------------------------------------------------------------------------
3. Perjury With Respect to Mr. Bennett's Offer of the
Lewinsky Affidavit
The third charge asserted by the Managers to substantiate
Article I is that the President lied before the Grand Jury
when he testified that ``I'm not even sure I paid attention
to what he [Mr. Bennett] was saying.'' \53\ The President
made this statement to the Grand Jury after being asked about
Mr. Bennett's representation to the Jones court that Ms.
Lewinsky's deposition verified that there was ``no sex of any
kind in any manner'' between her and the President.
---------------------------------------------------------------------------
\53\ HMTB, supra note 38, at 62.
---------------------------------------------------------------------------
On page 62 of their Trial Brief the Managers assert that
this testimony is perjurious because ``it defied common
sense'' and the fact that the video of the deposition ``shows
the President looking directly at Mr. Bennett.'' This
evidence fails to provide any insight on the President's
state of mind and thus cannot meet the standard of proof that
the President knowingly made a false statement.
4. Perjury in Denying the Obstruction of Justice Charges
Finally, in subpart four of Article I, the Managers allege
that the President lied when he denied both tampering with
witnesses and impeding discovery in the Jones case. This
allegation bootstraps every allegation made in Article II
into an additional charge of perjury.
First, the Managers charge that the President lied when he
told the Grand Jury that he instructed Ms. Lewinsky that if
gifts were subpoenaed they would have to be turned over. I
will address Article II's charge of obstruction later. With
regard to the charge that he committed perjury, Ms. Lewinsky
provided testimony in her Senate deposition which requires
rejection of the allegation. Ms. Lewinsky has testified that
when she asked the President if she should give the
subpoenaed gifts to someone, ``maybe Betty,'' the President
either failed to reply or said ``I don't know,'' or ``let me
think about that.'' \54\ However, after the President's Grand
Jury testimony, Ms. Lewinsky was pressed on the issue. When a
FBI agent asked if she recalled the President telling her
that she must turn over gifts in her possession should they
be subpoenaed by the Jones attorneys, Ms. Lewinsky said,
``You know, that sounds a little bit familiar to me.'' \55\
On its face, Ms. Lewinsky's testimony would seem to make it
more likely than not that the President told her to turn over
whatever gifts she had.
---------------------------------------------------------------------------
\54\ HMTB, supra note 38, at 64 (quoting Grand Jury testimony
of Ms. Lewinsky).
\55\ 145 Cong. Rec. S1228 (daily ed. February 6, 1999)(Senate
Deposition Testimony of Ms. Lewinsky).
---------------------------------------------------------------------------
There are two remaining allegations in the final subpart of
Article I. First, it is alleged that the President committed
perjury when he told the Grand Jury that on January 18, 1998,
he made statements to Ms. Currie to ``refresh his memory.''
Second, the Managers allege that he lied when he testified to
the Grand Jury that facts he relayed to his aides in denying
an affair were ``true'' but ``misleading.''
I am troubled by the inability of the President to be
completely forthright concerning both his relationship with
Ms. Lewinsky and subsequent attempts to conceal this affair
from his family, friends, staff, constituents, and Ms. Jones.
In no way do I condone this behavior. However, seasoned
federal prosecutors have made it known that the statements of
this type, made by the President or an average citizen, would
not, indeed should not, be prosecuted as perjury. The power
and prestige of the federal government should not be brought
to bear on a citizen regarding testimony in a civil case
pertaining to an improper sexual affair. The Impeachment
Trial has borne this out. Discrepancies in testimony between
two individuals, and only those two, seldom satisfy the
standard of proof beyond a reasonable doubt (or by
preponderance of the evidence, for that matter.) Moreover,
citizens are uncomfortable with such a role for government.
The Managers have alleged that a failure to convict the
President on perjury grounds will destroy civil rights
jurisprudence and allow any future President to lie with
impunity. Both the Managers and our government weathered
untruths during both the Iran-Contra investigation and the
ethics investigation of former Speaker Gingrich. Citizens may
well lack confidence in the ability of President Clinton to
be honest about his personal life, this is not, however, a
threat to our government. The President, as a citizen,
remains subject to both criminal and civil sanctions. The
Managers have failed to meet the burden of proof they set
regarding the perjury charges brought against President
William Jefferson Clinton.
VII. OBSTRUCTION ALLEGATIONS OF ARTICLE II
Article II alleges that the President obstructed justice by
engaging ``personally, and through his subordinates and
agents, in a course of conduct or scheme designed to delay,
impede, cover up and conceal the existence of evidence and
testimony related to a Federal civil rights action brought
against him in a duly instituted judicial proceeding.'' \56\
The focal point of these allegations is the Jones litigation.
Article II outlines seven specific ``acts'' that the
President used to implement this ``course of conduct or
scheme.'' These ``acts'' will be analyzed to determine if
they established a foundation for a finding of ``high Crimes
and Misdemeanors.''
---------------------------------------------------------------------------
\56\ H. Res. 611.
