Impeachment of President William Jefferson Clinton - The Evidentiary Record Pursuant to S. Res. 16 - Index to Senate Document 106-3, Vols. I-XXIV - Volume XIII - Submission by Counsel for President Clinton to the Committee on the Judiciary. Committee Print Ser. No. 16, December 1998

[Impeachment of President William Jefferson Clinton - The Evidentiary Record Pursuant to S. Res. 16 - Index to Senate Document 106-3, Vols. I-XXIV]
[Volume XIII - Submission by Counsel for President Clinton to the Committee on the Judiciary. Committee Print Ser. No. 16, December 1998]
[From the U.S. Government Publishing Office, www.gpo.gov]

106th Congress Document
1st Session SENATE 106-3
_______________________________________________________________________

IMPEACHMENT OF PRESIDENT
WILLIAM JEFFERSON CLINTON

__________

THE EVIDENTIARY RECORD
PURSUANT TO S. RES. 16
VOLUME XIII

Submission by Counsel for President Clinton to the Committee on the
Judiciary, Committee Print No. 16, December 1998

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Printed at the direction of Gary Sisco, Secretary of the Senate,
pursuant to S. Res. 16, 106th Cong., 1st Sess. (1999)

January 8, 1999.--Ordered to be printed

105th Congress Ser. No. 16
2d Session COMMITTEE PRINT
_______________________________________________________________________

SUBMISSION BY COUNSEL FOR PRESIDENT CLINTON TO THE COMMITTEE ON THE
JUDICIARY OF THE UNITED STATES HOUSE OF REPRESENTATIVES

__________

IMPEACHMENT INQUIRY PURSUANT TO
H. RES. 581

__________

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS

Henry J. Hyde, Chairman

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DECEMBER 1998

U.S. GOVERNMENT PRINTING OFFICE
53-452 WASHINGTON : 1998

COMMITTEE ON THE JUDICIARY

HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin BARNEY FRANK, Massachusetts
BILL McCOLLUM, Florida CHARLES E. SCHUMER, New York
GEORGE W. GEKAS, Pennsylvania HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina RICK BOUCHER, Virginia
LAMAR SMITH, Texas JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. SCOTT, Virginia
CHARLES T. CANADY, Florida MELVIN L. WATT, North Carolina
BOB INGLIS, South Carolina ZOE LOFGREN, California
BOB GOODLATTE, Virginia SHEILA JACKSON-LEE, Texas
STEPHEN E. BUYER, Indiana MAXINE WATERS, California
ED BRYANT, Tennessee MARTIN T. MEEHAN, Massachusetts
STEVE CHABOT, Ohio WILLIAM D. DELAHUNT, Massachusetts
BOB BARR, Georgia ROBERT WEXLER, Florida
WILLIAM L. JENKINS, Tennessee STEVEN R. ROTHMAN, New Jersey
ASA HUTCHINSON, Arkansas THOMAS BARRETT, Wisconsin
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California

Majority Staff

Thomas E. Mooney, Sr., General Counsel-Chief of Staff
Jon W. Dudas, Deputy General Counsel-Staff Director
Diana L. Schacht, Deputy Staff Director-Chief Counsel
Daniel M. Freeman, Parliamentarian-Counsel
Paul J. McNulty, Director of Communications-Chief Counsel
Joseph H. Gibson, Chief Counsel
Rick Filkins, Counsel
Sharee M. Freeman, Counsel
Peter J. Levinson, Counsel
John F. Mautz, IV, Counsel
William E. Moschella, Counsel
Stephen Pinkos, Counsel
George M. Fishman, Chief Counsel David P. Schippers, Chief
Mitch Glazier, Chief Counsel Investigative Counsel
John H. Ladd, Chief Counsel Susan Bogart, Investigative
Raymond V. Smietanka, Chief Counsel Counsel
Laura Ann Baxter, Counsel John C. Kocoras, Counsel
Daniel J. Bryant, Counsel Berle S. Littmann, Investigator
Cathleen A. Cleaver, Counsel Stephen P. Lynch, Professional
Vince Garlock, Counsel Staff Member
James W. Harper, Counsel Charles F. Marino, Counsel
Susan Jensen-Conklin, Counsel Jeffery J. Pavletic, Investigative
Debra K. Laman, Counsel Counsel
Blaine S. Merritt, Counsel Thomas M. Schippers, Investigative
Nicole R. Nason, Counsel Counsel
Glenn R. Schmitt, Counsel Albert F. Tracy, Investigator
Jim Y. Wilon, Counsel Peter J. Wacks, Investigator
Diana L. Woznicki, Investigator

Minority Staff

Julian Epstein, Minority Chief Counsel-Staff Director
Perry H. Apelbaum, Minority General Abbe D. Lowell, Minority Chief
Counsel Investigative Counsel
David G. Lachman, Counsel Sampak P. Garg, Investigative
Cynthia A. R. Martin, Counsel Counsel
Stephanie J. Peters, Counsel Steven F. Reich, Investigative
Samara T. Ryder, Counsel Counsel
Brian P. Woolfolk, Counsel Deborah L. Rhode, Investigative
Counsel
Kevin M. Simpson, Investigative
Counsel
Lis W. Wiehl, Investigative
Counsel

SUBMISSION BY COUNSEL FOR PRESIDENT CLINTON TO THE COMMITTEE ON THE
JUDICIARY OF THE UNITED STATES HOUSE OF REPRESENTATIVES, DECEMBER 8,
1998

David E. Kendall, Nicole K. Seligman, Emmet T. Flood, Max
Stier, Alicia L. Marti, Williams & Connolly, 725 12th
Street, N.W., Washington, D.C. 20005
Gregory B. Craig, Special Counsel to the President, The White
House, Washington, D.C. 20502
Charles F.C. Ruff, Cheryl D. Mills, Lanny A. Breuer, Office of
the White House Counsel, The White House, Washington,
D.C. 20502

PREFACE

In addition to the factual, legal and Constitutional
defenses we present in this document, the President has asked
us to convey a personal note: What the President did was wrong.
As the President himself has said, publicly and painfully,
``there is no fancy way to say that I have sinned.''
The President has insisted that no legalities be allowed to
obscure the simple moral truth that his behavior in this matter
was wrong; that he misled his wife, his friends and our Nation
about the nature of his relationship with Ms. Lewinsky. He did
not want anyone to know about his personal wrongdoing. But he
does want everyone--the Committee, the Congress and the
country--to know that he is profoundly sorry for the wrongs he
has committed and for the pain he has caused his family, his
friends, and our Nation.
But as attorneys representing the President in a legal and
Constitutional proceeding, we are duty-bound to draw a
distinction between immoral conduct and illegal or impeachable
acts. And just as no fancy language can obscure the fact that
what the President did was morally wrong, no amount of rhetoric
can change the legal reality that the record before this
Committee does not justify charges of criminal conduct or
impeachable offenses.
The Framers, in their wisdom, left this Body the solemn
obligation of determining not what is sinful, but rather what
is impeachable. The President has not sugar-coated the reality
of his wrongdoing. Neither should the Committee ignore the high
standards of the Constitution to overturn a national election
and to impeach a President.

TABLE OF CONTENTS

----------
Page
PREFACE.......................................................... VII
I. INTRODUCTION.................................................. 1
II. THE FACTUAL BACKGROUND....................................... 2
A. The Whitewater Investigative Dead-End..................... 2
B. The Paula Jones Litigation................................ 5
C. The President's Grand Jury Testimony About Ms. Lewinsky... 6
III. THE CONSTITUTION REQUIRES PROOF OF OFFICIAL MISCONDUCT FOR
IMPEACHMENT.................................................... 7
A. Under the Constitution the Conduct Alleged in the Referral
Does Not Reach the Level of ``High Crimes and
Misdemeanors''............................................. 7
1. Historical Background of ``High Crimes and
Misdemeanors''......................................... 7
2. The Framers Believed that Impeachment Redresses
Wrongful Public Conduct................................ 9
3. Our Constitution's Structure Does Not Permit
Impeachment for Reasons of the Sort Alleged in the
Referral............................................... 10
B. American Presidential Impeachment Practice and
Contemporary Scholarship Confirm that Impeachment Is Only
for Political Offenses Against the State Itself, Not for
Private Wrongs............................................. 12
1. Prior Impeachment Proceedings Against American
Presidents............................................. 12
2. Contemporary Views Confirm that Impeachment Is Not
Appropriate Here....................................... 14
C. Relevant Historical Precedents Demonstrate that No
Impeachable Offense Has Been Alleged Here.................. 15
1. Alexander Hamilton.................................... 15
2. The Failure of the Proposed Article of Impeachment
Against President Nixon Alleging Fraudulent Tax Filings 16
IV. THE CONSTITUTION REQUIRES CLEAR AND CONVINCING EVIDENCE TO
APPROVE ARTICLES OF IMPEACHMENT................................ 18
A. This Committee Should Apply the Same Clear and Convincing
Standard Observed by Its Predecessor in the Watergate
Proceedings................................................ 18
B. The Clear and Convincing Standard Is Commensurate with the
Grave Constitutional Power Vested in the House............. 20
V. THE COMMITTEE SHOULD NOT RELY ON THE REFERRAL'S ACCOUNT OF THE
EVIDENCE....................................................... 21
A. The Information Presented to the Committee in the Referral
Has Not Been Subjected to the Most Basic Adversarial
Testing.................................................... 22
B. The Referral Differs Vastly From the Precedent of the
Watergate ``Road Map''..................................... 22
C. The Resulting Referral Omitted a Wealth of Directly
Relevant Exculpatory Evidence.............................. 23
D. Mr. Starr's Conduct in the Lewinsky Investigation Has
Betrayed a Bias that Helps Explain the Lack of Neutrality
in the Referral............................................ 25
VI. THE PRESIDENT DID NOT COMMIT PERJURY......................... 27
A. Elements of Perjury....................................... 27
B. Contradictory Testimony From Two Witnesses Does Not
Indicate That One Has Committed Perjury.................... 28
1. It Must Be Proven that a Witness Had the Specific
Intent to Lie.......................................... 28
2. A Perjury Case Must Not Be Based Solely Upon the
Testimony of a Single Witness.......................... 29
C. ``Literal Truth'' and Non-Responsive Answers Do Not
Constitute Perjury......................................... 30
D. Fundamentally Ambiguous Questions Cannot Produce
Perjurious Answers......................................... 32
E. It Is Expected and Proper for a Witness To Be Cautious
When Under Oath............................................ 34
F. Specific Claims of Perjury................................ 35
1. Civil Deposition of January 17, 1998.................. 35
2. Grand Jury Testimony of August 17, 1998............... 43
VII. THE PRESIDENT DID NOT OBSTRUCT JUSTICE...................... 44
A. The Elements of Obstruction of Justice.................... 44
B. Specific Claims of Obstruction............................ 46
1. There Is No Evidence that the President Obstructed
Justice in Connection with Gifts Given to Ms. Lewinsky. 46
2. The President Did Not Obstruct Justice in Connection
with Ms. Lewinsky's Job Search......................... 57
3. The President Did Not Have an Agreement or
Understanding with Ms. Lewinsky to Lie Under Oath...... 70
4. The President Did Not Obstruct Justice by Suggesting
Ms. Lewinsky Could File an Affidavit................... 72
5. The President Did Not Attempt to Influence Betty
Currie's Testimony..................................... 75
6. The President Did Not Attempt to Influence the
Testimony of ``Potential'' Grand Jury Witnesses Through
His Denials............................................ 78
VIII. THE PRESIDENT DID NOT ABUSE POWER.......................... 81
A. The President Properly Asserted Executive Privilege to
Protect the Confidentiality of Communications with His
Staff...................................................... 81
1. The White House Made Every Effort at Accommodation and
Ultimately Asserted the Privilege as Narrowly as
Possible............................................... 81
2. The Court's Ruling Upholding the White House's
Assertion of Executive Privilege Squarely Rebuts the
OIC's Abuse of Power Claim............................. 83
B. The President Was Entitled to Assert Attorney-Client
Privilege to Protect the Right of Presidents to Request and
Receive Confidential and Candid Legal Advice from White
House Counsel.............................................. 84
1. The Governmental Attorney-Client Privilege Claim Was
Grounded in the Law of the D.C. Circuit and the Supreme
Court.................................................. 85
2. The Courts' Rulings Squarely Rebut the OIC's Claims of
Abuse of Power......................................... 85
C. The Privilege Litigation Did Not Delay the OIC's
Investigation.............................................. 86
D. Mr. Starr Misrepresents the Record to Claim that the
President Deceived the American Public About the Executive
Privilege Litigation....................................... 88
E. The President's Decision Not to Testify Before the Grand
Jury Voluntarily Was Not an Abuse of Power................. 89
F. False Public Denials About an Improper Relationship Do Not
Constitute an Abuse of Office.............................. 89
1. Subjecting a President to Impeachment Would Disrupt
Our Constitutional Government.......................... 90
2. The President's Denial of an Improper Relationship Is
Not Comparable to President Nixon's Denials of
Involvement in the Watergate Burglary and Cover-up..... 91
IX. CONCLUSION................................................... 92
X. DOCUMENTARY APPENDIX TO SUBMISSION............................ 94

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SUBMISSION BY COUNSEL FOR PRESIDENT CLINTON TO THE COMMITTEE ON THE
JUDICIARY OF THE UNITED STATES HOUSE OF REPRESENTATIVES

I. Introduction

The President of the United States has not committed
impeachable offenses. He repeatedly has acknowledged that what
he did was wrong, he has apologized, and he has sought
forgiveness. But his apologies, his acceptance of
responsibility, and his contrition do not mean either that the
President committed criminal acts or that the acts of which he
is accused are impeachable offenses. Counsel for President
Clinton respectfully submit this memorandum to demonstrate and
document this contention.
We offer this memorandum mindful of the fact that this body
now confronts one of the most difficult questions our
Constitution poses to Congress: whether to invalidate the
popular will expressed in the election of the President.
``Voting in the presidential election,'' as Professor Charles
Black wrote, ``is certainly the political choice most
significant to the American people.'' ¹ Accordingly,
``[n]o matter can be of higher political importance than our
considering whether, in any given instance, this act of choice
is to be undone.'' ² Consideration both wise and
deliberate must precede any decision to report articles of
impeachment. For ``the power of impeachment and removal is a
drastic one, not to be lightly undertaken . . . and especially
sensitive with reference to the President of the United
States.'' ³
---------------------------------------------------------------------------
\1\ Charles L. Black, Impeachment: A Handbook 1 (1974).
\2\ Id.
\3\ Committee on Federal Legislation of the Bar Ass'n of the City
of New York, The Law of Presidential Impeachment 44 (1974) (hereinafter
``New York Bar Report'').
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We previously have submitted three memoranda ⁴
to this Committee, addressing various issues arising out of the
Independent Counsel's September 11, 1998, Referral.⁵
In this submission, we comprehensively set out our response to
the Referral based on the evidence now available to us; address
certain questions stemming from the testimony of the
Committee's sole witness, Independent Counsel Kenneth W. Starr
⁶ and correct fundamental misconceptions about this
matter arising from deeply unfair or unsupported inferences
drawn in the Referral and significant misstatements about the
evidence in the press and elsewhere. For example, it is widely
alleged among those favoring impeachment that the President
``lied under oath'' to the grand jury. But a review of the
available evidence proves that this allegation often is based
not on what the President actually said under oath but rather
on what some of his accusers claim he said--such as that in the
grand jury he categorically denied having a sexual relationship
with Ms. Lewinsky, or that he denied being alone with her, when
in fact he explicitly acknowledged to the grand jury both that
he had had an inappropriate intimate relationship with Ms.
Lewinsky and that he had been alone with her. There are
numerous other examples of allegations, now commonly believed,
that are wholly--not just somewhat--unsupported even by the
evidence presented to the Committee in the OIC referral. It is
in part the purpose of this memorandum to separate fact and
fiction and demonstrate why the record supports neither the
charges made nor impeachment. We ask that readers set aside
their preconceptions of what they think the evidence is, based
on the biased presentation in the Starr Referral and subsequent
inaccurate coverage, and look instead at the evidence itself.
---------------------------------------------------------------------------
\4\ Preliminary Memorandum Concerning Referral of Office of
Independent Counsel (September 11, 1998)(73 pages); Initial Response to
Referral of Office of Independent Counsel (September 12, 1998)(42
pages); Memorandum Regarding Standards of Impeachment (October 2,
1998)(30 pages).
\5\ Referral from Independent Counsel Kenneth W. Starr in
Conformity with the Requirements of Title 28, United States Code,
Section 595(c), House Doc. 105-310 (Sept. 11, 1998)(105th Cong. 2d.
Sess.)(hereinafter ``Ref.'').
\6\ The Committee has heard from certain other witnesses on legal
questions, but the Independent Counsel has been the only witness called
by the Committee who even attempted to address the allegations in the
Referral. As the Independent Counsel conceded, however, he had almost
no first-hand knowledge of the facts, since the President was the only
witness he interviewed. Transcript of November 19, 1998 Hearing at 339-
40.
---------------------------------------------------------------------------
At the outset, let us be clear. Extraordinary as it must
seem in a matter of this gravity, the President has not been
specifically notified what allegations are at issue here. The
Referral itself cites ``eleven possible grounds for
impeachment'' of the President, Ref. at 129, although it does
not identify the rationale for including these
grounds.⁷ In his presentation to the Committee, Mr.
Schippers identified a somewhat different set of ``fifteen
separate events directly involving [the] President'' which
``could constitute felonies which, in turn, may constitute
grounds to proceed with an impeachment inquiry.'' ⁸
The Chairman apparently has indicated that the Committee may
consider only two charges,⁹ while recent newspaper
articles variously state that the Committee staff is drafting
three charges or four charges.¹⁰ We have been
provided only the most limited and in some instances no access
to significant evidence in the Committee's possession,
elliptically referred to by Members at the November 19, 1998,
testimony of the Independent Counsel.¹¹ Without
knowing what this evidence is, and being able to analyze and
quote it, we cannot fairly or adequately rebut every allegation
the Committee may later choose to bring forward from the
Referral or elsewhere.
---------------------------------------------------------------------------
\7\ The Referral states that ``[i]t is not the role of this Office
to determine whether the President's actions warrant impeachment by the
House,'' Ref. at 5, but, tellingly, the Referral nowhere recites the
standard that the Independent Counsel in fact used to determine that
there should be eleven (but not twelve, or three, or zero) grounds, a
tacit acknowledgement of the impossibility of stating a constitutional
or precedential standard that would justify impeachment on the basis of
such alleged facts.
\8\ Schippers Presentation at 11. Mr. Schippers' analysis was based
entirely upon the documentary materials submitted by the Independent
Counsel, and he acknowledged to the Committee that ``we did not seek to
procure any additional evidence or testimony from any other source. . .
. [M]y staff and I did not deem it necessary or even proper to go
beyond the submission itself.'' Id. at 5-6.
\9\ ``Hyde, according to informed sources, may consider
streamlining those [fifteen Schippers allegations] into as few as two
counts. . . . `I frankly don't see how we can deal with all 15 charges
adequately,' Hyde said.'' ``Hyde May Narrow List Of Impeachment
Charges,'' The Washington Post (Oct. 14, 1998) at A1.
\10\ ``As the House Judiciary Committee moves into the final stages
of its inquiry, Representative Henry J. Hyde's senior staff is
beginning to draw up three articles of impeachment against President
Clinton.'' ``Impeachment Panel Starts Work On 3 Articles Against
President,'' The New York Times (Nov. 26, 1998) at A1; ``The committee
could consider up to four articles of impeachment covering perjury,
obstruction of justice, and abuse of power, committee Republicans said
yesterday.'' ``Clinton Defense Is Given 2 Days; Panel May Vote Late in
Week to Impeach,'' The Washington Post (Dec. 7, 1998) at A1.
\11\ See Transcript of November 19, 1998 Hearing at 233-35 (remarks
of Rep. Watt).
---------------------------------------------------------------------------
Moreover, the Committee has recently launched new
investigative forays in areas not covered by the Referral. It
has taken depositions related to Ms. Kathleen Willey, and it
has authorized (but now apparently withdrawn) subpoenas for
depositions and documents related to fundraising for the 1996
Presidential campaign. Simple fairness entitles us to an
adequate opportunity to receive, review, and use the
information in the Committee's possession (for example, the
transcripts of depositions from which we were excluded), be
apprised of the specific charges the Committee is considering,
and have a fair chance to discover and present evidence in
rebuttal.
The present memorandum is thus necessarily limited in
scope, and we will make a further submission to address any new
or revised allegations the Committee may decide to pursue.

II. The Factual Background

Certain undisputed facts are relevant to the legal analysis
in this memorandum, in addition to those set forth in previous
submissions.

A. The Whitewater Investigative Dead-End

The Lewinsky investigation had its antecedent in the long-
running Whitewater investigation. On August 5, 1994, Kenneth W.
Starr was appointed Independent Counsel by the Special Division
to conduct an investigation centering on two Arkansas entities,
Whitewater Development Company, Inc., and Madison Guaranty
Savings and Loan Association. The Office of Independent
Counsel's (``OIC'') investigation dragged on slowly
¹² and inconclusively, without any charges being
lodged against either the President or Mrs. Clinton. The
Independent Counsel himself announced his resignation in
February 1997 to become Dean of the Pepperdine Law School
¹³ but, after a firestorm of media
criticism,¹⁴ he backtracked and resumed his
duties.¹⁵
---------------------------------------------------------------------------
\12\ For example, the OIC did not issue its report on the 1993
death of Deputy White House Counsel Vincent Foster until October 10,
1997. It concluded, as had several other earlier (and speedier)
investigations, that Foster's death was a suicide.
\13\ See Labaton, ``Special Counsel Intends to Leave Whitewater
Case--White House Is Hopeful--Starr's Decision to Take Post in August
Raises Questions About Status of Inquiry,'' The New York Times (Feb.
18, 1997) at A1; Galvin, ``Clinton's Lucky Starr: Prober to Call It
Quits--Ex-prosecutors Said They Think Starr's Decision Is a Sign That
His Probe Will End With a Fizzle, Not a Bang,'' The New York Post (Feb.
18, 1997) at 3.
\14\ See, e.g., Shapiro, ``Starr Bails Out Of a Probe That's
Adrift,'' USA Today (Feb. 19, 1997) at 2A; Safire, ``The Big Flinch:
Ken Starr Betrays His Trust,'' The New York Times (Feb. 20, 1997) at
A33; Editorial, ``Ken Starr's Flip-Flops,'' The Washington Times (Feb.
24, 1997) at A16. The Washington Post editorialized, ``What Mr. Starr
owes, before he goes anywhere, is a report on the propriety of the
President's behavior. That's the subject he was hired to address,''
Editorial (Feb. 19, 1997) at A20, and it quoted James McKay, a former
Independent Counsel, as stating: ``I'm just amazed someone given a
specific job to do leaves before it is completed. It's like the captain
jumping off the ship before everyone else gets off,'' Schmidt, ``Some
Starr Allies Say Departure Means No Clinton Charges'' (Feb. 19, 1997)
at A7. The New York Times asserted that the Independent Counsel's
decision reflected ``a selfish indifference to [his] civic
obligations''; he ``never fully appreciated the gravity of [his]
role,'' ``should not have taken [the job] unless [he] were willing to
see it through,'' and was ``behaving as if [he] had no greater
responsibility than to tend to [his] career.'' Editorial, ``Just a
Minute, Mr. Starr'' (Feb. 19, 1997) at A26.
\15\ ``Starr seemed unprepared for and taken aback by the furor his
departure announcement has generated.'' Schmidt, ``Starr Appears to
Waver on Timing of Departure,'' The Washington Post (Feb. 20, 1997) at
A1.
---------------------------------------------------------------------------
Without any expansion of his jurisdiction, Mr. Starr then
began to conduct an investigation into rumors of extramarital
affairs involving the President. In the Spring of 1997,
Arkansas state troopers who had once been assigned to the
Governor's security detail were interviewed, and ``[t]he
troopers said Starr's investigators asked about 12 to 15 women
by name, including Paula Corbin Jones. . . .'' Woodward &
Schmidt, ``Starr Probes Clinton Personal Life,'' The Washington
Post (June 25, 1997) at A1 (emphasis added). ``The nature of
the questioning marks a sharp departure from previous avenues
of inquiry in the three-year old investigation. . . . Until
now, . . . what has become a wide-ranging investigation of many
aspects of Clinton's governorship has largely steered clear of
questions about Clinton's relationships with women. . . .''
¹⁶ One of the most striking aspects of this new
phase of the Whitewater investigation was the extent to which
it focused on the Paula Jones case. One of the troopers
interviewed declared, `` `They asked me about Paula Jones, all
kinds of questions about Paula Jones, whether I saw Clinton and
Paula together and how many times.' '' ¹⁷
---------------------------------------------------------------------------
\16\ Ibid. Trooper Roger Perry, a 21-year veteran of the Arkansas
state police, stated that he ``was asked about the most intimate
details of Clinton's life:'' ``I was left with the impression that they
wanted me to show he was a womanizer. . . . All they wanted to talk
about was women.'' Ibid. (ellipsis in original).
\17\ Ibid.
---------------------------------------------------------------------------
At his testimony before this Committee on November 19,
1998, Mr. Starr conceded that his agents had conducted these
interrogations and acknowledged that he had not sought
expansion of his jurisdiction from theAttorney General or the
Special Division of the Court of Appeals,¹⁸ but he contended
that these inquiries were somehow relevant to his Whitewater
investigation: ``we were, in fact, interviewing, as good prosecutors,
good investigators do, individuals who would have information that may
be relevant to our inquiry about the President's involvement in
Whitewater, in Madison Guaranty Savings and Loan and the
like.''¹⁹ However, the OIC was obviously engaged in an
effort to gather embarrassing information concerning the President.
Indeed, a recent article in the New York Times Magazine notes that
Deputy Independent Counsel Jackie Bennett was ``known among fellow
prosecutors as the office expert on the President's sex life long
before anyone had heard of Monica Lewinsky.'' ²⁰
---------------------------------------------------------------------------
\18\ Transcript of November 19, 1998 Hearing at 377-378.
\19\ Ibid. at 378.
\20\ Winerip, ``Ken Starr Would Not Be Denied,'' The New York Times
Magazine (Sept. 6, 1998) at 64.
---------------------------------------------------------------------------

B. The Paula Jones Litigation

In January 1998, the OIC finally succeeded in transforming
its investigation from one focused on long-ago land deals and
loans in Arkansas into one involving a different topic (sex)
and more recent events in Washington, D.C. The Lewinsky
investigation grew out of the pretrial discovery proceedings in
the civil suit Ms. Paula Corbin Jones had filed against the
President in May 1994, making certain allegations about events
three years earlier when the President was Governor of
Arkansas. Discovery had been stayed until the Supreme Court's
decision on May 27, 1997, denying Presidential immunity.
²¹ Shortly thereafter, Ms. Jones selected a new
spokesperson, Ms. Susan Carpenter-McMillan, and retained new
counsel affiliated with the conservative Rutherford
Institute,²² who began a public relations offensive
against the President. ``I will never deny that when I first
heard about this case I said, `Okay, good. We're gonna get that
little slimeball,' said Ms. Carpenter-McMillan, a staunch
Republican.'' ²³ While Ms. Jones' previous
attorneys, Messrs. Gilbert Davis and Joseph Cammarata, had
largely avoided the media, public personal attacks now became
the order of the day as the Jones civil suit became a partisan
vehicle to try to savage the President.²⁴ Ms. Jones'
husband, Steve, even announced his intention to use judicial
process to obtain and disseminate pejorative personal
information concerning the President:
---------------------------------------------------------------------------
\21\ Clinton v. Jones, 526 U.S. 681 (1997).
\22\ Ms. Jones was described as having ``accepted financial support
of a Virginia conservative group,'' which intended to ``raise $100,000
or more on Jones's behalf, although the money will go for expenses and
not legal fees.'' ``Jones Acquires New Lawyers and Backing,'' The
Washington Post (October 2, 1998) at A1. Jones' new law firm, the
Dallas-based Rader, Campbell, Fisher and Pyke, had ``represented
conservatives in antiabortion cases and other causes.'' Ibid. See also
``Dallas Lawyers Agree to Take on Paula Jones' Case''--Their Small Firm
Has Ties to Conservative Advocacy Group,'' The Los Angeles Times (Oct.
2, 1997) (Rutherford Institute a ``conservative advocacy group,'' a
``conservative religious-rights group'').
\23\ ``Cause Celebre: An Antiabortion Activist Makes Herself the
Unofficial Mouthpiece for Paula Jones,'' The Washington Post (July 23,
1997) at C1. Ms. Carpenter-McMillan, ``a cause-oriented, self-defined
`conservative feminist' '', described her role as ``flaming the White
House'' and declared `Unless Clinton wants to be terribly embarrassed,
he'd better cough up what Paula needs. Anybody that comes out and
testifies against Paula better have the past of a Mother Teresa,
because our investigators will investigate their morality.' ``Paula
Jones' ``Team Not All About Teamwork,'' USA Today (Sept. 29, 1997) at
4A.
\24\ After Ms. Jones' new team had been in action for three months,
one journalist commented: ``In six years of public controversy over
Clinton's personal life, what is striking in some ways is how little
the debate changes. As in the beginning, many conservatives nurture the
hope that the past will be Clinton's undoing. Jones's adviser, Susan
Carpenter-McMillan, acknowledged on NBC's `Meet the Press' yesterday
that her first reaction when she first heard Jones's claims about
Clinton was, `Good, we're going to get that little slime ball.'
(Harris, ``Jones Case Tests Political Paradox,'' The Washington Post
(Jan. 19, 1998) at A1.)

In a belligerent mood, Steve [Jones] warned that he was
going to use subpoena power to reconstruct the secret life of
Bill Clinton. Every state trooper used by the governor to
solicit women was going to be deposed under oath. ``We're going
to get names; we're going to get dates; we're going to do the
job that the press wouldn't do,'' he said. ``We're going to go
after Clinton's medical records, the raw documents, not just
opinions from doctors, . . . we're going to find out
everything.'' ²⁵
---------------------------------------------------------------------------
\25\ Evans-Pritchard, The Secret Life of Bill Clinton 363 (1997).

As is now well known, this effort led ultimately to the Jones
lawyers being permitted to subpoena various women, to determine
their relationship, if any, with the President, allegedly for
the purpose of determining whether they had information
relevant to the sexual harassment charge. Among these women was
Ms. Lewinsky.
By mid-January 1998, Ms. Tripp had brought to the attention
of the OIC certain information she believed she had about Ms.
Lewinsky's involvement in the Jones case and, as noted above,
the OIC investigation then began to reach formally into the
Jones case. The OIC met with Ms. Tripp through the week of
January 12, and with her cooperation taped Ms. Lewinsky
discussing the Jones case and the President. During the week,
Ms. Tripp alerted the OIC that she had been taping Ms. Lewinsky
in violation of Maryland law, and the OIC promised Ms. Tripp
immunity from federal prosecution, and assistance in protecting
her from state prosecution, in exchange for her cooperation.
The OIC formalized that agreement in writing on Friday, January
16, after it had received jurisdiction to do so from the
Attorney General.
The President's deposition in the Jones case was scheduled
to take place the next day, on Saturday, January 17. As we now
know, the night before that deposition Ms. Tripp had briefed
the lawyers for Ms. Jones on her perception of the relationship
between Ms. Lewinsky and the President--doing so based on
confidences Ms. Lewinsky had entrusted to her.²⁶
(She was permitted to do so even though, having received
immunity from the OIC, the OIC could have barred her from
talking to any one about Ms. Lewinsky but failed to do so.) At
the deposition the next day, the President unexpectedly was
asked numerous questions about Ms. Lewinsky, even before he was
questioned about Ms. Jones.
---------------------------------------------------------------------------
\26\ Baker, ``Linda Tripp Briefed Jones Team on Tapes: Meeting
Occurred Before Clinton Deposition,'' The Washington Post (Feb. 14,
1998) at A1.
---------------------------------------------------------------------------
The Jones case, of course, was not about Ms. Lewinsky. She
was a peripheral player and, since her relationship with the
President was concededly consensual, an irrelevant one. Shortly
after the President's deposition, Chief Judge Wright ruled that
evidence pertaining to Ms. Lewinsky would not be admissible at
the Jones trial because ``it is not essential to the core
issues in this case.'' ²⁷ The Court also ruled that,
given the allegations at issue in the Jones case, the Lewinsky
evidence ``might be inadmissible as extrinsic evidence'' under
the Federal Rules of Evidence because it involved merely the
``specific instances of conduct'' of a witness.²⁸
---------------------------------------------------------------------------
\27\ Order, at 2, Jones v. Clinton, No. LR-C-94-290 (E.D. Ark.)
(Jan. 29, 1998).
\28\ Ibid.
---------------------------------------------------------------------------

C. The President's Grand Jury Testimony About Ms. Lewinsky

On August 17, 1998, the President specifically acknowledged
to the grand jury that he had had a relationship with Ms.
Lewinsky involving ``improper intimate contact.'' He described
how the relationship began, and how it had ended early in
1997--long before any public attention or scrutiny. He
acknowledged this relationship to the grand jury, and he
explained how he had tried to get through the deposition in the
Jones case months earlier without admitting what he had had to
admit to the grand jury--an improper relationship with Ms.
Lewinsky. He further testified that the ``inappropriate
encounters'' with Ms. Lewinsky had ended, at his insistence, in
early 1997, and he stated: ``I regret that what began as a
friendship came to include this conduct, and I take full
responsibility for my actions.'' Id. at 461. He declined to
describe, because of personal privacy and institutional dignity
considerations, certain specifics about his conduct with Ms.
Lewinsky,²⁹ but he indicated his willingness to
answer,³⁰ and he did answer, the other questions put
to him about his relationship with her. No one who watched the
videotape of this grand jury testimony had any doubt that the
President was admitting to an improper physical relationship
with Ms. Lewinsky.
---------------------------------------------------------------------------
\29\ ``While I will provide the grand jury whatever other
information I can, because of privacy considerations affecting my
family, myself, and others, and in an effort to preserve the dignity of
the office I hold, this is all I will say about the specifics of these
particular matters.'' App. at 461.
\30\ ``I will try to answer, to the best of my ability, other
questions including questions about my relationship with Ms. Lewinsky,
questions about my understanding of the term `sexual relations,' as I
understood it to be defined at my January 17th, 1998 deposition; and
questions concerning alleged subornation of perjury, obstruction of
justice, and intimidation of witnesses.'' App. at 461.
---------------------------------------------------------------------------

III. The Constitution Requires Proof of Official Misconduct for
Impeachment

To date, the Judiciary Committee has declined to articulate
or adopt standards of impeachable conduct. Its inquiry has
proceeded and (it appears) its vote will occur with no
consensus among Committee members as to the constitutional
meaning of an impeachable act. That is regrettable. For even if
the constitutional standard against which the Referral must be
measured lacks the precision of a detailed statute, it
nonetheless has a determined and limited content. The
Committee's failure to define the applicable standard has
necessarily created the perception that an ad hoc ``standard''
is being devised to fit the facts. A constitutional standard
does in fact exist, and were the Committee to confront the
question directly, it would be evident that the Constitution's
rigorous showing has not been made here.

A. Under the Constitution the Conduct Alleged in the Referral Does Not
Reach the Level of ``High Crimes and Misdemeanors''

The Constitution provides that the President shall be
removed from office only upon ``Impeachment for, and Conviction
of, Treason, Bribery, or other high Crimes and Misdemeanors.''
U.S. Const. Art. II, Sec. 4. The legal question confronting the
Committee is whether the acts of the President alleged in the
Starr Referral could conceivably amount to ``high Crimes and
Misdemeanors.''
The answer is that they could not. The syntax of the
Constitution's formulation ``Treason, Bribery or other high
Crimes and Misdemeanors'' (emphasis added) strongly suggests
that, to be impeachable offenses, high crimes and misdemeanors
must be of the seriousness of ``Treason'' and ``Bribery.'' Yet
the Referral alleges nothing remotely similar in gravity to
those high crimes.
Moreover, both the historical background of the ``high
Crimes and Misdemeanors'' concept and the Constitution itself
make clear that the conduct alleged does not constitute an
impeachable offense. To the contrary, cognizant that the
impeachment process upsets the electoral will of the people,
the Framers made the standard of impeachable offenses an
especially high one, requiring a showing of injury to our very
system of government.

