[Impeachment of President William Jefferson Clinton - The Evidentiary Record Pursuant to S. Res. 16 - Index to Senate Document 106-3, Vols. I-XXIV]
[Volume V - Preliminary Memorandum and Initial Response of President Clinton to Referral of Office of Independent Counsel, House Document 105-317]
[From the U.S. Government Publishing Office, www.gpo.gov]

105th Congress, 2d Session - - - - - - - - - - - House Document 105-317








     September 28, 1998.--Ordered released by the Committee on the 
                  Judiciary, and ordered to be printed

                         PRELIMINARY MEMORANDUM

                         CONCERNING REFERRAL OF


    David E. Kendall                            Charles F.C. Ruff
    Nicole K. Seligman                          Cheryl Mills
    Emmet T. Flood                              Lanny A. Breuer
    Max Stier                               OFFICE OF THE WHITE
    Glen Donath                               HOUSE COUNSEL
    Alicia L. Marti                         The White House
WILLIAMS & CONNOLLY                         Washington, DC 20005
725 12th Street, N.W.
Washington, DC 20005

September 11, 1998

                           EXECUTIVE SUMMARY

 Summary of Key Points of the President's Case in Anticipation of the 
                              Starr Report

    1. The President has acknowledged a serious mistake--an 
inappropriate relationship with Monica Lewinsky. He has taken 
responsibility for his actions, and he has apologized to the 
country, to his friends, leaders of his party, the cabinet and 
most importantly, his family.
    2. This private mistake does not amount to an impeachable 
action. A relationship outside one's marriage is wrong--and the 
President admits that. It is not a high crime or misdemeanor. 
The Constitution specifically states that Congress shall 
impeach only for ``treason, bribery or other high crimes and 
misdemeanors.'' These words in the Constitution were chosen 
with great care, and after extensive deliberations.
    3. ``High crimes and misdemeanors'' had a fixed meaning to 
the Framers of our Constitution--it meant wrongs committed 
against our system of government. The impeachment clause was 
designed to protect our country against a President who was 
using his official powers against the nation, against the 
American people, against our society. It was never designed to 
allow a political body to force a President from office for a 
very personal mistake.
    4. Remember--this report is based entirely on allegations 
obtained by a grand jury--reams and reams of allegations and 
purported ``evidence'' that would never be admitted in court, 
that has never been seen by the President or his lawyers, and 
that was not subject to cross-examination or any other 
traditional safeguards to ensure its credibility.
    5. Grand juries are not designed to search for truth. They 
do not and are not intended to ensure credibility, reliability, 
or simple fairness. They only exist to accuse. Yet this is the 
process that the Independent Counsel has chosen to provide the 
``evidence'' to write his report.
    6. The law defines perjury very clearly. Perjury requires 
proof that an individual knowingly made a false statement while 
under oath. Answers to questions that are literally true are 
not perjury. Even if an answer doesn't directly answer the 
question asked, it is not perjury if it is true--no accused has 
an obligation to help his accuser. Answers to fundamentally 
ambiguous questions also can never be perjury. And nobody can 
be convicted of perjury based on only one other person's 
    7. The President did not commit perjury. Most of the 
illegal leaks suggesting his testimony was perjurious falsely 
describe his testimony. First of all, the President never 
testified in the Jones deposition that he was not alone with 
Ms. Lewinsky. The President never testified that his 
relationship with Ms. Lewinsky was the same as with any other 
intern. To the contrary, he admitted exchanging gifts with her, 
knowing about her job search, receiving cards and notes from 
her, and knowing other details of her personal life that made 
it plain he had a special relationship with her.
    8. The President has admitted he had an improper sexual 
relationship with Ms. Lewinsky. In a civil deposition, he gave 
narrow answers to ambiguous questions. As a matter of law, 
those answers could not give rise to a criminal charge of 
perjury. In the face of the President's admission of his 
relationship, the disclosure of lurid and salacious allegations 
can only be intended to humiliate the President and force him 
from office.
    9. There was no obstruction of justice. We believe Betty 
Currie testified that Ms. Lewinsky asked her to hold the gifts 
and that the President never talked to her about the gifts. The 
President admitted giving and receiving gifts from Ms. Lewinsky 
when he was asked about it. The President never asked Ms. 
Lewinsky to get rid of the gifts and he never asked Ms. Currie 
to get them. We believe that Ms. Currie's testimony supports 
the President's.
    10. The President never tried to get Ms. Lewinsky a job 
after she left the White House in order to influence her 
testimony in the Paula Jones case. The President knew Ms. 
Lewinsky was unhappy in her Pentagon job after she left the 
White House and did ask the White House personnel office to 