---------------------------------------------------------------------------
As an initial point, it is necessary to set out the
elements of the crime of obstruction of justice, as set forth
at 18 U.S.C. Sec. 1503. The components of the offense
include: (1) there existed a pending judicial proceeding; (2)
the accused knew of the proceeding; and (3) the defendant
acted ``corruptly'' with the specific intent to obstruct and
interfere with the proceeding or due administration of
justice.\57\
---------------------------------------------------------------------------
\57\ 18 U.S.C. Sec. 1503. The House Managers periodically
urge that the President is guilty of witness tampering. The
crime of witness tampering is set forth at 18 U.S.C.
Sec. 1512. This statute requires proof that a defendant
knowingly engaged in intimidation, physical force, threats,
misleading conduct, or corrupt persuasion with the specific
intent to influence, delay, or prevent testimony or cause any
person to withhold objects or documents from an official
proceeding. Like the obstruction of justice charge, witness
tampering requires proof of a specific intent to interfere
with a witness.
---------------------------------------------------------------------------
The critical question in regard to the allegations is
whether the President acted with the specific intent to
interfere with the administration of justice. Absent a
demonstrable ``act'' coupled with a demonstrable ``specific
intent,'' no crime occurs. The House Managers point to the
seven following acts as the basis of their claim.
1. The Lewinsky Affidavit
The Article alleges that ``[o]n or about December 17, 1997,
William Jefferson Clinton corruptly encouraged a witness in a
Federal civil rights action brought against him to execute a
sworn affidavit in that proceeding that he knew to be
perjurious, false and misleading.'' \58\ The allegations go
to the Affidavit prepared by Monica Lewinsky in conjunction
with the Jones litigation.
---------------------------------------------------------------------------
\58\ H. Res. 611.
---------------------------------------------------------------------------
The best evidence of the President's involvement in this
affidavit is the testimony of Monica Lewinsky. Ms. Lewinsky
has repeatedly and consistently stated that no one asked her
or instructed her to lie.
``[N]o one ever asked me to lie and I was never promised a
job for my silence.'' \59\
---------------------------------------------------------------------------
\59\ The Record, supra note 27, Volume III, Part 1 at 1161
(Lewinsky Grand Jury testimony 8/20/98).
---------------------------------------------------------------------------
``Neither the Pres[ident] nor Mr. Jordan (or anyone on
their behalf) asked or encouraged Ms. L[ewinsky] to lie.''
\60\
---------------------------------------------------------------------------
\60\ Id. at 718 (handwritten proffer of Lewinsky, given to
OIC 2/1/98).
---------------------------------------------------------------------------
``Neither the President or JORDAN ever told LEWINSKY that
she had to lie.'' \61\
---------------------------------------------------------------------------
\61\ Id. at 1398 (FBI Interview with Lewinsky 7/27/98).
---------------------------------------------------------------------------
[[Page S1921]]
``Neither the President nor anyone ever directed LEWINSKY
to say anything or to lie . . .'' \62\
---------------------------------------------------------------------------
\62\ Id. at 1400.
---------------------------------------------------------------------------
Despite these repeated denials, the House Managers persist
in arguing that the President influenced Ms. Lewinsky to file
a false affidavit in a early morning phone call on December
17, 1997. They hang their case on a portion of the
conversation that involved a discussion of the filing of an
affidavit in response to a subpoena from the Jones lawyers
and another portion of the conversation that dealt with the
``cover story'' that both the President and Ms. Lewinsky had
been using to disguise their affair. Ms. Lewinsky has
testified that, in a call on December 17, 1997, the President
said ``Well, maybe you can sign an affidavit.'' \63\ The
House Managers argue that this statement alone must convict
because both the President and Ms. Lewinsky knew that a
truthful affidavit could never be filed given the clandestine
nature of their relationship.\64\ This theory disregards the
testimony of both the President and Ms. Lewinsky.\65\
---------------------------------------------------------------------------
\63\ Id. (Grand Jury Testimony of Ms. Lewinsky on 8/6/98)
(quoted in HMTB, supra note 38, at 22.)
\64\ ``Both parties knew that the Affidavit would need to be
false and misleading to accomplish the desired result.''
HMTB, supra note 38, at 22.
\65\ The President testified that ``I've already told you
that I felt strongly that she could issue, that she could
execute an affidavit that would be factually truthful, that
might get her out of having to testify. . . . And did I hope
she'd be able to get out of testifying on an affidavit?
Absolutely. Did I want her to execute a false affidavit? No,
I did not.'' The Record, supra note 27, Volume X at 571.
Ms. Lewinsky testified to the Grand Jury on 8/6/98, that ``I
thought that signing an affidavit could range from anywhere--
the point of it would be to deter or to prevent me from being
deposed and so that that 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.'' Id. at 844. In her Senate Deposition Mr.
Manager Bryant asked Ms. Lewinsky, ``The night of the phone
call, he's [the President is] suggesting you could file an
affidavit. Did you appreciate the implications of filing a
false affidavit with the court?'' Ms. Lewinsky replied, ``I
don't think I necessarily thought at that point it would have
to be false, so, no, probably not.'' 145 Cong. Rec. at S1218
(daily ed. February 4, 1999).