1. Historical Background of ``High Crimes and Misdemeanors''

The English precedents illustrate that impeachment was
understood to apply only to fundamental offenses against the
system of government. In English practice, the term ``high
crimes and misdemeanors'' had been applied to offenses, the
common elements of which were their severity and the fact that
the wrongdoing was directed against the state.\31\ The English
cases included misappropriation of public funds, interfering in
elections, accepting bribes, and various forms of corruption.
Ibid. These offenses all affected the discharge of public
duties by public officials. In short, under the English
practice, ``the critical element of injury in an impeachable
offense was injury to the state.'' \32\
---------------------------------------------------------------------------
\31\ See Raoul Berger, Impeachment: The Constitutional Problems 67-
73 (1973).
\32\ Gerhardt, The Constitutional Limits to Impeachment and Its
Alternatives, 68 Tex. L. Rev. 1, 82 (1989) (emphasis added). In fact,
the first draft of what became Article II Section 4's impeachment
provision actually set the standard of impeachment, in addition to
treason and bribery, as ``other high crimes and misdemeanors against
the State.'' 2 Farrand, The Records of the Federal Convention of 1787
550 (Rev. ed. 1966) (emphasis added). That phrase was ultimately
deleted, however, by the Committee on Style and Arrangement, which was
charged with making only such changes as did not affect the meaning of
the original language.
---------------------------------------------------------------------------
The notion that ``injury to the state'' was the hallmark of
the impeachable offense was also shared by the Staff of the
Impeachment Inquiry when it researched the issue in connection
with the investigation of President Richard Nixon in 1974. In
early English impeachments, the Staff concluded, ``the thrust
of the charge was damage to the state. . . .
Characteristically, impeachment was used in individual cases to
reach offenses, as perceived by Parliament, against the system
of government.'' \33\
---------------------------------------------------------------------------
\33\ Impeachment of Richard M. Nixon, President of the United
States, Report by the Staff of the Impeachment Inquiry, House Comm. on
the Judiciary, 93d Cong. 2d Sess. at 5 (Feb. 1974) (hereinafter
``Impeachment Inquiry'') (emphasis added).
---------------------------------------------------------------------------
The constitutional and ratification debates confirm that
impeachment was limited to only the gravest political wrongs.
The Framers plainly intended the impeachment standard to be a
high one. They rejected a proposal that the President be
impeachable for ``maladministration,'' for, as James Madison
pointed out, such a standard would ``be equivalent to a tenure
during the pleasure of the Senate.'' \34\ The Framers plainly
did not intend to permit Congress to debilitate the Executive
by authorizing impeachment for something short of the most
serious harm to the state. In George Mason's apt language,
impeachment was thought necessary to remedy ``great and
dangerous offenses'' not covered by ``Treason'' or ``Bribery''
such as ``[a]ttempts to subvert the Constitution.'' \35\
---------------------------------------------------------------------------
\34\ 2 Farrand, The Records of the Federal Convention of 1787 550
(Rev. ed. 1966).
\35\ Ibid.
---------------------------------------------------------------------------
That is why, at the time of the ratification debates,
Alexander Hamilton described impeachment as a ``method of
National Inquest into the conduct of public men.'' \36\ No act
touches more fundamental questions of constitutional government
than does the process of Presidential impeachment. No act more
directly affects the public interest. No act presents the
potential for greater injustice--injustice both to the Chief
Executive and to the people who elected him--and the Framers
were fully aware of this.
---------------------------------------------------------------------------
\36\ The Federalist No. 65 at 331 (Gary Wills ed. 1982).
---------------------------------------------------------------------------
The specific harms the Framers sought to redress by
impeachment are far more serious than those alleged in the
Starr Referral. During the ratification debates, a number of
the Framers addressed the Constitution's impeachment
provisions. The following is a list of wrongs they believed the
impeachment power was intended to address:
receipt of emoluments from a foreign power in
violation of Article I, section 9; \37\
---------------------------------------------------------------------------
\37\ Edmund Randolph, 3 Elliot, The Debate in the Several State
Conventions on the Adoption of the Federal Constitution 486 (reprint of
2d ed.) (Virginia Convention).
---------------------------------------------------------------------------
summoning the representatives of only a few States to
ratify a treaty; \38\
---------------------------------------------------------------------------
\38\ James Madison, 3 Elliot at 500 (Virginia Convention).
---------------------------------------------------------------------------
concealing information from or giving false
information to the Senate so as to cause it to take
measures it otherwise would not have taken which were
injurious to the country; \39\
---------------------------------------------------------------------------
\39\ James Iredell, 4 Elliot at 127 (North Carolina Convention).
---------------------------------------------------------------------------
general failure to perform the duties of the
Executive.\40\
---------------------------------------------------------------------------
\40\ Abraham Baldwin (Georgia), 1 Annals of Cong. 535-36 (debates
on the President's removal power).
---------------------------------------------------------------------------
Impeachment provisions in a number of late eighteenth
century state constitutions reaffirm that the Framers'
generation believed that impeachment's purpose was redress of
official wrongdoing. The New Jersey Constitution's impeachment
provision for ``misbehavior'' was interpreted to permit
impeachment not for personal wrongdoing but for acts by public
officials performed in their public capacity.⁴¹
Delaware's first Constitution authorized impeachment for
``offending against the state by maladministration, corruption,
or other means, by which the safety of the commonwealth may be
endangered.'' ⁴² And Virginia's Constitution of 1776
provided for impeachment of those public officers who ``offend[
] against the state, either by maladministration, corruption or
other means, by which the safety of the State may be
endangered.'' ⁴³
---------------------------------------------------------------------------
\41\ N.J. Const., Art. XII (1776); Hoffer & Hull, Impeachment in
America 1635-1805 80 (1984).
\42\ Del. Const., Art. XXIII.
\43\ See Hoffer & Hull at 70; Va. Const. of 1776, para.15.
---------------------------------------------------------------------------
The history on which they relied, the arguments they made
in Convention, the specific ills they regarded as redressable,
and the State backgrounds from which they emerged--all these
establish that the Framers believed that impeachment must be
reserved for only the most serious forms of wrongdoing. They
believed, in short, that impeachment ``reached offenses against
the government, and especially abuses of constitutional
duties.'' ⁴⁴
---------------------------------------------------------------------------
\44\ Impeachment Inquiry at 14-15.
---------------------------------------------------------------------------
The Referral alleges no wrongs of that magnitude.

2. The Framers Believed That Impeachment Redresses Wrongful Public
Conduct

The remedy of impeachment was designed only for those very
grave harms not otherwise politically redressable. As James
Wilson wrote, ``our President . . . is amenable to [the laws]
in his private character as a citizen, and in his public
character by impeachment.'' ⁴⁵
---------------------------------------------------------------------------
\45\ 2 Elliot at 480 (emphasis in original).
---------------------------------------------------------------------------
That is why Justice Story described the harms to be reached
by impeachment as those ``offensive acts which do not properly
belong to the judicial character in the ordinary administration
of justice, and are far removed from the reach of municipal
jurisprudence.'' ⁴⁶
---------------------------------------------------------------------------
\46\ 2 Story, Commentaries on the Constitution of the United States
Sec. 762 at 234 (reprint of 1st ed. 1833).
---------------------------------------------------------------------------
For these reasons, impeachment is limited to certain forms
of potential wrongdoing only, and it is intended to redress
only certain kinds of harms. Again, in Hamilton's words:

The subjects of [the Senate's impeachment] jurisdiction are
those offenses which proceed from the misconduct of public men,
or in other words from the abuse of violation of some public
trust. They are of a nature which may with peculiar propriety
be denominated Political, as they relate chiefly to injuries
done to the society itself.⁴⁷
---------------------------------------------------------------------------
\ 47\ Federalist 65 at 330-31.
---------------------------------------------------------------------------
Early commentators on the Constitution are in accord on the
question of impeachment's intended purpose. In Justice James
Wilson's words, impeachments are ``proceedings of a political
nature . . . confined to political characters'' charging only
``political crimes and misdemeanors'' and culminating only in
``political punishments.'' ⁴⁸ And as Justice Story
put the matter, ``the [impeachment] power partakes of a
political character, as it respects injuries to the society in
its political character.'' ⁴⁹ In short, impeachment
was not thought to be a remedy for private wrongs--or even for
most public wrongs. Rather, the Framers ``intended that a
president be removable from office for the commission of great
offenses against the Constitution.'' ⁵⁰ Impeachment
therefore addresses public wrongdoing, whether denominated a
``political crime[ ] against the state,'' ⁵¹ or ``an
act of malfeasance or abuse of office,'' ⁵² or a
``great offense[ ] against the federal government.''
⁵³ Ordinary civil and criminal wrongs can be
addressed through ordinary judicial processes. And ordinary
political wrongs can be addressed at the ballot box and by
public opinion. Impeachment is reserved for the most serious
public misconduct, those aggravated abuses of executive power
that, given the President's four-year term, might otherwise go
unchecked.
---------------------------------------------------------------------------
\48\ Wilson, Works 426 (R. McCloskey, ed. 1967).
\ 49\ Story, Commentaries on the Constitution Sec. 744. And as a
contemporary scholar has expressed it, ``[c]ognizable ``high Crimes and
Misdemeanors'' in England . . . generally concerned perceived
malfeasance--which may or may not be proscribed by common law or
statute--that damaged the state or citizenry in their political
rights.'' O'Sullivan, The Interaction Between Impeachment and the
Independent Counsel Statute, 86 Geo. L.J. 2193, 2210 (1998) (emphasis
added).
\ 50\ Labovitz, Presidential Impeachment at 94.
\ 51\ Berger, Impeachment at 61.
\ 52\ Rotunda, An Essay on the Constitutional Parameters of Federal
Impeachment, 76 Ky. L.J. 707, 724 (1987/1988).
\ 53\ Gerhardt, 68 Tex. L. Rev. at 85.
---------------------------------------------------------------------------
Private misconduct, or even public misconduct short of an
offense against the state, is not redressable by impeachment
because that solemn process, in Justice Story's words,
addresses ``offences which are committed by public men in
violation of their public trust and duties.'' ⁵⁴
Impeachment is a political act in the sense that its aims are
public; it attempts to rein in abuses of the public trust
committed by public officeholders in connection with conduct in
public office. The availability of the process is commensurate
with the gravity of the harm. As one scholar has put it,
``[t]he nature of [impeachment] proceedings is dictated by the
harms sought to be redressed--the misconduct of public men'
relating to the conduct of their public office--and the
ultimate issue to be resolved--whether they have forfeited
through that conduct their right to continued public trust.''
⁵⁵
---------------------------------------------------------------------------
\54\ Story, Commentaries Sec. 744 (emphasis added).
\55\ O'Sullivan, 86 Geo. L.J. at 2220.
---------------------------------------------------------------------------

3. Our Constitution's Structure Does Not Permit Impeachment for Reasons
of the Sort Alleged in the Referral

a. Impeachment Requires a Very High Standard Because Ours
Is a Presidential and Not a Parliamentary System
Ours is a Constitution of separated powers. In that
Constitution, the President does not serve at the will of
Congress, but as the directly elected,⁵⁶ solitary
head of the Executive Branch. The Constitution reflects a
judgment that a strong Executive, executing the law
independently of legislative will, is a necessary protection
for a free people.
---------------------------------------------------------------------------
\56\ Of course, that election takes place through the mediating
activity of the Electoral College. See U.S. Const. Art. II, Sec. 1, cl.
2-3 and Amend. XII.
---------------------------------------------------------------------------
These elementary facts of constitutional structure
underscore the need for a very high standard of impeachable
offenses. It was emphatically not the intention of the Framers
that the President should be subject to the will of the
dominant legislative party. Our system of government does not
permit Congress to unseat the President merely because it
disagrees with his behavior or his policies. The Framers'
decisive rejection of parliamentary government is one reason
they caused the phrase ``Treason, Bribery or other high Crimes
and Misdemeanors'' to appear in the Constitution itself. They
chose to specify those categories of offenses subject to the
impeachment power, rather than leave that judgment to the
unfettered whim of the legislature.
Any just and proper impeachment process must be reasonably
viewed by the public as arising from one of those rare cases
when the Legislature is compelled to stand in for all the
people and remove a President whose continuation in office
threatens grave harm to the Republic. Impeachment for
wrongdoing of lesser gravity involves a legislative usurpation
of a power belonging only to the people (the power to choose
and ``depose'' Presidents by election and a Legislative
encroachment on the power of the Executive.
The current process appears bent on ``mangling the system
of checks and balances that is our chief safeguard against
abuses of public power.'' ⁵⁷ Impeachment of the
President on the grounds alleged in the Referral would ignore
this intentionally imposed limit on legislative power and would
thereby do incalculable damage to the institution of the
Presidency. Whether ``successful'' or not, the current drive
``will leave the Presidency permanently disfigured and
diminished, at the mercy as never before of the caprices of any
Congress.'' ⁵⁸ The undefined, but broad and lenient,
standard under which the Committee is implicitly proceeding
converts the impeachment power into something other than the
drastic removal power of last resort intended by the Framers.
This new impeachment weapon would be a permanent, extra-
constitutional power of Congress, a poison arrow aimed
permanently at the heart of the Presidency. The inevitable
effect of such a threat would be the weakening of that Office
and an improper subservience of the President to the Congress,
that was wholly unintended by the Framers.
---------------------------------------------------------------------------
\57\ Statement of Historians in Defense of the Constitution (Oct.
28, 1998); see also Schmitt, ``Scholars and Historians Assail Clinton
Impeachment Inquiry,'' The New York Times (Oct. 19, 1998) at A18.
\58\ Statement, ibid.
---------------------------------------------------------------------------
That is not the impeachment power enshrined in the
Constitution and defined by two hundred years of experience.
The Constitution permits a single justification for
impeachment--a demonstrated need to protect the people
themselves.
b. Impeachment Requires a Very High and Very Clear Standard
Because It Nullifies the Popular Will
The Framers made the President the sole nationally elected
public official, responsible to all the people. He is the only
person whose mandate is country-wide, extending to all
citizens, all places, and all interests. He is the people's
choice.
Therefore, when the Congress raises the issue of
impeachment, the House (and ultimately the Senate) confront
this inescapable question: is the alleged misconduct so
profoundly serious, so malevolent, that it justifies undoing
thepeople's decision? Is the wrong alleged of a sort that not
only demands removal of the President before the ordinary electoral
cycle can do its work, but also justifies the national trauma that
accompanies the impeachment process itself?
The wrongdoing alleged here does not remotely meet that
standard.

B. American Presidential Impeachment Practice and Contemporary
Scholarship Confirm that Impeachment Is Only for Political Offenses
Against the State Itself, Not for Private Wrongs

1. Prior Impeachment Proceedings Against American Presidents

Three American Presidents have been the subject of
impeachment proceedings. Each was impeached (or threatened with
impeachment) for allegedly wrongful official conduct and not
for alleged misdeeds unrelated to the exercise of public
office.
John Tyler. In 1841, President Tyler succeeded William
Henry Harrison after the latter's death in office. He
immediately ran into political differences with the Whig
majority in Congress. After Tyler vetoed a Whig-sponsored
tariff bill, a Whig Congressman offered a resolution of
impeachment against President Tyler. The resolution proffered
nine impeachment articles, each alleging high crimes and
misdemeanors constituting crimes against the government in the
performance of official duties. The allegations included
withholding assent to laws indispensable to the operation of
government and assuming to himself the whole power of taxation,
abuse of the appointment and removal power, and abuse of the
veto power.⁵⁹
---------------------------------------------------------------------------
\59\ See Rehnquist, Grand Inquests: The Historical Impeachments of
Justice Samuel Chase and President Andrew Johnson 256-58 (1992).
---------------------------------------------------------------------------
The resolution was rejected. But the fundamental premise of
each charge was that the President had committed crimes against
the United States in the exercise of official duties.
Andrew Johnson. President Johnson is, of course, the only
president actually to have been impeached. President Johnson
ran afoul of the Reconstruction Congress after the death of
President Lincoln. After President Johnson notified Secretary
of War Stanton that he was removed from office, the Congress
voted an impeachment resolution in 1868 based on the
President's supposed violation of the Tenure of Office Act.
Ultimately, eleven articles were adopted against him and
approved by the House.⁶⁰
---------------------------------------------------------------------------
\60\ Id. at 202-216.
---------------------------------------------------------------------------
As in the case of President Tyler, all the allegations
concerned allegedly wrongful official conduct said to be
harmful to the processes of government. The leading House
manager in the Senate trial was Rep. Benjamin Butler, who
defined impeachable offenses as follows: ``We define,
therefore, an impeachable high crime and misdemeanor to be one
in its nature or consequences subversive of some fundamental or
essential principle of government, or highly prejudicial to the
public interest. . . .'' ⁶¹
---------------------------------------------------------------------------
\61\ Trial of Andrew Johnson, v.1, 88 (March 30, 1868) (emphasis
added).
---------------------------------------------------------------------------
On May 26, 1868, President Johnson was acquitted by a
single vote.⁶² Although the vote was overwhelmingly
partisan, seven Republican Senators broke with the party and
voted for acquittal. Sen. William Pitt Fessenden was one of
those seven. He did not vote for impeachment because, as he put
it, an impeachable offense must be ``of such a character to
commend itself at once to the minds of all right thinking men,
as beyond all question, an adequate cause for impeachment. It
should leave no reasonable ground of suspicion upon the motives
of those who inflict the penalty.'' ⁶³
---------------------------------------------------------------------------
\62\ Cong. Globe (Supp.) 412 (May 26, 1868).
\63\ Congressional Quarterly: Impeachment and the U.S. Congress,
March 1974.
---------------------------------------------------------------------------
Richard Nixon. Five articles of impeachment were proposed
against then-President Nixon by this Committee in 1974. Three
were approved. Two were not.\64\ As with the charges against
Presidents Tyler and Johnson, the approved articles alleged
official wrongdoing. Article I charged President Nixon with
``using the powers of his high office [to] engage[ ] . . . in
a course of conduct or plan designed to delay, impede and
obstruct'' the Watergate investigation.\65\ Article II
described the President as engaging in ``repeated and
continuing abuse of the powers of the Presidency in disregard
of the fundamental principle of the rule of law in our system
of government'' thereby ``us[ing] his power as President to
violate the Constitution and the law of the land.'' \66\
Article III charged the President with refusing to comply with
Judiciary Committee subpoenas in frustration of a power
necessary to ``preserve the integrity of the impeachment
process itself and the ability of Congress to act as the
ultimate safeguard against improper Presidential conduct.''
\67\
---------------------------------------------------------------------------
\64\ See discussion of the Income Tax Count against President Nixon
in Part III.C.2, infra.
\65\ Impeachment of Richard M. Nixon, President of the United
States, Report of the Comm. on the Judiciary, 93rd Cong., 2d Sess., H.
Rep. No. 93-1305 (Aug. 20, 1974) (hereinafter ``Nixon Report'') at 133.
\66\ Nixon Report at 180.
\67\ Id. at 212-13.
---------------------------------------------------------------------------
The precedents speak clearly. The allegation against
President Tyler and the articles actually approved against
Presidents Johnson and Nixon all charged serious misconduct
amounting to misuse of the authority of the Presidential
office. As Professor Sunstein expressed it in his testimony
before this body's Subcommittee on the Constitution, American
presidential impeachment proceedings have targeted ``act[s] by
the President, that amount[ ] to large-scale abuse of
distinctly Presidential authority.'' \68\ The Referral contains
nothing of the kind.
---------------------------------------------------------------------------
\68\ Statement of Cass R. Sunstein to the House Subcommittee on the
Constitution of the House Judiciary Committee, dated November 9, 1998,
at 15.
---------------------------------------------------------------------------

2. Contemporary Views Confirm That Impeachment Is Not Appropriate Here

a. Contemporary Scholarship Confirms That Impeachment Is
Appropriate for Offenses Against Our System of
Government
Impeachable acts need not be criminal acts. As Professor
Black has noted, it would probably be an impeachable act for a
President to move to Saudi Arabia so he could have four wives
while proposing to conduct the Presidency by mail and wireless
from there; or to announce and adhere to a policy of appointing
no Roman Catholics to public office; or to announce a policy of
granting full pardons, in advance of indictment or trial, to
federal agents or police who killed anyone in the line of duty
in the District of Columbia.\69\ None of these acts would be
crimes, but all would be impeachable. This, because they are
all ``serious assaults on the integrity of government.'' \70\
And all of these acts are public acts having public
consequences.
---------------------------------------------------------------------------
\69\ Black, Impeachment at 34-35.
\70\ Id. at 38.
---------------------------------------------------------------------------
Holders of public office should not be impeached for
conduct (even criminal conduct) that is essentially private.
That is why scholars and otherdisinterested observers have
consistently framed the test of impeachable offenses in terms of some
fundamental attack on our system of government, describing impeachment
as being reserved for:
``offenses against the government''; ⁷¹
---------------------------------------------------------------------------
\71\ Labovitz, Presidential Impeachment at 26.
---------------------------------------------------------------------------
``political crimes against the state''; ⁷²
---------------------------------------------------------------------------
\72\ Berger, Impeachment at 61.
---------------------------------------------------------------------------
``serious assaults on the integrity of the processes
of government''; ⁷³
---------------------------------------------------------------------------
\73\ Black, Impeachment at 38-39.
---------------------------------------------------------------------------
``wrongdoing convincingly established [and] so
egregious that [the President's] continuation in office
is intolerable''; ⁷⁴
---------------------------------------------------------------------------
\74\ Labovitz, Presidential Impeachment at 110.
---------------------------------------------------------------------------
``malfeasance or abuse of office,'' ⁷⁵
bearing a ``functional relationship'' to public office;
⁷⁶
---------------------------------------------------------------------------
\75\ Rotunda, 76 Ky. L.J. at 726.
\76\ Ibid.
---------------------------------------------------------------------------
``great offense[s] against the federal government'';
⁷⁷
---------------------------------------------------------------------------
\77\ Gerhardt, 68 Tex. L. Rev. at 85.
---------------------------------------------------------------------------
``acts which, like treason and bribery, undermine the
integrity of government.'' ⁷⁸
---------------------------------------------------------------------------
78 New York Bar Report at 18.
---------------------------------------------------------------------------
b. Recent Statements by Historians and Constitutional
Scholars Confirm that No Impeachable Offense Is
Present Here
In a recent statement, 400 historians warned of the threat
to our constitutional system posed by these impeachment
proceedings. The Framers, they wrote, ``explicitly reserved
[impeachment] for high crimes and misdemeanors in the exercise
of executive power.'' ⁷⁹ Impeachment for anything
short of that high standard would have ``the most serious
implications for our constitutional order.'' ⁸⁰
---------------------------------------------------------------------------
\79\ Statement of Historians in Defense of the Constitution (Oct.
28, 1998) (emphasis added).
\80\ Ibid.
---------------------------------------------------------------------------
That view accords with the position expressed by 430 legal
scholars and communicated by letter to the House leadership and
the leadership of this Committee. ⁸¹ The legal
scholars' letter underscores that high crimes and misdemeanors
must be of a seriousness comparable to ``treason'' and
``bribery'' that are distinguished by a ``grossly derelict
exercise of official power.'' That standard, as the law
professors note, is simply not met here even on the facts
alleged. ``If the President committed perjury regarding his
sexual conduct, this perjury involved no exercise of
Presidential power as such.'' ⁸² In other words,
``making false statements about sexual improprieties is not a
sufficient basis to justify the trial and removal from office
of the President of the United States.'' ⁸³ To
continue an impeachment inquiry under such circumstances would
pose a heavy cost to the Presidency with no return to the
American people.
---------------------------------------------------------------------------
\81\ Letter of 430 Law Professors to Messrs. Gingrich, Gephardt,
Hyde and Conyers (released Nov. 6, 1998).
\82\ Id. at 3.
\83\ Ibid.
---------------------------------------------------------------------------
Thus, as Professor Michael Gerhardt summarized the matter
in his recent testimony before a subcommittee of this body,
there is ``widespread recognition [of] a paradigmatic case for
impeachment.'' ⁸⁴ In such a case, ``there must be a
nexus between the misconduct of an impeachable official and the
latter's official duties.'' ⁸⁵ The Referral presents
no such case.
---------------------------------------------------------------------------
\84\ Statement of Professor Michael J. Gerhardt Before the House
Subcommittee on the Constitution of the House Judiciary Committee
Regarding the Background and History of Impeachment, dated November 9,
1998, at 13.
\85\ Ibid. (emphasis added).
---------------------------------------------------------------------------

C. Relevant Historical Precedents Demonstrate that No Impeachable
Offense Has Been Alleged Here

1. Alexander Hamilton

That impeachment was reserved for serious public wrongdoing
of a serious political nature was no mere abstraction to the
authors of the Constitution. The ink on the Constitution was
barely dry when Congress was forced to investigate wrongdoing
by one of the Framers. In 1792-93, Congress investigated then-
Secretary of the Treasury Alexander Hamilton for alleged
financial misdealings with James Reynolds, a convicted
securities swindler.⁸⁶ Secretary Hamilton was
interviewed by members of Congress, including the House Speaker
and James Monroe, the future President. He admitted to making
secret payments to Mr. Reynolds, whose release from prison the
Treasury Department had authorized. Mr. Hamilton acknowledged
that he had made the payments but explained that he had
committed adultery with Reynolds wife; that he had made
payments to Mr. Reynolds to cover it up; that he had had Mrs.
Reynolds burn incriminating correspondence; and that he had
promised to pay the Reynolds' travel costs if they would leave
town.⁸⁷
---------------------------------------------------------------------------
\86\ See generally Rosenfeld, ``Founding Fathers Didn't Flinch,''
Los Angeles Times (Sept. 18, 1998) at A11.
\87\ Ibid.
---------------------------------------------------------------------------
The Members of Congress who heard Secretary Hamilton's
confession concluded that the matter was private, not public;
that as a result no impeachable offense had occurred; and that
the entire matter should remain secret. Although President
Washington, Vice-President Adams, Secretary of State Jefferson
and House Minority leader James Madison (two of whom had signed
the Constitution) all eventually became aware of the affair,
they too maintained their silence. And even after the whole
matter became public knowledge some years later, Mr. Hamilton
was appointed to the second highest position in the United
States Army and was speedily confirmed by the
Senate.⁸⁸
---------------------------------------------------------------------------
\88\ Ibid.
---------------------------------------------------------------------------
It is apparent from the Hamilton case that the Framers did
not regard private sexual misconduct as creating an impeachable
offense. It is also apparent that efforts to cover up such
private behavior, including even paying hush money to induce
someone to destroy documents, did not meet the standard.
Neither Hamilton's very high position, nor the fact that his
payments to a securities swindler created an enormous
``appearance'' problem, were enough to implicate the standard.
These wrongs were real, and they were not insubstantial, but to
the Framers they were essentially private and therefore not
impeachable.
Some have responded to the argument that the conduct at
issue in the Referral is private by contending that the
President is charged with faithfully executing the laws of the
United States and that perjury would be a violation of that
duty. That argument, however, proves far too much. Under that
theory, any violation of federal law would constitute an
impeachable offense, no matter how minor and no matter whether
it arose out of the President's private life or his public
responsibilities. Lying in a deposition in a private lawsuit
would, for constitutional purposes, be the equivalent of lying
to Congress about significant conduct of the Executive Branch--
surely a result those advocates do not contemplate. More
importantly, as the next section demonstrates, we know from the
bipartisan defeat of the tax fraud article against President
Nixon that the ``faithfully execute'' theory has been squarely
rejected.

2. The Failure of the Proposed Article of Impeachment Against President
Nixon Alleging Fraudulent Tax Filings

As previously indicated, this Committee's investigation of
President Nixon in 1973-74 had to confront the question of just
what constitutes an ``impeachable offense.'' That investigation
resulted in the Committee's approval of three articles of
impeachment alleging misuse of the Presidential Office
andrejection of two others. Those decisions constitute part of the
common law of impeachment, and they stand for the principle that abuse
of the Presidential Office is at the core of the notion of impeachable
offense.
That conclusion was no happenstance. It resulted from a
concordance among Committee majority and minority views as to
the standard of impeachable offenses. One of the first tasks
assigned to the staff of the Judiciary Committee when it began
its investigation of President Nixon was to prepare a legal
analysis of the grounds for impeachment of a President. The
staff concluded that:

Impeachment is a constitutional remedy addressed to serious
offenses against the system of government. . . . It is not
controlling whether treason and bribery are criminal. More
important, they are constitutional wrongs that subvert the
structure of government, or undermine the integrity of office
and even the Constitution itself, and thus are `high' offenses
in the sense that word was used in English impeachments. . . .
The emphasis has been on the significant effects of the
conduct--undermining the integrity of office, disregard of
constitutional duties and oath of office, arrogation of power,
abuse of the governmental process, adverse impact on the system
of government. . . . Because 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 the president office.⁸⁹
---------------------------------------------------------------------------
\89\ Impeachment Inquiry at 26 (emphasis added).

A memorandum setting forth views of certain Republican Members
similarly emphasized the necessarily serious and public
---------------------------------------------------------------------------
character of any alleged offense:

It is not a fair summary . . . to say that the Framers were
principally concerned with reaching a course of conduct,
whether or not criminal, generally inconsistent with the proper
and effective exercise of the office of the presidency. They
were concerned with preserving the government from being
overthrown by the treachery or corruption of one man. . . .
[I]t is our judgment, based upon this constitutional history,
that the Framers of the United States Constitution intended
that the President should be removable by the legislative
branch only for serious misconduct dangerous to the system of
government established by the Constitution.⁹⁰
---------------------------------------------------------------------------
\90\Nixon Report at 364-365 (Minority Views of Messrs. Hutchinson,
Smith, Sandman, Wiggins, Dennis, Mayne, Lott, Moorhead, Maraziti and
Latta) (final emphasis added).

Notwithstanding their many differences, the Judiciary Committee
investigating President Nixon was in substantial agreement on
the question posed here: an impeachable wrong is an offense
against our very system, a constitutional evil subversive of
the government itself.
Against that backdrop, it is clear that the Committee's
vote not to approve a proposed tax-fraud type article was every
bit as significant a precedent as the articles it did approve.
The proposed article the Committee ultimately declined to
approve charged that President Nixon both ``knowingly and
fraudulently failed to report certain income and claimed
deductions [for 1969-72] on his Federal income tax returns
which were not authorized by law.'' ⁹¹ The President
had signed his returns for those years under penalty of
perjury, ⁹² and there was reason to believe that the
underlying facts would have supported a criminal prosecution
against President Nixon himself.^}⁹³ Yet
the article was not approved. And it was not approved because
the otherwise conflicting views of the Committee majority and
minority were in concord: submission of a false tax return was
not so related to exercise of the Presidential Office as to
trigger impeachment.
---------------------------------------------------------------------------
\91\ Nixon Report at 220. The President was alleged to have failed
to report certain income, to have taken improper tax deductions, and to
have manufactured (either personally or through his agents) false
documents to support the deductions taken.
\92\ Given the underlying facts, that act might have provided the
basis for multiple criminal charges; conviction on, for example, the
tax evasion charge, could have subjected President Nixon to a 5-year
prison term.
\93\ See Nixon Report at 344 (``the Committee was told by a
criminal fraud tax expert that on the evidence presented to the
Committee, if the President were an ordinary taxpayer, the government
would seek to send him to jail'') (Statement of Additional Views of Mr.
Mezvinsky, et al.).
---------------------------------------------------------------------------
Thus, by a bipartisan vote greater than a 2-1 margin, the
Judiciary Committee rejected the tax-evasion article.\94\ Both
Democrats and Republicans spoke against the idea that tax
evasion constituted an impeachable offense. Congressman
Railsback (R-IL) opposed the article saying that ``there is a
serious question as to whether something involving his personal
tax liability has anything to do with [the] conduct of the
office of the President.'' \95\ Congressman Owens (D-UT) stated
that, even assuming the charges were true in fact, ``on the
evidence available, these offenses do not rise, in my opinion,
to the level of impeachment.'' \96\ Congressman Hogan (R-MD)
did not believe tax evasion an impeachable offense because the
Constitution's phrase ``high crime signified a crime against
the system of government, not merely a serious crime.'' \97\
And Congressman Waldie (D-CA) spoke against the article, saying
that ``there had not been an enormous abuse of power,''
notwithstanding his finding ``the conduct of the President in
these instances to have been shabby, to have been unacceptable,
and to have been disgraceful even.'' \98\
---------------------------------------------------------------------------
\94\ Nixon Report at 220.
\95\ Debate on Articles of Impeachment: Hearings on H. Res. 803
Before the House Comm. on the Judiciary, 93d Cong. 2d Sess., 524
(1974).
\96\ Id. at 549.
\97\ Id. at 541 (quoting with approval conclusion of Impeachment
Inquiry).
\98\ Id. at 548.
---------------------------------------------------------------------------
These voices, and the overwhelming vote against the tax
evasion article, underscore the fact that the 1974 Judiciary
Committee's judgment was faithful to its legal conclusions. It
would not (and did not) approve an article of impeachment for
anything short of a fundamental offense against our very system
of government. In the words of the Nixon Impeachment Inquiry
Report:

Because 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 duties of the presidential
office.\99\
---------------------------------------------------------------------------
\99\ Impeachment Inquiry at 27.

This Committee should observe no less stringent a standard. If
this Committee is faithful to its predecessor, it will conclude
that the Referral's allegations (and the perjury allegations in
particular) do not satisfy the high threshold required to
approve articles of impeachment.

IV. The Constitution Requires Clear and Convincing Evidence To Approve
Articles of Impeachment

Even if a Member of Congress should conclude that ``high
Crimes and Misdemeanors'' have actually and properly been
alleged, that conclusion alone is not sufficient to support an
article of impeachment. In addition, the Member must conclude
that the allegations against the President have been
established by ``clear and convincing'' evidence. This is a
legal term of art requiring evidence greater than in the
ordinary civil case. The suggestion that a vote for impeachment
of a democratically elected President represents no more, and
requires no more, than the threshold showing necessary for a
grand jury indictment reflects a serious disregard for the
significance of this process.

A. This Committee Should Apply the Same Clear and Convincing Standard
Observed by Its Predecessor in the Watergate Proceedings

This Committee should follow the lead of its predecessor in
the Watergate proceedings. Twenty-four years ago, this
Committee confronted the very same question presented here:
what threshold of proof is required to approve articles of
impeachment? Then, it was the consensus of all parties--
majority and minority counsel, as well as the attorney for the
President--that approval of an article must rest on clear and
convincing evidence.
In the Watergate hearings, the President's counsel, Mr. St.
Clair, put the threshold-of-proof question in this way:

I think the American people will expect that this committee
would not vote to recommend any articles of impeachment unless
this committee is satisfied that the evidence to support it is
clear, is clear and convincing. Because anything less than
that, in my view, is going to result in recriminations,
bitterness, and divisiveness among our people.¹⁰⁰
---------------------------------------------------------------------------
\100\ Statement of James St. Clair, III Impeachment Inquiry
Hearings on H. Res. 803 Before the House Comm. on the Judiciary, 932
Cong., 2d Sess., 1889 (1974). (emphasis added).

Majority counsel to this Committee, Mr. Doar, concurred that
---------------------------------------------------------------------------
the clear-and-convincing measure was the appropriate gauge:

Mr. St. Clair said to you you must have clear and
convincing proof. Of course there must be clear and convincing
proof to take the step that I would recommend this committee to
take.¹⁰¹
---------------------------------------------------------------------------
\101\ Statement of John Doar, id. at 1927 (emphasis added).

Emphasizing the political nature and consequences of
impeachment, Mr. Doar reiterated that ``as a practical matter,
proof must be clear and convincing.'' \102\
---------------------------------------------------------------------------
\102\ Ibid.
---------------------------------------------------------------------------
Minority counsel, Mr. Garrison, told the Committee that
``when a member of the committee or a Member of the House votes
to impeach, he should do so having made a judgment that the
evidence convinces him that the President should be removed
from office.'' ¹⁰³ And in their ``Standard of Proof
for Impeachment by the House'' section of the Impeachment
Inquiry, the Republican authors of the Minority Views
formulated the standard as follows:
---------------------------------------------------------------------------
\103\ Statement of Samuel Garrison, III, id. at 2040.

On balance, it appears that prosecution [of articles of
impeachment by the House] is warranted if the prosecutor
believes that the guilt of the accused is demonstrated by clear
and convincing evidence. . . .
[W]e therefore take the position that a vote of impeachment
is justified if, and only if, the charges embodied in the
articles are proved by clear and convincing evidence. Our
confidence in this proposition is enhanced by the fact that
both the President's Special Counsel and the Special Counsel to
the Committee independently reached the same
conclusion.¹⁰⁴
---------------------------------------------------------------------------
\104\ Impeachment Inquiry (Minority Views of Messrs. Hutchinson,
Smith, Sandman, Wiggins, Dennis, Mayne, Lott, Moorhead, Maraziti, and
Latta) at 381 (emphasis added).

