[Congressional Record (Bound Edition), Volume 145 (1999), Part 2]
[Senate]
[Pages 3029-3037]
[From the U.S. 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:

[[Page 3030]]



 [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, 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

[[Page 3031]]

     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 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

[[Page 3032]]

     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 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.
---------------------------------------------------------------------------
       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.
---------------------------------------------------------------------------
     \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).
---------------------------------------------------------------------------
       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 cite, 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

[[Page 3033]]

     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 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 to be 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

[[Page 3034]]

     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).
---------------------------------------------------------------------------
       ``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.

[[Page 3035]]


     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).
---------------------------------------------------------------------------
       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 lawyers. As she told House 
     Manager Bryant in Senate deposition testimony: on December 
     22, 1997, six days before her meeting with the President, she 
     brought 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

[[Page 3036]]

     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\ 
     (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,

[[Page 3037]]

     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's 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 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).

                          ____________________


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