---------------------------------------------------------------------------
Any lingering doubt about the nature of the telephone
conversation on December 17, 1997, was erased by the
videotaped testimony of Ms. Lewinsky before the Senate. The
House Managers repeatedly argued that the President not only
influenced the content of her affidavit, but that the
President was knowledgeable of those contents. In a response
to Mr. Manager Bryant's question, however, Ms. Lewinsky
unequivocally stated that ``[h]e didn't discuss the content
of my affidavit with me at all, ever.'' \66\ The House
Mangers argued that the telephone call on December 17, 1997,
was a deliberate attempt by the President to compel Ms.
Lewinsky to submit an affidavit that would explicitly
encompass their pre-existing cover story. Again, in response
to Mr. Manager Bryant's questions, Ms. Lewinsky stated:
---------------------------------------------------------------------------
\66\ 145 Cong. Rec. at S1307 (daily ed. February 6, 1999).
---------------------------------------------------------------------------
``Q: Now, you have testified in the Grand Jury. I think
your closing comments was that no one ever asked you to lie,
but yet in that very conversation of December 17th, 1997,
when the President told you that you were on the witness
list, he also suggested that you could sign an affidavit and
use misleading cover stories. Isn't that correct?
``A: Uh--well, I--I guess in my mind, I separated
necessarily signing affidavit and using misleading cover
stories. So, does----
``Q: Well, those two----
``A: Those three events occurred, but they don't--they
weren't linked for me.'' \67\
---------------------------------------------------------------------------
\67\ Id. at. S1306.
---------------------------------------------------------------------------
The House Managers argued that Ms. Lewinsky could have only
filed the affidavit as a result of pressure from the
President. They reasoned that only the President could
benefit from Ms. Lewinsky's affidavit. Ms. Lewinsky totally
refuted their view. Again, in another exchange with Mr.
Manager Bryant, Ms. Lewinsky stated:
``Q: But you didn't file the affidavit for your best
interest, did you?
``A: Uh, actually, I did.
``Q: To avoid testifying.
``A: Yes.
``Q: Why--why didn't you want to testify? Why would not
you--why would you have wanted to avoid testifying?
``A: First of all, I thought it was nobody's business.
Second of all, I didn't want to have anything to do with
Paula Jones or her case. And--I guess those two reasons.''
\68\
---------------------------------------------------------------------------
\68\ Id.
---------------------------------------------------------------------------
After Ms. Lewinsky's videotaped testimony, it is clear that
she filed the affidavit of her own volition to satisfy her
own needs. The President did not influence the content of the
affidavit. His remark in the December 17, 1997, conversation
was, at the most, a terse response to her request rather than
a elaborate directive to Ms. Lewinsky. There is no credible
evidence that the President orchestrated an attempt to file a
false affidavit.
2. The Lewinsky Testimony
The House Managers assert that during that same early
morning telephone conversation on December 17, 1997, the
President ``corruptly'' encouraged Ms. Lewinsky to give
``perjurious, false and misleading testimony if and when
called to testify personally in that proceeding.'' \69\
---------------------------------------------------------------------------
\69\ H. Res. 611.
---------------------------------------------------------------------------
Once again, this allegation completely fails to consider
the sworn testimony of Ms. Lewinsky that ``no one ever asked
me to lie and I was never promised a job for my silence.''
\70\ Moreover, Ms. Lewinsky's videotaped testimony before the
Senate provides even more detail to her previous statements.
---------------------------------------------------------------------------
\70\ The Record, supra note 27, Volume X at 1161 (quoting Ms.
Lewinky's Grand Jury testimony on 8/20/98). See also PCTB,
supra note 42, at 56-57.
---------------------------------------------------------------------------
The House Managers suggest that the ``cover story''
developed by Ms. Lewinsky and the President to disguise their
relationship was explicitly urged upon Ms. Lewinsky by the
President in response to the subpoena. There is little
evidence to support this view. Indeed, the available evidence
undermines the position of the House Managers. The following
Grand Jury testimony of Ms. Lewinsky indicates that there was
no explicit linkage between their ongoing denials of
a relationship and the Jones litigation.
``Q [JUROR]: It is possible that you also had these
discussions [about denying the relationship] after you
learned that you were a witness in the Paula Jones case?
``A: I don't believe so. No.
``Q: Can you exclude that possibility?
``A: I pretty much can. I really don't remember it. I mean,
it would be very surprising for me to be confronted with
something that would show me different but I--it was 2:30 in
the--I mean, the conversation I'm thinking of mainly would
have been December 17th, which was----
``Q: The telephone call.
``A: Right. And it was--you know, 2:00, 2:30 in the
morning. I remember the gist of it and I--I really don't
think so.
``Q: Thank you.'' \71\
---------------------------------------------------------------------------
\71\ The Record, supra note 27, Volume X at 1119-90 (quoting
Ms. Lewinsky's Grand Jury testimony on 8/20/98).
---------------------------------------------------------------------------
The House Managers have presented no credible evidence to
overcome the sworn testimony of the parties.
3. Concealment of Gifts
The Articles alleges that ``[o]n or about December 28,
1997, William Jefferson Clinton corruptly engaged in,
encouraged, or supported a scheme to conceal evidence that
had been subpoenaed in a Federal civil rights action brought
against him.'' The allegation refers to the transfer of gifts
from Ms. Lewinsky to Betty Currie on December 28, 1997.
The House Managers argue that the President directed Ms.