Finally, this Committee expressly found clear and
convincing evidence supporting the obstruction-of-justice and
abuse-of-power charges against President Nixon.¹⁰⁵
See, e.g., Impeachment Inquiry at 33 (``[t]his report . . .
contains clear and convincing evidence that the President
caused action . . . to cover up the Watergate break-in''); id.
at 136 (``[t]he Committee finds, based upon of [sic] clear and
convincing evidence, that th[e] conduct[ ] detailed in the
foregoing pages of this report constitutes `high crimes and
misdemeanors' ''); id. at 141 (``[t]he Committee finds clear
and convincing evidence that a course of conduct was carried
out [by President Nixon and his subordinates] to violate the
constitutional rights of citizens'').¹⁰⁶
---------------------------------------------------------------------------
\105\ The third Watergate article of impeachment, based on
President Nixon's refusal to comply with this Committee's subpoenas,
was based on ``undisputed facts,'' Impeachment Inquiry at 213, so there
was no need to articulate or apply an evidentiary standard to the
factfinding process on which that article was based.
\106\ Representative Caldwell Butler (R-Va.) explicitly applied the
clear and convincing standard when he announced in Committee he would
vote for impeachment. ``Butler said . . . [t]he evidence was `clear,
direct, and convincing'--St. Clair's words--that Richard Nixon had
abused power.'' Kutler, the Wars of Watergate 522 (1990).
---------------------------------------------------------------------------

B. The Clear and Convincing Standard Is Commensurate with the Grave
Constitutional Power Vested in the House

As the Watergate precedent indicates, this Committee should
not approve an article of impeachment for which the record
evidence, taken as a whole, is anything less than clear and
convincing. Put differently, each member must have a firm
conviction, clearly and convincingly grounded in record
evidence, that the President is guilty of the wrongdoing
alleged. As former Attorney General Elliott Richardson warned
on December 1, ``[a] vote to impeach is a vote to remove. If
members of the Committee believe that should be the outcome,
they should vote to impeach. If they think that is an excessive
sentence, they should not vote to impeach because if they do
vote to impeach the matter is out their hands, and if the
Senate convicts, out of its hands.'' ¹⁰⁷
---------------------------------------------------------------------------
\107\ Marcus, ``Panel Unclear About Impeachment Role,'' The
Washington Post (Dec. 6, 1996) at A8.
---------------------------------------------------------------------------
This clear-and-convincing standard is not the highest
degree of proof known to our law,¹⁰⁸ but the
substantial showing it demands is commensurate with the gravity
of impeachment itself. Exercise of the House's accusatory
impeachment power is itself an act that weakens the Presidency.
Unlike the grand juror's vote to indict, which affects a sole
individual, affirmative votes on articles of impeachment
jeopardize an entire branch of our national government and
threaten the political viability of the single person (except
for the Vice President) elected by the entire electorate. The
clear-and-convincing requirement ensures that this momentous
step is not lightly taken. Lower standards (probable cause or
apparent preponderance of the evidence) are simply not
demanding enough to justify the fateful step of an impeachment
trial. They pose a genuine risk of subjecting the President,
the Senate, and most of all the people who elected the
President to a trial ``on the basis of one-sided or incomplete
information or insufficiently persuasive evidence.''
¹⁰⁹ Moreover, those lower standards would be
particularly inappropriate here, where this Committee has
itself neither independently investigated the evidence nor
heard from a single witness with first-hand knowledge of such
facts. The respected impeachment scholar Michael Gerhardt has
declared: ``This idea that all [this Committee] need[s] to have
is probable cause is in my mind ahistorical . . . . I do think
that members, at least historically, have demanded more in
terms of the kind of evidence that has to exist to initiate
formal impeachment proceedings against the President and also
to trigger a trial.'' ¹¹⁰
---------------------------------------------------------------------------
\108\ In criminal cases, proof beyond a reasonable doubt is
required to convict. In re Winship, 397 U.S. 358, 363-64 (1970).
\109\ Labovitz, Presidential Impeachment at 192.
\110\ Marcus, ``Panel Unclear About Impeachment Role,'' The
Washington Post (Dec. 6, 1996) at A8.
---------------------------------------------------------------------------
Exercise of the impeachment power by the House is a matter
of the utmost seriousness. No member of this Committee or of
the House as a whole should approve articles of impeachment
unless that member is personally persuaded that a high crime or
misdemeanor has been proven to have occurred by clear and
convincing evidence.¹¹¹ The precedent created in the
Watergate proceedings could not be clearer. To break with that
precedent and proceed on something less demanding would
properly be viewed as a partisan effort to lower the
impeachment bar. The President, the Constitution, and the
American people deserve more. Proof by clear and convincing
evidence, and nothing less, is necessary to justify each
member's affirmative vote for articles of impeachment.
---------------------------------------------------------------------------
\111}\Thus, a member would act in derogation of a solemn
constitutional duty if he or she approved an article of impeachment
without having concluded that the President had been shown, by clear
and convincing evidence, to have performed an impeachable act. The
House has its own independent constitutional obligation to weigh the
evidence presented. It is not a matter of merely voting for the article
on the theory that the Senate will determine the truth.
---------------------------------------------------------------------------

V. The Committee Should Not Rely on the Referral's Account of the
Evidence

The Committee is now in the process of completing its
deliberations on this question of the utmost national gravity:
whether to approve articles of impeachment against the
President of the United States. Voting in favor of such
articles would commence the somber process of annulling the
electoral choice of the people of this country. Before
analyzing, in the next three sections, with as much specificity
as possible the charges the Committee apparently is
considering, it is appropriate to examine the evidentiary
record that serves as the basis for these grave judgments.
The record here is strikingly different from that on which
the Committee acted twenty-four years ago in the Watergate
proceedings. There, over several months of investigation, the
Committee examined numerous fact witnesses and obtained and
analyzed documents and other evidence; while it received a
transmission of testimony and documents from the Watergate
grand jury, it made its own independent evaluation of the
evidence it had gathered. See Nixon Report at 9 (Judiciary
Committee received statements of information from inquiry staff
in which ``a deliberate and scrupulous abstention from
conclusions, even by implication, was
observed'').¹¹²
---------------------------------------------------------------------------
\112\ See also Kutler, The Wars of Watergate 477-89 (1990);
Labovitz, Presidential Impeachment at 189.
---------------------------------------------------------------------------
Here, however, the Committee is almost wholly relying on
the work of the Independent Counsel. Neither the Committee, its
staff, nor counsel for the President have had the opportunity
to confront the witnesses who have appeared before the OIC's
grand jury: to cross-examine them, assess their credibility,
and elicit further information that might affect the testimony
the witnesses gave. Indeed, the very genesis of this
impeachment inquiry differs radically from the Watergate
proceedings. Twenty-four years ago, this Committee itself made
a decision to embark upon an impeachment inquiry.¹¹³
In the present case, however, this inquiry was generated by the
judgment of Mr. Starr that he had identified ``substantial and
credible information . . . that may constitute grounds for
impeachment.'' 28 U.S.C. Sec. 595(c).
---------------------------------------------------------------------------
\113\ Id. at 471.
---------------------------------------------------------------------------
The Referral represents Mr. Starr's effort to support that
conclusion. The grand jury never authorized the transmission of
or even reviewed the Referral, November 19, 1998 Testimony at
324-25 (Testimony of Mr. Starr) and, while Mr. Starr declined
to address the question in his public testimony, we do not
believe that the Referral itself was ever presented for
substantive approval to Chief Judge Johnson or the Special
Division of the Court of Appeals for the Purpose of Appointing
Independent Counsels.¹¹⁴ Instead, the Referral
reflects Mr. Starr's own version of the vast amount of evidence
gathered by the grand jury and the conclusions he draws from
that evidence.
---------------------------------------------------------------------------
\114\ We are not privy to all of the relevant documentation, but it
appears that Mr. Starr secured from the Special Division in early July
a general authorization to disseminate grand jury information in a
referral which would later be drafted and submitted to Congress. App.
at 10 (July 7, 1998 Order of Special Division). The OIC also apparently
``advised'' Chief Judge Johnson that it was submitting the Referral,
Ref. at 4 n.18, but as we point out in the text above, this is quite a
different procedure from the careful review that Chief Judge Sirica
performed in 1974 before the Watergate grand jury information was
submitted to this Committee.
---------------------------------------------------------------------------
Unlike the impartial presentation to the Watergate
committee from Special Prosecutor Jaworski, the Referral is a
document advocating impeachment. It sets forth Mr. Starr's best
case for impeachment, not a neutral presentation of the facts.
It reflects a careful selection and presentation of the
evidence designed to portray the President in the worst
possible light. It is being presented as a good faith summary
of reliable evidence when it is in fact nothing of the kind.
While we will address the specific allegations of perjury,
obstruction of justice, and abuse of office (as best we can
discern them) in the next sections, it is appropriate here to
sketch out the untested nature of the underlying evidence, the
material omissions in the Referral, and the indications of bias
and overreaching that have characterized the OIC's
investigation. To demonstrate this is not to make an irrelevant
ad hominem attack on the Independent Counsel but to point out
howunreliable is the record before this Committee, and the
caution and skepticism with which the narrative and conclusions of the
Referral must therefore be viewed.

A. The Information Presented to the Committee in the Referral Has Not
Been Subjected to the Most Basic Adversarial Testing

The Referral is based on grand jury information and as such
has not been subjected to cross-examination--the adversarial
testing our system of justice employs for assessing the
reliability of evidence. As the Supreme Court has stated,
``Cross-examination is `the principal means by which the
believability of a witness and the truth of his testimony are
tested.' '' Kentucky v. Stincer, 482 U.S. 730, 736 (1987)
(citations omitted). Absent such testing, it is extremely
difficult to make necessary judgments about the credibility of
grand jury witnesses and the weight to be given their
testimony.

B. The Referral Differs Vastly From the Precedent of the Watergate
``Road Map''

Instead of transmitting to the Committee the information
gathered by the OIC, Mr. Starr chose to give it his own spin.
Had he sat across the table from the witnesses, it might have
been that he based his judgments on such scrutiny. Since he did
not, the grounds on which he credited some evidence and
rejected other evidence are unknown. The decision to proceed in
this way was a sharp departure from Special Prosecutor Leon
Jaworski's submission to Congress of ``a simple and
straightforward compilation of information gathered by the
Grand Jury, and no more.'' In re Report and Recommendation of
June 5, 1972 Grand Jury, 370 F. Supp. 1219, 1226 (D.D.C.
1974).\115\ As drafted, the Referral impedes the search for
truth by cherry-picking the evidence and presenting (as we
demonstrate in the next sections) a deeply misleading portrait
of the record.
---------------------------------------------------------------------------
\115\ The Jaworski report was ``[o]nly 55 pages long, . . . set
forth the relevant evidence without any commentary, made no conclusions
about whether the President had committed ordinary crimes or
impeachable offenses, and contained a single piece of evidence on each
page.'' Jeffrey Rosen, ``Starr Crossed,'' The New Republic (Dec. 14,
1998).
---------------------------------------------------------------------------

C. The Resulting Referral Omitted a Wealth of Directly Relevant
Exculpatory Evidence

The Referral repeatedly and demonstrably omitted or
mischaracterized directly relevant evidence that exonerates the
President of the very allegations leveled by the OIC. For
example:
The concealment-of-gifts-accusation. The Referral claims
that the President and Ms. Lewinsky ``discussed'' concealing
gifts at their December 28 visit, and that the President
therefore orchestrated the pick-up of those gifts. The Referral
ignores evidence to the contrary, such as: Asked if President
Clinton discussed concealment with her, Ms. Lewinsky said,
``[H]e really didn't--he didn't really discuss it.'' App. at
1122 (8/20/98 grand jury testimony of Ms. Lewinsky). As to who
first conceived of the idea of involving Ms. Currie, the
Referral omitted the key passage:

``A Juror: Now, did you bring up Betty's name or did the
President bring up Betty's name?
[Ms. Lewinsky]: I think I brought it up. The President
wouldn't have brought up Betty's name because he really
didn't--he didn't really discuss it.''

App. at 1122 (8/20/98 grand jury testimony of Ms. Lewinsky).
And as to who broached the idea of actually picking up the
gifts, the Referral again omitted this important testimony by
Ms. Currie:

Q. . . . Just tell us from moment one how this issue first
arose and what you did about it and what Ms. Lewinsky told you.
A. The best I remember it first arose with a conversation.
I don't know if it was over the telephone or in person. I don't
know. She asked me if I would pick up a box. She said Isikoff
had been inquiring about gifts.

Supp. at 582 (5/6/98 grand jury testimony of Ms. Currie)
(emphasis added).
The jobs-for-silence-accusation. The allegation that the
President obstructed justice by procuring a job for Ms.
Lewinsky in exchange for silence or false testimony rests on
the Referral's account of Ms. Lewinsky's job search that simply
excluded the contradictory evidence. Both Ms. Lewinsky and Mr.
Jordan flatly denied that the job assistance had anything at
all to do with Ms. Lewinsky's testimony:

``I was never promised a job for my silence.'' App. at 1161
(8/20/98 grand jury testimony of Ms. Lewinsky).
``As far as I was concerned, [the job and the affidavit]
were two very separate matters.'' Supp. at 1737 (3/5/98 grand
jury testimony of Vernon Jordan).
Q. Did [Ms. Lewinsky] ever directly indicate to you that
she wanted her job in New York before she could finish [her
affidavit] up with Mr. Carter?
A. Unequivocally, no.
Q. . . . Is there anything about the way she acted when
speaking with you . . . that, as you sit here now, makes you
think that perhaps she was attempting not to finalize whatever
she was doing with Mr. Carter until she had a job in New York?
A. Unequivocally, indubitably, no.

Supp. at 1827 (5/5/98 grand jury testimony of Vernon Jordan).
And as to the circumstantial evidence, we demonstrate in Part
VI.B.2 that the Referral omitted a host of probative and
exculpatory facts that negate the existence of any improper
quid pro quo.
The influencing-Betty-Currie-accusation. The Referral
asserts that the President's January 18 conversation was an
attempt to influence Ms. Currie's testimony. But the Referral
omitted Ms. Currie's clear testimony that this discussion did
no such thing:

Supp. at 668 (7/22/98 grand jury testimony of Ms. Currie)
(emphasis added).

Q. You testified with respect to the statements as the
President made them, and, in particular, the four statements
that we've already discussed. You felt at the time that they
were technically accurate? Is that a fair assessment of your
testimony?
A. That's a fair assessment.
Q. But you suggested that at the time. Have you changed
your opinion about it in retrospect?
A. I have not changed my opinion, no.

Supp. at 667 (7/22/98 grand jury testimony of Ms. Currie).
The false-affidavit-accusation. The OIC accused the
President of obstructing justice by suggesting that Ms.
Lewinsky file an affidavit that he knew would be false. Ref. at
173. However, the OIC inexplicably never once quoted Ms.
Lewinsky's repeated, express denials that anyone had told or
encouraged her to lie:

``Neither the Pres[ident] nor Mr. Jordan (or anyone on
their behalf) asked or encouraged Ms. L[ewinsky] to lie.'' App.
at 718 (2/1/98 Proffer).
``I think I told [Tripp] that--you know, at various times
the President and Mr. Jordan had told me I had to lie. That
wasn't true.'' App. at 942 (8/6/98 grand jury testimony of Ms.
Lewinsky).
``I think because of the public nature of how this
investigation has been and what the charges aired, that I would
just like to say that no one ever asked me to lie and I was
never promised a job for my silence.'' App. at 1161 (8/20/98
grand jury testimony of Ms. Lewinsky).
``Neither the President nor Jordan ever told Lewinsky that
she had to lie.'' App. at 1398 (7/27/98 FBI Form 302 Interview
of Ms. Lewinsky).
``Neither the President nor anyone ever directed Lewinsky
to say anything or to lie. . .'' App. at 1400 (7/27/98 FBI Form
302 Interview of Ms. Lewinsky).

The denying-knowledge-of executive-privilege-accusation.
The Referral states that the President deceived the public by
feigning ignorance of the executive privilege litigation.
According to the Referral, while in Africa, the President ``was
asked about the assertion of Executive Privilege, he responded
`You should ask someone who knows.' He also stated, `I haven't
discussed that with the lawyers. I don't know.' ''
To achieve the desired effect, the Referral first misstates
the actual question posed. This is the actual exchange:

Q. Mr. President, we haven't yet had the opportunity to ask
you about your decision to invoke executive privilege, sir. Why
shouldn't the American people see that as an effort to hide
something from them?
The President. Look, that's a question that's being
answered back home by the people who are responsible to do
that. I don't believe I should be discussing that here.
Q. Could you at least tell us why you think the first lady
might be covered by that privilege, why her conversation might
fall under that?
The President. All I know is--I saw an article about it in
the paper today. I haven't discussed it with the lawyers. I
don't know. You should ask someone who does.\116\

\116\ White House Press Release: Remarks by the President in Photo
Opportunity with President Museveni of Uganda (March 21, 1998).

The foregoing are just examples of a technique employed
throughout the Referral, which systematically omits or
mischaracterizes material evidence that would have undermined
its allegations.

D. Mr. Starr's Conduct in the Lewinsky Investigation Has Betrayed a
Bias that Helps Explain the Lack of Neutrality in the Referral

Mr. Starr's conduct in the Lewinsky investigation has
demonstrated a bias against the President. Understanding that
bias is critical to evaluating the Referral--to inform a proper
weighing of the judgments Mr. Starr has made in selecting the
evidence, presenting the evidence, and drawing conclusions from
it.

Mr. Starr actively sought jurisdiction in the Lewinsky matter, despite
his representations to the contrary

After four years of fruitless investigation of the
President and Mrs. Clinton on a variety of topics generically
referred to in the news media as ``Whitewater,'' the Starr
investigation was at a standstill in early 1998 (the
Independent Counsel himself had sought to resign in 1997).
However, a telephone call from Ms. Tripp with allegations of
obstruction and witness tampering in the Paula Jones case
(which turned out to be false) offered Mr. Starr a dramatic way
to vindicate his long, meandering, and costly investigation.
Mr. Starr seized his chance energetically, promising Ms. Tripp
immunity and using her to surreptitiously tape Ms. Lewinsky
even before he made his request for jurisdiction to the
Department of Justice.

Mr. Starr misrepresented how far he was willing to go in his attempts
to obtain evidence against the President

The fervor with which Mr. Starr has pursued President
Clinton is manifest in his denial, under oath, that his agents
sought on January 16th to have Ms. Lewinsky wear a wire to
surreptitiously record the President and Mr. Jordan. See, e.g.,
Transcript of November 19, 1998 Hearing at 286 (testimony of
Mr. Starr). Mr. Starr's vehement denials notwithstanding, the
evidence the OIC submitted with the Referral runs very much
contrary to his version of the facts. Ms. Lewinsky's testimony
plainly contradicts Mr. Starr's account, see App. at 1147
(``they told me that . . . I'd have to place calls or wear a
wire to see--to call Betty and Mr. Jordan and possibly the
President''); id. at 1159 (``I didn't allow him [President
Clinton] to be put on tape that night''), as does statements by
her attorneys, Time (Feb. 16, 1998) at 49, and an interview
memorandum of an FBI agent working for Mr. Starr himself, see
App. at 1379 (1/16/98 FBI 302 Form Interview of Ms. Lewinsky).
It is evident that Mr. Starr wanted Ms. Lewinsky to help set up
the President or those close to him, but denied doing so in an
effort to maintain a semblance of impartiality.

Mr. Starr gave immunity to anyone he thought could help him go after
the President

He granted immunity to one witness who had admitted
engaging in illegal activity over a period of several months
(Ms. Tripp), and another witness who was, as he stated, ``a
felon in the middle of committing another felony'' (Ms.
Lewinsky), Transcript of November 19, 1998 Hearing at 140
(testimony of Mr. Starr), all in an effort to gather
information damaging to the President.

The OIC leaked grand jury information hurtful to the President

The OIC investigation has been characterized by a flagrant
and highly prejudicial (to the President) campaign of grand
jury leaks. Mr. Starr and his office have been ordered by Chief
Judge Johnson to ``show cause'' why they should not be held in
contempt in light of ``serious and repetitive prima facie
violations of Rule 6(e).'' Order (September 25, 1998) at 20.
Leaks aresignificant not simply because they are illegal, but
also because the leaks themselves were often inaccurate and represented
an effort to use misinformation to put pressure on the President. For
example, early leaks discussed the OIC's view that the ``talking
points'' were an effort to obstruct justice coming out of the White
House:

[S]ources in Starr's office have told NBC News that the
information Lewinsky's lawyers were offering was simply not
enough. . . . Sources in Starr's office and close to Linda
Tripp say they believe the instructions (or talking points)
came from the White House. If true, that could help support a
case of obstruction of justice.

NBC Nightly News (Feb. 4, 1998) (emphasis added). The Referral
barely mentions the ``Talking Points'' and makes no allegation
that the President in fact had anything to do with this
document.¹¹⁷
---------------------------------------------------------------------------
\117\ The absence of the ``Talking Points'' from the Referral is
particularly striking given that that document was considered to be
``the backbone of the independent counsel's inquiry into whether anyone
lied or obstructed justice over Ms. Lewinsky's relationship with the
President.'' The New York Times (June 11, 1998). As emphasized by OIC
press spokesman Charles Bakaly:
---------------------------------------------------------------------------
Tim Russert: How important is it that we find out who is
the author of those talking points?
Charles Bakaly: Well, in the grant of jurisdiction that
the special division of the D.C. Circuit Court of Appeals
gave to Judge Starr after the request of the Attorney
General, that was the key mandate to look into, those kinds
of issues of subornation of perjury and obstruction of
justice.
NBC Meet the Press (July 5, 1998) (emphasis added). The document was
also described as ``the only known physical evidence of witness
tampering,'' Chicago Tribune (April 3, 1998), and the ``smoking gun,''
NBC News (Jan. 22, 1998).
The flaws in the Referral and the evidentiary record before
the Committee are not academic. They reveal in concrete terms
the weaknesses of the charges of perjury, obstruction of
justice, and abuse of office that have been presented to the
Committee. These charges are addressed in detail in the
sections that follow.

IV. The President Did Not Commit Perjury

Will Rogers is reported to have said of a contemporary:
``It's not what he doesn't know that bothers me, it's what he
knows for sure that just ain't so.'' Defending what the
President actually said under oath is much easier than
defending phantom allegations based on what some claim the
President said. In analyzing the allegation of perjury, we urge
the Committee and the Congress to focus only on what is
actually in the record, not on popular mythology, conventional
(but incorrect) wisdom, or political spin.
For example, it has variously been asserted that in the
grand jury the President denied that he had a ``sexual
relationship'' with Ms. Lewinsky and that he broadly reaffirmed
his earlier deposition testimony. In fact, in the grand jury,
the President admitted to an ``inappropriate intimate
relationship'' with Ms. Lewinsky that was physical in nature.
In other words, any consideration of charges of perjury
requires a focused look at the actual statements at issue.
Again, we ask the Committee: Please, do not assume the
conventional wisdom. Look, instead, at the actual record.

A. Elements of Perjury

Given the difficulties of testifying under oath with
precision, proof of perjury requires meeting a very high
standard. A vast range of testimony that is imprecise,
unresponsive, vague, and literally truthful, even if it is not
completely forthcoming, simply is not perjury. The law is aware
of human foibles andshortcomings of memory. Dissatisfaction
with the President's answers because they may be narrow, ``hair
splitting,'' or formalistic does not constitute grounds for alleging
perjury.
Perjury requires proof that a defendant, while under oath,
knowingly made a false statement as to material facts.\118\
See, e.g., United States v. Dunnigan, 507 U.S. 87, 94 (1993).
The ``knowingly'' requirement is a high burden: the government
must prove the defendant had a subjective awareness of the
falsity of his statement at the time he made it. See, e.g.,
United States v. Dowdy, 479 F.2d 213, 230 (4th Cir. 1973);
United States v. Markiewicz, 978 F.2d 786, 811 (2d Cir. 1992).
Moreover, it is (of course) clear that a statement must be
false in order to constitute perjury. It is equally beyond
debate that certain types of answers are not capable of being
false and are therefore by definition non-perjurious, no matter
how frustrating they may be to the proceeding in which they are
given: literally truthful answers that imply facts that are not
true, see, e.g., United States v. Bronston, 409 U.S. 352, 358
(1973); truthful answers to questions that are not asked, see,
e.g., United States v. Corr, 543 F.2d 1042, 1049 (2d Cir.
1976); and answers that fail to correct misleading impressions,
see, e.g., United States v. Earp, 812 F.2d 917, 919 (4th Cir.
1987). The Supreme Court has made abundantly clear that it is
not relevant for perjury purposes whether the witness intends
his answer to mislead, or indeed intends a ``pattern'' of
answers to mislead, if the answers are truthful or literally
truthful.
---------------------------------------------------------------------------
\118\ There are two basic federal perjury statutes: 18 U.S.C.
Sec. 1621 and 18 U.S.C. Sec. 1623. Section 1621 applies to all material
statements or information provided under oath ``to a competent
tribunal, officer, or person, in any case in which a law of the United
States authorizes an oath to be administered,'' Section 1623, in
contrast, applies only to testimony given before a grand jury and other
court proceedings. Although there are differences between the two
statutes, the four basic elements of each are substantially the same.
---------------------------------------------------------------------------
In explaining the law of perjury, the Supreme Court and
numerous lower federal courts have set forth four clear
standards. These core principles, discussed below in some
detail, must inform the Committee's analysis here. First, the
mere fact that recollections differ does not mean one party is
committing perjury. Few civil cases arise where testimony about
events is not in conflict--even as to core matters at the heart
of a case. When one party wins a case, the other is not
routinely indicted for perjury. Common sense and the stringent
requirements of perjury law make clear that much more is
needed. Second, a perjury conviction under 18 U.S.C. Sec. 1621
cannot rest solely on the testimony of a single witness and, at
the very least as a matter of practice, no reasonable
prosecutor would bring any kind of perjury case based on the
testimony of one witness without independent corroboration--
especially if the witness is immunized, or is of questionable
credibility. As the Supreme Court has made clear, a perjury
case ``ought not to rest entirely upon `an oath against an
oath.' '' United States v. Weiler, 323 U.S. 606, 608-09 (1945).
Third, answers to questions under oath that are literally true
but unresponsive to the questions asked do not, as a matter of
law, fall under the scope of the federal perjury statute. That
is so even if the witness intends to mislead his questioner by
his answer and even if the answer is false by ``negative
implication.'' And fourth, answers to questions that are
fundamentally ambiguous cannot, as a matter of law, be
perjurious.

B. Contradictory Testimony From Two Witnesses Does Not Indicate That
One Has Committed Perjury

1. It Must Be Proven that a Witness Had the Specific Intent to Lie

The ``knowingly'' element of perjury is not satisfied by
the mere showing that the testimony of two witnesses differs,
or that the testimony of a witness is, in fact, not correct.
Rather, it must be proven that a witness had a subjective
awareness that a statement was false at the time he provided
it. See, e.g., United States v. Dowdy, 479 F.2d 213, 230 (4th
Cir. 1973); United States v. Markiewicz, 978 F.2d 786, 811 (2d
Cir. 1992). This is an extremely high standard. That standard
is not satisfied when incorrect testimony is provided as a
result of confusion, mistake, faulty memory, carelessness,
misunderstanding, mistaken conclusions, unjustified inferences
testified to negligently, or even recklessness. See, e.g.,
Dunnigan, 507 U.S. at 94; United States v. Dean, 55 F.3d 640,
659 (D.C. Cir. 1995); see also Department of Justice Manual,
1997 Supplement, at 9-69.214. As Professor Stephen A. Saltzburg
testified to this Committee on December 1, 1998, ``American
judges and lawyers . . . know that [perjury] is a crime that we
purposely make difficult to prove. We make it difficult to
prove because we know that putting any person under oath and
forcing that person to answer `under penalty of perjury' is a
stressful experience. . . . Honest mistakes are made, memories
genuinely fail, nervous witnesses say one thing and in their
minds hear themselves saying something different, and deceit in
answers to questions about relatively trivialmatters that could
not affect the outcome of a proceeding but that intrude deeply into the
most private areas of a witness's life causes little harm.'' Perjury
Hearing of December 1, 1998 (Statement of Professor Stephen A.
Saltzburg at 1). Indeed, Mr. Starr has recognized that people who have
experienced the same event--even the same significant event--may emerge
with conflicting recollections, and that that does not necessarily mean
one of them is committing perjury:

Mr. Lowell. . . . do you not think it would have been a
less distorted picture, to use your words, to know that when
[Ms. Lewinsky] left the room, she was followed by agents, and
that she swore under an oath that she, quote, ``felt threatened
that when she left, she would be arrested,'' end quote? Don't
you think that completes the picture a little bit?
Mr. Starr. I think her perception was incorrect.

Transcript of November 19, 1998 Hearing at 139 (emphasis
added).

Mr. Starr . . . we talked at a high level of generality, as
I understand it, not in a person-specific way, with respect to
what a cooperating witness would do.
Representative Delahunt. You realize that Ms. Lewinsky's
testimony contradicts you.
Mr. Starr. I am aware that there may be other perceptions,
but that is what we, in fact, asked.

Id. at 288 (emphasis added). The OIC's press spokesman Charles
Bakaly, appearing on a television program immediately after Mr.
Starr's testimony, attempted to explain this conflict between
Ms. Lewinsky's sworn testimony and Mr. Starr's sworn testimony
this way: ``Well, you know, again, people have different
versions of things.'' ABC Nightline, November 19, 1998
(emphasis added). The law, in short, gives ample breathing
space to conflicting testimony or recollection before leaping
to allegations of perjury.

2. A Perjury Case Must Not Be Based Solely Upon the Testimony of a
Single Witness

In a perjury prosecution under 18 U.S.C. Sec. 1621, the
falsity of a statement alleged to be perjurious cannot be
established by the testimony of just one witness. This ancient
common law rule, referred to as the ``two-witness rule,'' has
survived repeated challenges to its legitimacy and has been
judicially recognized as the standard of proof for perjury
prosecutions brought under Sec. 1621. See, e.g., Weiler v.
United States, 323 U.S. 606, 608-610 (1945) (discussing the
history and policy rationales of the two-witness rule); United
States v. Chaplin, 25 F.3d 1373, 1377-78 (7th Cir. 1994) (two-
witness rule applies to perjury prosecutions). The Department
of Justice recognizes the applicability of the two-witness rule
to perjury prosecutions brought under Sec. 1621. See Department
of Justice Manual, 1997 Supplement, at 9-69.265.
The crux of the two-witness rule is that ``the falsity of a
statement alleged to be perjurious must be established either
by the testimony of two independent witnesses, or by one
witness and independent corroborating evidence which is
inconsistent with the innocence of the accused.'' Department of
Justice Manual, 1997 Supplement, at 9-69.265 (emphasis in
original). The second witness must give testimony independent
of the first which, if believed, would ``prove that what the
accused said under oath was false.'' Id.; United States v.
Maultasch, 596 F.2d 19, 25 (2d Cir. 1979). Alternatively, the
independent corroborating evidence must be inconsistent with
the innocence of the accused and ``of a quality to assure that
a guilty verdict is solidly founded.'' Department of Justice
Manual, 1997 Supplement, at 9-69.265; United States v. Forrest,
639 F.2d 1224, 1226 (5th Cir. 1981). It is therefore clear that
a perjury conviction under Sec. 1621 cannot lie where there is
no independent second witness who corroborates the first, or
where there is no independent evidence that convincingly
contradicts the testimony of the accused.
Section 1623 does not literally incorporate the ``two-
witness rule,'' but it is nonetheless clear from the case law
that perjury prosecutions under this statute require a high
degree of proof, and that prosecutors should not, as a matter
of reason and practicality, even try to bring perjury
prosecutions based solely on the testimony of a single witness.
In Weiler v. United States, 323 U.S. 606, 608-09 (1945), the
Supreme Court observed that ``[t]he special rule which bars
conviction for perjury solely upon the evidence of a single
witness is deeply rooted in past centuries.'' The Court further
observed that ``equally honest witnesses may well have
differing recollections of the same event,'' and hence ``a
conviction for perjury ought not to rest entirely upon ``an
oath against an oath.'' '' Id. at 609 (emphasis added). Indeed,
the common law courts in seventeenth-century England required
the testimony of two witnesses as a precondition to a perjury
conviction, when the testimony of a single witness was in
almost all other cases sufficient. See Chaplin, 25 F.3d at 1377
(citing Wigmore on Evidence Sec. 2040(a) at 359-60 (Chadbourne
rev. 1978)). The common law courts actually adopted the two-
witness rule from the Court of Star Chamber, which had followed
the practice of the ecclesiastical courts of requiring two
witnesses in perjury cases. Id. The English rationale for the
rule is as resonant today as it was in the seventeenth century:
``[I]n all other criminalcases the accused could not testify,
and thus one oath for the prosecution was in any case something as
against nothing; but on a charge of perjury the accused's oath was
always in effect evidence and thus, if but one witness was offered,
there would be merely . . . an oath against an oath.'' Id. And, as
noted above, no perjury case should rest merely upon ``an oath against
an oath.'' As a practical matter, the less reliable the single witness,
the more critically the independent corroboration is required.

C. ``Literal Truth'' and Non-Responsive Answers Do Not Constitute
Perjury

A third guiding principle is that literal truth, no matter
how frustrating it may be, is not perjury. In United States v.
Bronston, 409 U.S. 352 (1973), the leading case on the law of
perjury, the Supreme Court addressed ``whether a witness may be
convicted of perjury for an answer, under oath, that is
literally true but not responsive to the question asked and
arguably misleading by negative implication.'' Id. at 352. The
Court directly answered the question ``no.'' It made absolutely
clear that a literally truthful answer cannot constitute
perjury, no matter how much the witness may have intended by
his answer to mislead.
Bronston involved testimony taken under oath at a
bankruptcy hearing. At the hearing, the sole owner of a
bankrupt corporation was asked questions about the existence
and location of both his personal assets and the assets of his
corporation. The owner testified as follows:

Q: Do you have any bank accounts in Swiss banks, Mr.
Bronston?
A: No, sir.
Q: Have you ever?
A: The company had an account there for about six months in
Zurich.
Q: Have you any nominees who have bank accounts in Swiss
banks?
A: No, sir.
Q: Have you ever?
A: No, sir.