treat her fairly in her job search. He never instructed anyone 
to hire her, or even indicated that he very much wanted it to 
happen. Ms. Lewinsky was never offered a job at the White House 
after she left--and it's pretty apparent that if the President 
had ordered it, she would have been.
    11. The President did not facilitate Ms. Lewinsky's 
interview with Bill Richardson, or her discussions with Vernon 
Jordan. Betty Currie asked John Podesta if he could help her 
with her New York job search which led to an interview with 
Bill Richardson, and Ms. Currie also put her in touch with her 
longtime friend, Mr. Jordan. Mr. Jordan has made it clear that 
this is the case, and, as a private individual, he is free to 
offer job advice wherever he sees fit.
    12. There was no witness tampering. Betty Currie was not 
supposed to be a witness in the Paula Jones case. If she was 
not called or going to be called, it was impossible for any 
conversations the President had with her to be witness 
tampering. The President testified that he did not in any way 
attempt to influence her recollection.
    13. There is no ``talking points'' smoking gun. Numerous 
illegal leaks painted the mysterious talking points as the 
proof that the President or his staff attempted to suborn the 
perjury of Monica Lewinsky or Linda Tripp. The OIC's spokesman 
said that the ``talking points'' were the ``key'' to Starr even 
being granted authority to investigate the President's private 
life. Yet in the end, Ms. Lewinsky has apparently admitted the 
talking points were written by her alone [or with Ms. Tripp's 
assistance], and the President was not asked one single 
question about them in his grand jury appearance.
    14. Invocation of privileges was not an abuse of power. The 
President's lawful assertion of privileges in a court of law 
was only made on the advice of his Counsel, and was in 
significant measure validated by the courts. The legal claims 
were advanced sparingly and as a last resort after all attempts 
at compromise by the White House Counsel's office were rejected 
to protect the core constitutional and institutional interests 
of this and future presidencies.
    15. Neither the President nor the White House played a role 
in the Secret Service's lawful efforts to prevent agents from 
testifying to preserve its protective function. The President 
never asked, directed or participated in any decision regarding 
the protective function privilege. Neither did any White House 
official. The Treasury and Justice Departments independently 
decided to respond to the historically unprecedented subpoenas 
of Secret Service personnel and to pursue the privilege to 
ensure the protection of this and future presidents.
    16. The President did not abuse his power by permitting 
White House staff to comment on the investigation. The 
President has acknowledged misleading his family, staff and the 
country about the nature of his relationship with Ms. Lewinsky, 
and he has apologized and asked for forgiveness. However, this 
personal failing does not constitute a criminal abuse of power. 
If allowing aides to repeat misleading statements is a crime, 
then any number of public officials are guilty of misusing 
their office for as long as they fail to admit wrong doing in 
response to any allegation about their activities.
    17. The actions of White House attorneys were completely 
lawful. The White House Counsel attorneys provided the 
President and White House officials with informed, candid 
advice on issues raised during this investigation that affected 
the President's official duties. This was especially necessary 
given the fact that impeachment proceedings against the 
President were a possible result of the OIC's investigation 
from Day One. In fact, throughout the investigation, the OIC 
relied on the White House Counsel's office for assistance in 
gathering information and arranging interviews and grand jury 
appearances. The Counsel's office's actions were well known to 
the OIC throughout the investigation and no objection was ever 
    This means that the OIC report is left with nothing but the 
details of a private sexual relationship, told in graphic 
details with the intent to embarrass. Given the flimsy and 
unsubstantiated basis for the accusations, there is a complete 
lack of any credible evidence to initiate an impeachment 
inquiry concerning the President. And the principal purpose of 
this investigation, and the OIC's report, is to embarrass the 
President and titillate the public by producing a document that 
is little more than an unreliable, one-sided account of sexual 
    Where's Whitewater? The OIC's allegations reportedly 
include no suggestion of wrongdoing by the President in any of 
the areas which Mr. Starr spent four years investigating: 
Whitewater, the FBI files and the White House travel office. 
What began as an inquiry into a 24 year old land deal in 
Arkansas has ended as an inquest into brief, improper personal 
encounters between the President and Monica Lewinsky. Despite 
the exhaustive nature of the OIC's investigation into the 
Whitewater, FBI files and travel office matters, and a constant 
stream of suggestions of misconduct in the media over a period 
of years, to this day the OIC has never exonerated the 
President or the First Lady of wrongdoing.