Currie to contact Ms. Lewinsky and arrange for the collection
of personal gifts that he gave Ms. Lewinsky and for their
subsequent concealment in Ms. Currie's home. There is
conflicting evidence whether Ms. Currie or Ms. Lewinsky
arranged for the pick-up of gifts. Regardless of who
initiated the gift transfer, however, there is insufficient
evidence that the President was involved in the transfer.
The chain of events leading to the transfer of gifts began
with a meeting between the President and Ms. Lewinsky on
December 28, 1997. Ms. Lewinsky indicated in one of her Grand
Jury appearances that in the course of the meeting she raised
the topic of the numerous personal gifts that the President
had given her in light of the Jones subpoena. According to
her Grand Jury testimony, Ms. Lewinsky recalled: ``[A]t some
point I said to him, `Well, you know, should I--maybe I
should put the gifts away outside my house somewhere or give
them to someone, maybe Betty.' And he sort of said--I think
he responded, `I don't know' or `Let me think about that.'
And left that topic.'' \72\
---------------------------------------------------------------------------
\72\ Id. Volume III, Part 1 at 872 (Lewinsky Grand Jury
testimony 8/6/98). Ms. Lewinsky discussed this exchange with
the President at least ten different times during her
multiple interviews and appearances as a witness. In a
subsequent appearance before the Grand Jury on August 20,
1998, she again recalled this discussion and stated ``And
he--I don't remember his response. I think it was something
like, ``I don't know, or `Hmm,' or--there really was no
response.'' Id. at 1122 (emphasis added). It is clear from
her testimony that there was no discussion of the concealment
of gifts with the President.
---------------------------------------------------------------------------
The next link in the chain is the most confusing. There is
no question that Betty Currie picked up a box of gifts from
Monica Lewinsky on the afternoon of December 28, 1997.
However, there is still an unresolved dispute concerning who
initiated this activity. Both Ms. Currie and the President
denied ever having any conversation in which the President
instructed Ms. Currie to retrieve the gifts from Ms.
Lewinsky. Ms. Currie has repeatedly testified that it was Ms.
Lewinsky who contacted her about the gifts. On the other
hand, Ms. Lewinsky testified that Ms. Currie called her to
initiate the transfer.
The Managers and the Committee Report cited the following
passage from Ms. Lewinsky's Grand Jury testimony.
``Q: What did [Betty Currie] say?
``A: She said, ``I understand you have something to give
me.'' Or, ``The President said you have something to give
me.'' Along those lines. . . .
``Q: When she said something along the lines of ``I
understand you have something to give me,'' or, ``The
President says you have something for me,'' what did you
understand her to mean?
``A: The gifts.\73\
---------------------------------------------------------------------------
\73\ Clinton Report, supra note 40 at 67-68 (quoting The
Record, supra note 27, Volume III at 874-75 (Lewinsky Grand
Jury testimony 8/6/98); see also HMTB, supra note 38, at 32-
33. However, Ms. Lewinsky's recollection of references to the
President in this conversation were later cast in doubt by
her subsequent testimony. In her Grand Jury testimony, Ms.
Lewinsky was quoted as:
Q: [Juror]: Do you remember Betty Currie saying that the
President had told her to call?
A: Right now, I don't. I don't remember. . . .
The Record, supra note 27, Volume III at 1141 (Lewinsky Grand
Jury testimony 8/20/98).
---------------------------------------------------------------------------
[[Page S1922]]
The uncontradicted evidence is that the President and Ms.
Currie did not discuss the gifts. The uncontradicted evidence
is that the President did not initiate the discussion of
gifts with Ms. Lewinsky and made no substantive response to
her discussion of the gifts. The unresolved issue is whether
Ms. Lewinsky or Ms. Currie initiated the transfer of gifts.
Ms. Lewinsky's videotaped testimony before the Senate does
not resolve the issue of who initiated the gift transfer. it
does, however, add critical details that suggest that Ms.
Lewinsky, of her own volition, decided to surrender certain
``innocuous'' items to the Jones lawyers, while concealing
other gifts. First, Ms. Lewinsky had already decided before
the meeting with the President, on December 28, 1997, to
conceal items from the Jones layers. As she told House
Manager Bryant in Senate deposition testimony: on December
22, 1997, six days before her meeting with the President, she
bought the gifts that she was willing to surrender to a
meeting with Vernon Jordan.
``Q: Did, uh, you bring with you to the meeting with Mr.
Jordan, and for the purpose of carrying it, I guess, to Mr.
Carter, items in response to this request for production?
``A: Yes.
``Q: Did you discuss these items with Mr. Jordan?
``A: I think I showed them to him. . . .
``Q: Okay. How did you select those items?
``A: Uh, actually, kind of in an obnoxious way, I guess . .
. they were innocuous. . . .
``Q: In other words, it wouldn't give away any kind of
special relationship?
``A: Exactly.
``Q: And was that your intent?
``A: Yes.
``Q: Did you discuss how you selected those items with
anybody?
``A: No.\74\
---------------------------------------------------------------------------
\74\ 145 Cong. Rec. S1222 (daily ed. February 4, 1999)
(deposition of Ms. Lewinsky).