Id. at 354. The government later proved that Bronston did
in fact have a personal Swiss bank account that was terminated
prior to his testimony. The government prosecuted Bronston ``on
the theory that in order to mislead his questioner, [Bronston]
answered the second question with literal truthfulness but
unresponsively addressed his answer to the company's assets and
not to his own --thereby implying that he had no personal Swiss
bank account at the relevant time.'' Id. at 355.
The Supreme Court unanimously rejected this theory of
perjury. It assumed for purposes of its holding that the
questions referred to Bronston's personal bank accounts and not
his company's assets. Moreover, the Court stated, Bronston's
``answer to the crucial question was not responsive,'' and
indeed ``an implication in the second answer to the second
question [is] that there was never a personal bank account.''
Id. at 358. The Court went so far as to note that Bronston's
answers ``were not guileless but were shrewdly calculated to
evade.'' Id. at 361. However, the Court emphatically held that
implications alone do not rise to the level of perjury, and
that Bronston therefore could not have committed perjury.
``[W]e are not dealing with casual conversation and the statute
does not make it a criminal act for a witness to willfully
state any material matter that implies any material matter that
he does not believe to be true.'' Id. at 357-58. The Court
tookpains to point out the irrelevance of the witness's intent: ``A
jury should not be permitted to engage in conjecture whether an
unresponsive answer, true and complete on its face, was intended to
mislead or divert the examiner.'' Id. at 359.
The Supreme Court in Bronston provided several rationales
for its holding that literally true, non-responsive answers are
by definition non-perjurious, regardless of their implications.
First, the Court noted that the burden always rests squarely on
the interrogator to ask precise questions, and that a witness
is under no obligation to assist the interrogator in that task.
The Court ``perceive[d] no reason why Congress would intend the
drastic sanction of a perjury prosecution to cure a testimonial
mishap that could readily have been reached with a single
additional question by counsel alert--as every counsel ought to
be--to the incongruity of petitioner's unresponsive answer.''
Id. at 359. Moreover, the Court noted that because of the
adversarial process, perjury is an extraordinary and unusual
sanction, since ``a prosecution for perjury is not the sole, or
even the primary safeguard against errant testimony.'' Id. at
360. The perjury statute cannot be invoked ``simply because a
wily witness succeeds in derailing the questioner--so long as
the witness speaks the literal truth.'' Id.
Bronston is just one of scores of cases across the federal
circuits that make clear that the definition of perjury must be
carefully limited because perjury prosecutions are dangerous to
the public interest since they ``discourage witnesses from
appearing or testifying.'' Id. at 359.¹¹⁹ For
instance, in United States v. Earp, 812 F.2d 917 (4th Cir.
1987), the defendant, a member of the Ku Klux Klan, had stood
guard during the attempted burning of a cross on the lawn of an
interracial couple, and further evidence demonstrated that he
had personally engaged in other attempts to burn crosses.
During questioning before a grand jury, however, he denied ever
having burned crosses on anyone's lawn. He was convicted of
perjury, but the United States Court of Appeals for the Fourth
Circuit reversed his conviction, because ``like the witness in
Bronston, [the defendant's] answers were literally true
although his second answer was unresponsive.'' Id. at 919. That
is, the defendant had not actually succeeded in his cross-
burning attempts, so it was literally true that he had never
burned crosses on anyone's lawn. The court noted that ``while
he no doubt knew full well that he had on that occasion tried
to burn a cross, he was not specifically asked either about any
attempted cross burnings.'' Id. Every federal court of appeals
in the nation concurs in this reading of
Bronston.¹²⁰
---------------------------------------------------------------------------
\119\ While Bronston involved a perjury conviction under the
general perjury statute, 18 U.S.C. Sec. 1621, lower federal courts have
uniformly relied on it in reviewing perjury convictions under
Sec. 123(a), which makes it unlawful to make any false material
declaration ``in any proceeding before or ancillary to any court or
grand jury of the United States,'' See e.g., United States v. Porter,
994 F.2d 470, 474n.7 (8th Cir. 1993), United States v. Reverson
Martinez, 836 F.2d 684, 689 (1st Cir. 1988), United States v. Lighte,
782 F.2d 367, 372 (2d Cir.1985).
\120\ See also United States v. Finucan, 708 F.2d 838, 847 (1st
Cir. 1983) (intent to mislead is insufficient to support conviction for
perjury); United States v. Lighte, 782 F.2d 367, 374 (2d Cir. 1986)
(literally true answers by definition non-perjurious even if answers
were designed to mislead); United States v. Tonelli, 577 F.2d 194, 198
(3d Cir. 1978) (perjury statute is not to be invoked because a ``wily
witness succeeds in derailing the questioner''); United States v.
Abroms, 947 F.2d 1241, (5th Cir. 1991) (unambiguous and literally true
answer is not perjury, even if there was intent to mislead); United
States v. Eddy, 737 F.2d 564, (6th Cir. 1984) (``An `intent to mislead'
or `perjury by implication' is insufficient to support a perjury
conviction,''), United States v. Williams, 536 F.2d 1202, 1205 (7th Cir
1976) (literally true statement cannot form basis of perjury conviction
even if there was intent to mislead); United States v. Robbins, 997
F.2d 390, 394 (8th Cir. 1993), United States v. Boone, 951 F.2d 1526,
1536 (9th Cir. 1991) (literally true statement is not actionable);
United States v. Larranaga, 787 F.2d 489, 497 (10th Cir. 1986) (no
perjury where answer literally truthful and prosecutor's questioning
imprecise); United States v. Shotts, 145 F.3d 1289, 1297 (11th Cir.
1998) (``An answer to a question may be non-responsive, or may be
subject to conflicting interpretations, or may even be false by
implication. Nevertheless, if the answer is literally true, it is not
perjury.''); United States v. Dean, 55 F.3d 640, 662 (D.C. Cir. 1995)
(perjury charge cannot be based upon evasive answers or even misleading
answers so long as such answers are literally true).
---------------------------------------------------------------------------

D. Fundamentally Ambiguous Questions Cannot Produce Perjurious Answers

A fourth guiding principle is that ambiguous questions
cannot produce perjurious answers. When a question or a line of
questioning is ``fundamentally ambiguous,'' the answers to the
questions posed are insufficient as a matter of law to support
a perjury conviction.'' See, e.g., United States v. Finucan,
708 F.2d 838, 848 (1st Cir. 1983); United States v. Lighte, 782
F.2d 367, 375 (2d Cir. 1986); United States v. Tonelli, 577
F.2d 194, 199 (3d Cir. 1978); United States v. Bell, 623 F.2d
1132, 1337 (5th Cir. 1980); United States v. Wall, 371 F.2d
398, 400 (6th Cir. 1967); United States v. Williams, 552 F.2d
226, 229 (8th Cir. 1977). In other words, when there is more
than one way of understanding the meaning of a question, and
the witness has answered truthfully as to his understanding, he
cannot commit perjury. Many courts have emphasized that
``defendants may not be assumed into thepenitentiary'' by
``sustain[ing] a perjury charge based on [an] ambiguous line of
questioning.'' Tonelli, 577 F.2d at 199.
United States v. Lattimore, 127 F. Supp. 405 (D.D.C. 1955),
is the key case dealing with ambiguous questions in the perjury
context. In Lattimore, a witness was questioned before the
Senate Internal Security Subcommittee about his ties to the
Communist party. He was asked whether he was a ``follower of
the Communist line,'' and whether he had been a ``promoter of
Communist interests.'' He answered ``no'' to both questions,
and was subsequently indicted for committing perjury. The
United States District Court for the District of Columbia found
that the witness could not be indicted on ``charges so formless
and obscure as those before the Court.'' Id. at 413. The court
held that `` `follower of the Communist line' is not a phrase
with a meaning about which men of ordinary intellect could
agree, nor one which could be used with mutual understanding by
a questioner and answerer unless it were defined at the time it
were sought and offered as testimony.'' Id. at 110. As the
court explained further:

[The phrase] has no universally accepted definition. The
Government has defined it in one way and seeks to impute its
definition to the defendant. Defendant has declined to adopt
it, offering a definition of his own. It would not necessitate
great ingenuity to think up definitions differing from those
offered either by the Government or defendant. By groundless
surmise only could the jury determine which definition
defendant had in mind.

Id. at 109.
Many other cases stand for the proposition that a witness
cannot commit perjury by answering an inherently ambiguous
question. For instance, in United States v. Wall, 371 F.2d 398
(6th Cir. 1967), a witness was asked whether she had ``been on
trips with Mr. X,'' and she answered ``no.'' The government
could prove that in fact the witness, who was from Oklahoma
City, had been in Florida with ``Mr. X.'' However, the
government could not prove that the witness had traveled from
Oklahoma City to Florida with ``Mr. X.'' The court noted (and
the government conceded) that the phrase ``been on trips''
could mean at least two different things: ``That a person
accompanied somebody else travelling with, or it can mean that
they were there at a particular place with a person.'' The
court then stated that ``[t]he trouble with this case is that
the question upon which the perjury charge was based was
inarticulately phrased, and, as admitted by the prosecution,
was susceptible of two different meanings. In our opinion, no
charge of perjury can be based upon an answer to such a
question.'' Id. at 399-400.
Similarly, in United States v. Tonelli, 577 F.2d 194 (3d
Cir. 1978), the defendant answered negatively a question
whether he had ``handled any pension fund checks.'' The
government then proved that the defendant had actually handled
the transmission of pension fund checks by arranging for others
to send, mail, or deliver the checks. The government charged
the defendant with perjury. The court held that perjury could
not result from the government's ambiguous question. The court
explained:

It is clear that the defendant interpreted the prosecutor's
questions about `handling' to mean `touching' . . . To sustain
a perjury charge based on the ambiguous line of questioning
here would require us to assume [defendant] interpreted
`handle' to include more than `touching.' The record will not
allow us to do so and as the Court of Appeals for the Fifth
Circuit has observed `[e]specially in perjury cases defendants
may not be assumed into the penitentiary.'

Id. at 199-200.
United States v. Bell, 623 F.2d 1132, 1137 (5th Cir. 1980),
is yet another example of this doctrine. In Bell, a witness was
asked before a grand jury, ``Whether personal or business do
you have records that are asked for in the subpoena,'' and the
witness answered, ``No, sir, I do not.'' It was later
established that the witness's files clearly contained relevant
records. Nonetheless, the court held that the question was
ambiguous, and therefore incapable of yielding a perjurious
answer. The witness interpreted the question to ask whether he
had brought the records with him that day, and not whether he
had any records anywhere else in the world.¹²¹
---------------------------------------------------------------------------
\121\ Many other cases as well hold that ambiguous questions cannot
produce perjurious answers. See, e.g., Lighte, 782 F.2d at 376
(questions fundamentally ambiguous because of imprecise use of ``you,''
``that,'' and ``again''); United States v. Farmer, 137 F.3d 1265, 1270
(10th Cir. 1998) (question ``Have you talked to Mr. McMahon, the
defendant about your testimony here today?'' ambiguous because phrase
``here today'' could refer to ``talked'' or to ``testimony'';
conviction for perjury could not result from the question); United
States v. Ryan, 828 F.2d 1010, 1015-17 (3d Cir. 1987) (loan application
question asking for ``Previous Address (last 5 years)'' fundamentally
ambiguous because unclear whether ``address'' refers to residence or
mailing address, and ``previous'' could mean any previous address, the
most recent previous address, or all previous addresses; based on
ambiguity, perjury cannot result from answer to question); United
States v. Markiewicz, 978 F.2d 786, 809 (2d Cir. 1992) (question
``[D]id you receive any money that had been in bingo hall'' ambiguous,
and incapable of producing perjurious answer, when it did not
differentiate between witness's personal and business capacities). See
also United States v. Manapat, 928 F.2d 1097, 1099 (11th Cir. 1991);
United States v. Eddy, 737 F.2d 564, 565-71 (6th Cir. 1984); United
States v. Hilliard, 31 F.3d 1509 (10th Cir. 1994).
---------------------------------------------------------------------------

E. It Is Expected and Proper for a Witness to be Cautious When Under
Oath

Every lawyer knows that in preparing a witness for a
deposition one important task is to counsel the witness to be
cautious in answering questions under oath, not to guess or
give an answer as to which the witness is not sure, and not to
volunteer information to opposing counsel that is not
specifically sought by the question. For example, one legal
text advises, ``[C]ounsel will want to drill the deponent to
answer questions as she would at the deposition: short and to
the point, with nothing volunteered.'' ¹²² Lawyers
are advised they should instruct a client: ``If you do not know
or do not remember, say that. You do not get extra points by
guessing. If you are pretty sure of the answer but not 100%
sure, say that. . . . You do not get extra points for giving
perfectly clear and complete answers. Normally if there is some
ambiguity in your answer, that will be a problem for the
opposing party, not for you.'' Id. at 222. As Mr. Starr
testified to the Judiciary Committee at one point, ``I have to
be careful of what I say, because of not having universal
facts.'' Transcript of November 19, 1998 Hearing at 386. And
Mr. Starr declined repeatedly to answer questions under oath,
stating on numerous occasions that he would have to ``search
his recollection,'' and qualifying many of the answers he did
give with such phrases as ``to the best of my recollection''
and ``if my recollection serves me.'' See, e.g., Transcript of
November 19, 1998 Hearing at 107 (``But the letter, if my
recollection serves me, goes to the circumstances with respect
to the events of the evening of January 16th.'') (emphasis
added); Id. at 122 (``. . . But they were only conversations,
and it never ripened--I'm talking about with Mr. Davis--and it
never ripened into an arrangement, an agreement, to the best of
my recollection, to do anything because of the circumstances
that then occurred.'') (emphasis added); Id. at 247 (``I'm
unable to answer that question without--you know, I will have
to approach--you're saying any information relating to any--and
I would have to search my recollection. I've prepared today for
questions that go to this referral. So I will have to search my
recollection.'') (emphasis added); Id. at 343 (``With respect
to the travel office I would frankly have to search my
recollection to see exactly where we were and when we were
there.'') (emphasis added); Id. at 358 (``We discussed with Sam
[Dash] a variety of issues. I would have to search my
recollection with respect to any specific observations that Sam
gave us with respect to this.'') (emphasis added). This is what
a well-prepared witness does when testifying under oath. No
amount of pressure should force a witness to assert recall
where there is none, or to answer a question not asked. A
failure to do so is neither remarkable nor criminal.
---------------------------------------------------------------------------
\122\ Dennis R. Suplee and Diana S. Donaldson, The Deposition
Handbook at 161 (2d ed.).
---------------------------------------------------------------------------

F. Specific Claims of Perjury

With these principles in mind, it is apparent that there is
no basis for a charge of perjury here, either with respect to
the President's Jones deposition or his subsequent grand jury
testimony.

1. Civil Deposition of January 17, 1998

a. Nature of Relationship
The primary allegation of perjury arising from President
Clinton's deposition testimony of January 17, 1998, appears to
be that he lied under oath about the nature of his relationship
with Ms. Lewinsky when he denied in that civil case that he had
a ``sexual affair,'' a ``sexual relationship,'' or ``sexual
relations'' with Ms. Lewinsky. See Ref. at 131; Schippers
Presentation at 25. In the deposition, President Clinton
asserted: (1) that he did not have a ``sexual affair'' with Ms.
Lewinsky within the undefined meaning of that term, Dep. at 78;
(2) that Ms. Lewinsky was correct in her statement that she did
not have a ``sexual relationship'' with the President within
the undefined meaning of that term, id. at 204; and (3) that he
did not have ``sexual relations'' with Ms. Lewinsky as that
term was defined by the Jones lawyers and limited by Judge
Wright, ibid. The allegation that President Clinton perjured
himself with respect to any of these deposition statements is
without merit.
First, it is by now more than clear that the undefined
terms ``sexual affair,'' ``sexual relations'' and ``sexual
relationship'' are at best ambiguous, meaning different things
to different people, and that President Clinton's belief that
the terms refer to sexual intercourse is supported by courts,
commentators, and numerous dictionaries--a point ignored in the
Referral and Mr. Schippers' presentation to the Committee
despite the obvious problem with premising a perjury claim on
such ambiguous terms. As one court has stated, ``[i]n common
parlance the terms ``sexual intercourse'' and ``sexual
relations'' are often usedinterchangeably.'' J.Y. v. D.A., 381
N.E.2d 1270, 1273 (Ind. App. 1978). Dictionary definitions make the
same point. For example,
Webster's Third New International Dictionary (1st
ed. 1981) at 2082, defines ``sexual relations'' as ``coitus;''
Random House Webster's College Dictionary (1st ed.
1996) at 1229, defines ``sexual relations'' as ``sexual
intercourse; coitus;''
Merriam-Webster's Collegiate Dictionary (10th ed.
1997) at 1074, defines ``sexual relations'' as ``coitus;''
Black's Law Dictionary (Abridged 6th ed. 1991) at
560, defines ``intercourse'' as ``sexual relations;'' and
Random House Compact Unabridged Dictionary (2d ed.
1996) at 1755, defines ``sexual relations'' as ``sexual
intercourse; coitus.''
The President's understanding of these terms, which is
shared even by several common dictionaries, could not possibly
support a prosecution for perjury. How would a prosecutor prove
these dictionaries ``wrong?'' \123\
---------------------------------------------------------------------------
\123\ For the same reason as that set forth herein, the allegation
by Mr. Schippers that the President's sworn answers to
interrogatories--in which he denied a ``sexual relatiosnip''--were
false is without merit.
---------------------------------------------------------------------------
Irrespective of the view that ``sexual relations'' means
intercourse, the evidence is indisputable that this is indeed
what President Clinton believed. Perjury requires more than
that a third party believes President Clinton was wrong about
the meaning of these terms (a point on which the allegation
plainly founders); it also requires proof that President
Clinton knew he was wrong and intentionally lied about it. But
the evidence demonstrates that the President honestly held that
belief well before the Jones deposition. The genuineness of
President Clinton's beliefs on this subject is even supported
by the OIC's account of Ms. Lewinsky's testimony during an
interview with the FBI:

[A]fter having a relationship with him, Lewinsky deduced
that the President, in his mind, apparently does not consider
oral sex to be sex. Sex to him must mean intercourse.

App. at 1558 (8/19/98 FBI 302 Form Interview of Ms. Lewinsky).
And finally, Ms. Lewinsky herself took the position that
her contact with the President did not constitute ``sex'' and
reaffirmed that position even after she had received immunity
and began cooperating with the OIC. For example, in one of the
conversations surreptitiously taped by Ms. Tripp, Ms. Lewinsky
explained to Ms. Tripp that she ``didn't have sex'' with the
President because ``[h]aving sex is having intercourse.'' Supp.
at 2664; see also Supp. at 1066 (grand jury testimony of Neysa
Erbland stating that Ms. Lewinsky had said that the President
and she ``didn't have sex''). Ms. Lewinsky reaffirmed this
position even after receiving immunity, stating in an FBI
interview that ``her use of the term `having sex' means having
intercourse. . . .'' App. at 1558 (8/19/98 FBI 302 Form
Interview of Ms. Lewinsky). Likewise, in her original proffer
to the OIC, she wrote, ``Ms. L[ewinsky] was comfortable signing
the affidavit with regard to the ``sexual relationship''
because she could justify to herself that she and the
Pres[ident] did not have sexual intercourse.'' App. at 718 (2/
1/98 Proffer). In short, the evidence supports only the
conclusion that the President's responses with respect to these
undefined terms were truthful and at worst good faith responses
to indisputably ambiguous questions. \124\ The Referral and the
Committee have adduced no evidence to the contrary.
---------------------------------------------------------------------------
\124\ For the sake of clarity, it should be understood that the
President's affirmation of paragraph eight of Ms. Lewinsky's affidavit,
Dep. at 204, was made many hours after his counsel, Mr. Bennett,
characterized the affidavit as ``saying there is absolutely no sex of
any kind.'' Dep. at 54.
---------------------------------------------------------------------------
Second, the President's statement in his deposition that he
had not had ``sexual relations'' with Ms. Lewinsky as that term
was defined by the Jones lawyers and substantially narrowed by
Judge Wright also is correct. Neither the OIC in its Referral
nor Mr. Schippers in his presentation to the Committee laid out
the sequence of events that led to the limited definition of
``sexual relations'' which was ultimately presented to
President Clinton and which he was required to follow. At the
deposition, the Jones attorneys presented a broad, three-part
definition of the term ``sexual relations'' to be used by them
in the questioning. Judge Wright ruled that two parts of the
definition were ``too broad'' and eliminated them. Dep. at 22.
The President, therefore, was presented with the following
definition (as he understood it to have been amended by the
Court): \125\
---------------------------------------------------------------------------
\125\ Counsel for Ms. Jones stated, ``Mr. President, in light of
the Court's ruling, you may consider subparts two and three of the
Deposition Exhibit 1 [the definition of sexual relations] to be
stricken, and so when in my questions I use the term `sexual
relations,' sir, I'm talking only about part one in the definition of
the body.'' Dep. at 23 (emphasis added).
---------------------------------------------------------------------------

Definition of Sexual Relations

For the purposes of this deposition, a person engages in
``sexual relations'' when the person knowingly engages in or
causes--
(1) contact with the genitalia, anus, groin, breast,
inner thigh, or buttocks of any person with an intent
to arouse or gratify the sexual desire of any person;
(2) contact between any part of the person's body or
an object and the genitals and anus of another person;
or
(3) contact between the genitals or anus of the
person and any part of another person's body.
``Contact'' means intentional touching, either
directly or through clothing.
This definition substantially narrowed the meaning of the
term as it was used by the Jones lawyers. It rendered an overly
broad definition bizarrely narrow and contorted. But despite
that narrowing, and the resulting peculiarity of what was and
was not covered, the Jones lawyers chose to stick with it
rather than ask direct questions, see Dep. at 23, as they were
invited to do by the President's counsel. Dep. at 25. When they
asked the President about ``sexual relations'' with Ms.
Lewinsky in the deposition, they did so with explicit reference
to this definition. See Dep. at 78 (``And so the record is
completely clear, have you ever had sexual relations with
Monica Lewinsky, as that term is defined in Deposition Exhibit
1, as modified by the Court?'') (emphasis added).
It is plain that this narrow definition did not include
certain physical acts--an interpretation shared by many
commentators, journalists, and others. See, e.g., Perjury
Hearing of December 1, 1998 (Statement of Professor Stephen A.
Saltzburg at 2) (``That definition defined certain forms of
sexual contact as sexual relations but, for reasons known only
to the Jones lawyers, limited the definition to contact with
any person for the purpose of gratification.''); MSNBC
Internight, August 12, 1998 (Cynthia Alksne) (``[W]hen the
definition finally was put before the president, it did not
include the receipt of oral sex''); ``DeLay Urges a Wait For
Starr's Report,'' The Washington Times (August 31, 1998) (``The
definition of sexual relations, used by lawyers for Paula Jones
when they questioned the president, was loosely worded and may
not have included oral sex''); ``Legally Accurate,'' The
National Law Journal (August 31, 1998) (``Given the narrowness
of the court-approved definition in [the Jones] case, Mr.
Clinton indeed may not have perjured himself back then if, say,
he received oral sex but did not reciprocate sexually''). This
interpretation may be confusing to some. It may be counter-
intuitive. It may lead to bizarre answers. But it certainly was
not objectively wrong. And it was not the President's doing.
Moreover, the Jones lawyers had the opportunity to ask
questions which would have elicited details about the
President's relationship with Ms. Lewinsky but chose not to
develop the issue. As an alternative to relying on the
definition provided by the Jones lawyers, the President's
counsel invited the Jones lawyers to ``ask the President what
he did, [and] what he didn't do. . . .'' Dep. at 21. The Jones
lawyers ignored the invitation and stuck with their definition
even as it was limited. As the Supreme Court has explained,
``[i]f a witness evades, it is the lawyer's responsibility to
recognize the evasion and to bring the witness back to the
mark, to flush out the whole truth with the tools of adversary
examination.'' Bronston v. United States, 409 U.S. 352, 358-59
(1973).¹²⁶
---------------------------------------------------------------------------
\126\ A specific allegation is made with respect to a difference
between the President's and Ms. Lewinsky's recollection of the precise
nature of the physical contract in their admittedly inappropriate
intimate relationship. That issue is addressed below in the context of
the allegation that the President committed perjury in his August 17
grand jury testimony. See Section VI.F.2 infra.
---------------------------------------------------------------------------
b. Being Alone with Ms. Lewinsky
President Clinton's deposition testimony regarding whether
he was alone with Ms. Lewinsky at various times and places does
not constitute perjury. The fundamental flaw in the charge is
that it is based on a mischaracterization of the President's
testimony--the President did not testify that he was never
alone with Ms. Lewinsky.
Both the Starr Referral and Mr. Schippers' presentation to
the Committee start from the incorrect premise that the
President testified that he was never alone with Ms. Lewinsky.
See Ref. at 154 (``[T]he President lied when he said ``I don't
recall'' in response to the question whether he had ever been
alone with Ms. Lewinsky.''); \127\ Schippers Presentation at 29
(``[T]he President may have given false testimony under oath .
. . regarding his statement that he could not recall being
alone with Monica Lewinsky.''). In fact, the President did not
deny that he had been alone with Ms. Lewinsky. For example, the
President answered ``yes'' to the question ``your testimony is
that it was possible, then, that you were alone with her . . .
?''. Dep. at 53.\128\
---------------------------------------------------------------------------
\127\ The Referral's mischaracterization of the President's
testimony appears to come from Mr. Starr's transformation of a question
about being alone with Ms. Lewinsky in the Oval Office, Dep. at 52 into
being alone more generally.
\128\ In his grand jury testimony the President stated that he had
been alone with Ms. Lewinsky. See, e.g., App. at 481. The term
``alone'' is vague unless a particular geographic space is identified.
For example, Ms. Currie testified that ``she considers the term alone
to mean that no one else was in the entire Oval Office area,'' Supp. at
534-35 (1/24/98 FBI Form 302 Interview of Ms. Currie; see also Supp. at
665 (7/22/98 grand jury testimony of Ms. Currie) (``I interpret being
`alone' as alone . . . [W]e were around, so they were never alone.'').
Ms. Currie also acknowledged that the President and Ms. Lewinsky were
``alone'' on certain occasions if alone meant that no one else was in
the same room. Supp. at 552-53 (1/27/98 grand jury testimony of Ms.
Currie).
---------------------------------------------------------------------------
Whatever confusion or incompleteness there may have been in
the President's testimony about when and where he was alone
with Ms. Lewinsky cannot be charged against the President. The
Jones lawyers failed to follow up on incomplete or unresponsive
answers. They were free to ask specific follow-up questions
about the frequency or locale of any physical contact, but they
did not do so. This failure cannot be used to support a charge
of perjury. Bronston, 409 U.S. at 360.
c. ``Minimizing'' Gifts that Were Exchanged
A separate perjury charge is based on the assertion that in
his deposition the President ``minimized'' the number of gifts
he exchanged with Ms. Lewinsky. Ref. at 151; Schippers
Presentation at 29. Again, the evidence simply does not support
this allegation. To start with, even the charge of
``minimizing'' the number of gifts concedes the only
potentially material issue--the President acknowledged that he
did exchange gifts with Ms. Lewinsky. There is not much that is
safe from a perjury prosecution if mere ``minimization''
qualifies for the offense.
As weak as the ``minimization'' charge is, it is also
wrong. A fair reading of the President's deposition testimony
makes clear that, when asked about particular gifts, the
President honestly stated his recollection of the particular
item. See Dep. at 75 (``Q. Do you remember giving her an item
that had been purchased from The Black Dog store at Martha's
Vineyard? A. I do remember that . . .''). Moreover, when the
President could not recall the precise items that he had
exchanged, he asked the Jones lawyers to tell him so that he
could confirm or deny as the facts required.\129\ See ibid.
---------------------------------------------------------------------------
\129\ The videotape of the President's January 17 deposition makes
clear that the cold transcript can be somewhat misleading. When the
President is asked, ``Well, have you ever given any gifts to Monica
Lewinsky?'', the transcript records his response as, ``I don't recall.
Do you know what they were?'' Dep. at 75. The videotape reveals the
President's response, however, was run-on sentence, as though the
punctuation were omitted, for the real communicative gist of his quoted
response (as it appears on the videotape) was, ``Yes--I know there were
some--please help remind me.'' In succeeding questions, the President
states that he ``could have'' given her a hat pin and a book, does not
believe he gave her a ``gold broach,'' and does recall giving her some
Black Dog memorabilia. Dep. at 75-76.
---------------------------------------------------------------------------
In essence, this allegation is yet another complaint that
President Clinton was not more forthcoming (or that he did not
have a more precise memory on these issues), which is plainly
not a ground for alleging perjury.
d. Conversations with Ms. Lewinsky About Her Involvement in
the Jones Case
Both the Referral and Mr. Schippers' presentation allege
perjury in the Jones deposition with respect to President
Clinton's conversations with Ms. Lewinsky about her involvement
in the Jones case. See Ref. at 160; Schippers Presentation at
32. Specifically, it is alleged that the President committed
perjury in his deposition when he failed to (1) acknowledge
that he knew that Ms. Lewinsky had been subpoenaed at the time
he had last seen and spoken to her; and (2) acknowledge that he
had spoken to Ms. Lewinsky about the possibility that shewould
testify in the Jones case. Ibid. Once again, the charge of false
testimony is based on a wholly inaccurate reading of the President's
deposition. The President acknowledged that he knew that Ms. Lewinsky
had been subpoenaed, that he was not sure when was the last time he had
seen and spoken with her (but that it was sometime around Christmas),
and that he had discussed with her the possibility that she would have
to testify.
(1) The allegation that the President denied knowing that
Ms. Lewinsky had been subpoenaed the last time he spoke to her
illustrates the problem of taking selected pieces of testimony
out of context. Messrs. Starr and Schippers isolate the
following exchange in the deposition:

Q. Did she tell you she had been served with a subpoena in
this case?
A. No. I don't know if she had been.

Dep. at 68. From this incomplete excerpt, they claim that the
President perjured himself by denying that he knew that Ms.
Lewinsky had been subpoenaed the last time he had spoken with
her. See Ref. at 163.
The charge is unsupported by the evidence. First, the
testimony immediately following this exchange demonstrates both
that the President was not hiding that he knew Ms. Lewinsky had
been subpoenaed by the time of the deposition and that the
Jones lawyers were well aware that this was the President's
position:

Q. Did anyone other than your attorneys ever tell you that
Monica Lewinsky had been served with a subpoena in this case?
A. I don't think so.

* * * * * * *

A. Bruce Lindsey, I think Bruce Lindsey told me that she
was, I think maybe that's the first person [who] told me she
was. I want to be as accurate as I can.
Q. Did you talk to Mr. Lindsey about what action, if any,
should be taken as a result of her being served with a
subpoena?
A. No.

Dep. at 68-70. It is evident from the complete exchange on this
subject that the President was not generally denying that he
knew that Ms. Lewinsky had been subpoenaed in the Jones
case.\130\ The questions that the Jones lawyers were asking the
President also make clear that this is what they understood the
President's testimony to be.
---------------------------------------------------------------------------
\130\ It also is not clear why he would want to deny such
knowledge, since parties to a lawsuit generally and properly are aware
of the witnesses in the case.
---------------------------------------------------------------------------
Second, the President's testimony cannot fairly be read as
an express denial of knowledge that Ms. Lewinsky had been
subpoenaed the last time he had spoken to her before the
deposition. Most importantly, the President was not asked
whether he knew that Ms. Lewinsky had been subpoenaed on
December 28th, which was the last time he had seen her. When
the President answered the question, ``Did she tell you she had
been served with a subpoena in this case?'', he plainly was not
thinking about December 28th. To the contrary, the President's
testimony indicates that he was totally confused about the
dates of his last meetings with Ms. Lewinsky, and he made that
abundantly clear to the Jones lawyers:

Q. When was the last time you spoke with Monica Lewinsky?
A. I'm trying to remember. Probably sometime before
Christmas. She came by to see Betty sometime before Christmas.
And she was there talking to her, and I stuck my head out, said
hello to her.
Q. Stuck your head out of the Oval Office?
A. Uh-huh, Betty said she was coming by and talked to her,
and I said hello to her.
Q. Was that shortly before Christmas or--
A. I'm sorry, I don't remember. Been sometime in December,
I think, and I believe--that may not be the last time. I think
she came to one of the, one of the Christmas parties.

Dep. at 68 (emphasis added). His statement that he did not know
whether she had been subpoenaed directly followed this confused
exchange and was not tied to any particular meeting with her.
By that time it is totally unclear what date the answer is
addressing.
The Referral ignores this confusion by selectively quoting
the President as testifying ``that the last time he had spoken
to Ms. Lewinsky was in December 1997 . . . `probably sometime
before Christmas.' '' Ref. at 163 (quoting Dep. at 68).\131\
Given his confusion, which the Jones lawyers made no attempt to
resolve, it is difficult to know what was being said, much less
to label it false and perjurious.
---------------------------------------------------------------------------
\131\ In fact, Ms. Lewinsky did come to the White House for a
Christmas party on December 5, 1997, well before she was subpoenaed.
See App. at 125 (OIC log of Ms. Lewinsky's visits); App. at 3140 (photo
of Ms. Lewinsky at Christmas party).
---------------------------------------------------------------------------
(2) The claim that President Clinton did not acknowledge
speaking with Ms. Lewinsky about whether she might have to
testify similarly is not a fair or accurate reading of the
deposition. In response to the question, ``Have you ever talked
to Ms. Lewinsky about the possibility that she might have to
testify in this lawsuit?'', the President's answer did not end
with the statement ``I'm not sure.'' Instead, the President
continued with the statement ``and let me tell you why I'm not
sure,'' at which point he described his recollection of having
spoken with Ms. Lewinsky about how Ms. Jones' lawyers and the
Rutherford Institute were going to call every woman to whom he
had ever talked. Ibid. It is evident the President's answer
referred to the time period before Ms. Lewinsky was on a
witness list--i.e., when her participation was still a
``possibility'' only. Indeed, Ms. Lewinsky confirmed the
accuracy of the President's recollection of this conversation
in her testimony, a fact that also is missing from the
Referral. See App. at 1566 (8/24/98 FBI 302 Form Interview of
Ms. Lewinsky) (``LEWINSKY advised CLINTON may have said during
this conversation that every woman he had ever spoken to was
going to be on the witness list.'').
Thus, the President did in fact accurately describe a
conversation with Ms. Lewinsky about potential testimony. That
the Jones lawyers failed to follow-up with questions that would
elicit whether that was the only conversation, or whether there
were additional conversations once Ms. Lewinsky was on the
witness list and her testimony was no longer a mere
possibility, is not perjury. It is simply a confused deposition
record that could have been clarified contemporaneously.
e. Conversations with Mr. Jordan About Ms. Lewinsky
The pattern of mischaracterizing the President's deposition
testimony to construct a perjury charge is repeated in a final
perjury allegation regarding the President's deposition answers
to questions about conversations with Mr. Jordan about Ms.
Lewinsky. The Referral alleges that the President was ``asked
during his civil deposition whether he had talked to Mr. Jordan
about Ms. Lewinsky's involvement in the Jones case'' and that
he ``stated that he knew Mr. Jordan had talked to Ms. Lewinsky
about her move to New York, but stated that he did not recall
whether Mr. Jordan had talked to Ms. Lewinsky about her
involvement in the Jones case.'' Ref. at 186; see also
Schippers Presentation at 40. The problem with this allegation
is that President Clinton was never asked ``whether he had
talked to Mr. Jordan about Ms. Lewinsky's involvement in the
Jones case,'' and he did not deny doing so.
In support of the charge, the Referral quotes the following
exchange from the President's deposition about who told the
President that Ms. Lewinsky had been subpoenaed:

Q. Did anyone other than your attorneys ever tell you that
Monica Lewinsky had been served with a subpoena in this case?
A. I don't think so.

Ref. at 186 (emphasis added in Referral). This exchange does
not address whether the President spoke with Mr. Jordan about
Ms. Lewinsky's involvement in the Jones suit. And the excerpt
is itself misleading. The Referral omits the President's next
answer, even though it is obvious from the text, and the OIC
was told by the President in his grand jury testimony, App. at
518-19, that this answer was intended to finish the President's
response to the previous question:

A. Bruce Lindsey, I think Bruce Lindsey told me that she
was, I think maybe that's the first person told me she was. I
want to be as accurate as I can.

Plainly, the President was not testifying that no one other
than his attorneys had told him that Ms. Lewinsky had been
subpoenaed. The Jones lawyers did not pursue this by asking
logical follow-up questions, such as whether, if Mr. Lindsey
was the first person were there others, or whether Mr. Jordan
had subsequently shared that information with him. The bottom
line is that President Clinton did not deny, in the quoted
passage or elsewhere, knowing that Mr. Jordan had spoken to Ms.
Lewinsky about the Jones matter.
Nor do the other two cited passages of the President's
deposition testimony help the OIC's case. In response to a
question about whether in the two weeks before January 17
anyone had reported to him that they had had a conversation
with Ms. Lewinsky about the Jones case, the President replied
``I don't believe so.'' Dep. at 72. The President was not
questioned specifically about whether he had ever spoken to Mr.
Jordan or anyone else about Ms. Lewinsky's involvement in the
Jones case. The President's response, accordingly, did not rule
out all conversations with Mr. Jordan about Ms. Lewinsky's
involvement in the case, as the Referral suggests, but only in
the two-week period prior to the deposition and only
conversations relaying accounts of conversations with Ms.
Lewinsky. Even conversations with Mr. Jordan about her
involvement in the casewould not have been covered. The
Referral does not identify any reports to the President about any
conversation that Mr. Jordan had with Ms. Lewinsky in that time
period--instead, it recounts only that, ten days before the deposition,
Mr. Jordan may have told the President that the affidavit was signed.
See Ref. at 187.
Finally, the President's answer to the question whether it
had been reported to him that Mr. Jordan had ``met with Monica
Lewinsky and talked about [the Jones] case,'' Dep. at 72
(emphasis added), obviously cannot be read to support this
charge of perjury. In response to this question, the President
acknowledged that he knew that Mr. Jordan and Ms. Lewinsky had
met. The President's further response--that he believed Mr.
Jordan met with Ms. Lewinsky to give her advice about her move
to New York was fully accurate. Again, the President was not
asked whether he was aware that Mr. Jordan had talked to Ms.
Lewinsky about her involvement in the Jones case. Since he was
not asked the question, it is implausible to suggest that he
lied in the answer.