---------------------------------------------------------------------------
Not only did Ms. Lewinsky decide unilaterally to withhold
certain gifts, she also decided unilaterally to conceal these
gifts, not at the behest of the President, but out of her own
concern for privacy. In response to a question posed by Mr.
Manager Bryant, Ms. Lewinsky stated, ``I was worried someone
might break into my house or concerned that they actually
existed, but I wasn't concerned about turning them over
because I knew I wasn't going to, for the reason you
stated.'' \75\
---------------------------------------------------------------------------
\75\ 145 Cong. Rec. S1309 (daily ed. February 6, 1999)
(deposition of Ms. Lewinsky as replayed during the trial).
Manager Bryant's question is compound and slightly confusing,
Ms. Lewinsky's response, combined with her testimony that she
avoided testifying for reasons in her own best interest,
makes clear that she had come to an independent conclusion
not to provide gifts to the Jones attorneys.
---------------------------------------------------------------------------
The final detail added by Ms. Lewinsky's videotaped
testimony may be the most significant. The President
testified to the Grand Jury that Ms. Lewinsky raised the
issue of gifts he responded: ``You have to give them whatever
you have.'' \76\ When questioned by an FBI agent after the
President's testimony, Ms. Lewinsky said that the words in
the President's testimony, ``sounds [sic[ a little bit
familiar to me.'' \77\
---------------------------------------------------------------------------
\76\ This statement has been dismissed by the House Managers
as self-serving at best. However, Ms. Lewinsky's Senate
Deposition testimony lends significant collaboration to the
President's claim. See supra, note 55, p. 23.
\77\ Id.
---------------------------------------------------------------------------
4. The Lewinsky Job Search
The Article alleges that ``[b]eginning on or about December
7, 1997, and continuing through and including January 14,
1998, William Jefferson Clinton intensified and succeeded in
an effort to secure job assistance to a witness in a Federal
civil rights action against him in order to corruptly prevent
the truthful testimony of that witness in that proceeding at
a time when the truthful testimony of that witness would have
been harmful to him.'' \78\
---------------------------------------------------------------------------
\78\ H. Res. 611.
---------------------------------------------------------------------------
This allegation focuses on the efforts to find employment
for Ms. Lewinsky. Of critical importance is the undisputed
fact that these efforts began long before Ms. Lewinsky was
identified as a potential witness in the Jones case. Ms.
Lewinsky herself initiated the search for employment based on
her dissatisfaction with her job at the Pentagon and her
perception that she would not be able to return to work in
the White House. Ms. Lewinsky suggested that Vernon Jordan be
enlisted to aid her, and his involvement was obtained at Ms.
Lewinsky's request by Mr. Jordan's long-time friend Betty
Currie.\79\
---------------------------------------------------------------------------
\79\ In one of the more unusual aspects of this case, it
appears that the idea to enlist Mr. Jordan's assistance came
from Linda Tripp's ``advice'' to Ms. Lewinsky. See PCTB,
supra note 42, note 103, at 78.
---------------------------------------------------------------------------
The allegation of the House Managers crashes on the same
unshakable and uncontradicted statement that has bedeviled
them from the start. Monica Lewinsky's unchallenged statement
is that ``no one ever asked me to lie and I was never
promised a job for my silence.'' \80\
---------------------------------------------------------------------------
\80\ Supra, note 70 at 29.
---------------------------------------------------------------------------
Unable to refute her statement, the House Managers
attempted to weave a pattern of circumstantial evidence. Each
attempt of the House Managers rapidly unraveled.
Mr. Manager Hutchinson argued with great force and skill in
his opening presentation that December 11, 1997, was the
critical date in the case against the President. It was on
that date that Judge Wright ordered the President to answer
certain questions about ``other women.'' As Mr. Manager
Hutchinson argued on the Floor: ``And so, what triggered--
let's look at the chain of events. The judge--the witness
list came in, the judge's order came in, that triggered the
President into action and the President triggered Vernon
Jordan into action. That chain reaction here is what moved
the job search along . . . . Remember what else happened on
the day [December 11] again. That was the same day that Judge
Wright ruled that the questions about other relationships
could be asked by the Jones attorneys.\81\
---------------------------------------------------------------------------
\81\ 145 Cong. Rec. S234 (daily ed Jan. 14, 1999)
(presentation of Manager Hutchinson).
---------------------------------------------------------------------------
The thrust of the House Managers' argument is that the
President learned that Ms. Lewinsky was on the witness list
on December 6, 1997. He met with Mr. Jordan on December 7,
1997, to enlist Mr. Jordan in the Lewinsky job search, and,
with the Judge's order on December 11, 1997, making Ms.
Lewinsky's testimony more likely, Mr. Jordan ``intensified''
what had been a dormant record of assistance. This scenario
is demonstrably false.
The House Judiciary Committee Report acknowledges that the
meeting between the President and Mr. Jordan on December 7,
1997, had nothing to do with Ms. Lewinsky.\82\ Because of
this lack of interest by the President and Mr. Jordan in Ms.
Lewinsky's job search, the House Managers had to seize an
event that could plausibly trigger the ``intensification'' of
the job search which allegedly occurred on December 11, 1997.