2. Grand Jury Testimony of August 17, 1998

Proponents of impeachment repeatedly contend in the most
general terms that President Clinton committed perjury in the
grand jury on August 17, 1998. When this allegation is framed
in specific terms, it is often based on the false belief that
President Clinton denied in the grand jury having had any
sexual contact with Ms. Lewinsky. For example, in the
Committee's perjury hearing held last week, Chairman Hyde
discounted the Referral's charge that President Clinton had
lied to the grand jury about the commencement date of his
relationship with Ms. Lewinsky and then stated, ``I don't rank
that up with lying to the grand jury, saying he didn't have a
sexual relationship.'' Remarks of Chairman Hyde at Perjury
Hearing of December 1, 1998; see also Statement of Judge
Charles Wiggins at 2 (``the President was called as a witness
before the grand jury and he repeated his story that he did not
have a sexual relationship with Monica Lewinsky. Subsequently
the President acknowledged that his story was false or
misleading and that he in fact had such a relationship with Ms.
Lewinsky.'')
These accounts of President Clinton's grand jury testimony
are not accurate. In his August 17, 1998 grand jury testimony,
President Clinton acknowledged that he had engaged in
``inappropriate intimate contact'' with Ms. Lewinsky. Section
II.C, supra. He also acknowledged that his conduct was
``wrong.'' Ibid. What the President denied in the grand jury
was having ``sexual relations'' with Ms. Lewinsky only as that
term was defined by the Jones lawyers and substantially
restricted by Judge Wright. He did not go into the details of
those encounters because of privacy considerations, although he
did testify that they did not involve either sexual intercourse
or ``sexual relations'' as defined at the Jones deposition
after Judge Wright struck two-thirds of it. Ms. Lewinsky, on
the other hand, was forced by the OIC to describe in graphic
detail her recollection of these encounters. See Schippers
Presentation at 27.¹³²
---------------------------------------------------------------------------
\132\ Mr. Schippers analyzed the Referral and cited a discrepancy
between the testimony of President Clinton and Ms. Lewinsky over the
precise nature of the physical contact involved in their relationship
as the basis for an allegation that President Clinton perjured himself
before the grand jury. Schippers Presentation at 27. Mr. Starr, in his
Referral, advocated two additional bases: first, explaining his
deposition testimony as based on his belief that the terms ``sexual
relationship'' ``sexual affair,'' and ``sexual relations'' required
intercourse; and second, testifying that he recalled his inappropriate
relationship with Ms. Lewinsky beginning early in 1996, rather than in
mid-November of 1995 as Ms. Lewinsky recalled. As Mr. Schippers
evidently concluded, these alternative claims have no merit. One need
look no further than the common dictionary definition of terms such as
``sexual relations'' to find the President's views validated, see supra
at Section VI.F.1a, and it is not credible to believe that the slim
difference between the President's and Ms. Lewinsky's recollections of
the commencement date of their relationship (mid-November 1995 as
opposed to early 1996) was in any way material to the grand jury's
investigation whatsoever. As Chairman Hyde himself stated in reference
to this latter allegation, ``It doesn't strike me as a terribly serious
count.'' Remarks of Chairman Hyde at Perjury Hearing of December 1,
1998.
---------------------------------------------------------------------------
This simply is not a case of perjury. In addition to the
inconsequential subject matter of the allegation--the precise
nature of the admitted physical contact between the President
and Ms. Lewinsky--the factual record would not support a
prosecution for perjury. That record is one essentially of
``oath against oath,'' a formula that centuries of common law
jurisprudence has rejected as the basis for perjury. As the
Supreme Court has stated, ``equally honest witnesses may well
have differing recollections of the same event,'' and hence ``a
conviction for perjury ought not to rest entirely upon ``an
oath against an oath.'' United States v. Weiler, 323 U.S. 606,
609 (1945); see also Griswold v. Hazard, 141 U.S. 260, 280
(1891) (Harlan, J.) (``The difference in recollection of
gentlemen . . . often happens, without any reason to suspect
that any of them would intentionally deviate from the line of
absolute truth.''). Mr. Starr admitted in his testimony before
the Judiciary Committee on November 19, 1998, that the OIC
credited Ms. Lewinsky's testimony only where there was
corroboration. Transcript of November 19, 1998 Hearing at 235-
36. On the narrow point at issue here, however, there can be no
independent corroboration.¹³³
---------------------------------------------------------------------------
\133\ Ms. Lewinsky's statements to her friends about the nature of
the contact between herself and the President do not constitute
independent corroboration. These statements obviously are not
independent as they were made by Ms. Lewinsky. They also appear to be
inconsistent, a fact which is even noted, albiet quietly, in Mr.
Starr's Referral. See Ref. at 17 n.39 (noting conflicting accounts of
oral sex); see also Supp. at 1083 (statement by Kathleen Estep that Ms.
Lewinsky told her that President Clinton was brought to her apartment
by the Secret Service at 2 a.m.).
---------------------------------------------------------------------------
In sum, the facts do not support a perjury count based on
the President's grand jury testimony. It is hard to imagine how
what is at most a difference of recollection over the precise
details of the admitted physical contact between President
Clinton and Ms. Lewinsky could be considered grounds for a
perjury charge, much less grounds for impeachment.

VII. The President Did Not Obstruct Justice

A. The Elements of Obstruction of Justice

The term ``obstruction of justice'' usually refers to
violations of 18 U.S.C. Sec. 1503, the ``Omnibus Obstruction
Provision,'' which prohibits the intimidation of and
retaliation against grand and petit jurors and judicial
officers and contains a catch-all clause making it unlawful to
``influence, obstruct, or impede the due administration of
justice.'' It may also refer to 18 U.S.C. Sec. 1512, which
proscribes intimidating, threatening, or corruptly persuading,
through deceptive conduct, a person in connection with an
official proceeding.
For a conviction under Sec. 1503, the government must prove
that there was a pending judicial proceeding, that the
defendant knew of the proceeding, andthat the defendant acted
``corruptly'' with the specific intent to obstruct or interfere with
the proceeding or due administration of justice. See, e.g., United
States v. Bucey, 876 F.2d 1297, 1314 (7th Cir. 1989); United States v.
Smith, 729 F. Supp. 1380, 1383-84 (D.D.C. 1990). Thus, if a defendant
is unaware of a pending grand jury proceeding, he cannot be said to
have obstructed it in violation of Sec. 1503. See, e.g., United States
v. Brown, 688 F.2d 1391, 1400 (9th Cir. 1992). Perhaps more significant
is the ``acting corruptly'' element of the offense. Some courts have
defined this term as acting with ``evil and wicked purposes,'' see
United States v. Banks, 942 F.2d 1576, 1578 (11th Cir. 1991), but at
the very least to ``act corruptly'' under the statute, a defendant must
have acted with the specific intent to obstruct justice. See United
States v. Moon, 718 F.2d 1219, 1236 (2d Cir. 1983); United States v.
Bashaw, 982 F.2d 168, 170 (6th Cir. 1992); United States v. Anderson,
798 F.2d 919, 928 (7th Cir, 1986); United States v. Rasheed, 663 F.2d
843, 847 (9th Cir. 1981). That is, it is not enough to prove that the
defendant knew that a result of his actions might be to impede the
administration of justice, if that was not his intent.
It is critical to note which actions cannot fall under the
ambit of Sec. 1503. First, false statements or testimony alone
cannot sustain a conviction under Sec. 1503. See United States
v. Thomas, 916, F.2d 647, 652 (11th Cir. 1990); United States
v. Rankin, 870 F.2d 109, 111 (3d Cir. 1989).¹³⁴
Moreover, Sec. 1503 does not apply to a party's concealing or
withholding discoverable documents in civil
litigation.¹³⁵ Most cases that have found Sec. 1503
applicable to civil cases do not involve the production or
withholding of documents. See United States v. London, 714 F.2d
1558 (11th Cir. 1983) (attorney forged court order and
attempted to enforce it), cited in Richmark, 730 F. Supp. at
1532; Sneed v. United States, 298 F. 911 (5th Cir. 1924)
(influencing juror in civil case); cited in Richmark, 730 F.
Supp at 1532. While Sec. 1503 can apply to concealment of
subpoenaed documents in a grand jury investigation, the
defendant must have knowledge of the pending grand jury
investigation, must know that the particular documents are
covered by a subpoena, and must willfully conceal or endeavor
to conceal them from the grand jury with the specific intent to
interfere with its investigation. See United States v. McComb,
744 F.2d 555 (7th Cir. 1984).
---------------------------------------------------------------------------
\134\ For instance, in United States v. Wood, 6 F.3d 692, 697 (10th
Cir. 1993), the United States Court of Appeals for the Tenth Circuit
found that a defendant's false statements to the Federal Bureau of
Investigation during a grand jury investigation did not violate
Sec. 1503, because they did not have the natural and probable effect of
impeding the due administration of justice.
\135\ See, e.g., Richmark v. Timber Falling Consultants, 730 F.
Supp. 1525, 1532 (D. Ore. 1990) (because of the remedies afforded by
the Federal Rules of Civil Procedure, Sec. 1503 does not cover party
discovery in civil cases, and ``[t]he parties have not cited and the
court has not found any case in which a person was charged with
obstruction of justice for concealing or withholding discovery in a
civil case'') See also United States v. Lundwall, 1 F. Supp. 2d 249,
251-54 (S.D.N.Y. 1998) (noting that ``[c]ases involving prosecutions
for document destruction during civil pre-trial discovery are notably
absent from the extensive body of reported Sec. 1503 case law,'' and
that ``there are a great many good reasons why federal prosecutors
should be reluctant to bring criminal charges relating to conduct in
ongoing civil litigation,'' but concluding that systematic destruction
of documents sought during discovery should satisfy Sec. 1503).
---------------------------------------------------------------------------
Section 1512 specifically applies to ``witness tampering.''
To obtain a conviction under Sec. 1512, the government must
prove that a defendant knowingly engaged in intimidation,
physical force, threats, misleading conduct, or
corruptpersuasion with intent to influence, delay, or prevent testimony
or cause any person to withhold objects or documents from an official
proceeding. It is clear that a defendant must also be aware of the
possibility of a proceeding and his efforts must be aimed specifically
at obstructing that proceeding, whether pending or not; Sec. 1512 does
not apply to defendants' innocent remarks or other acts unintended to
affect a proceeding. See United States v. Wilson, 565 F. Supp. 1416,
1431 (S.D.N.Y. 1983).
Moreover, it is important to define the terms ``corruptly
persuade'' and ``misleading conduct,'' as used in Sec. 1512.
The statute itself explains that ``corruptly persuades'' does
not include ``conduct which would be misleading conduct but for
a lack of a state of mind.'' 18 U.S.C. Sec. 1515(a)(6). It is
also clear from the case law that ``misleading conduct'' does
not cover scenarios where the defendant urged a witness to give
false testimony without resorting to coercive or deceptive
conduct. See, e.g., United States v. Kulczyk, 931 F.2d 542, 547
(9th Cir. 1991) (no attempt to mislead; witnesses knew
defendant was asking them to lie); United States v. King, 762
F.2d 232, 237 (2d Cir. 1985) (defendant who attempts to
persuade witness to lie but not to mislead trier of fact does
not violate Sec. 1512).
Subornation of perjury is addressed in 18 U.S.C. Sec. 1622.
The elements of subornation are that the defendant must have
persuaded another to perjure himself, and the witness must have
actually committed perjury. See, e.g. United States v.
Hairston, 46 F.3d 361, 376 (4th Cir. 1959), rev'd on other
grounds, 361 U.S. 529 (1960). If actual perjury does not occur,
there is simply no subornation. See id. at 376 (reversing
conviction for subornation because of conclusion that, in
applying Bronston, witness did not commit perjury due to his
literally truthful testimony). Moreover, Sec. 1622 requires
that the defendant know that the testimony of witness will be
perjurious--i.e., knowing and willful procurement of false
testimony is a key element of subornation of perjury. See Rosen
v. NLRB, 735 F.2d 564, 575 n.19 (D.C. Cir. 1984) (``a necessary
predicate of the charge of subornation of perjury is the
suborner's belief that the testimony sought is in fact
false'').

B. Specific Claims of Obstruction

The Referral alleges various actions that it claims amount
to obstruction of justice. Evidence that is contained in the
Appendices and Supplements--although omitted from the
Referral--thoroughly undermines each of these claims.

1. There Is No Evidence that the President Obstructed Justice in
Connection with Gifts Given to Ms. Lewinsky

``The President and Ms. Lewinsky met and discussed what
should be done with the gifts subpoenaed from Ms. Lewinsky.''
(Independent Counsel Kenneth Starr 11/19/98 Statement Before
the Committee on the Judiciary U.S. House of Representatives at
15.)
[H]e really didn't--he really didn't discuss it.'' (Monica
Lewinsky's 8/20/98 grand jury testimony. App. at 1122.)
The Referral claims that President Clinton endeavored to
obstruct justice by engaging in a pattern of activity to
conceal evidence, particularly gifts,regarding his relationship
with Monica Lewinsky. Ref. at 165. See also Schippers Presentation at
34-35.
The Appendices and Supplements contain a wealth of
information contradicting this claim. Upon review, it is clear
that the full record simply does not support an obstruction-by-
gift-concealment charge at all.
First, among Ms. Lewinsky's ten different accounts of the
meeting at which she and the President allegedly ``discussed''
concealing gifts, the Referral selectively and prejudicially
chooses to cite the version most hurtful to the President
(without disclosing the existence of other, exculpatory
accounts of the same events). Second, the Referral omits other
relevant statements by Ms. Lewinsky that would place the OIC's
account in a sharply different light. Third, the Referral
suppresses uncontested statements made by the President and by
Ms. Betty Currie that contradict the OIC's concealment theory.
Fourth, the Referral appropriates for itself the role of
factfinder and--by misleading characterizations of testimony--
attempts to deceive the Committee into adopting Ms. Lewinsky's
version of events where it appears to conflict with Ms.
Currie's version. Finally, the Referral suppresses the OIC's
doubts about its own theory--doubts manifest in grand jury
questioning but not acknowledged in the Referral itself.
Two events form the core of the OIC's allegation that the
President orchestrated the concealment of gifts he had given
Ms. Lewinsky. The first is Ms. Lewinsky's December 28, 1997,
early morning meeting with the President. The second is Ms.
Currie's receipt of a box of gifts from Ms. Lewinsky,
supposedly on the afternoon of that day.
The Referral presents these events in a manner that is
grossly one-sided and deeply prejudicial to the President.
a. Ms. Lewinsky's December 28 Meeting with the President
On December 28, 1997, Ms. Lewinsky came to the White House
and met with the President to pick up her holiday gifts.
According to Ms. Lewinsky, that was the only occasion on which
an issue of the gifts' relation to her subpoena was raised. See
App. at 1130 (8/20/98 grand jury testimony of Ms. Lewinsky);
see also App. at 1338 (8/26/98 deposition of Ms. Lewinsky).
Ms. Lewinsky was asked several times by the OIC about her
December 28, 1997, meeting with the President, and in
particular about discussions she may have had with the
President about gifts she had received from him. In response,
Ms. Lewinsky made at least ten distinct statements
¹³⁶ during the course of her original proffer,
interviews, grand jury testimony and deposition. Although the
OIC claims that there was a discussion between Ms. Lewinsky and
the President on this subject,¹³⁷ the actual
testimony does not support the OIC's contention.
---------------------------------------------------------------------------
\136\ Ms. Lewinsky herself explicitly made nine such statements and
the tenth (number 8 in the sequence listed above in the text) was made
by a juror restating Ms. Lewinsky's earlier statement. Ms. Lewinsky
appeared to agree with, and did not correct, that restatement.
\137\ Independent Counsel Kenneth Starr (Nov. 19, 1998) Statement
Before the Committee on the Judiciary U.S. House of Representatives at
15.
---------------------------------------------------------------------------
Ms. Lewinsky's statements are set forth below, listed in
the order in which they were given, from earliest to latest in
time:
1. Proffer (2/1/98): ``Ms. L then asked if she should put
away (outside her home) the gifts he had given her, or maybe,
give them to someone else.'' App. at 715^.
2. Lewinsky 7/27/98 Interview Statement: ``LEWINSKY
expressed her concern about the gifts that the President had
given LEWINSKY and specifically the hat pin that had been
subpoenaed by PAULA JONES. The President seemed to know what
the JONES subpoena called for in advance and did not seem
surprised about the hat pin. The President asked LEWINSKY if
she had told anyone about the hat pin and LEWINSKY denied that
she had, but may have said that she gave some of the gifts to
FRANK CARTER. . . . LEWINSKY asked the President if she should
give the gifts to someone and the President replied `I don't
know.' '' App. at 1395.
3. Lewinsky 8/1/98 Interview Statement: ``LEWINSKY said
that she was concerned about the gifts that the President had
given her and suggested to the President that BETTY CURRIE hold
the gifts. The President said something like, `I don't know,'
or `I'll think about it.' The President did not tell LEWINSKY
what to do with the gifts at that time.'' App. at 1481.
4. Lewinsky 8/6/98 Grand Jury Testimony: ``[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.'' App. at 872.
5. Lewinsky 8/13/97 Interview Statement: ``During their
December 28, 1997 meeting, CLINTON did not specifically mention
which gifts to get rid of.'' App. at 1549.
6. Lewinsky 8/20/98 Grand Jury Testimony: ``It was December
28th and I was there to get my Christmas gifts from him. . . .
And we spent maybe about five minutes or so, not very long,
talking about the case. And I said to him, `Well do you think'
. . . And at one point, I said, `Well, do you think I should--'
I don't think I said `get rid of,' I said, `But do you think I
should put away or maybe give to Betty or give to someone the
gifts?' 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.'' App. at 1121-22.
7. Lewinsky 8/20/98 Grand Jury Testimony: ``A JUROR: Now,
did you bring up Betty's name [at the December 28 meeting
during which gifts were supposedly discussed] or did the
President bring up Betty's name? THE WITNESS: I think I brought
it up. The President wouldn't have brought up Betty's name
because he really didn't--he really didn't discuss it . . .''
App. at 1122.
8. Lewinsky 8/20/98 Grand Jury Testimony: ``A JUROR: You
had said that the President had called you initially to come
get your Christmas gift, you had gone there, you had a talk, et
cetera, and there was no--you expressed concern, the President
really didn't say anything.'' App. at 1126.
9. Lewinsky 8/24/98 Interview Statement: ``LEWINSKY advised
that CLINTON was sitting in the rocking chair in the Study.
LEWINSKY asked CLINTON what she should do with the gifts
CLINTON had given her and he either did not respond or
responded `I don't know.'' LEWINSKY is not sure exactly what
was said, but she is certain that whatever CLINTON said, she
did not have a clear image in her mind of what to do next.''
App. at 1566.
10. Lewinsky 9/3/98 Interview Statement: ``On December 28,
1997, in a conversation between LEWINSKY and the President, the
hat pin given to LEWINSKY by the President was specifically
discussed. They also discussed the general subject of the gifts
the President had given Lewinsky. However, they did not discuss
other specific gifts called for by the PAULA JONES subpoena.
LEWINSKY got the impression that the President knew what was on
the subpoena.'' App. at 1590.
These statements contain certain striking inconsistencies
with the version of events presented by the OIC--that the
President and Ms. Lewinsky ``met and discussed what should be
done with the gifts subpoenaed from Ms. Lewinsky'':
In none of the statements did the President
initiate a discussion relating to concealment of gifts.
In none of the statements did the President tell
Ms. Lewinsky to conceal gifts.
In none of the statements did the President
suggest to Ms. Lewinsky that she conceal gifts.
In none of the statements is the President alleged
to have mentioned any gift other than a hat pin.
The statements also display numerous internal
inconsistencies and anomalies that are significant in light of
the charge and that caution against selecting any particular
one:
In seven of the ten statements (numbers 1, 5, 6,
7, 8, 9 and 10) the President either did not respond at all to
Ms. Lewinsky's concealment concerns or was described by Ms.
Lewinsky as having given ``no response'' or ``didn't really say
anything'' about what to do with the subpoenaed gifts.
In two statements (numbers 6 and 9), Ms. Lewinsky
described the President as both responding to her concealment
comments (``saying something like `I don't know' or `Hmm,' ''
6; ``responded `I don't know,' '' 9) and as not responding
(there really was no response,'' 6; ``he . . . did not
respond,'' 9).
In five of the ten statements (numbers 2, 3, 4 and
6 and 9) the President responded ``I don't know'' to a Lewinsky
suggestion that she give someone the gifts.
In two of the ten statements (numbers 3 and 4),
the President was made to appear to contemplate further thought
by saying in response to a suggestion of possible action that
he will ``think about it'' or ``Let me think about that.''
In one statement (number 6), Ms. Lewinsky said
that ``I don't remember his response'' to her suggestion that
she conceal gifts.
In Ms. Lewinsky's first statement (the 2/1/98
Proffer), she did not describe the President as having made any
response to her suggestion of possible action or as having
mentioned Ms. Currie.
In Ms. Lewinsky's final statement (her 9/3/98
interview), she described no statement by the President
whatsoever pertaining to any possible action with respect to
the gifts.
With all these statements to draw on, the Starr Referral
relied on number 4 above as if it were Ms. Lewinsky's only
statement on the matter and thus characterized this pivotal
conversation as follows: According to Ms. Lewinsky, she and the
President discussed the possibility ¹³⁸ of moving
some of the gifts out of her possession:

\138\ This statement contains a subtle, but important (and
illustrative) distortion. Ms. Lewinsky might possibly be said to have
``discussed'' concealment of the gifts (at least in some of her
accounts of the December 28 meeting). But there is no evidence that the
President himself ever ``discussed'' concealment.

[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 [we] left that topic.

Ref. at 166 (quoting App. at 872 (8/6/98 grand jury testimony
of Ms. Lewinsky)). In making the above statement the
centerpiece of the President's supposed assent to engage in
concealment, the OIC selected one^}¹³⁹ of
only two (of Ms. Lewinsky's ten) accounts in which the
President's alleged comments might support the inference that
he was even contemplating further thought (though not action)
in response to Ms. Lewinsky's suggestion.
---------------------------------------------------------------------------
\139\ Number 4 above.
---------------------------------------------------------------------------
In so doing, the Referral failed to inform Congress that,
in more than two-thirds of the different accounts given by Ms.
Lewinsky, Ms. Lewinsky either described no response by the
President at all or described his comment as ``no response'' or
``didn't really say anything.''^}¹⁴⁰ In
other words, to the best of Ms. Lewinsky's recollection he
evidenced no intent to give the subject any thought. The OIC
also failed to acknowledge that in one of her accounts, Ms.
Lewinsky stated that she did not really remember the
President's response. The OIC did not tell Congress that in
several accounts, Ms. Lewinsky reported that the President both
did and did not respond to her suggestion. The OIC did not tell
Congress that the only person ever to link Betty Currie's name
with the idea of concealment (and that in only three of her ten
accounts) in the December 28 conversation was Ms. Lewinsky
herself. The OIC did not tell Congress that in none--not one--
of Ms. Lewinsky's accounts did the President initiate
discussion relating to concealment of gifts. The OIC did not
tell Congress that in none of Ms. Lewinsky's accounts did the
President ask or tell Ms. Lewinsky to conceal gifts. The OIC
did not tell Congress that in none of Ms. Lewinsky's accounts
does the President suggest to Ms. Lewinsky that she conceal
gifts. The OIC did not tell Congress that in only two of Ms.
Lewinsky's ten accounts was there even the suggestion that the
President wanted even to ``think about it.'' And finally, the
OIC did not tell Congress that in Ms. Lewinsky's earliest and
latest accounts of the December 28, 1997 meeting, she never
mentioned any statement by the President suggesting any
concealment of gifts from the Jones subpoena. Instead the OIC
simply picked the one account it liked best, misrepresented it,
and presented it as though it were the whole truth.
---------------------------------------------------------------------------
\140\ The Referral's concealment discussion (Ref. at 165-172) makes
but a single mention of any of Ms Lewinsky's other accounts of the
December 28 conversation. See Ref. at 166 n.226 (quoting App. at 1122
(8/20/98 grand jury testimony Ms. Lewinsky) (number 6 in the list
above)).
---------------------------------------------------------------------------
Those omissions and the resulting account of this
``concealment'' meeting result in a skewed version of events
that professional prosecutors would not condone. Yet the Starr
Referral not only presents a distorted picture of the evidence,
it recommends that this Committee vote to impeach the President
of the United States on this demonstrably thin record.
b. Betty Currie's Supposed Involvement in Concealing Gifts
The other incident said to support the obstruction-by-
concealment theory was Ms. Currie's receipt of a box of gifts
from Ms. Lewinsky. Again, to support its position the Starr
Referral presents a highly selective and deceptively one-sided
account of the evidence. That account is distinguished by: (1)
minimization of evidence favorable to the President concerning
the origin of the idea of picking up gifts; (2) an outright
falsehood as to the date of the gift pickup--a falsehood
obviously intended to suggest deep Presidential involvement in
the events; and (3) a deceptive attempt to elevate the
Referral's theory through misleading and improper bolstering of
one witness's credibility.
(1) Whether Gifts Were Picked Up at the Suggestion of Ms.
Lewinsky or the President. Mr. Starr takes the position that
the President told or suggested to Ms. Currie that she contact
Ms. Lewinsky and pick up the gifts. Ref. at 167. But the
President twice denied ever telling Ms. Currie to contact Ms.
Lewinsky about the gifts. App. at 502 (President's 8/17/98
grand jury testimony); App. at 565-66 (same). Ms. Currie
herself has repeatedly said that it was Ms. Lewinsky (not the
President) who asked her to pick up the gifts. Supp. at 581 (5/
6/98 grand jury testimony of Betty Currie); Supp. at 582
(same); Supp. at 706 (7/22/98 grand jury testimony of Betty
Currie); Supp. at 531 (1/24/98 FBI Form 302 Interview of Betty
Currie). In short, the only two parties who could possibly have
direct knowledge of such an instruction by the President have
denied it.
Ms. Lewinsky stated that Ms. Currie told her that the
President had told her to contact Ms. Lewinsky. See App. at 715
(2/1/98 Proffer): ``Ms. Currie called Ms. L later that
afternoon and said that the Pres. had told her Ms. L wanted her
to hold onto something for her.'' ¹⁴¹ But this
statement was contradicted by Ms. Currie's repeated statements
that Ms. Lewinsky called her and asked her to pick up the gifts
because people were asking ``questions about stuff she had
gotten.'' Supp. at 557 (1/27/98 grand jury testimony of Ms.
Currie). The Referral does acknowledge one occasion on which
Ms. Currie contradicted Ms. Lewinsky on this point, see Ref. at
167 (citing Supp. at 557 (1/27/98 grand jury testimony of Ms.
Currie)):
---------------------------------------------------------------------------
\141\ See also App. at 874 (8/6/98 grand jury testimony of Ms.
Lewinsky); App. at 1127 (8/20/98 grand jury testimony of Ms. Lewinsky).

Q. Did Ms. Lewinsky tell you why she wanted to give you
this box of items?
A. I think she was just getting concerned. I think people
were asking questions about stuff she had gotten.

But the Referral fails to quote Ms. Currie's repeated
contradicting of Ms. Lewinsky on this point. First, in her
January 24 interview Ms. Currie said that: LEWINSKY called
CURRIE and advised she had to return all the gifts CLINTON had
given LEWINSKY as there was talk going around about the
gifts.'' Supp. at 531 (1/24/98 FBI 302 Form Interview of Ms.
Currie). Then, before the grand jury:

Q. What exactly did Monica say when--
A. The best I remember she said that she wanted me to hold
these gifts--hold this--she may have said gifts, I'm sure she
said gifts, box of gifts--I don't remember--because people were
asking questions. And I said, ``Fine.''

Supp. at 581 (5/6/98 grand jury testimony of Ms. Currie). And
then again before the grand jury:

Supp. at 582 (5/6/98 grand jury testimony of Ms. Currie). This
fact--that Ms. Currie early on and then thereafter repeatedly
insisted that Ms. Lewinsky raised the issue of the gifts--is
not to be found in the Referral.
The Referral also omits Ms. Lewinsky's own testimony that
it was she, and not the President, who first raised the
prospect of Ms. Currie's involvement.

A Juror: Now, did you bring up Betty's name or did the
President bring up Betty's name?
[Ms. Lewinsky]: I think I brought it up. The President
wouldn't have brought up Betty's name because he really
didn't--he didn't really discuss it. . . .

App. at 1122 (8/20/98 grand jury testimony of Ms. Lewinsky);
see also App. at 1481 (8/1/98 FBI Form 302 Interview of Ms.
Lewinsky) (``LEWINSKY . . . suggested to the President that
Betty Currie hold the gifts.'') This fundamental and important
fact--that Ms. Lewinsky herself testified that the idea of Ms.
Currie's involvement originated with Ms. Lewinsky (and not with
the President)--is nowhere to be found in the Referral's
obstruction discussion.
Finally, as to whether Ms. Currie ever spoke of gifts to
the President after she had picked up the gifts, the President
denied ever speaking with Ms. Currie and as to Ms. Currie, she
recalled only one circumstance relevant to this issue. In the
course of questioning Ms. Currie about a January 21, 1998
telephone call she received from the President, a juror (not
the OIC) put the following question to Ms. Currie:

A Juror: During this conversation with the President, did
you discuss the fact that you had a box of Monica's belongings
under your bed?
The Witness: I'm sure not.
By [The OIC]: Why didn't you tell him that.
A. I didn't see any reason to. . . .

Supp. at 705 (7/22/98 grand jury testimony of Ms. Currie). This
exchange, and the fact that Ms. Currie stated her recollection
with palpable certainty, are also entirely missing from the
Referral.
In view of the foregoing distortions and omissions, no
fair-minded factfinder could conclude from the evidence that
the President instructed Ms. Currie to retrieve gifts from Ms.
Lewinsky.¹⁴²
---------------------------------------------------------------------------
\142\ The Referral's further musings on the subject of the gifts,
Ref. at 170-71, are based on conjecture, not evidence. See, e.g., Ref.
at 170. (``[m]ore generally, the person making the extra effort [here,
picking up the gifts] . . . is ordinarily the person requesting the
favor''). As to the Referral's credibility judgments, see Part
V.B.1.b.3 below.
---------------------------------------------------------------------------
(2) Whether Gifts Were Picked Up on December 28. The
Referral implies that the President told Ms. Currie to retrieve
the gifts on Sunday, December 28, 1997, Ref. at 166 (and that
she in fact retrieved the gifts on December 28), the same day
he supposedly discussed the gifts issue at a morning meeting
with Ms. Lewinsky. Ref. at 167. The plain purpose of this
allegation is to suggest prompt action by the President to
effectuate a concealment plan supposedly hatched with Ms.
Lewinsky at that morning's visit.
In support of that theory, the Referral makes the following
assertion: According to both Ms. Currie and Ms. Lewinsky, Ms.
Currie drove to Ms. Lewinsky's home [to pick up the box of
gifts] later on December 28. Ref. at 167 & n.237. This
assertion--that ``[a]ccording to . . . Ms. Currie'' she picked
up gifts on December 28--is not true. The Referral's (only)
authority is page 108 of Ms. Currie's May 6, 1998 grand jury
testimony. That page of transcript reads as follows:

A. . . . [108] I drove to her--outside of her residence and
picked up the box.
Q. How many times had you been to her residence before?
A. Twice. I took her home one day after work, but never
inside her residence. I just dropped her off in front of the
Watergate. And then when I picked up the box. So twice, that I
remember, just twice.
Q. Did you go with anyone to pick up the box?
A. It was after work and I was by myself.
Q. So it would be fair to say it was pretty important to
pick it up.
A. I wouldn't say that.
Q. And it was the only other time you'd ever been to her
apartment.
A. I could have picked it up probably any time, but I was--
she called me and asked me to come by on my way home and pick
it up.
Q. And then what did you do with it?
A. Put it under my bed?
Q. What was the occasion when you took Monica home?
A. What was the occasion?
Q. Yes.
A. After one of her meetings. The best I remember, if she
was leaving and I was leaving at the same time, I'd offer [109]
to give her a ride home.

Supp. at 581 (5/6/98 grand jury testimony of Ms. Currie).
Nowhere on that page or anywhere else does Ms. Currie say that
she picked up the gifts on December 28.
This was no mere typographical error. For in Ms. Currie's
first interview with the OIC, she recalled that Ms. Lewinsky
called her to pick up the gifts sometime in December. Supp. at
531 (1/24/98 FBI Form 302 Interview of Ms. Currie). And just a
few pages earlier in her grand jury testimony, Ms. Currie told
the grand jury that her best estimate was that she had
retrieved the gifts ``a couple weeks'' after Ms. Lewinsky's
December 28 visit to the President. Supp. at 581 (5/6/98 grand
jury testimony of Ms. Currie). Additionally, in her first
(late-January 1998) appearance before the grand jury, Ms.
Currie's best recollection was that the gifts were picked up
sometime within the previous six months. Supp. at 556-57 (1/27/
98 grand jury testimony of Ms. Currie). Finally, Ms. Currie
told the grand jury that she picked up the gifts on a workday,
Supp. at 582, and December 28 was a Sunday. Although Ms. Currie
never pinpointed a date, the record is clear that--contrary to
the Referral's false assertion--she never placed the date of
the gift pickup on December 28.
The Referral's deceptive attempts to bind Ms. Currie to its
version of events--effected by misstatement and omission--are
significant. They are explainable only by a willful attempt to
bend the facts to fit the Referral's theory. Other than Ms.
Lewinsky's own (as shown below, uncertain) accounts, the notion
that the gifts were picked up on December 28 has no foundation
in the record.
(3) The Referral's Deceptive Attempt to Bolster the
Credibility of One Witness to the Detriment of Others Is
Improper. The Referral usurps the role of the fact-finder and
substitutes its judgment for Congress' by resolving evidentiary
conflicts in favor of Ms. Lewinsky's recollection and against
Ms. Currie's where that resolution hurts the President. The
Referral states that Ms. Currie's memory of the crucial
conversation ``generally has been hazy and uncertain,'' Ref. at
170, while Ms. Lewinsky's testimony ``is consistent and
unequivocal.'' Ref. at 169. The statement that Ms. Lewinsky's
testimony was consistent and unequivocal is just not true.
Indeed, Ms. Lewinsky actually told the grand jurors at one
point that she could not remember Ms. Currie saying that the
President told her to call about the gifts:

A Juror: At the top of page 7 [of the 2/1/98 Proffer, App.
715], where you say in your proffer that when Ms. Currie called
later that afternoon she said, at least I think you mean that
she said that the President had told her Ms. L wanted her to
hold on to something for her. Do you remember Betty Currie
saying that the President had told her to call?
The Witness: Right now. I don't. I don't remember . . . .

App. at 1141 (8/20/98 grand jury testimony of Ms. Lewinsky)
(emphasis added). The Referral's assertion to the contrary--
that ``Ms. Lewinsky's testimony on the issue is consistent and
unequivocal''--is utterly untrue. Ms. Lewinsky simply did not
have the unwavering conviction the Referral attributes to her.
Indeed Ms. Lewinsky's testimony concerning her February 1,
1998 proffer (which was not, as the OIC characterizes it,
``testimony,'' Ref. at 169) was fraught with uncertainty. As
Ms. Lewinsky herself told the grand jury:

The other thing, and this is something that I was thinking
about this morning in relation to the proffer, that I had
written this proffer obviously being truthful, but I think that
when I wrote this, it was my understanding that this was to
bring me to the step of getting an immunity agreement, and so I
think that sometimes to--that I didn't know this was going to
become sort of this staple document, I think, for everything,
and so there are things that can be misinterpreted from in
here, even from me re-reading it, the conditions--some of the
conditions maybe under which I wrote it.

App. at 1141 (8/20/98 grand jury testimony of Ms. Lewinsky)
(emphasis added). Yet neither the Referral, nor any of its
supporting materials, reflect any effort by the OIC to have Ms.
Lewinsky clarify the ``things that can be misinterpreted'' in
her proffer. Nor did the Referral inform the House of Ms.
Lewinsky's own doubts about the February 1 proffer.
The Referral then aggravates its own deceptions and
omissions still further by twice quoting a statement of Ms.
Currie to the effect that ``[Ms.Lewinsky] may remember better
than I. I don't remember.'' Ref. at 167, 170. That quotation is
thoroughly misleading in view of the foregoing statements by Ms.
Lewinsky (omitted from the Referral) which made clear that her memory
was certainly no better than Ms. Currie's.
Finally, the OIC's account of the differences in Ms.
Currie's and Ms. Lewinsky's recollections is aggravated by
another, very curious fact. As the Referral once mentions, and
as Ms Currie repeatedly stated, Ms. Lewinsky had said that she
``was uncomfortable retaining the gifts'' not because the
President asked her to conceal them from Paula Jones' lawyers,
but ``because people were asking questions about the stuff she
had gotten.'' Ref. at 167 and citations in Part VI.B.1.b.1,
above. That statement presents a rather different explanation
then the one offered up in the Referral. Yet neither the
Referral, nor 3183 pages of Appendices, nor 4610 pages of
Supplement contain any evidence that Ms. Lewinsky has ever
contradicted Ms. Currie's account of that statement. The
absence of contradictory evidence is itself a significant piece
of evidence supportive of the view that Ms. Currie's
recollection is the correct one.
But the importance of this runs much deeper.
Notwithstanding that she testified twice before the grand jury,
was deposed once, and was interviewed by the OIC at least 18
different times,¹⁴³ Ms. Lewinsky was apparently
never asked whether she ever stated to Ms. Currie that people
were asking questions about the President's gifts. Indeed, in
all the time following Ms. Currie's January 27 testimony, the
OIC apparently never asked Ms. Lewinsky to reconcile the basic
tensions in the conflicting accounts. Rather than attempting to
determine the truth of this important issue, the OIC preferred
to leave this crucial difference unexplored and then argue the
relative credibility of the witnesses to Congress and conclude
without reason that Ms. Lewinsky's recollection ``makes more
sense.'' In view of the OIC's statutory duty to provide any
``substantial and credible information'' pertaining to
impeachment, the insidious refusal to elicit direct evidence on
this sensitive point is extraordinary--and wholly unfair.
---------------------------------------------------------------------------
\143\ Summaries of Ms. Lewinsky's 18 different interviews with the
OIC appear at App. at 1389-1603.
---------------------------------------------------------------------------
c. The Referral Suppresses Other Evidence Casting Doubt on
Its Concealment-of-Gifts Obstruction Theory
The Referral says, and it is not disputed, that the
President gave Ms. Lewinsky a number of gifts during their
December 28, 1997 meeting. Ref. at 166. This fact alone
obviously undermines the Referral's theory that he sought to
conceal gifts to her on that same day. The Referral goes on to
say that Ms. Lewinsky was ``asked why the President gave her
more gifts on December 28 when he understood she was under an
obligation to produce gifts in response to the subpoena.''
Ibid. But the actual question posed was this: ``What do you
think the President was thinking when he is giving you gifts
when there's a subpoena covering the gifts? I mean, does he
think in any way, shape or form that you're going to be turning
these gifts over?'' App. at 886 (8/6/98 grand jury testimony of
Ms. Lewinsky).
In response, the Starr Referral inserted Ms. Lewinsky's
speculation about why the President may have given her the
gifts, quoting from her August 6 testimony, and adding a
certain emphasis:

You know, I can't answer what [the President] was thinking,
but to me, it was--there was never a question in my mind and
I--from everything he said to me, I never questioned him, that
we were never going to do anything but keep this private, so
that meant deny it and that meant do--take whatever appropriate
steps needed to be taken, you know for that to happen.