---------------------------------------------------------------------------
\82\ Clinton Report, supra note 40, at 11. This fact alone
casts serious doubt on the theory of the House Managers. If
Ms. Lewinsky's appearance on the witness list was disturbing
to the President, and he was participating in the job search
to silence Ms. Lewinsky, why would he avoid discussing this
matter with Mr. Jordan?
---------------------------------------------------------------------------
Although December 11, 1997, was the date of a meeting
between Mr. Jordan and Ms. Lewinsky, the record shows that
this meeting was arranged prior to that date without the
participation of the President. As early Thanksgiving, Mr.
Jordan and Ms. Lewinsky had a conversation in which Mr.
Jordan told her that ``he was working on her job search'' and
asked her to contact him again'' around the first week of
December.'' \83\ In response to a request from Ms. Lewinsky,
Betty Currie called Vernon Jordan on December 5, 1997, to
request a meeting. (This was one day before the President
became aware of the appearance of Ms. Lewinsky's name on the
witness list.) Mr. Jordan told Ms. Currie to have Ms.
Lewinsky call him to arrange a meeting. Ms. Lewinsky did so
on December 8, 1997, confirming a meeting with Mr. Jordan on
December 11, 1997.
---------------------------------------------------------------------------
\83\ The Record, supra note 27, Volume III at 1465 (Lewinsky
OIC interview 7/31/98).
---------------------------------------------------------------------------
Since the appearance of Ms. Lewinsky on the witness list
did not prompt any accelerated action on the job search and
since the meeting of Ms. Lewinsky and Mr. Jordan was
contemplated and initiated before the release of the witness
list, the House Managers were forced to grasp for some other
triggering event. Unwisely, as clearly stated in Mr. Manager
Hutchinson's remarks, they chose the issuance of Judge
Wright's order.
Judge Wright initiated a conference call with lawyers in
the Jones case at 6:33 pm (EST) on December 11, 1997. At 7:50
pm (EST), she concluded the conference by informing the
parties that she would issue an ``order to compel'' testimony
about ``other women.'' At that moment, Vernon Jordan was
somewhere over the Atlantic Ocean on United flight 946
bound for Amsterdam. His meeting with Ms. Lewinsky had
concluded hours before. Obviously, the meeting with Ms.
Lewinsky, the calls on her behalf, the ``intensification''
of the job search, had nothing to do with Judge Wright's
order.
Nothing so illustrates the fragility of the House Managers'
case as this dubious and discredited attempt to characterize
Judge Wright's order as a catalyst for an illegal job search.
Forced to beat a hasty retreat by the revelation of this
attempted legal slight of hand, the House Managers reversed
course and argued, unconvincingly, that they always saw the
triggering event as the release of the witness list on
December 5, 1997, or the President's receipt of the list on
December 6, 1997.\84\
---------------------------------------------------------------------------
\84\ It is interesting to note that the Article alleges that
the incriminating events began on December 7, 1997, and
continued thereafter until January 14, 1998. Once again,
these constantly shifting dates illustrate the ad hoc nature
of this argument.
---------------------------------------------------------------------------
This assertion, however, contradicts the evidence that
there was no discussion about Ms. Lewinsky during the meeting
between the President and Mr. Jordan on December 7, 1997, and
the evidence that the December 11, 1997, meeting was arranged
by Ms. Lewinsky and Mr. Jordan without knowledge of the
witness list or Judge Wright's order and without the
assistance of the President.
Ms. Lewinsky received the active assistance of Mr. Jordan
to obtain interviews and favorable recommendations with three
prominent New York firms. She succeeded in obtaining a job at
one of these firms, Revlon. According to representatives of
these firms, they felt no pressure to hire Ms. Lewinsky.\85\
[[Page S1923]]
(Behavior that undercuts the suggestions of the House
Managers that Mr. Jordan was engaged in a high stakes effort
to find Ms. Lewinsky a job at all costs.)
---------------------------------------------------------------------------
\85\ The FBI investigators working for Mr. Starr recorded the
following testimony of representatives of Revlon, American
Express and Young and Rubicam: ``On December 11, 1997,
HALPERIN received a telephone call from VERNON JORDAN [who
recommended Ms. Lewinsky]. . . . There was no implied time
constraint for fast action. HALPERIN did not think there was
anything unusual about Jordan's request.'' The Record, supra
note 27, Volume IV, Part 1 at 1286 (FBI Interview with
Richard Halperin, Executive VP and Special Counsel, Mac
Andrews & Forbes (holding company for Revlon) 3/27/98);
``Fairbairn said . . . there was no perceived pressure
exerted by JORDAN.'' Id. at 1087 (FBI Interview with Ursula
Fairbairn, Executive Vice President, Human Resources and
Quality, American Express, 2/4/98). ``JORDAN did not engage
in a `sales pitch' about LEWINSKY.'' Id. at 1222 (FBI
Interview with Peter Georgescu, CEO of Young and Rubicam, 3/
25/98).
---------------------------------------------------------------------------
Mr. Jordan emphatically denied that he acted to silence Ms.
Lewinsky. ``Unequivocally, indubitably, no.'' \86\ The
President denied that he attempted to buy her silence. ``I
was not trying to buy her silence or get Vernon Jordan to buy
her silence.'' \87\ But, Ms. Lewinsky said it best: ``I was
never promised a job for my silence.'' \88\
---------------------------------------------------------------------------
\86\ The Record, supra note 27, Volume IV, Part 2 at 1827
(Jordan Grand Jury testimony on 5/5/98).
\87\ Id., Volume III, part 1 at 576 (Clinton Grand Jury
testimony on 8/17/98).
\88\ Id. at 1161 (Lewinsky Grand Jury testimony 8/20/98).
---------------------------------------------------------------------------
5. Allowing False Statements by his Attorneys
The Article alleges that the President ``corruptly allowed
his attorney to make false and misleading statements to a
Federal judge characterizing an affidavit . . .'' \89\ This
allegation rests on the President's silence during the Jones
deposition while his attorney, Mr. Robert Bennett, cited the
Lewinsky affidavit to Judge Wright as a representation that
``there is no sex of any kind in any manner, shape or form.''
\90\
---------------------------------------------------------------------------
\89\ H. Res. 611.
\90\ Clinton Report, supra note 40, at 72.
---------------------------------------------------------------------------
There is no doubt about the President's silence. There is,
however, doubt about the President's state of mind; whether
he was aware of the interchange between his counsel and Judge
Wright; and whether he formed the specific intent to use his
silence to allow a falsehood to be advanced.
The President consistently denied his awareness of this
exchange and testified that he was concentrating on his
testimony:
``I'm not even sure I paid much attention to what he was
saying. I was thinking, I was ready to get on with my
testimony here and they were having these constant
discussions all through the deposition. . . .''
* * * * *
``I was not paying a great deal of attention to this
exchange. I was focusing on my own testimony. . . .''
* * * * *
``I'm quite sure that I didn't follow all the interchanges
between the lawyers all that carefully. . . .''
* * * * *
``I am not even sure that when Mr. Bennett made that
statement that I was concentrating on the exact words he
used. . . .''
* * * * *
``When I was there, I didn't think about my lawyers. I was,
frankly, thinking about myself and my testimony and trying to
answer the questions. . . .''
* * * * *
``I didn't pay any attention to this colloquy that went on.
I was waiting for my instructions as a witness to go forward.
I was worried about my own testimony.'' \91\
---------------------------------------------------------------------------
\91\ The Record, supra note 27, Volume III, Part 1 at 476-513
(Clinton Grand Jury testimony on 8/17/98).
---------------------------------------------------------------------------
The President's statements are clearly self-serving. The
only evidence introduced by the House Managers to refute the
President's assertions is an invitation to the Senate to look
at the videotape of the President's deposition in the Jones
case and ``read his mind,'' and an affidavit from Barry W.
Ward, Judge Wright's clerk. Mr. Ward confirms what may be
inferred from the tape. ``From my position at the conference
table, I observed President Clinton looking directly at Mr.
Bennett while this statement was being made.'' \92\ But, Mr.
Ward's ``mind reading'' abilities are probably on a par with
the Senate's. As he indicated in an article in the Legal
Times after the date of his Affidavit, Mr. Ward concluded,
``I have no idea if he was paying attention. He could have
been thinking about policy initiatives, for all I know.''
\93\ The House Managers have not presented sufficient
evidence to sustain the burden of proof with respect to this
allegation.
---------------------------------------------------------------------------
\92\ Ward Affidavit.
\93\ Legal Times, February 1, 1999.
---------------------------------------------------------------------------
6. The Conversations with Betty Currie
The Article alleges that ``[o]n or about January 18 and
January 20-21, 1998, William Jefferson Clinton related a
false and misleading account of events relevant to a Federal
civil rights action brought against him to a potential
witness in that proceeding. . . .'' \94\ This allegation
embraces two conversations between the President and Betty
Currie, his executive secretary. On January 18, 1998, the day
after his deposition in the Jones case, the President met
with Ms. Currie and asked her a series of leading questions
that he promptly answered himself by declaring ``Right?''
\95\ He had a similar conversation on January 20, 1998.
---------------------------------------------------------------------------
\94\ H. Res. 611.
\95\ HMTB, supra note 38, at 65.
---------------------------------------------------------------------------
The House Managers argue that the President knew that these
rhetorical questions were false and the only purpose for
raising these questions was to influence the testimony of Ms.
Currie.\96\
---------------------------------------------------------------------------
\96\ Ms. Currie was not a witness in the Jones proceeding at
the time of these conversations. House Managers argue that
the President knew she would be called as a witness because
of his constant references to Ms. Currie in his Jones
deposition. Moreover, Ms. Currie became a witness on January
23, 1998, when the Jones lawyers added her to their witness
list. White House counsels argue that Ms. Currie's addition
to the witness list was not prompted by the President's
testimony, but by information secretly provided to the Jones
lawyers by Linda Tripp. They further add that it cannot be
reasonably assumed that the President was aware that Ms.
Currie was likely to be called as a witness. Obstruction and
witness tampering statutes require knowledge that the
individual is or will be a witness. This argument remains
unresolved, but a lack of resolution injects further
uncertainty as to the allegations.
---------------------------------------------------------------------------
What is clear from the evidence is the fact that Ms. Currie
was not influenced by the President' statements. Ms. Currie
testified to that effect to the Grand Jury on July 22, 1998.