Ref. at 166 (quoting App. at 886-87 (8/6/98 grand jury
testimony of Ms. Lewinsky) (emphasis added by OIC)).
This explanation of the December 28 gift-giving is severely
unfair. First, the addition of the emphasis suggests that the
President had explained to Ms. Lewinsky that gifts, including
gifts given on December 28, were going to be concealed. There
is no support for this, and as we have established above, all
the evidence is to the contrary.
Second, the OIC's account relies on Ms. Lewinsky's
speculation when the President's own testimony was available.
In that testimony, given before the grand jury on August 17,
the President--responding to questions about the December 28
meeting--stated that ``this gift business . . . didn't bother
me,'' App. at 496, and that ``I wasn't troubled by this gift
issue,'' App. at 497. The President went on to say that he
``fe[lt] comfortable giving [Ms. Lewinsky] gifts in the middle
of discovery in the Paula Jones case'' because ``there was no
existing improper relationship at that time'' and that he
``wasn't worried about it [and] thought it was an all right
thing to do.'' App. at 498. The Referral obscures these direct
statements in favor of Ms. Lewinsky's speculation.
Strikingly absent from the Referral is any discussion of
the fact that, under its own misleading theory, the President
was both giving gifts and taking them back on the very same
day. The Referral makes no effort to explain this dramatic
anomaly and does not convey to Congress any sense of the fact
that such behavior is--and must seem--very odd under the
Referral's theory.
That omission is all the more conspicuous in view of the
OIC's questions and comments on this issue during the
President's and Ms. Lewinsky's grand jury testimony. Sensing
the difficulty for its own theory, the OIC asked: ``Mr.
President, if your intent was, as you earlier testified, that
you didn't want anybody to know about this relationship you had
with Ms. Lewinsky, why would you feel comfortable giving her
gifts in the middle of discovery in the Paula Jones case?''
App. at 498. The President answered that he was not troubled by
the gifts because at the time he gave them there was no
improper relationship. App. at 498. No mention of this exchange
appears in the Referral.
Again, during Ms. Lewinsky's first grand jury appearance
the OIC prosecutor remarks: ``Although, Ms. Lewinsky, I think
what is sort of--it seems a little odd and, I guess really the
grand jurors wanted your impression of it, was on the same day
that you're discussing basically getting the gifts to Betty to
conceal them, he's giving you a new set of gifts.'' App. at
887-88 (emphasis added).¹⁴⁴ And again, no mention is
made in the Referral of the fact that the OIC and the grand
jurors regarded it as ``odd'' that there was gift-giving on the
same day the President allegedly caused his gifts to be
recovered. A fair prosecutor would have acknowledged this
``oddity'' and reported the President's answers to this
``oddity,'' answers which resolve the apparent ``oddity,'' and
undermine the prosecutor's theory. The OIC did neither.
---------------------------------------------------------------------------
\144\ Ms. Lewinsky replies, ``You know, I have come recently to
look at that as sort of a strange situation. . . .'' App. at 888.
---------------------------------------------------------------------------
The Referral concludes that ``[g]iven his desire to conceal
the relationship, it makes no sense that the President would
have given Ms. Lewinsky more gifts on the 28^th
unless he and Ms. Lewinsky understood that she would not
produce all of her gifts in response to her subpoena.'' Ref. at
171. This statement is directly contrary to the only available
evidence touching on this issue--namely the President's own
testimony that he simply was not troubled by the gifts. App. at
494-98. The OIC has suppressed relevant direct evidence and
then asked Congress to draw negative inferences from
circumstantial theorizing.
Ultimately, the Referral's failure to include or even refer
to the President's directly material testimony in the
``impeachable acts'' discussion of supposed ``concealment'' of
gifts has no legitimate explanation. The obstruction-by-gift-
concealment charge rests on an unjustifiable six-prong strategy
unworthy of any fair prosecutor. The Referral first presents a
highly argumentative and one-sided account of disputed facts.
Second, it flatly misrepresents certain key dates and events in
an effort to heighten that prejudicial effect. Third, it
suppresses numerous facts contradicting the Referral's
concealment theory. Fourth, the Referral artificially engineers
the impression that one witness is more credible than the
other--in stark defiance of record facts and in the apparent
hope that its sophistries would go unnoticed by the factfinder.
Fifth, the Referral suggests a false clarity about important
evidentiary issues which are in fact fundamentallyambiguous.
The Referral's authors clearly chose to leave these ambiguities
unexplored where honest investigation would have resolved them.
Finally, the Referral suppresses record evidence reflecting its
authors' own doubts about the theory advanced.
Impeachment on such distorted ``evidence'' of obstruction
as the Referral presents would be a travesty.

2. The President Did Not Obstruct Justice in Connection With Ms.
Lewinsky's Job Search

a. The Direct Evidence Contradicts the Referral's Jobs--
Obstruction Theory and the Referral Presents a
Misleading Picture Based on Carefully Selected
Circumstantial Evidence
The OIC alleges that the President ``endeavored to obstruct
justice by helping [Ms.] Lewinsky obtain a job in New York at a
time when she would have been a witness against him were she to
tell the truth during the Jones case.'' Ref. at 181. To support
this claim, the OIC has created a wholly misleading chronology
of events that omits crucial facts, presents only partial
accounts of others, and places artificial weight on selected
events occurring in late December 1997 and early January 1998.
The OIC's account relies almost exclusively on the testimony of
one witness yet conceals that witness' contradictory
statements. The effect is to try to create a sense that Ms.
Lewinsky's interest in a New York job arose in reaction to her
involvement in the Jones suit and that the President's efforts
to help her were excessive and performed with intent somehow to
buy her silence, when the actual evidence is to the contrary.
There is no direct evidence that the President or Mr.
Jordan assisted Ms. Lewinsky with her job search in exchange
for silence or false testimony. Indeed, all the direct evidence
is to the contrary. As Ms Lewinsky unequivocally stated: ``[N]o
one ever asked me to lie and I was never promised a job for my
silence.'' App. at 1161 (8/20/98 grand jury testimony of Ms.
Lewinsky). Mr. Jordan's testimony was also clear and
unequivocal:¹⁴⁵ ``As far as I was concerned, [the
job and the affidavit] were two very separate matters.'' Supp.
at 1737 (3/5/98 grand jury testimony of Vernon
Jordan).¹⁴⁶ The Referral must therefore resort to
selective citation to circumstantial evidence to try to make
its case. But, as we establish in detail below, the
circumstantial ``evidence'' does not support the notion that a
job was procured for Ms. Lewinsky in an effort to obstruct
justice in the Jones litigation. It supports the direct
evidence to the contrary.
---------------------------------------------------------------------------
\145\ From his standpoint, Mr. Jordan's assistance to Ms. Lewinsky
was not in the least unusual. Mr. Jordan testified repeatedly that he
is often asked to help people get jobs and often provides such help.
See Supp. at 1707 (3/3/98 grand jury testimony of Vernon Jordan) (Mr.
Jordan is ``asked frequently by people to help . . . get jobs''); id.
at 1711-12 (noting referring of other individuals for jobs at Revlon,
Young & Rubicam, American Express and other companies and stating ``to
the extent you think [assisting Ms. Lewinsky was] out of the ordinary,
it is not out of the ordinary, given what I do''); see also January 22,
1998 Statement of Vernon Jordan: (``For many years now . . . I am
consulted by individuals, young and old, male and female, black and
white, Hispanic and Asian, rich and poor, cabinet members and
secretaries, for assistance.'').
\146\ See also Supp. at 1827 (5/5/98 grand jury testimony of Vernon
Jordan):
---------------------------------------------------------------------------
Q. Did [Ms. Lewinsky] ever directly indicate to you that
she wanted her job in New York before she could finish [her
affidavit] up with Mr. Carter?
A. Unequivocally, no.
Q. . . . Is there anything about the way she acted when
speaking to you that, as you sit here now, makes you think
that perhaps she was attempting not to finalize whatever
she was doing with Mr. Carter until she had a job in New
York?
A. Unequivocally, indubitably, no.
The Referral poses the job-search issue as ``whether the
President's efforts in obtaining a job for Ms. Lewinsky were to
influence her testimony or simply to help an ex-intimate
without concern for her testimony.'' Ref. at 185. Mr. Starr
acknowledges that there is no direct evidence that the
President assisted Ms. Lewinsky in obtaining a job in exchange
for her lying or remaining silent. Ref. at 185 n.361. The OIC
also acknowledges that the ``case'' is entirely circumstantial;
rests on an interpretation of selected circumstances it
describes as ``key events.'' Ref. at 181. The centerpiece of
the charge is the notion that the President employed Mr. Vernon
Jordan to place Ms. Lewinsky in an out-of-town job so as to
induce Ms. Lewinsky either to leave town, to file a false
affidavit, or to remain silent in such a way as to obstruct
justice in the Jones case.¹⁴⁷
---------------------------------------------------------------------------
\147\ As we will establish below, the omitted facts are flatly at
odds with that theory. Had the President intended to ensure Ms.
Lewinsky's silence concerning their relationship, it was surely within
his power--at any time--to secure a job for Ms. Lewinsky at the White
House. It appears from the record that she desperately wanted such a
position. Given Ms. Lewinsky's repeatedly expressed desire for such a
job, any jobs-for-silence scheme could have been readily implemented by
giving her a White Hoouse position. No such position was ever offered,
because there was never an effort to silence or buy off Ms. Lewinsky.
---------------------------------------------------------------------------
Here is the Referral's key passage, a chronology manifestly
constructed to create a false impression of obstruction:

On January 5, 1998, Ms. Lewinsky declined the United
Nations job. On January 7, 1998, Ms. Lewinsky signed the
affidavit denying the relationship with President Clinton (she
had talked on the phone to the President on January 5 about
it). Mr. Jordan informed the President of her action.
The next day, on January 8, 1998, Ms. Lewinsky interviewed
with MacAndrews & Forbes, a company recommended by Vernon
Jordan. The interview went poorly. Mr. Jordan then called
Ronald Perelman, the Chairman of the Board of MacAndrews &
Forbes. Mr. Perelman said Ms. Lewinsky should not worry, and
that someone would call her back for another interview. Mr.
Jordan relayed this message to Ms. Lewinsky, and someone called
back that day.
Ms. Lewinsky interviewed again the next morning, and a few
hours later received an informal offer for a position. She told
Mr. Jordan of the offer, and Mr. Jordan then notified President
Clinton with the news: ``Mission accomplished.''

Ref. at 183-84 (footnotes omitted) (emphasis in original). As
we will show, this passage is woefully misleading. In fact, the
timing of Ms. Lewinsky's January 8th interview had nothing to
do with the Jones matter. And the fact of Mr. Jordan's January
8 call to Mr. Perelman was never communicated to the Revlon
executive who scheduled Ms. Lewinsky's January 9 interview and
who decided to hire her that very day.

Indeed, closer inspection of the evidence contained in the
appendices and supplements gives the lie to the Referral's
theory and makes the following facts absolutely clear:
Ms. Lewinsky's desire to leave Washington
arose long before her involvement in the Jones case;
The President provided Ms. Lewinsky with
only modest assistance;
The job assistance provided by friends and
associates of the President was in no way unusual;
No pressure was applied to obtain Ms.
Lewinsky a job;
There was no timetable for Ms. Lewinsky's
job search, let alone any timetable linked to her
involvement in the Jones case; and
None of Ms. Lewinsky's job-searching and
job-obtaining measures were in any way linked to her
involvement in the Jones case.
When the events leading up to Ms. Lewinsky's job offer are
reconstructed in fuller detail,¹⁴⁸ when the one-
sidedness of the Referral's account is recognized, and when its
crucial omissions are exposed, it becomes plain that there was
no impropriety and no obstruction of justice in connection with
her job search. The case for obstruction simply evaporates.
---------------------------------------------------------------------------
\148\ In addition to the many relevant facts omitted from the
Referral altogether, see Part V.C., infra, the Referral also contains
its own misleading ``editing'' of events it does include. For instance,
the Referral includes a number of exculpatory facts in its Narrative
section, but then, when it sets forth what it calls ``substantial and
credible evidence'' of wrongdoing, it omits them from its so-called
summary of ``key events and dates.'' Ref. 181. The following is just a
sampling of facts the Referral's authors did not regard as ``key
events'' deserving consideration in the accusatory part of the
Referral:
That throughout the first half of 1997, Ms. Lewinsky had
been hoping to return to a job in the White House and that she had not
succeeded in doing so; App. at 564 (President's 8/17/98 grand jury
testimony);
That the idea of a job at the United Nations originated
with Ms. Lewinsky, not the President; see App. at 788 (8/6/98 grand
jury testimony of Ms. Lewinsky) (in July 3 letter, ``I said in New York
at the United Nations'');
That Ms. Lewinsky's resolve to leave Washington was
cemented by remarks reported to her by Ms. Tripp on October 6, 1997 and
that those remarks, by a Tripp acquaintance, ``were `the straw that
broke the camel's back.' '' App. at 1460 (7/31/98 FBI Form 302
Interview of Ms. Lewinsky);
That before she ever had had the October discussion with
the President about a job, she had discussed with Ms. Tripp whether Mr.
Jordan would help with her job search; App. at 823-24 (8/6/98 grand
jury testimony of Ms. Lewinsky);
That Ms. Lewinsky first expressed a need for a White House
reference on October 11, and that she suggested that Mr. John Hilley
was the appropriate person to provide the reference because he had at
one time been her supervisor; App. at 1544-45 (8/13/98 FBI Form 302
Interview of Ms. Lewinsky);
That Ms. Lewinsky needed the reference not for any
improper motive but because she had worked at the White House in the
Office of Legislative Affairs; App. at 934-35 (8/6/98 grand jury
testimony of Ms. Lewinsky). Mr. Hilley was the appropriate person to
provide the reference because he had been her boss there during the
latter part of her tenure at the White House. Ibid.
The omission of each of these facts from the accusatory portion of
the Referral artificially bolsters the theory of the Referral by
creating the effect that Ms. Lewinsky's job search occurred mostly in
December and January.
---------------------------------------------------------------------------
b. A More Complete Narrative of Events
Ms. Lewinsky worked in the White House from late 1995 until
early April 1996. In early April, she was advised by Mr. Tim
Keating that she was being transferred from the White House to
the Pentagon; Mr. Keating told her that she might be able to
return to the White House after the November 1996 election.
App. at 1503-04 (8/3/98 FBI Form 302 Interview of Ms.
Lewinsky). Following the 1996 election, Ms. Lewinsky tried for
months throughout 1997 to get a job in the White House or in
the Old Executive Office Building. During that period, the
President told her that Mr. Bob Nash and later Ms. Marsha Scott
were the people who could help her get a job in the White
House. App. at 1458 (7/31/98 FBI Form 302 Interview of Ms.
Lewinsky). Ms. Lewinsky wrote to and met several times with Ms.
Scott in 1997 about a White House job. App. at 1458-59 (7/31/98
FBI Form 302 Interview of Ms. Lewinsky). The President was
aware of Ms. Lewinsky's continuing efforts to work in the White
House. App. at 564-65 (President's 8/17/98 grand
jurytestimony). While still hoping for a White House job, Ms. Lewinsky
began to think about working in New York. Ultimately, Ms. Lewinsky was
never offered another White House job, and when (in early October 1997)
it became clear to her that she would not be offered one, she turned
her focus entirely to New York.
On July 3, 1997, Ms. Lewinsky notified the President that
she was thinking of moving to New York. App. at 1414 (7/29/98
FBI 302 Interview of Ms. Lewinsky). She told him of her
interest in a United Nations job and explicitly asked for his
help in getting a position in New York. App. at 788 (8/6/98
grand jury testimony of Ms. Lewinsky). Ms. Lewinsky again
raised the prospect of moving to New York in a September 2,
1997 e-mail message to a friend. App. at 2811. According to Ms.
Lewinsky, by October 6, 1997, she was ``mostly resolved to look
for a job in the private sector in New York.'' App. at 1544 (8/
13/98 FBI Form 302 Interview of Ms. Lewinsky). On October 9th
or 11th, Ms. Lewinsky asked the President if Mr. Vernon Jordan
might be able to assist her with her New York job search, App.
at 822-24 (8/6/98 grand jury testimony of Ms. Lewinsky); 1079
(8/20/98 grand jury testimony of Ms. Lewinsky). The idea of
obtaining Mr. Jordan's assistance may have originated with Ms.
Tripp. App. at 822-24 (8/6/98 grand jury testimony of Ms.
Lewinsky).
Ms. Lewinsky believed that her discussions with the
President about a job were ``part of her relationship with''
the President. App. at 1461 (7/31/98 FBI Form 302 Interview).
According to Ms. Lewinsky, she prepared a list of jobs she was
interested in the private sector in New York. App. at 824 (8/6/
98 grand jury testimony of Ms. Lewinsky); App. at 1585. In
early November, Ms. Lewinsky met with Mr. Jordan who agreed to
help her at that time. App. at 824 (8/6/98 grand jury testimony
of Ms. Lewinsky). All of these events took place long before
Ms. Lewinsky's name ever appeared on any witness list in the
Jones matter. Indeed, it could not be clearer that Ms.
Lewinsky's wish to move to New York and her efforts to involve
the President and others in that search antedated and were
unrelated to the Jones matter.
As to the actual job interviews and offers Ms. Lewinsky
later obtained, no relevant circumstances reflect any attempt
to obstruct justice. A fuller account of Ms. Lewinsky's job
search makes this absolutely plain.
(1) The United Nations Job. Ms. Lewinsky interviewed for
and was ultimately offered a job at the United Nations. That
job interview was arranged by Mr. John Podesta acting at the
behest of Ms. Betty Currie. Supp. at 3404 (4/30/98 grand jury
testimony of Bill Richardson). Ms. Currie testified that she
was acting on her own in undertaking these efforts. Supp. at
592 (5/6/98 grand jury testimony of Betty Currie). In the
course of a casual conversation with Ambassador Richardson, Mr.
Podesta suggested that Ambassador Richardson interview a former
White House employee who was moving to New York. Supp. at 3395
(1/28/98 FBI Form 302 Interview of Bill Richardson). It was not
uncommon for Ambassador Richardson to interview persons on a
courtesy basis. Supp. at 3418 (4/30/98 grand jury testimony of
Bill Richardson). He was impressed with Ms. Lewinsky's resume.
Supp. at 3411 (4/30/98 grand jury testimony of Bill
Richardson). Ambassador Richardson neverspoke to the President
about Ms. Lewinsky. He never spoke to Mr. Jordan about Ms. Lewinsky.
Supp. at 3422 (4/30/98 grand jury testimony of Bill Richardson).
Ambassador Richardson felt no pressure to hire Ms. Lewinsky. Supp. at
3423 (4/30/98 grand jury testimony of Bill Richardson). Ms. Lewinsky
was interviewed on October 31, 1997, long before her name appeared on
the witness list in the Jones case. Supp. at 3718 (5/27/98 grand jury
testimony of Mona Sutphen).
She was offered a job at the U.N. and ultimately refused
it. There is no evidence that the job offer was related to the
Jones case and no suggestion that she was coerced or even
encouraged to take it. Moreover, there is no evidence that the
U.N. job interview and subsequent offer were part of any effort
to silence Ms. Lewinsky, or induce her to leave Washington, or
cause her to lie in connection with the Jones case.
(2) Private Sector Efforts. Ms. Lewinsky obtained help in
finding a private-sector job from several sources. In late
October-early November 1997, Ms. Lewinsky informed her then-
boss at the Pentagon, Mr. Kenneth Bacon, that she wanted to
seek employment in New York. Supp. at 11 (2/26/98 FBI Form 302
Interview of Kenneth Bacon). This was well before her name
appeared on the witness list in the Jones case. She told Mr.
Bacon that her mother was moving to New York and that she
wanted to work in public relations. Id. Mr. Bacon then had a
conversation with Mr. Howard Paster, the Chairman and CEO of
Hill & Knowlton about Ms. Lewinsky's job search. Mr. Paster
said that Ms. Connie Chung may have been looking for a
researcher. Id. On November 24, 1997, Mr. Bacon wrote to Mr.
Paster enclosing Ms. Lewinsky's resume and thanking him for his
willingness to talk to Ms. Chung about Ms. Lewinsky. Id. Mr.
Bacon's involvement reflects several fundamental facts
concerning Ms. Lewinsky's search for a New York job: (1) the
effort was initiated by her; (2) the effort predated the
relevant period in the Jones matter; and (3) the effort
proceeded on multiple fronts--with, as we will see, only very
limited involvement by the President.
At the heart of the Referral's obstruction charge is the
notion that the President used Mr. Jordan to obtain a job for
Ms. Lewinsky in New York in order to silence her or induce her
to lie in the Jones case. However, the person who contacted Mr.
Jordan on Ms. Lewinsky's behalf was Ms. Currie. Supp. at 592-93
(5/6/98 grand jury testimony of Betty Currie); Supp. at 1704
(3/3/98 grand jury testimony of Vernon Jordan); see also Supp.
at 1755 (3/5/98 grand jury testimony of Vernon Jordan). Ms.
Currie took an active role with Mr. Jordan. They were old
friends, and she felt comfortable approaching him to help Ms.
Lewinsky. Supp. at 592-94 (5/6/98 grand jury testimony of Betty
Currie).
The Referral says that Mr. Jordan contacted people from
three private companies with recommendations for Ms. Lewinsky.
Ref. at 93. Those people were Mr. Peter Georgescu, the Chairman
and CEO of Young & Rubicam (the parent of Burson-Marsteller);
Ms. Ursula Fairbairn, the Executive Vice President of Human
Resources at American Express; and Mr. Richard Halperin, the
Executive Vice President and Special Counsel at MacAndrews &
Forbes, the parent company of Revlon. Ms. Lewinsky applied for
positions with all three companies. As the recordmakes clear,
neither the President nor Mr. Jordan put any pressure on these
companies to hire Ms. Lewinsky or tried to engineer the timing of her
hiring to coincide with activity in the Jones case.
Burson Marsteller. Mr. Jordan telephoned Mr. Georgescu in
early December 1997, asking him to take a look at a young White
House person for a job. Mr. Jordan did not, in Mr. Georgescu's
words, engage in a ``sales pitch'' about Ms. Lewinsky. Supp. at
1222 (3/25/98 FBI Form 302 Interview of Peter Georgescu). Mr.
Georgescu told Mr. Jordan that the company ``would take a look
at Ms. Lewinsky in the usual way,'' Supp. at 1219 (1/29/98 FBI
Form 302 Interview of Peter Georgescu), and that his own
involvement would be ``arm's length,'' Supp. at 1222 (3/25/98
FBI Form 302 Interview of Peter Georgescu). After Mr. Georgescu
set up the initial interview, Ms. Lewinsky would be ``on [her]
own from that point.'' Ibid. Ms. Lewinsky then interviewed with
a Ms. Celia Berk of Burson-Marsteller. According to Ms. Berk,
her company's actions in Ms. Lewinsky's interviewing process
were handled ``by the book.'' Supp. at 111 (3/31/98 FBI Form
302 Interview of Celia Berk). Ms. Lewinsky's ``recruitment
process,'' she said, ``was somewhat accelerated, but it went
through the normal stops.'' Ibid. Burson-Marsteller never
offered Ms. Lewinsky a job.
American Express. The person Mr. Jordan spoke with at
American Express was Ms. Ursula Fairbairn, the head of Human
Resources. Ref. 93. According to Ms. Fairbairn, there was
nothing unusual for board members or company officers to
recommend talented people for work at American Express. Supp.
at 1087 (1/29/98 FBI Form 302 Interview of Ursula Fairbairn).
Indeed Mr. Jordan had recently made another employment
recommendation to Ms. Fairbairn at American Express. Supp. at
1087 (1/29/98 FBI Form 302 Interview of Ursula Fairbairn). Ms.
Fairbairn felt that no pressure was exerted by Mr. Jordan.
Supp. at 1087 (1/29/98 FBI Form 302 Interview of Ursula
Fairbairn).
The person Ms. Lewinsky interviewed with was an American
Express official in Washington named Mr. Thomas Schick. Ref. at
95. According to Mr. Schick, he never talked to Mr. Jordan at
any time during this process. He also said that he felt
absolutely no pressure to hire Ms. Lewinsky. Supp. at 3521 (1/
29/98 FBI Form 302 Interview of Thomas Schick). Ms. Lewinsky
interviewed with Mr. Schick on December 23, 1997. According to
Ms. Lewinsky's account of that interview, she was told that she
lacked the qualifications necessary for the position. App. at
1480 (8/1/98 FBI Form 302 Interview of Ms. Lewinsky). Ms.
Lewinsky was never offered a job at American Express. Supp. at
1714 (3/3/98 grand jury testimony of Vernon Jordan).
MacAndrews & Forbes/Revlon. The person Mr. Jordan first
contacted at MacAndrews & Forbes was an Executive Vice
President named Mr. Richard Halperin. Ref. at 93. It was not
unusual for Mr. Jordan to call him with an employment
recommendation. Supp. at 1281 (1/26/98 FBI Form 302 Interview
of Richard Halperin); see also Supp. at 1294 (4/23/98 grand
jury testimony of Richard Halperin) (same). In fact, Mr. Jordan
had recommended at least three other persons besides Ms.
Lewinsky to MacAndrews & Forbes. Supp. at 1746-47 (3/5/98
grandjury testimony of Vernon Jordan). On this occasion, Mr. Jordan
told Mr. Halperin that Ms. Lewinsky was bright, energetic and
enthusiastic and encouraged him to meet with Ms. Lewinsky. Supp. at
1286 (3/27/98 Interview of Richard Halperin). Mr. Halperin did not
think there was anything unusual about Mr. Jordan's request. Id. In Mr.
Jordan's telephone call, Mr. Halperin testified that Mr. Jordan did not
``ask [Halperin] to work on any particular kind of timetable,'' Supp.
at 1294 (4/23/98 grand jury testimony of Richard Halperin), and Mr.
Halperin said that ``there was no implied time constraint or
requirement for fast action.'' Supp. at 1286 (3/27/98 FBI Form 302
Interview of Richard Halperin).
Ms. Lewinsky interviewed with Mr. Halperin on December 18,
1997, in New York. Supp. at 1282 (1/26/98 FBI Form 302
Interview of Richard Halperin). At the end of the Lewinsky
interview, Mr. Halperin thought Ms. Lewinsky would be ``shipped
to Revlon'' for consideration of opportunities there. Supp. at
1287 (3/27/98 FBI Form 302 Interview of Richard Halperin).
Earlier that week, Mr. Halperin had sent Ms. Lewinsky's resume
to Mr. Jaymie Durnan of MacAndrews & Forbes for his
consideration. Ibid.
Mr. Durnan became aware of Ms. Lewinsky in mid-December
1997. Supp. at 1053 (3/27/98 FBI Form 302 Interview of Jaymie
Durnan). At that time, he reviewed her resume and decided to
interview her after the first of the year. Ibid. (He was going
on vacation the last two weeks of December.) Ibid. When he
returned from vacation, he had his assistant schedule an
interview with Ms. Lewinsky for January 7, 1998, but, because
of scheduling problems, he rescheduled the interview for the
next day January 8, 1998. Supp. at 1049 (1/26/98 FBI Form 302
Interview of Jaymie Durnan). Mr. Durnan's decision to interview
Ms. Lewinsky was made independently of the decision by Mr.
Halperin to interview her. Indeed, only when Mr. Durnan
interviewed Ms. Lewinsky in January did he discover that she
had had a December interview with Mr. Halperin. Ibid.
Ms. Lewinsky interviewed with Mr. Durnan on the morning of
January 8th. Mr. Durnan thought she was impressive for entry
level work. Supp. at 1049 (1/26/98 FBI Form 302 Interview of
Jaymie Durnan). After that interview, Mr. Durnan concluded that
Ms. Lewinsky would have ``fit in'' at the parent company
(MacAndrews & Forbes), but that there was nothing available at
the time that matched her interest. He also thought she might
be suitable for MacAndrews & Forbes' subsidiary Revlon. Supp.
at 1054 (3/27/98 FBI Form 302 Interview of Jaymie Durnan). He
decided to send her resume to Revlon. He left a message for Ms.
Allyn Seidman (Senior VP of Corporate Communications) at Revlon
and forwarded Ms. Lewinsky's resume to her. Supp. at 1049-50
(1/26/98 FBI Form 302 Interview of Jaymie Durnan).
That same day, Mr. Jordan spoke to Mr. Ronald Perelman, CEO
of MacAndrews & Forbes, by telephone and mentioned to Mr.
Perelman that Ms. Lewinsky had interviewed with MacAndrews &
Forbes. However, Mr. Jordan made no specific requests and did
not ask Mr. Perelman to intervene. Supp. at 3273 (1/26/98 FBI
Form 302 Interview of Ronald Perelman); Supp. at 3276 (3/27/98
FBI Form 302 Interview of Ronald Perelman). Later that day, Mr.
Durnan spoke to Mr.Perelman, who mentioned that he had had a
call from Mr. Jordan about a job candidate. Mr. Perelman simply told
Mr. Durnan ``let's see what we can do,'' and Mr. Perelman later told
Mr. Jordan that they would do what they could. Mr. Jordan expressed no
time constraint to Mr. Perelman. Ibid.
By the time Mr. Perelman spoke to Mr. Durnan, Mr. Durnan
had already passed on Ms. Lewinsky's resume to Ms. Seidman at
Revlon. Supp. at 1049-50 (1/26/98 FBI Form 302 Interview of
Jaymie Durnan). After speaking with Mr. Perelman, Mr. Durnan
actually spoke to Ms. Seidman about Ms. Lewinsky for the first
time. Supp. at 1054-55 (3/27/98 FBI Form 302 Interview of
Jaymie Durnan). Upon speaking to Ms. Seidman about Ms.
Lewinsky, Mr. Durnan did not tell Ms. Seidman that CEO Perelman
had expressed an interest in Lewinsky. Supp. at 1055 (3/27/98
FBI Form 302 Interview of Jaymie Durnan). Rather, he simply
told Ms. Seidman that if she liked Ms. Lewinsky, she should
hire her. Supp. at 1050 (1/26/98 FBI Form 302 Interview of
Jaymie Durnan).
According to Mr. Durnan, Mr. Perelman never said or implied
that Ms. Lewinsky had to be hired. Indeed, Mr. Durnan concluded
that Ms Lewinsky's hiring was not mandatory. Supp. at 1055 (3/
27/98 FBI Form 302 Interview of Jaymie Durnan). According to
Ms. Seidman, Mr. Durnan told Ms. Seidman that he thought she
should interview Ms. Lewinsky because he thought she was a good
candidate. Supp. at 3634 (4/23/98 grand jury testimony of Allyn
Seidman). In fact, there is nothing in the record to suggest
that Ms. Seidman even knew that Mr. Perelman had any interest
at all in Ms. Lewinsky. Supp. at 3643 (4/23/98 grand jury
testimony of Allyn Seidman). And there's no evidence that Mr.
Perelman instructed or suggested to Ms. Seidman that she
conduct that interview. Supp. at 3642 (4/23/98 grand jury
testimony of Allyn Seidman). Having seen his name in Ms.
Lewinsky's application materials, Ms. Seidman was aware that
Ms. Lewinsky had some connection with Mr. Jordan, but there is
no evidence that Ms. Seidman was aware of Mr. Jordan's January
8th call to Mr. Perelman. Supp. at 3643 (4/23/98 grand jury
testimony of Allyn Seidman).
In fact, the next day when Ms. Seidman interviewed Ms.
Lewinsky, she liked her so well she decided to hire her that
very day. Supp. at 3643 (4/23/98 grand jury testimony of Allyn
Seidman). And when Ms. Seidman decided to hire Ms. Lewinsky,
there is no evidence that Mr. Perelman or Mr. Durnan or Mr.
Halperin told her to do that. Supp. at 3643 (4/23/98 grand jury
testimony of Allyn Seidman). The decision to hire Ms. Lewinsky
was made by Ms. Seidman completely unaware of Mr. Jordan's
January 8 telephone call.
c. The Referral Falsely Suggests Obstruction by Suppressing
Crucial Facts
As the foregoing narrative establishes, there was a great
deal more to Ms. Lewinsky's job search that the Referral
acknowledges. Indeed, the events of December and January (upon
which the Referral's obstruction theory places such reliance)
assume quite a different cast when the details are filled in.
It becomes clear that the Referral has completely suppressed a
host of pertinent facts, every one of them relevant to the
question whether Ms. Lewinsky's job was procured at a crucial
time in the Jones case in exchange for a false affidavit or to
buy her silence.Among those set forth in the above narrative,
those omitted facts include the following:
That Ms. Lewinsky believed that her discussions
with the President about a job were ``part of her relationship
with'' the President. App. at 1461 (7/31/98 FBI From 302
Interview).
That Ms. Lewinsky raised the prospect of moving to
New York in a September 2, 1997 e-mail message to a friend.
App. at 2811;
That the idea of obtaining Mr. Jordan's assistance
may have originated with Ms. Tripp. App. at 822-24 (8/6/98
grand jury testimony of Ms. Lewinsky);
That Ms. Lewinsky was simultaneously pursuing New
York jobs through avenues other than the President and his
associates, Supp. at 11 (2/26/98 FBI Form 302 Interview of
Kenneth Bacon);
That those efforts occurred well before her name
appeared on the witness list in the Jones case, Supp. at 11 (2/
26/98 FBI Form 302 Interview of Kenneth Bacon);
That Mr. Jordan put no pressure on Mr. Peter
Georgescu of Young & Rubicam/Burson Marsteller and that Mr.
Georgescu told Mr. Jordan that the company ``would take a look
at Ms. Lewinsky in the usual way.'' Supp. at 1219 (1/29/98 FBI
Form 302 Interview of Peter Georgescu), that Mr. Georgescu's
involvement would be ``arm's length,'' and that after he set up
the initial interview, Ms. Lewinsky would be ``on [her] own
from that point,'' Supp. at 1222 (3/25/98 FBI Form 302
Interview of Peter Georgescu);
That Ms. Lewinsky's interview with a Ms. Celia
Berk of Burson-Marsteller was handled ``by the book'', Supp. at
111 (3/31/98 FBI Form 302 Interview of Celia Berk), and that it
``went through the normal stops.'' Ibid.;
That Burson-Marsteller never offered Ms. Lewinsky
a job;
That Ms. Lewinsky's initial contact with American
Express was not extraordinary because according to Ms. Ursula
Fairbairn, there was nothing unusual for board members or
company officers to recommend talented people for work at
American Express, Supp. at 1087 (1/29/98 FBI Form 302 Interview
of Ursula Fairbairn);
That Mr. Jordan had recently made another
employment recommendation to Ms. Fairbairn at American Express,
Supp. at 1087 (1/29/98 FBI Form 302 Interview of Ursula
Fairbairn);
That Ms. Fairbairn felt that no pressure was
exerted by Mr. Jordan, Supp. at 1087 (1/29/98 FBI Form 302
Interview of Ursula Fairbairn);
That the person Ms. Lewinsky interviewed with at
American Express, an official named Mr. Thomas Schick, never
talked to Mr. Jordan at any time during this process, Supp. at
3521 (1/29/98 FBI Form 302 Interview of Thomas Schick);
That Mr. Schick stated that he felt absolutely no
pressure to hire Ms. Lewinsky, Supp. at 3521 (1/29/98 FBI Form
302 Interview of Thomas Schick);
That during Ms. Lewinsky's interview with Mr.
Schick on December 23, 1997, she was told that she lacked the
qualifications necessary for the position, App. 1480 (8/1/98
FBI Form 302 Interview of Ms. Lewinsky);
That Ms. Lewinsky was never offered a job at
American Express;
That the person Mr. Jordan first contacted at
MacAndrews & Forbes/Revlon was an Executive Vice President
named Mr. Richard Halperin who said that it was not unusual for
Mr. Jordan to call him with an employment recommendation, Supp.
at 1281 (1/26/98 FBI Form 302 Interview of Richard Halperin),
and that he did not think there was anything unusual about Mr.
Jordan's request, Supp. at 1286 (3/27/98 FBI Form 302 Interview
of Richard Halperin);
That in Mr. Jordan's call to Mr. Halperin, Mr.
Jordan did not ``ask [Halperin] to work on any particular kind
of timetable,'' Supp. at 1294 (4/23/98 grand jury testimony of
Richard Halperin), and that ``there was no implied time
constraint or requirement for fast action,'' Supp. at 1286 (3/
27/98 FBI Form 302 Interview of Richard Halperin);
That Ms. Lewinsky's interview with Mr. Halperin
was scheduled for December 18, 1997 in New York at her request,
Supp. at 1282 (1/26/98 FBI Form 302 Interview of Richard
Halperin);
That earlier that week, Mr. Halperin, with no
input from Mr. Jordan or MacAndrews and Forbes CEO Ronald
Perelman, had sent Ms. Lewinsky's resume to Jaymie Durnan for
his consideration, Ibid.;
That Mr. Durnan became aware of Ms. Lewinsky in
mid-December 1997, Supp. at 1053 (3/27/98 FBI Form 302
Interview of Jaymie Durnan), and that at that time, he reviewed
her resume and decided to interview her after the first of the
year, Ibid.;
That when Mr. Durnan returned from vacation, he
had his assistant schedule an interview with Ms. Lewinsky for
January 7, 1998, but, because of scheduling problems, he
rescheduled the interview for the next day January 8, 1998,
Supp. at 1049 (1/26/98 FBI Form 302 Interview of Jaymie
Durnan);
That Mr. Durnan's decision to interview Ms.
Lewinsky was made independently of the decision by Mr. Halperin
to interview her;
That when Ms. Lewinsky interviewed with Mr. Durnan
on the morning of January 8th, Mr. Durnan thought she was
impressive for entry level work, Supp. at 1049 (1/26/98 FBI
Form 302 Interview of Jaymie Durnan);
That Mr. Durnan concluded that Ms. Lewinsky would
have ``fit in'' at the parent company (MacAndrews & Forbes
Holdings) but that there was nothing available at the time that
matched her interest and so, for that reason, he referred her
to Revlon, thinking she might be suitable for that company,
Supp. at 1054 (3/27/98 FBI Form 302 Interview of Jaymie
Durnan). He decided to send her resume to Revlon;
That, as the Referral makes so much of, Mr. Jordan
did speak to CEO Ronald Perelman on January 8, 1998, but that
Mr. Jordan made no specific requests and did not ask Mr.
Perelman to intervene, Supp. at 3273 (1/26/98 FBI Form 302
Interview of Ronald Perelman); Supp. at 3276 (3/27/98 FBI Form
302 Interview of Ronald Perelman);
That in that call, Mr. Jordan did not say that
there was any time constraint involved in considering Ms.
Lewinsky for a job, Supp. at 3276 (3/27/98 FBI Form 302
Interview of Ronald Perelman);
That on that same day, Mr. Perelman spoke to Mr.
Durnan about Ms. Lewinsky, but he simply told Mr. Durnan
``let's see what we can do,'' Ibid., and later told Mr. Jordan
only that they would do what they could, Ibid.;
That at the time Mr. Perelman spoke to Mr. Durnan,
Mr. Durnan had already passed Ms. Lewinsky's resume over to Ms.
Allyn Seidman (Senior VP Corporate Communications) at Revlon,
Supp. at 1049-50 (1/26/98 FBI Form 302 Interview of Jaymie
Durnan);
That upon first speaking to Ms. Seidman about Ms.
Lewinsky, Mr. Durnan did not tell Ms. Seidman that CEO Perelman
had expressed an interest in Lewinsky. Supp. at 1055 (3/27/98
FBI Form 302 Interview of Jaymie Durnan). Rather, he simply
told Ms. Seidman that if she liked ML, she should hire her,
Supp. at 1050 (1/26/98 FBI Form 302 Interview of Jaymie
Durnan);
That Mr. Perelman never said or implied that Ms.
Lewinsky had to be hired and that Mr. Durnan concluded that Ms.
Lewinsky's hiring was not mandatory, Supp. at 1055 (3/27/98 FBI
Form 302 Interview of Jaymie Durnan);
That according to Ms. Seidman, Mr. Durnan told Ms.
Seidman that he thought she should interview Ms. Lewinsky
because he thought she was a good candidate, Supp. at 3634 (4/
23/98 grand jury testimony of Allyn Seidman);
That according to Ms. Seidman, when she
interviewed Ms. Lewinsky, she liked her a great deal and so
decided to hire her that very day, Supp. at 3643 (4/23/98 grand
jury testimony of Allyn Seidman);
And that when Ms. Seidman decided to hire Ms.
Lewinsky, there is no evidence that Mr. Perelman or Mr. Durnan
or Mr. Halperin told her to do that, Supp. at 3643 (4/23/98
grand jury testimony of Allyn Seidman).
Every one of the foregoing facts is relevant to the case
for obstruction of justice. Every one of them suggests that
there was no obstruction. And every one of them is missing from
the Referral.
d. The Referral Omits Ms. Lewinsky's Own Statement of Her
Reason for Seeking the President's Help in
Obtaining A New York Job
Ms. Lewinsky expressly told the OIC that her principal
reason for moving to New York was her understanding--growing
throughout 1997 and confirmed on October 6, 1997--that she
would never work in the White House again:
``LEWINSKY advised that the main reason she looked for a
job in New York was because TRIPP said that `KATE at NSC' said
LEWINSKY would never get a job in the White House . . .''
LEWINSKY advised TRIPP told LEWINSKY this in an October 6, 1997
telephone call. App. at 1419-20 (7/29/98 FBI Form 302 Interview
of Ms. Lewinsky).
Despite the fact that Ms. Lewinsky stated that this was her
``main reason for look[ing] for a job in New York,'' that
statement is nowhere to be found in the Referral. And despite
the fact that she apparently reached this decision on October
6, 1997, that fact too is not part of the Referral's chronology
of ``key events.'' These two facts sharply undermine the OIC's
insistence that the President's assistance to Ms. Lewinsky in
obtaining a job in New York was motivated by an intent to
obstruct justice in the Jones case's December-January discovery
proceedings, but they are missing from the Referral.
e. The Referral Leaves Out Direct Evidence Contradicting
the Notion that Ms. Lewinsky's Job Was Procured in
Exchange for Silence or for a False Affidavit
The OIC's chronology of key events plainly intends to
suggest that Ms. Lewinsky's Jones affidavit was signed in
exchange for a New York job. What the chronology omits are the
following statements made by Ms. Lewinsky showing that there
simply was no job-for-affidavit deal of any kind:
``[t]here was no agreement with the President, JORDAN, or
anyone else that LEWINSKY had to sign the Jones affidavit
before getting a job in New York. LEWINSKY never demanded a job
from JORDAN in return for a favorable affidavit. Neither the
President nor JORDAN ever told LEWINSKY that she had to lie.''
App. at 1398 (7/27/98 FBI Form 302 Interview of Ms. Lewinsky);
and that the only person who suggested that she sign the
affidavit in exchange for a job was Ms. Tripp: ``TRIPP told
LEWINSKY not to sign the affidavit until LEWINSKY had a job.''
App. at 1493 (8/2/98 FBI Form 302 Interview of Ms. Lewinsky);
Ms. Tripp made Ms. Lewinsky promise her not to sign an
affidavit without first telling Jordan ``no job, no
affidavit.'' App. at 900 (8/6/98 grand jury testimony of Ms.
Lewinsky);
Ms. Tripp said to Ms. Lewinsky: ``Monica, promise me you
won't sign the affidavit until you get the job. Tell Vernon you
won't sign the affidavit until you get the job because if you
sign the affidavit before you get the job they're never going
to give you the job.'' App. at 902 (8/6/98 grand jury testimony
of Ms. Lewinsky);
Ms. Lewinsky reiterated that, ``as I mentioned earlier, she
[Tripp] made me promise her that I wouldn't sign the affidavit
until I got the job.'' App. at 933 (8/6/98 grand jury testimony
of Ms. Lewinsky);
``I [Ms. Lewinsky] told Mr. Jordan I wouldn't sign the
affidavit until I got a job. That was definitely a lie, based
on something Linda had made me promise her on January 9th.''
App. at 1134 (8/20/98 grand jury testimony of Ms. Lewinsky).
Five distinct statements by Ms. Lewinsky make Ms. Tripp the
sole source of the job-for-affidavit notion which the OIC holds
out as the heart of the obstruction case. Ms. Lewinsky's
recitation of Ms. Tripp's statements are the only direct
evidence contained in the appendices bearing on that idea. Yet
these statements are nowhere to be found in the Referral.
f. The Referral Suppresses Directly Exculpatory Statements
of Ms. Lewinsky
Finally, the OIC's chronology of key events fails to
include the following three statements of Ms. Lewinsky bearing
directly on the core of this issue. The first was made in Ms.
Lewinsky's original proffer on February 1, 1998:

``Neither the Pres[ident] nor Mr. Jordan (or anyone on
their behalf) asked or encouraged me to lie.'' App. at 718.

The second was made in her very first interview with the
OIC:

[t]here was no agreement with the President, JORDAN, or
anyone else that LEWINSKY had to sign the Jones affidavit
before getting a job in New York. LEWINSKY never demanded a job
from JORDAN in return for a favorable affidavit. Neither the
President nor JORDAN ever told LEWINSKY that she had to lie.

App. at 1398 (7/27/98 FBI Form 302 Interview of Ms. Lewinsky).
The third was made at the close of Ms. Lewinsky's grand jury
testimony in response to a question from a grand juror:

Q. Monica, is there anything that you would like to add to
your prior testimony . . . anything that you think needs to be
amplified on or clarified?
A. . . . I would just like to say that no one ever asked me
to lie and I was never promised a job for my silence.

App. at 1161 (8/20/98 grand jury testimony of Ms. Lewinsky).
From initial proffer to the last minutes of her grand jury
appearance, the testimony of Ms. Lewinsky (the OIC's principal
witness) has been clear and consistent on this obstruction
issue: she was never asked or encouraged to lie or promised a
job for silence or for a favorable affidavit.
g. Conclusion
There was no obstruction of justice in connection with Ms.
Lewinsky's job search. That search was undertaken long before
her involvement in the Jones case was known to anyone. It
involved individuals other than the President and his friends.
It resulted in several dead ends. It was not conducted
according to any timetable, explicit or tacit. It was completed
without pressure of any kind and without reference to the Jones
case.
The Referral's insinuations to the contrary are just that.
When the omissions and falsely suggestive juxtapositions are
examined, the truth becomes clear: The jobs-based obstruction
charge lacks even the most basic circumstantial support.

3. The President Did Not Have an Agreement or Understanding with Ms.
Lewinsky to Lie Under Oath

The Committee appears to be considering an article of
impeachment concerning the assertion in the Referral that
President Clinton and Ms. Lewinsky had an understanding or
agreement that they would lie under oath in the Jones case
about their relationship. Ref. at 173; see also Schippers
Presentation at 13 (``the two agreed that they would employ the
same cover story in the Jones case''). Both the Starr Referral
and the Majority's presentation simply ignore the fact that
neither Ms. Lewinsky nor the President testified that they had
any such agreement regarding their testimony in the Jones case.
To the contrary, Ms. Lewinsky stated repeatedly that she was
neither asked nor encouraged to lie, by the President or anyone
else on his behalf. And Ms. Lewinsky never testified that the
President ever discussed with her in any way the substance or
content of his own testimony. There simply was no such
agreement, and neither the OIC nor the majority have cited any
testimony by either of the supposed conspirators that supports
one. This allegation of obstruction of justice attempts to rest
solely on the shaky basis that the President and Ms. Lewinsky
attempted to conceal the improper nature of their relationship
while it was on-going.
In the Referral, Mr. Starr inexplicably never once quotes
Ms. Lewinsky's repeated, express denials that anyone had told
her to lie in the Jones case and therefore does not even
attempt to reconcile them with his theory of obstruction:
``Neither the Pres[ident] nor Mr. Jordan (or
anyone on their behalf) asked or encouraged Ms. L[ewinsky] to
lie.'' App. at 718 (2/1/98 Proffer).
``I think I told [Tripp] that--you know at various
times the President and Mr. Jordan had told me I had to lie.
That wasn't true.'' App. at 942 (Ms. Lewinsky's 8/6/98 grand
jury testimony).
``I think because of the public nature of how this
investigation has been and what the charges aired, that I would
just like to say that no one ever asked me to lie and I was
never promised a job for my silence.'' App. at 1161 (Ms.
Lewinsky's 8/20/98 grand jury testimony).
``Neither the President nor Jordan ever told
Lewinsky that she had to lie.'' App. at 1398 (7/27/98 FBI Form
302 Interview of Ms. Lewinsky).
``Neither the President nor anyone ever directed
Lewinsky to say anything or to lie . . .'' App. at 1400 (7/27/
98 FBI Form 302 Interview of Ms. Lewinsky).
The Referral alleges that during the course of their
admittedly improper relationship, the President and Ms.
Lewinsky concealed the nature of their relationship from
others. This is hardly a remarkable proposition. The use of
``cover stories'' to conceal such a relationship, apart from
any proceeding, is, however unpraiseworthy, not unusual and
certainly not an obstruction of justice. Ms. Lewinsky's
explicit testimony clearly indicates that the conversations she
said she had with the President about denying the relationship
had occurred long before her involvement in the Jones case. The
following exchange occurred between Ms. Lewinsky and a grand
juror:

Q. Is it possible that you 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. . . .

App. at 1119 (8/20/98 grand jury testimony of Ms. Lewinsky).
The Starr Referral cites only one specific statement that
Ms. Lewinsky claims the President made to her regarding the
substance of her testimony. Ms. Lewinsky testified that ``At
some point in the conversation, and I don't know if it was
before or after the subject of the affidavit came up, [the
President] sort of said, `You know, you can always say you were
coming to see Betty or that you were bringing me letters.' ''
App. at 843 (8/6/98 grand jury testimony of Ms. Lewinsky). As
an initial matter, the President stated in his grand jury
testimony that he did not recall saying anything like that in
connection with Ms. Lewinsky's testimony in the Jones case:

Q. And in that conversation, or in any conversation in
which you informed her she was on the witness list, did you
tell her, you know, you can always say that you were coming to
see Betty or bringing me letters? Did you tell her anything
like that?
A. I don't remember. She was coming to see Betty. I can
tell you this. I absolutely never asked her to lie.

App. at 568. The President testified that he and Ms. Lewinsky
``might have talked about what to do in a non-legal context at
some point in the past,'' but that he had no specific memory of
that conversation. App. at 569.
Even if that conversation did take place, neither of those
two ambiguous statements would be false, and neither statement
was ever made by Ms.Lewinsky in the Jones case. Ms. Lewinsky
stated on several occasions that the so-called ``cover stories'' were
not false. In her handwritten proffer, Ms. Lewinsky stated that the
President told her if anyone asked her about her visits to the Oval
Office, that she could say ``she was bringing him letters (when she
worked in Legislative Affairs) or visiting Betty Currie (after she left
the White House).'' App. at 709 (2/1/98 Proffer). Ms. Lewinsky
expressly told the OIC: ``There is truth to both of these statements.''
App. at 709 (2/1/98 Proffer) (emphasis added). Ms. Lewinsky also said
that this conversation took place ``prior to the subpoena in the Paula
Jones case.'' App. at 718 (2/1/98 Proffer) (emphasis added). Ms.
Lewinsky alleged that the President mentioned these explanations again
after the President told her she was on the witness list and reiterated
that ``[n]either of those statements [was] untrue.'' App. at 712 (2/1/
98 Proffer) (emphasis added). Ms. Lewinsky also stated in her proffer
that ``[t]o the best of Ms. L's memory, she does not believe they
discussed the content of any deposition that Ms. L might be involved in
at a later date.'' App. at 712 (2/1/98 Proffer).
Ms. Lewinsky testified to the grand jury that she did bring
papers to the Oval Office and that on some occasions, she
visited the Oval Office only to see Ms. Currie:

Q. Did you actually bring [the President] papers at all?
A. Yes.
Q. All right. And tell us a little about that.
A. It varied. Sometimes it was just actual copies of
letters. . . .

App. at 774-75 (8/6/98 grand jury testimony of Ms. Lewinsky).

``I saw Betty on every time that I was there . . . most of
the time my purpose was to see the President, but there were
some times when I did just go see Betty but the President
wasn't in the office.

App. at 775 (8/6/98 grand jury testimony of Ms. Lewinsky).
Mr. Starr and the Schippers' presentation ignore Ms.
Lewinsky's assertion that the so-called ``cover stories'' were
literally true, attempting instead to build an obstruction case
on the flimsy assertions that (1) her White House job never
required her to deliver papers for the President's signature;
and (2) her true purpose in visiting the Oval Office was to see
the President, and not Ms. Currie. Ref. at 176-77. In other
words, the OIC suggests that these responses might have been
misleading. But literal truth is a critical issue in perjury
and obstruction cases, as is Ms. Lewinsky's belief that the
statements were, in fact, literally true.

4. The President Did Not Obstruct Justice by Suggesting Ms. Lewinsky
Could File an Affidavit

The Starr Referral alleges that President Clinton
endeavored to obstruct justice based on Ms. Lewinsky's
testimony that the President told her, ``Well maybe you can
sign an affidavit'' in the Jones case. See App. at 843; Ref. at
173. The President never told Ms. Lewinsky to file a false
affidavit or otherwise told her what to say in the affidavit--
indeed the OIC makes no contention that the President ever told
Ms. Lewinsky to file a false affidavit. But a suggestion that
perhaps she could submit written testimony in lieu of a
deposition, if he made it, is hardly improper--let alone an
obstruction of justice. The President was aware that other
potential deponents in the Jones case had filed affidavits in
an attempt to avoid the expense, burden, and humiliation of
testifying in the Jones case, and thatthere was a chance that
doing so might enable Ms. Lewinsky to avoid testifying. Even if the
affidavit did not disclose every possible fact regarding their
relationship, since the Jones case concerned allegations of
nonconsensual sexual solicitation, a truthful albeit limited affidavit
might have allowed her to have avoided giving a Jones deposition.
The President's testimony overwhelmingly indicates that he
had no intention that Ms. Lewinsky file a false affidavit--and
no testimony to the contrary has been presented. No fewer than
eight times in his testimony to the grand jury, the President
explained that he thought she could and would execute a
truthful affidavit that would establish she was not relevant to
the Jones case:

``Q. Did you talk with Ms. Lewinsky about what she
meant to write in her affidavit?
A. I didn't talk to her about her definition. I did not
know what was in this affidavit before it was filled out
specifically. I did not know what words were used specifically
before it was filled out, or what meaning she gave to them. But
I'm just telling you that it's certainly true what she says
here, that we didn't have--there was no employment, no benefit
in exchange, there was nothing having to do with sexual
harassment. And if she defined sexual relationship in the way
that I think most Americans do, meaning intercourse, then she
told the truth.'' App. at 474.
``You know, I believed then, I believe now, that
Monica Lewinsky could have sworn out an honest affidavit, that
under reasonable circumstances, and without the benefit of what
Linda Tripp did to her, would have given her a chance not to be
a witness in this case.'' App. at 521.
which, under reasonable circumstances with fair-
minded, non-politically oriented people, would result in her
being relieved of the burden to be put through the kind of
testimony that, thanks to Linda Tripp's work with you and with
the Jones lawyers, she would have been put through. I don't
think that's dishonest, I don't think that's illegal.'' App. at
529.
``But I also will tell you that I felt quite
comfortable that she could have executed a truthful affidavit,
which would not have disclosed the embarrassing details of the
relationship that we had had, which had been over for many,
many months by the time this incident occurred.'' App. at 568-
69.
``I said I thought this could be a truthful
affidavit. And when I read it, since that's the way I would
define it, since--keep in mind, she was not, she was not bound
by this sexual relations definition, which is highly unusual; I
think anybody would admit that. When she used a different term,
sexual relationship, if she meant by that what most people
meant by it, then that is not an untruthful statement.'' App.
at 474-75.
``I believe that the common understanding of the
term, if you say two people are having a sexual relationship,
most people believe that includes intercourse. So, if that's
what Ms. Lewinsky thought, then this is a truthful affidavit. I
don't know what was in her mind. But if that's what she
thought, the affidavit is true.'' App. at 475.
``Q. Did you tell her to tell the truth?
``A. Well, I think the implication was she would tell the
truth. 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. Now, it obviously wouldn't if the Jones people knew
this, because they knew that if they could get this and leak
it, it would serve their larger purposes, even if the judge
ruled that she couldn't be a witness in the case. The judge
later ruled she wouldn't be a witness in the case. The judge
later ruled the case had no merit.
So, I knew that. 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.'' App. at 571.
``I believe at the time that she filled out this
affidavit, if she believed that the definition of sexual
relationship was two people having intercourse, then this is
accurate. And I believe that is the definition that most
ordinary Americans would give it.
If you said Jane and Harry have a sexual relationship, and
you're not talking about people being drawn into a lawsuit and
being given definitions, and then a great effort to trick them
in some way, but you are just talking about people in ordinary
conversations, I'll bet the grand jurors, if they were talking
about two people they know, and said they have a sexual
relationship, they meant they were sleeping together; they
meant they were having intercourse together.'' App. at 473.

There is simply no evidence that contradicts the President's
stated intention that the affidavit be limited but truthful. In
other words, there is simply no evidence that the President had
any ``corrupt'' intent, which is a requisite element of
obstruction of justice.
Ms. Lewinsky's repeated statements that she was not asked
or encouraged to lie similarly negate the allegation that the
President asked or encouraged her to file a false affidavit,
and yet Mr. Starr omitted these statements from his Referral:

``Neither the Pres[ident] nor Mr. Jordan (or
anyone on their behalf) asked or encouraged Ms. L[ewinsky] to
lie.'' App. at 718 (2/1/98 Proffer).
``I think I told [Tripp] that--you know at various times
the President and Mr. Jordan had told me I had to lie. That
wasn't true.'' App. at 942 (8/6/98 grand jury testimony).
``I think because of the public nature of how this
investigation has been and what the charges aired, that I would
just like to say that no one ever asked me to lie and I was
never promised a job for my silence.'' App. at 1161 (8/20/98
grand jury testimony).
``Neither the President nor Jordan ever told
Lewinsky that she had to lie.'' App. at 1398 (7/27/98 FBI Form
302 Interview of Ms. Lewinsky).
``Neither the President nor anyone ever directed
Lewinsky to say anything or to lie . . .'' App. at 1400 (7/27/
98 FBI 302 Form Interview of Ms. Lewinsky).

Furthermore, Ms. Lewinsky states that she believed, when
she executed the affidavit, that it was accurate given what she
believed to be the definition of a ``sexual relationship'':

``Ms. L[ewinsky] was comfortable signing the
affidavit with regard to the sexual relationship because she
could justify to herself that she and the Pres[ident] did not
have sexual intercourse.'' App. at 718 (2/1/98 Proffer).
``Lewinsky said her use of the term ``having sex''
means having intercourse . . .'' App. at 1558 (8/19/98 FBI 302
Form Interview of Ms. Lewinsky).
``I never even came close to sleeping with [the
President] . . . We didn't have sex . . . Having sex is having
intercourse . . . Having sex is having intercourse. That's how
most people would--'' Supp. at 2664 (Linda Tripp tape of a
conversation between Ms. Lewinsky and Ms. Tripp).¹⁴⁹
---------------------------------------------------------------------------
\149\ A friend of Ms. Lewinsky's also testified that she believed
that Ms. Lewinsky did not lie in her affidavit based on her
understanding that when Ms. Lewisnky referred to ``sex'' she meant
intercourse. Supp. at 4597 (6/23/98 grand jury testimony of Ms. Dale
Young).

Moreover, Ms. Lewinsky told the OIC that she believed the
President himself made such a distinction: ``After having a
relationship with him, Lewinsky deduced that the President, in
his mind, apparently does not consider oral sex to be sex. Sex
to him must mean intercourse.'' App. at 1558 (8/19/98 FBI 302
Form Interview of Ms. Lewinsky).
In short, the President never told Ms. Lewinsky what to say
in the affidavit, he knew that Ms. Lewinsky had her own lawyer
to protect her interests, and he expressly declined the
opportunity to review the content of the affidavit, according
to Ms. Lewinsky, see App. at 1489 (8/2/98 FBI Form 302
Interview of Ms.Lewinsky). The President repeatedly testified
that he did not intend Ms. Lewinsky to file a false affidavit, and the
above-referenced statements of Ms. Lewinsky indicate that, at the time
she executed it, she believed her affidavit was literally true.
The OIC's allegation depends on the argument that it
somehow was an obstruction of justice to fail to ensure that
Ms. Lewinsky volunteered in her affidavit all information that
the Jones lawyers might have used to attack the President in
their politically motivated lawsuit. There simply is no such
duty under the law, nor does the OIC cite any basis for such a
duty. Civil litigation is based upon an adversarial process of
determining truth, and a party is under no affirmative
obligation to assist an opponent in every way it can.
The OIC also claims that the President obstructed justice
by allegedly suggesting a misleading answer to a hypothetical
question posed to him by Ms. Lewinsky. Ref. at 178. Ms.
Lewinsky told the grand jury that in a phone conversation with
the President on January 5, she told him that Mr. Carter had
asked her some sample questions that she was unsure of how to
answer. App. at 912-13 (8/6/98 grand jury testimony of Ms.
Lewinsky). One of the questions was how she got her job at the
Pentagon. Id. Ms. Lewinsky told the grand jury that ``when I
told him the questions about my job at the Pentagon, he said,
``Well, you could always say that the people in Legislative
Affairs got it for you or helped you get it.'' And there was a
lot of truth to that. I mean, it was a generality, but that
was--I said `Well that's a good idea. Okay.' '' App. at 917 (8/
6/98 grand jury testimony of Ms. Lewinsky) (emphasis added). In
her written proffer, Ms. Lewinsky also told the OIC that the
President told her she could say ``The people in Legislative
Affairs helped you.'' App. at 717 (2/1/98 Proffer). She also
stated, ``this is, in fact, part of the truth--but not the
whole truth.'' Id. A third time, ``Lewinsky advised [the OIC]
that that explanation was true, but it was not the entire
truth.'' App. at 1489 (8/2/98 FBI Form 302 Interview of Ms.
Lewinsky).
The OIC claims that this conversation recounted by Ms.
Lewinsky was an obstruction of justice because the President
encouraged Ms. Lewinsky to file a false affidavit. This
conclusion ignores the fact that the conversation recounted by
Ms. Lewinsky had nothing to do with her affidavit. But that is
only the first problem with the OIC's claim. The Referral also
failed to include any of Ms. Lewinsky's three separate
statements that what the President allegedly had told her to
say had ``a lot of truth'' to it. And, in claiming that that
story was misleading because Ms. Lewinsky ``in fact had been
transferred because she was around the Oval Office too much,''
Ref. at 178, the OIC ignored the fact that the question asked
was not why Ms. Lewinsky was transferred out of the White House
but rather how she got her job at the Pentagon.
Finally, the OIC suggests that the President was
``knowingly responsible'' for a misstatement of fact to a
federal judge because he failed to correct a statement made by
his lawyer to the court in the Jones deposition. The President
testified to the grand jury that the lawyers' argument at the
start of the deposition ``passed [him] by.'' There is of course
no legal obligation imposed on a client to listento every word
his attorney says, and there is no evidence that the President focused
on or absorbed his attorney's remark. Without any evidence whatsoever,
the OIC asserts that the President knew what was said, knew he was
somehow responsible for it, knew it was incorrect, and ignored a duty
to correct it. Yet, again, this is a wholly unsupported allegation of
obstruction of justice.

5. The President Did Not Attempt To Influence Betty Currie's Testimony

The OIC charges that President Clinton obstructed justice
and improperly attempted to influence a witness when he spoke
with Ms. Currie the day after his deposition in the Jones case.
The OIC's claims are the product of extraordinary overreaching
and pejorative conjecture--a transparent attempt to draw the
most negative inference possible about lawful conduct.
The President's actions could not as a matter of law give
rise to either charge because Ms. Currie was not a witness in
any proceeding at the time he spoke with her; there was no
reason to suspect she would play any role in the Jones case;
her name had not appeared on any of the Jones witness lists;
she had not been named as a witness in the Jones case; and the
discovery period in the case was down to its final days. Nor
did the President have any reason to suspect that the OIC had
embarked on a wholly new phase of its four-year investigation,
one in which Ms. Currie would later be called by the OIC as a
witness. To obstruct a proceeding or tamper with a witness,
there must be both a proceeding and a witness. Here, there was
(as far as the President knew) neither. Furthermore, Ms. Currie
testified that she felt no pressure to agree with the questions
that the President asked her. Despite the Referral's suggestion
to the contrary, there was no reason the President should not
have spoken with Ms. Currie about Ms. Lewinsky.
Indeed, it is hardly surprising that the President would
have reached out to Ms. Currie after the deposition. As he
knew, Ms. Currie was Ms. Lewinsky's friend. The President had
just faced unexpected, detailed, and hostile questioning from
fierce political opponents in the Jones case about Ms.
Lewinsky. He was obviously puzzled at being asked such precise,
and in some cases such bizarrely inaccurate, questions about a
past secret relationship. The President also explained that he
was expecting media questions, based on the Drudge Report
indicating that Newsweek was pursuing the story of his
relationship with Ms. Lewinsky. The President 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.

App. at 593. He had no one to whom he could talk freely about
the relationship, but he nonetheless had a desire to find out
what might have transpired with Ms. Lewinsky (e.g., was she--to
Ms. Currie's knowledge--aiding his opponents in the Jones
case?) and to test whether his recollection was accurate, since
he had not anticipated or prepared for such detailed questions.
The President explained to the grand jury, ``[W]hat I was
trying to determine was whether my recollection was right and
that she was always in the office complex when Monica was
there. . . . I was trying to get the facts down. I wastrying to
understand what the facts were. . . . I was trying to get information
in a hurry. I was downloading what I remembered.'' App. at 507-08. It
was his belief that Ms. Currie was unaware that he had engaged in
improper activity with Ms. Lewinsky, since she had not been in the
White House complex when Ms. Lewinsky had visited on weekends in 1995-
96, and he wanted to reassure himself that that was so. He also
recalled that in 1997, after the improper relationship ended, he had
asked Ms. Currie to try always to be present when Ms. Lewinsky visited.
He wanted to inquire whether that was also Ms. Currie's recollection.
The President testified ``I was not trying to get Betty Currie to say
something that was untruthful. I was trying to get as much information
as quickly as I could.'' App. at 508.
Ms. Currie was also asked about this conversation with the
President in the grand jury, and her testimony supports the
President's assertion that he was merely trying to gather
information. First, Ms. Currie stated in her first interview
with the OIC that ``Clinton then mentioned some of the
questions he was asked at his deposition. Currie advised the
way Clinton phrased the queries, they were both statements and
questions at the same time.'' Supp. at 534 (1/24/98 FBI Form
302 Interview of Ms. Currie). The interview further reflects
that ``Currie advised that she responded `right' to each of the
statements because as far as she knew, the statements were
basically right . . .'' Id. Ms. Currie was asked in the grand
jury:

Supp. at 667 (7/22/98 grand jury testimony of Ms. Currie).

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 that 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.
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.

Supp. at 668 (7/22/98 grand jury testimony of Ms. Currie)
(emphasis added). Ms. Currie also testified, ``I said `Right'
to him because I thought they were correct, `Right, you were
never alone with Monica.' . . .'' Supp. at 665 (7/22/98 grand
jury testimony of Ms. Currie).
Ms. Currie's testimony supports the President's assertion
that he was looking for information as a result of his
deposition. Neither the testimony of Ms. Currie nor that of the
President--the only two participants in this conversation--
supports the inference that the conversation had an insidious
purpose. Furthermore, at the time he discussed Ms. Lewinsky
with Ms. Currie, Ms. Currie was not expected to be, nor was
she, a witness. When the President became aware that the OIC
was investigating his relationship with Ms. Lewinsky, he
repeatedly told Ms. Currie to tell the truth: ``I said, Betty,
just don't worry about me. Just relax, go in there, and tell
the truth.'' App. at 591. The President told the grand jury:

And then I remember when I knew she was going to have to
testify to the grand jury, and I, I felt terrible because she
had been through this loss of her sister, this horrible
accident Christmas that killed her brother, and her mother was
in the hospital. I was trying to do--to make her understand
that I didn't want her to, to be untruthful to the grand jury.
And if her memory was different than mine, it was fine, just go
in there and tell them what she thought. So, that's all I
remember.

App. at 593. And when questioned by the OIC shortly
thereafter, Ms. Currie in fact recounted what she knew about
Ms. Lewinsky, unaffected by the conversation at issue. Neither
participant in the conversation intended that it affect her
testimony, and it did not. Again, the charge is without merit.

6. The President Did Not Attempt To Influence the Testimony of
``Potential'' Grand Jury Witnesses Through His Denials

The Referral also alleges that the President endeavored to
obstruct justice by denying to several of his aides that he had
a sexual relationship with Ms. Lewinsky. Ref. at 197. The
statements made to the Presidential aides (Messrs. John
Podesta, Erksine Bowles, Harold Ickes, and Sidney Blumenthal)
cited in the Referral were made either on the day the Lewinsky
story broke (January 21, 1998) or within a few days of that
date. Those statements were concurrent in time with the
President's repeated public statements to the country denying
``sexual relations'' with Ms. Lewinsky and were virtually
identical in substance. Having made this announcement to the
whole country on television, it is simply absurd to believe
that he was somehow attempting to corruptly influence the
testimony of aides when he told them virtually the same thing
at the same time.
The Supreme Court has stated that in order to constitute
obstruction of justice, actions must be taken ``with an intent
to influence judicial or grand jury proceedings.'' United
States v. Aguilar, 515 U.S. 592, 599 (1995). There is no
evidence that the President had the intent to do so when he
made the alleged statements to these four individuals. The
President spoke with the individuals regarding the allegations
that had been made against him because of the long-standing
professional and personal relationships that he shared with
them and the responsibility that he felt to address the
concerns that he assumed they would have after hearing such
allegations. There is simply no evidence that he spoke with
them for any other reason, and certainly not that he spoke with
them intending to obstruct any proceeding.
The mere repetition of a public denial to these aides could
not possibly affect the grand jury process. The testimony
elicited from these aides in the grandjury regarding the
President's statements was hearsay. The aides were not witnesses to any
sexual activity, and they had no first-hand knowledge pertinent to the
denials. The President never attempted to influence their testimony
regarding their own personal knowledge or observations. Any testimony
about the President's remarks was merely cumulative of the President's
own nationally broadcast statements. The suggestion that the President
violated section 1503's prohibition on ``influenc[ing], obstruct[ing],
or imped[ing] the due administration of justice'' is groundless.
Furthermore, the Referral cites no evidence, and there is
none, for the assertion that the President knew these
individuals were going to be grand jury witnesses at that very
early stage of the investigation. The Referral does not allege
that any of them were under subpoena when the statements were
made--indeed they were not. The Referral cites the President's
testimony that he knew it was possible that if he provided
people with factual details surrounding the allegations that
had been made that they might be called as witnesses. But his
point was that he did not want to make them into witnesses
through admissions, not that he believed they would be. As the
Supreme Court has made clear, the possibility that one may or
may not be a witness is simply insufficient to establish
obstruction in this context. ``[I]f the defendant lacks
knowledge that his actions are likely to affect the judicial
proceeding, he lacks the requisite intent to obstruct.'' United
States v. Aguilar, supra, 515 U.S. at 599 (emphasis added).
Because of this requirement, the Supreme Court has held that
false statements made to an individual who merely has the
potential to be a witness, even if the individual is a federal
investigative or law enforcement agent, do not constitute
obstruction of justice: ``We do not believe that uttering false
statements to an investigating agent who might or might not
testify before a grand jury is sufficient to make out a
violation of the catchall provision of Sec. 1503 [of the
obstruction of justice statute].'' Id. at 600. Thus, the
Referral fails to allege the most essential elements of
obstruction.
Nor is there evidence that the President's statements
constituted ``witness tampering'' in violation of section 1512.
To make out such a violation, the government must show that the
behavior knowingly occurred through one of the specific means
set forth in the statute: intimidation, physical force,
threats, misleading conduct or corrupt persuasion--with intent
to influence testimony in a legal proceeding. None of those
requisite means is present or even alleged in the Starr
Referral. The efforts must be aimed specifically at obstructing
a known legal proceeding. See United States v. Wilson, 565 F.
Supp. 1416, 1431 (S.D.N.Y. 1983). As explained above, any
statements made to those individuals were made for reasons
wholly separate from and unrelated to any legal proceedings.
Again, there is simply no evidence that when the President
repeated to aides substantially the same statement he made to
the whole country that he had any thought whatsoever of the
grand jury proceedings, let alone the corrupt intent to
influence the grand jury through the testimony of Presidential
aides who were not even witnesses at that time. Under the
Referral's theory, the OIC could have subpoenaed to thegrand
jury any citizen who heard the President's denial and thus have created
a new violation of law.
In sum, the President's statements to his aides could not
have obstructed justice as a matter of law. Their legal duty
was to answer the prosecutor's questions and to tell the truth
honestly as they knew it, and the President's comments in no
conceivable way affected that duty.
The OIC suggests that the President's delay in
acknowledging a relationship with Ms. Lewinsky somehow
contributed to an obstruction of justice because it affected
how the prosecutors would conduct the investigation. This claim
is unfounded, as a matter of law. The President had no legal
obligation to appear before the grand jury absent compulsion
and every reason not to do so, given the OIC's tactics, illegal
leaking, and manifest intent to cause him damage.

VIII. The President Did Not Abuse Power

The Independent Counsel's allegation that the President's
assertions of privilege constituted an abuse of power is
baseless and disingenuous. As the Framers recognized,
impeachment is justified only for ``the abuse or violation of
some public trust.'' ¹⁵⁰ The record is devoid of any
such improper conduct, a conclusion that Mr. Schippers
apparently also reached as demonstrated by his not including an
abuse of office charge in his presentation to the Committee. To
the contrary, the record demonstrates that the White House
acted at all times based upon a good faith belief that its
narrow assertions of privilege were appropriate and its claims
were well founded in existing law. The OIC misstates the record
with respect to the litigation over privilege and entirely
omits reference to the occasions when the White House privilege
claims were vindicated.
---------------------------------------------------------------------------
\150\ Federalist 65 at 331.
---------------------------------------------------------------------------
From the inception of the Lewinsky investigation, the OIC's
objective was clear--to send Congress information that it
believed constituted grounds for impeachment. Public
commentators and members of Congress alike raised the issue of
impeachment within days of the investigation becoming
public.¹⁵¹ Indeed, Congressman Barr had already
introduced a resolution on impeachment even before the Lewinsky
investigation began.¹⁵² Thus, from the outset, the
White House reasonably viewed impeachment proceedings as an
imminent possibility. With that in mind, the President
consulted with his lawyers and senior staff, and they consulted
among themselves, about political and strategic issues with the
expectation that these conversations were, and would remain,
confidential.¹⁵³ The President had every right and
institutional obligation to seek to preserve the
confidentiality of these strategic deliberations.
---------------------------------------------------------------------------
\151\ See, e.g., ``Bryant Suggests Clinton Should Consider Stepping
Aside,'' Gannett News Service (January 27, 1998); ``President Imperiled
As Never Before,'' The Washington Post (January 22, 1998); ``Clinton
Accused: Guide to Impeachment,'' The Independent (January 23, 1998) at
8.
\152\ H. Res. 304, 105th Cong., 1st Sess. (November 5, 1997). See
``17 in House Want Clinton Impeached,'' The Washington Times (November
6, 1997) at A3.
\153\ Declaration of Charles F.C. Ruff (hereinafter, ``Ruff
Dec.''), at para. 19-22, 53 (dated March 17, 1998), filed in In re
Sealed Case, Misc. No. 98-95 (D.D.C.); United States v. Nixon, 418 U.S.
683, 708 (1974).
---------------------------------------------------------------------------
At no time was executive privilege asserted with any
intention of preventing White House staff from providing the
grand jury with the facts surrounding the President's
relationship with Ms. Lewinsky. Rather, it was asserted to
protect the confidentiality of conversations dealing with the
President's official functions as he carried out his duties
under the very real threat of impeachment. These conversations
included discussions about whether and to what extent
privileges should be asserted. White House Counsel consistently
attempted to ensure that the OIC had all of the information
necessary to complete its investigation. Because the OIC
adopted the wholly untenable and absolutist position that no
executive privilege existed whatsoever with respect to its
investigation, the White House had no choice but to assert
privilege as narrowly as possible and allow the courts to
uphold precedent and resolve the legal dispute between the
White House and the OIC.
In short, White House claims of privilege have always
reflected a fundamental and good faith disagreement over legal
questions. The sole reason for the assertion of privilege was
to protect this President and future Presidents from
unwarranted intrusions into confidential communications among
senior staff.

A. The President Properly Asserted Executive Privilege to Protect the
Confidentiality of Communications with His Staff

It is indisputable that the President of the United States,
if he is to perform his constitutionally assigned duties, must
be able to obtain the most candid, forthright, and well-
informed advice from a wide range of advisors on an even wider
array of subjects on a daily basis. Only last year, the United
States Court of Appeals for the District of Columbia Circuit
reaffirmed that principle, emphasizing the importance of
preserving the confidentiality of presidential communications
``to ensure that presidential decision-making is of the highest
caliber, informed by honest advice and full knowledge.'' In re
Sealed Case, 121 F.3d 729, 750 (D.C. Cir. 1997). The subjects
over which the President is entitled to receive confidential
advice include national security interests but--contrary to the
unsupported view of the OIC--are not limited to issues of
national security.¹⁵⁴ Under these well-established
principles, the OIC's apparent belief that the assertion of
executive privilege over discussions about political and
strategic decisions in the face of impending impeachment
proceedings is per se an abuse of power is ludicrous. Indeed,
Chief Judge Johnson upheld the White House's claim that the
communications over which it was asserting privilege were
presumptively privileged and thus required the OIC to make a
showing of need sufficient to overcome the
privilege.¹⁵⁵ Although she ultimately determined
that the OIC had made that showing, Chief Judge Johnson never
suggested in any way that the President's assertion of
executive privilege was groundless, improper, made in bad
faith, or in any way an ``abuse of power.''
---------------------------------------------------------------------------
\154\ In re Grand Jury Proceedings, 5 F. Supp.2d 21 (D.D.C. 1998);
see also United States v. Nixon, 418 U.S. 683, 711 (1974); In re Sealed
Case, 121 F.3d 729, 745, 750-52 (D.C. Cir. 1997).
\155\ In re Grand Jury Proceedings, 5 F. Supp.2d at 28-29.
---------------------------------------------------------------------------

1. The White House Made Every Effort at Accommodation and Ultimately
Asserted the Privilege as Narrowly as Possible

From the outset, the White House Counsel believed that the
OIC's invasion of the President's confidential communications
with his advisors was both inappropriate and unnecessary.
Counsel reasonably relied upon the long-standing principle that
a President is entitled to receive the frank, candid, and
confidential advice that is essential to the execution of his
constitutional, official, statutory, and other
duties.¹⁵⁶ Nevertheless, White House Counsel
recognized its obligation to try to reach an accommodation with
the OIC, as it had on numerous other occasions in this and
other Independent Counsel investigations as well as
Congressional inquiries. Thus, the White House attempted in
good faith to initiate a process by which the OIC could obtain
all of the information it deemed necessary for a prompt
resolution to its investigation, without unnecessarily
intruding into the domain of confidential presidential
communications. This is precisely the process in which the
White House attempted to engage when the OIC subpoenaed Bruce
Lindsey, Assistant to the President and Deputy
Counsel.¹⁵⁷
---------------------------------------------------------------------------
\156\United States v. Nixon, 418 U.S. at 711; In re Sealed Case,
121 F.3d at 750.
\157\ Ruff Dec. at para. 31.
---------------------------------------------------------------------------
Prior to Mr. Lindsey's grand jury appearance, White House
Counsel met with the OIC on February 3, 1998, to discuss ways
in which to ensure the OIC received all of the information it
needed without unnecessarily encroaching upon areas subject to
executive privilege.¹⁵⁸ At that time and
subsequently, the White House made clear that no factual
information regarding the President's relationship with Ms.
Lewinsky would be withheld on the basis of privilege.
Unfortunately, the OIC refused all efforts to devise a workable
compromise--insisting on an absolutist position that no
privilege applied.¹⁵⁹ The White House sought to
protect internal discussions about how to handle press
inquiries, what political strategies to consider, and how to
advise the President concerning available political
strategies.¹⁶⁰ The White House also sought to
protect the discussions about legal strategy, i.e., whether and
to what extent to assert various privileges, and the political
consequences of such strategies.¹⁶¹ None of this
information was critical to the OIC's understanding of the
President's relationship with Ms. Lewinsky or any of the
factual allegations it was investigating. Rather, the
discussions related to the President's capacity to govern in
the face of an ongoing investigation--to pursue his legislative
agenda, to ensure the continued leadership of the United States
in the world community, and to maintain the confidence and
support of the people who elected him.¹⁶²
---------------------------------------------------------------------------
\158\ Id, at para.para. 31-33.
\159\ Id, at para. 37.
\160\ Id, at para.para. 29-30.
\161\ Id, at para.para. 26-30.
\162\ Id, at para.para. 19-25.
---------------------------------------------------------------------------
Despite the admittedly private nature of the Lewinsky
allegations, the White House Counsel's Office was faced with
strategic decisions involving official duties of the
Presidency. For example, advisors had to deliberate among
themselves and provide advice to the President about responses
to the daily press inquiries, the State of the Union Address
which was to be given within days of the public disclosure of
the investigation, and the visit by Prime Minister Blair with
its accompanying press conference.¹⁶³ While these
deliberations were important to the functioning of the
Presidency and illustrated the President's need for candid
advice, they were not relevant to the OIC's investigation. The
OIC's concerted effort to learn about the internal
deliberations of White House Counsel and other advisors on
political and legal strategy--whether to assert privilege or
not, how to handle the voluminous media inquiries, whether to
refer to the Lewinsky matter during the State of the Union, and
how to assure foreign leaders that the leadership of the
country would be stable--does not render the substance of those
deliberations relevant.
---------------------------------------------------------------------------
\163\ Id, at para.para. 23-25.
---------------------------------------------------------------------------
Shortly after this meeting with the OIC on February 3, the
White House reiterated its willingness to ensure that any
facts--as opposed to internal deliberations--would be made
available to the OIC.¹⁶⁴ On March 4, the White House
again proposed to allow senior advisors to testify about any
factual information they had about the Lewinsky matter,
including any information the President had communicated to
them. Id. The only communication with non-attorneys sought to
be protected were strategic deliberations and discussions. Id.
The OIC flatly rejected this and all other overtures aimed at
resolving the sensitive issue of executive privilege. Id.
---------------------------------------------------------------------------
\164\ Id, at para.para. 45-51.
---------------------------------------------------------------------------
White House Counsel had hoped to resolve potential
privilege issues related to Mr. Lindsey and other senior
advisors by asking the OIC to describe with particularity
possible areas of inquiry so that counsel could determine
whether they would implicate privileged
information.¹⁶⁵ Given Mr. Lindsey's role as a key
advisor and counsel to the President on a variety of issues, as
well as his service as an intermediary between the President
and his private counsel, the White House was justified in
raising its concerns with the OIC.¹⁶⁶ As noted,
however, the OIC flatly rejected the request.¹⁶⁷ The
OIC had no interest in resolving the issues of privilege with
the White House by a reasonable compromise.
---------------------------------------------------------------------------
\165\ Id, at para. 32.
\166\ Id, at para. 41.
\167\ Id, at para. 51.
---------------------------------------------------------------------------
Instead, the OIC filed motions to compel the testimony of
Mr. Lindsey and other senior staff. Id. In the face of this
absolutist position by the OIC, White House Counsel believed it
had no choice but to proceed to seek a judicial resolution of
the executive privilege claims. This decision was not made
lightly, but was made with full recognition that it would not
be politically popular and would subject the White House to
accusations of delay. Nevertheless, because of the grave
institutional concerns, i.e., to protect the ability of this
President and future Presidents to receive confidential advice,
White House Counsel felt obligated to recommend that the
President assert privilege over a few narrow conversations.
Thus, White House Counsel notified the President of the
privilege issues, explained the OIC's unwillingness to engage
in the traditional accommodation process, and recommended that
he invoke the presidential communications privilege to protect
the institutional needs of the Presidency. The President
accepted this recommendation and authorized the Counsel to
assert the privilege.¹⁶⁸ Thus, contrary to the OIC's
allegations, the President's decision was not made on his own
initiative to delay the investigation, but was made on the
recommendation of counsel to protect the Presidency as an
institution.
---------------------------------------------------------------------------
\168\ Id, at para. 56.
---------------------------------------------------------------------------
It is important to note that the scope of the assertion was
narrow: these communications ultimately involved the limited
testimony of only three senior Counsel's Office lawyers. Each
testified fully with respect to issues that did not implicate
confidential advice and decision-making. Many current and
former White House staff members, including many senior
advisors, testified without asserting any privilege whatsoever.
The ensuing litigation on executive privilege was based on
principles that were critical to the institution of the
Presidency.

2. The Court's Ruling Upholding the White House's Assertion of
Executive Privilege Squarely Rebuts the OIC's Abuse of Power
Claim

Despite the narrowness of the privilege asserted by the
White House, the OIC took the position that executive privilege
was inapplicable in the face of a grand jury subpoena because
the discussions the OIC sought related in some way to the
President's personal conduct. The OIC argued, therefore, that
it did not have to demonstrate any need for the information and
that it was entitled to immediate and full disclosure of all
strategic and political communications.¹⁶⁹ This
position, which was squarely at odds with decisions of the
Supreme Court and the D.C. Circuit, was rejected by Chief Judge
Johnson.
---------------------------------------------------------------------------
\169\ Cf., In re Sealed Case, 121 F.3d at 744-45 (explaining need
requirement set forth in United States v. Nixon).
---------------------------------------------------------------------------
She upheld the White House's claim that the communications
over which it was asserting privilege were indeed presumptively
privileged and flatly rejected the OIC's absolutist position.
In re Grand Jury Proceedings, 5 F. Supp.2d 21, 25-27 (D.D.C
1998). Having found that the communications were presumptively
privileged, the Court required the OIC to make a showing of
need sufficient to overcome the privilege. Id. at 28-29. After
reviewing the OIC's factual proffer, the Court concluded that
the OIC had met its burden with respect to the areas identified
to the Court. At no time, however, did the Court suggest that
the President's assertion of executive privilege was
groundless, improper, made in bad faith, or in any way an abuse
of power.¹⁷⁰
---------------------------------------------------------------------------
\170\ The Court of Appeals in dicta also validated the
appropriateness of the executive privilege claim, although the White
House appeal was limited to the attorney-client privilege issue and did
not include the executive privilege claim. See In re Lindsey, 158 F.3d
1263, 1277 (D.C. Cir. 1998) (``information gathered in preparation for
impeachement proceedings and conversations regarding strategy are
presumably covered by exective, not attorney-client, privilege'').
---------------------------------------------------------------------------
We respectfully suggest that the White House's claim of
executive privilege furnishes no ground for impeachment. The
facts the OIC selectively omits from the Referral, as recounted
above, unequivocally support the legitimacy of the White
House's decision to raise the issue of executive privilege. The
OIC not only continues to reiterate its claim that executive
privilege is inapplicable in a grand jury context but also
omits the critical fact that Judge Johnson validated the White
House's assertion of the privilege and required the OIC to
demonstrate a sufficient showing of need before it obtained the
information.

B. The President Was Entitled to Assert Attorney-Client Privilege to
Protect the Right of Presidents to Request and Receive Confidential and
Candid Legal Advice from White House Counsel

Impeachment is, of course, the ultimate threat to a
President's constitutional status. It is hardly surprising,
therefore, that the President would need to consult with his
staff to discuss how to address that threat. Because
impeachment implicates the interests of the President in his
official capacity as opposed to his personal capacity, he must
rely on Counsel's Office lawyers to advisehim. White House
Counsel took the position that, in the impeachment context, the
government attorney-client privilege should apply to communications
between the President or his advisors and the Counsel's Office on
matters relating to his official duties. This advice was based on sound
policy: without an assurance of confidentiality, the President's access
to official legal advice suffers because both he and his lawyers
necessarily avoid communicating candidly if their discussions may be
disclosed. It is hardly ``abuse of office'' for a President to follow
advice based on a well-founded interpretation of law and important
institutional considerations.

1. The Governmental Attorney-Client Privilege Claim Was Grounded in the
Law of the D.C. Circuit and the Supreme Court

The OIC challenged sound legal authority recognizing the
attorney-client privilege in the governmental context and
sought to compel access to all confidential communications
between the President and his government lawyers. The White
House Counsel's decision to assert the governmental attorney-
client privilege was based upon a careful consideration of the
applicable law, the likelihood of impeachment proceedings, and
the important ethical and institutional obligations of the
Counsel's Office to the Office of the President.
For centuries, the law has recognized that the attorney-
client privilege is absolute in protecting the confidentiality
of attorney-client communications. The D.C. Circuit has also
upheld the attorney-client privilege in the context of
confidential communications between government lawyers and the
government officials they represented. See, e.g., Mead Control,
Inc. v. Dept. of the Air Force, 566 F.2d 242 (D.C. Cir. 1977).
Courts recognize that a government official, like every other
citizen, must be able to provide information to and seek advice
from government lawyers without fear of public disclosure to
ensure well-advised and fully-informed decision-making.
A recent Supreme Court case, which was decided during the
courts' consideration of the White House's privilege claims,
rejected the OIC's sweeping attack on the attorney-client
privilege and further supported the White House's position. In
Swidler & Berlin v. United States, __ U.S. __, 1998 U.S. Lexis
4214, *7 (1998), the OIC argued that the personal attorney-
client privilege should automatically give way to the needs of
a criminal investigation. The Court rejected the OIC's position
and found ``no case authority for the proposition that the
privilege applies differently in a criminal and civil
context,'' id. at *7, thus supporting the principle that the
privilege remains absolute in a grand jury context.
Accordingly, the President's position with respect to the
absolute nature of governmental attorney-client privilege had a
substantial legal basis.

2. The Courts' Rulings Squarely Rebut the OIC's Claims of Abuse of
Power

The rulings of both the District Court and Court of Appeals
belie any notion that the claim of attorney-client privilege
was an abuse of power. The District Court rejected the OIC's
position that government attorneys and clients are not entitled
to have confidential communications. In re Grand Jury
Proceedings, 5 F.Supp.2d 21, 31-32 (D.D.C. 1998). To the
contrary, the Court held that such conversations are covered by
the attorney-client privilege. Ibid. Performing a need analysis
similar to that which it employed with respect to the executive
privilege claim, the Court balanced the President's interests
against those of the grand jury and ultimately determined that
the grand jury was entitled to the information. Id. at 32-39.
Thus, despite the fact that the Court ultimately ruled in favor
of the OIC, the Court never suggested--or even hinted--that the
privilege claim was anything but legitimate.
On appeal, a sharply divided D.C. Circuit ruled that the
President had an attorney-client privilege with White House
Counsel in the civil context, but not in response to a grand
jury subpoena. In re Lindsey, 158 F.3d 1263, 1271-78 (D.C. Cir.
1998). Judge Tatel dissented, finding that the Court's opinion
did not account for ``the unique nature of the Presidency, its
unique need for confidential legal advice, or the possible
consequences of abrogating the attorney-client privilege for a
President's ability to obtain such advice.'' Id. at 1286. Judge
Tatel's recognition of the validity of the privilege
demonstrates that the President's position was not frivolous
and necessarily negates any claim that the President abused the
power of his Office by advancing such a claim. This point is
brought home by Justice Breyer's dissent from the denial of
certiorari, joined by Justice Ginsburg, that ``[t]he divided
decision of the Court of Appeals makes clear that the question
presented by this petition has no clear legal answer and is
open to serious legal debate.'' Office of the President v.
Office of Independent Counsel, No. 98-316, 67 U.S.L.W. 3321
(Nov. 10, 1998).
One further point is worth noting. Conspicuously absent
from the Referral is any mention of the President's personal
attorney-client privilege claim concerning the communications
that Mr. Lindsey had with the President's private counsel,
Robert Bennett. The White House argued that these
communications were covered by the President's personal
attorney-client privilege because Mr. Lindsey was acting as an
intermediary between the President and Mr. Bennett--a position
rejected by the OIC. In re Lindsey, 158 F.3d at 1279-80.
The Court of Appeals rejected the OIC's position. The Court
recognized the ``tradition of federal courts' affording `the
utmost deference to Presidential responsibilities.' '' Id. at
1280 (quoting Clinton v. Jones, 117 S. Ct. 1636, 1652 (1997)).
The Court also acknowledged ``the President's undisputed right
to have an effective relationship with personal counsel,
consonant with carrying out his official duties.'' Id. at 1282.
Given the ``unavoidable, virtually full-time demands of the
office [of the President],'' id. at 1280, the Court found that
the President's use of Mr. Lindsey as an intermediary was ``at
least reasonably necessary.'' Ibid. Thus, the Court held that
``while acting in this capacity [Mr. Lindsey's] communications
came within the President's personal attorney-client
privilege.'' Ibid. The Court remanded the case to the District
Court so it could determine in which instances Mr. Lindsey was
serving as an intermediary so that he could claim privilege, on
the President's behalf, over those communications.

C. The Privilege Litigation Did Not Delay the OIC's Investigation

The OIC also claims that the invocation of privilege was
intended to delay its investigation. Ref. at 207 n.473. If
delay occurred, the OIC has only itself to blame. First, the
procedural history recounted above establishes that the White
House attempted to reach a reasonable accommodation before any
witnesses testified. The OIC rejected that offer, choosing
instead to litigate these issues. Throughout the litigation,
the Office of the President frequently sought to avoid any
delay by proposing and/or agreeing to expedited briefing
schedules involving privilege litigation, and the courts ruled
swiftly.
Second, privilege claims were advanced only as to a narrow
portion of the testimony of three witnesses. The OIC originally
filed motions to compel the testimony of two senior staff
members and one Counsel's Office lawyer. The litigation only
temporarily postponed the testimony of the two senior staff
members; they both appeared and testified fully. The privilege
assertions ultimately involved the testimony of only three
senior Counsel's Office lawyers. Each of these individuals
testified at length regarding any facts they may have possessed
about their knowledge of the President's relationship with Ms.
Lewinsky. Moreover, the questions as to which they asserted
privilege were narrow in scope.
Finally, independent of any litigation, substantial delay
in the overall investigation has been self-inflicted. The OIC
has called presidential advisors before the grand jury as many
as six times, sometimes for only one- or two-hour sessions.
Some witnesses appeared to testify only to wait for hours and
then be told to return on another day.
The OIC also has expended substantial time and effort
exploring irrelevant subjects, such as White House contacts
with the press or matters of personal opinion. For example, the
OIC asked Mr. Lindsey, ``[W]hat do you think about learning
that the President lied to you personally about this matter?''
When Mr. Lindsey questioned the relevance of an inquiry into
his personal feelings, the OIC lawyer persisted and asked, ``So
are you just too embarrassed to answer the question, sir?''
Supp. at 2447 (8/28/98 grand jury testimony of Bruce Lindsey).
Such lines of inquiry serve no legitimate purpose and appear
designed simply to create a confrontation or embarrass and
humiliate a witness.
Another aspect of the OIC's allegation is its claim that
the President misused his presidential prerogative by asserting
and then withdrawing privilege claims in order to delay the
investigation. Ref. at 206-209. The OIC specifically cites to
the privilege claim raised, and subsequently withdrawn,
relating to the testimony of Nancy Hernreich, Director of Oval
Office Operations, as a basis for this contention. Transcript
of November 19, 1998 Hearing at 197-98. The OIC argues that an
executive privilege claim with respect to Ms. Hernreich was
illegitimate because she ``does have an important function at
the White House; she manages the Oval Office operations . . .
[B]ut that is not the kind of function that the principle of
executive privilege was meant to protect.'' Id. at 198. This
contention is both legally and factually incorrect.
First, an individual's title or job description does not
determine whether her communications fall within executive
privilege. As set forth in the Court of Appeals decision in In
re Sealed Case, virtually any individual who participates in
the deliberative process can take part in a communication or
provide information that becomes subject to executive
privilege; e.g., the information provided by a paralegal that
becomes part an advisor's recommendation. In re Sealed Case,
121 F.3d at 752-53. Thus, neither Ms. Hernreich's role nor her
title precludes her conversations from being subject to
executive privilege.
Moreover, the OIC disregards the unique events surrounding
this privilege claim. Ms. Hernreich was one of the first
individuals subpoenaed by the OIC whose testimony would
potentially raise privilege concerns. Because the OIC refused
to describe the areas of inquiry with respect to Ms. Hernreich,
the White House was unable to give her any guidance in advance
of her testimony. Thus, at her first grand jury appearance, Ms.
Hernreich took the precautionary step of preserving the
privilege. Subsequently, the White House voluntarily and
unilaterally narrowed the scope of the communications over
which privilege was being asserted and offered to allow Ms.
Hernreich, along with other non-lawyer advisors, to testify
fully about any factual information she
possessed.¹⁷¹
---------------------------------------------------------------------------
\171\ Ruff Dec., Exhibit 6.
---------------------------------------------------------------------------
On March 6, some ten days after Ms. Hernreich's appearance,
and without notice to the White House, the OIC filed its motion
to compel her testimony, despite the fact that the White House
had already informally indicated to the OIC that no privilege
would be asserted with respect to her testimony. On March 17,
in response to the OIC's motion (and before the Court had ruled
on the issue), the White House formally withdrew its privilege
claims with respect to Ms. Hernreich's testimony. At that
point, Ms. Hernreich could have testified before the grand jury
about those communications. Yet, the OIC waited two full months
before requesting Ms. Hernreich to return to the grand jury.
Such conduct by the OIC illustrates the hollowness of the OIC's
claim of delay caused by the President.

D. Mr. Starr Misrepresents the Record to Claim that the President
Deceived the American Public About the Executive Privilege Litigation

The OIC attempts to buttress its abuse of power claim by
arguing that the President deceived the American public by
feigning ignorance of the executive privilege litigation. The
OIC bases its contention upon the following statement in its
Referral:

On March 24, while the President was traveling in Africa,
he was asked about the assertion of Executive Privilege. He
responded, ``You should ask someone who knows.'' He also
stated, ``I haven't discussed that with the lawyers. I don't
know.''

Ref. at 156; Transcript of November 19, 1998 Hearing at 611-62.
The OIC completely misstates the question posed to the
President and, by carefully selecting a portion of the
President's answer, takes his response entirely out of context.
The actual exchange follows, with the omitted portion in bold:

Q. Mr. President, we haven't yet had the opportunity to ask
you about your decision to invoke executive privilege, sir. Why
shouldn't the American people see that as an effort to hide
something from them?
The President. Look, that's a question that's being asked
and answered back home by the people who are responsible to do
that. I don't believe I should be discussing that here.
Q. Could you at least tell us why you think the First Lady
might be covered by that privilege, why her conversation might
fall under that?
The President. All I know is--I saw an article about it in
the paper today. I haven't discussed it with the lawyers. I
don't know. You should ask someone who does.¹⁷²
---------------------------------------------------------------------------
\172\ White House Press Release: Remarks by the President in Photo
Opportunity with President Museveni of Uganda, 1 (March 24, 1998).

The full question and answer establish that the President
was not being asked about ``the assertion of Executive
Privilege,'' but about the very narrow issue of the privilege
vis-a-vis the First Lady, which was one of the many press
rumors in circulation when the story broke.
As the OIC well knows, at this time, the OIC had refused to
describe the areas of its inquiry to determine which, if any,
raised privilege concerns. Consequently, the White House
Counsel's discussion with the President about possible
privilege claims was limited to possible issues that might
arise during a witness's testimony and did not identify
particular individuals who might claim privilege. Thus, the
President could not possibly have known what conversations the
First Lady participated in, if any, which might have fallen
within the scope of executive privilege.

E. The President's Decision Not to Testify Before the Grand Jury
Voluntarily Was Not an Abuse of Power

The OIC also contends that it was an abuse of power for the
President, at a time when both his personal and official
interests were at stake, not to volunteer to testify before the
grand jury until August. Ref. at 159-61. This claim is wholly
unfounded.
The OIC apparently believes that any government official
who is the subject of a criminal investigation must immediately
testify or risk impeachment. Because he was initially invited
to appear voluntarily, the President had the right to decide
the timing of his testimony. It became clear early in the OIC's
investigation that this was not a run-of-the-mill grand jury
investigation but was instead a focused effort to target the
President himself. The President's decision to decline
invitations to testify was entirely appropriate, given the
nature of the OIC's investigation.

F. False Public Denials About an Improper Relationship Do Not
Constitute an Abuse of Office

President Clinton has acknowledged that he misled the
American public when he denied having an improper relationship
with Lewinsky. However, his public denial of this relationship
does not warrant impeachment. A comparison to Watergate is
illuminating, for false statements allegedly made by President
Nixon were an important part of that inquiry.
Twenty-four years ago, Chairman Rodino stated that the
Judiciary Committee's approach during the Nixon inquiry would
be to consider ``whether or not serious abuses of power or
violations of the public trust have occurred, and if they have,
whether under the Constitution, they are grounds for
impeachment'' ¹⁷³ The Watergate impeachment
investigation focused on whether President Nixon's allegedly
false public statements rose to the level of abuse of power,
but the subject matter was quite different. President Nixon's
statements related to official matters of state and were
allegedly part of a comprehensive scheme to undermine the
political process and to obstruct justice by encouraging and
condoning perjury by senior members of his administration,
paying hush money to criminal defendants, and using the CIA to
thwart the FBI investigation. This Committee finally charged
that his false statements were calculated to lull the public
into believing that the administration was adequately
investigating alleged governmental wrongdoing--in other words,
he lied about his official actions.
---------------------------------------------------------------------------
\173\ Cong. Record 2350, February 6, 1974.
---------------------------------------------------------------------------
President Clinton's misleading public denial of an improper
relationship with Ms. Lewinsky, although admittedly wrong, is
not such an abuse of power. President Clinton did not misuse
the FBI, conceal governmental law-breaking, or misuse the
official powers of the President. To the contrary, the
underlying conduct addressed by his public statements was
indisputably private.

1. Subjecting a President to Impeachment Would Disrupt Our
Constitutional Government

To consider the President's misleading public denials of an
improper relationship impeachable would radically lower the
constitutional bar to impeachment. For better or worse,
allegations of public untruthfulness by Presidents--often on
important matters of state--have been levelled at most
Presidents. President Reagan faced accusations about his
truthfulness regarding Iran-Contra. President Bush confronted
similar charges, with The New York Times characterizing his
statements on the subject as ``incredible.'' ¹⁷⁴
President Johnson faced a ``credibility gap'' regarding his
statements about the Viet Nam war. President Kennedy lied about
the Bay of Pigs, and President Eisenhower lied about Gary
Powers and the U2 incident. And many have suggested that
Presidents Wilson and Franklin Roosevelt were less than fully
candid about the prospective involvement of the United States
in World Wars I and II. These examples demonstrate how
dangerous it would be to make it an impeachable offense to lie
to the public. All of these alleged misstatements related to
public policy. If they were in fact untrue, they denied the
public and Congress an opportunity to exercise their democratic
prerogative to affect those policies. Accordingly, if false
public statements are to satisfy the constitutional standard
for impeachment, it is difficult to conceive of a single
Presidency in the last century that would not have been subject
to potential impeachment proceedings.
---------------------------------------------------------------------------
\174\ Editorial, ``What the President Knew,'' The New York Times
(Oct. 19, 1992) at A16.
---------------------------------------------------------------------------
In hotly contested policy disputes, accusations often fly
regarding the truthfulness of a President's statements. Such
accusations may or may not be justified. But to devalue the
impeachment currency by making lack of truthfulness, real or
perceived, an impeachable offense would potentially inflate
many policy disagreements into impeachment inquiries.
This danger is compounded by the inevitable uncertainty
regarding the type of statements that would be penalized. Would
it be impeachable to promise to take an action before an
election, such as raising taxes or staying out of war, and then
to reverse position after the election? Or to fail to disclose
a physical infirmity? Would all Presidential untruths be
impeachable?
Surely misstatements about public policy are more
significant than misstatements about private indiscretions.
False public statements about sexual indiscretions or other
personal activities simply do not affect policymaking and do
not implicate the powers of the presidency.

2. The President's Denial of an Improper Relationship Is Not Comparable
to President Nixon's Denials of Involvement in the Watergate
Burglary and Cover-up

President Clinton's conduct differs markedly from the gross
abuses of power alleged by this Committee to have been
committed by President Nixon. The charges against President
Nixon were based upon his public misstatements involving
official misconduct. One of the nine means by which this
Committee asserted that President Nixon had violated his Oath
of Office was by--

Making false or misleading public statements for the purpose of
deceiving the people of the United States into believing that a
thorough and complete investigation had been conducted with
respect to allegations of misconduct on the part of personnel
of the executive branch of the United States and personnel of
the Committee for the Re-election of the President, and that
there was no involvement of such personnel in such
misconduct.¹⁷⁵

\175\ Nixon Report at 2.

For more than two years, President Nixon repeatedly denied any
personal or White House involvement in or responsibility for
(1) the burglary of the DNC headquarters to obtain political
intelligence regarding the Presidential election, (2) the
subsequent cover-up, involving misuse of law enforcement, and
(3) the scope of other illegal activities involving
presidential powers carried out by and for the former
President.¹⁷⁶ The first such false statement was
made on June 22, 1972, when Nixon publicly characterized as
accurate his Press Secretary's statement that ``The White House
has no involvement whatever in this particular incident''
(referring to the Watergate break-in).¹⁷⁷
---------------------------------------------------------------------------
\176\ Nixon Report at 27-34.
\177\ Nixon Report at 27, 47.
---------------------------------------------------------------------------
More than two months later, on August 29, 1972, the
President held another press conference, during which he
discussed the various pending investigations. In attempting to
persuade the public that no special prosecutor was necessary,
the President stated:

The other point I should make is that these investigations,
the investigation by the GAO, the investigation by the FBI, by
the Department of Justice, have, at my direction had the total
cooperation of the--not only the White House--but also of all
agencies of the Government. In addition to that, within our own
staff, under my direction, Counsel to the President, Mr. Dean,
has conducted a complete investigation of all leads which might
involve any present members of the White House Staff or anybody
in the Government. I can say categorically that this
investigation indicates that no one in the White House Staff,
no one in this Administration, presently employed was involve
in this very bizarre incident. . . . I think under these
circumstances we are doing everything we can to take this
incident and to investigate it and not to cover it up.\178\
---------------------------------------------------------------------------
\178\ Nixon Report at 27.

At the time he made this statement, the President knew that
Mr. Dean had conducted no investigation, had not concluded that
members of the White House or administration were beyond
suspicion, and in fact was working to thwart the FBI's
investigation.\179\ In other words, President Nixon used his
Presidential powers to conceal governmental law-breaking.
---------------------------------------------------------------------------
\179\ Nixon Report at 59-60.
---------------------------------------------------------------------------
This Committee's investigation ultimately revealed \180\
that President Nixon engaged in an elaborate cover-up scheme
that included using his secret intelligence operation to pay
both for illegal activities and subsequent blackmail money for
the cover-up. On March 21, 1973, President Nixon urged the
paying of hush money to Mr. E. Howard Hunt, and instructed
Administration witnesses on how to commit perjury.\181\ He also
used people within the Justice Department to give him
information about what was transpiring within the grand jury,
then passed that information along to Messrs. Haldeman and
Ehrlichman, whom he knew to be targets of the investigation, in
violation of Rule 6(e) of the Federal Rules of Criminal
Procedure.\182\ He used his ``plumbers'' group to subvert the
IRS and CIA, authorized illegal intelligence gathering
activities, attempted to use CIA funds to pay off the Watergate
burglars, directly interfered with the Justice Department's ITT
investigation, and ordered the FBI to interfere with the
Watergate Special Prosecution Force by sealing the WSPF offices
after the Saturday Night Massacre. He also pressured the CIA to
interfere with the FBI's investigation of the Watergate break-
in--a conversation captured on tape. And he used the IRS to
investigate his ``enemies'' and the FCC to try to take away the
broadcasting licenses of press organizations investigating
him.\183\
---------------------------------------------------------------------------
\180\ Nixon Report at 3-4.
\181\ Nixon Report at 98-99.
\182\ Nixon Report at 103.
\183\ Nixon Report at 161-70, 177-79.
---------------------------------------------------------------------------
These plain abuses of power cannot be equated with
President Clinton's attempt to keep a private indiscretion
secret. Unlike the series of lies told by President Nixon,
President Clinton's denials bore no relationship to his use of
the powers of the presidency. They did not deal with policy or
governmental action but were designed to protect himself and
his family from embarrassment caused by a purely personal
indiscretion. Whereas President Nixon used governmental
agencies including the CIA and FBI to thwart the investigation
into his lies, President Clinton did nothing of the sort. Thus,
while the pervasive and persistent lies of President Nixon to
the American public about the nature and extent of official law
enforcement activities could reasonably have been viewed as
affecting the nature of our Constitutional government and thus
warranting impeachment, President Clinton's denial of a private
indiscretion cannot.

IX. Conclusion

Short of committing force of arms in defense of the Nation,
the Framers of the Constitution did not contemplate a more
solemn or awesome responsibility than the impeachment of the
President. The Framers rejected amorphous and vague standards
such as ``maladministration'' or ``corruption'' in favor of
``Treason, Bribery or other High Crimes and Misdemeanors,''
which has always been taken to mean offenses against the
constitutional system itself. Indeed, Benjamin Franklin once
referred to impeachment as the constitutional alternative to
assassination. So it is with the utmost gravity that we submit
this brief. We believe a careful and fair review of the real
record of this case--not the political attacks, but the real
record--cannot justify the impeachment of the President.
Once again, we rely on the judgment of the House, as did
the Framers, to separate fact from myth, the record from the
rhetoric, and the sinful from the impeachable. On behalf of the
President, we thank the Committee for reviewing this brief.
Finally, we conclude where the President asked us to begin:
by conveying to you his profound and personal sense of
contrition. Let nothing in this brief, nothing in our defense,
nothing in your analysis of the facts or our arguments on the
law confuse the reality that what the President did was wrong.
For his wrongs he has admitted his regret, and he has sought
the forgiveness of his family, friends, and fellow Americans.
The sole duty, the solemn obligation of the House is not to
sit in judgment of the morality of the President's conduct, but
rather to decide whether or not you will call upon the Senate
to remove from office the duly elected President of the United
States. On that issue, and that issue alone, we believe there
is no cause--on the facts, on the law, or under the
Constitution--to overturn the national election and impeach the
President.
Respectfully submitted,
David E. Kendall
Nicole K. Seligman
Emmet T. Flood
Max Stier
Alicia L. Marti
Williams & Connolly
725 12th Street, N.W.
Washington, D.C. 20005
Gregory B. Craig
Special Counsel to the
President, The White
House, Washington, D.C.
20502
Charles F.C. Ruff
Cheryl D. Mills
Lanny A. Breuer
Office of the White House
Counsel, The White
House, Washington, D.C.
20502
December 8, 1998.

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