``Q: Now, back again to the four statements that you
testified the President made to you that were presented as
statements, did you feel pressured when he told you those
statements?
``A: None whatsoever.
``Q: What did you think, or what was going through your
mind about what he was doing?
``A: At the time I felt that he was--I want to use the word
shocked or surprised that this was an issue, and he was just
talking.'' \97\
---------------------------------------------------------------------------
\97\ The Record, supra note 27, Volume III, Part 1 at 668
(Currie Grand Jury testimony on 7/22/98).
---------------------------------------------------------------------------
Ms. Currie added in her testimony:
``Q: That was your impression, that he wanted you to say--
because he would end each of the statements with ``Right?'',
with a question.
``A: I do not remember that he wanted me to say ``Right.''
He would say, ``Right?'' and I could have said, ``Wrong.''
``Q: But he would end each of those questions with a
``Right?'' and you could either say whether it was true or
not true.
``A: Correct.
``Q: Did you feel any pressure to agree with your boss?
``A: None.''\98\
---------------------------------------------------------------------------
\98\ Id.
---------------------------------------------------------------------------
What is unclear from the evidence is the President's intent
in making these statements. The President has testified: ``I
do not remember how many times I talked to Betty Currie or
when. I don't. I can't possibly remember that. I do remember,
when I first heard about this story breaking, trying to
ascertain what the facts were, trying to ascertain what
Betty's perception was. I remember that I was highly
agitated, understandably, I think.\99\
---------------------------------------------------------------------------
\99\ The Record, supra note 27, Volume III, Part 1 at 593
(Clinton Grand Jury testimony on 8/17/98).
---------------------------------------------------------------------------
The President's assertion is not without plausibility. He
initiated the conversation after the Jones deposition where
he learned that all of the details of his relationship with
Monica Lewinsky were known by the Jones lawyers and shortly
would be public knowledge. He faced an immediate public and
political disaster. Although he knew what went on, he had to
know what Betty Currie knew, not to influence her testimony
but to determine the potential gaps in this story. Ms. Currie
was the key ``go-between'' with Ms. Lewinsky and her
recollection had to be confirmed. More precisely, the
President had to know if his story would be contradicted by
Ms. Currie.
Given the facts, the President's explanation is as
plausible as that advanced by the House Managers. They have
not established beyond a reasonable doubt that the President
had the specific intent to transform these events into the
crimes of obstruction of justice or witness tampering.
7. The Corruption of Potential Grand Jury Witnesses
The final subpart of the second Article of Impeachment
states that ``[o]n or about January 21, 23, and 26, 1998,
William Jefferson Clinton made false and misleading
statements to potential witnesses in a Federal Grand Jury
proceeding in order to corruptly influence the testimony of
those witness.'' The Managers have alleged that this caused
the Grand Jury to receive ``false and misleading
information.''
In his Referral, Independent Counsel Starr outlines denials
about an affair with Ms. Lewinsky that the President made to
members of his senior staff: John Podesta, Erskine Bowles,
Sidney Blumenthal, and Harold Ickes.\100\ The lies that the
President told ranged from immaterial \101\ to
despicable.\102\ These lies call into question the
President's character and judgment regarding this personal
affair, but they most certainly do not rise to the level of
criminal behavior.
---------------------------------------------------------------------------
\100\ Referral from Independent Counsel Kenneth W. Starr to
the House of Representatives, House Doc. 105-310, at 198-203
(September 11, 1998).
\101\ Mr. Podesta testified that the President told him that
after Ms. Lewinsky left the White House (to work at the
Department of Defense), she returned to visit Ms. Currie and
that Ms. Currie was with them at all times. Id. at 88
(quoting Podesta Grand Jury Testimony of 6/16/98).
\102\ In his Senate Deposition Testimony Mr. Blumenthal
testified that he related to the Grand Jury that on 1/21/98
the President told him that Ms. Lewinsky had ``come on to''
him, he [the President] had ``rebuffed'' her, and that Ms.
Lewinsky then ``threatened'' him with telling people that the
two had an affair. See 145 Cong. Rec. S1248 (daily ed.
February 4, 1999).
---------------------------------------------------------------------------
In order to constitute obstruction of justice, the
President would have had to specifically intended these
individuals to go before the Grand Jury and lie. It is just
as plausible, if not more plausible, that the President was
simply trying to conceal and deny the affair from the public
at large. The
[[Page S1924]]
President spoke to his staff because of the appearance of
press articles; their conversations had nothing whatsoever to
do with the Grand Jury. As the Democratic Minority of the
House Judiciary Committee pointed out: ``does anyone really
think the President would have admitted to this relationship
. . . if no Grand Jury had been sitting?'' \103\ Independent
Counsel Starr called senior aides to the President before the
Grand Jury because his prosecutors knew that the President,
in furtherance of the public denials he was making, would
have lied to his aides. Under the OIC and House Manager's
theory, by publically denying the affair, the President
tampered with all the grand jurors, who must have known of
his denials. This simply cannot be the case. The President is
dishonorable for lying to his aides and putting them in legal
jeopardy in this way, but he is not a criminal.
---------------------------------------------------------------------------
\103\ Clinton Report, supra note 40, at 385 (Minority Views).
____________________