    This document is intended to be a preliminary response to 
the Referral submitted by the Office of Independent Counsel to 
The Congress. Because we were denied the opportunity to review 
the content, nature or specifics of the allegations made 
against the President by the Office of Independent Counsel 
(OIC), we do not pretend to offer a point-by-point refutation 
of those allegations, or a comprehensive defense of the 
    We commend the House of Representatives for the 
extraordinary steps it has taken to safeguard the secrecy of 
the OIC's allegations. Unfortunately, its efforts were thwarted 
by unnamed sources familiar with the details of the OIC's 
allegations--sources that could only come from the OIC itself--
who saw fit to leak elements of the allegations to the news 
    Based on these illegal leaks, as well as our knowledge of 
the President's testimony, we offer this document as a summary 
outline of his side of the case. We will provide you with a 
specific rebuttal as soon as we have had a chance to review the 
materials that the OIC has already transmitted to you.
    The simple reality of this situation is that the House is 
being confronted with evidence of a man's efforts to keep an 
inappropriate relationship private. A personal failure that the 
President has acknowledged was wrong, for which he apologized, 
and for which he accepts complete responsibility. A personal 
failure for which the President has sought forgiveness from 
members of his family, members of the Cabinet, Members of 
Congress, and the American people. Such a personal failing does 
not, however, constitute ``treason, bribery and high crimes and 
misdemeanors'' that would justify the impeachment of the 
President of the United States.
    The President himself has described his conduct as wrong. 
But no amount of gratuitous details about the President's 
relationship with Ms. Lewinsky, no matter how salacious, can 
alter the fact that:
          (1) The President did not commit perjury;
          (2) The President did not obstruct justice;
          (3) The President did not tamper with witnesses; and
          (4) The President did not abuse the power of his 
    Impeachment is a matter of incomparable gravity. Even to 
discuss it is to discuss overturning the electoral will of the 
people. For this reason, the Framers made clear, and scholars 
have long agreed, that the power should be exercised only in 
the event of such grave harms to the state as ``serious 
assaults on the integrity of the processes of government,'' or 
``such crimes as would so stain a president as to make his 
continuance in office dangerous to public order.'' Charles L. 
Black, Impeachment: A Handbook 38-39 (1974). We do not believe 
the OIC can identify any conduct remotely approaching this 
standard. Instead, from press reports, if true, it appears that 
the OIC has dangerously overreached to describe in the most 
dramatic of terms conduct that not only is not criminal but is 
actually proper and lawful.
    The President has confessed to indiscretions with Ms. 
Lewinsky and accepted responsibility and blame. The allegations 
concerning obstruction, intimidation, perjury and subornation 
of perjury that we anticipate from the OIC are extravagant 
attempts to transform a case involving inappropriate personal 
behavior into one of public misconduct justifying reversal of 
the judgment of the electorate of this country.

                      I. Standards for Impeachment

    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. Of course, there is no suggestion 
of treason or bribery present here. Therefore, the question 
confronting the House of Representatives is whether the 
President has committed a ``high Crime[ ] or Misdemeanor.'' The 
House has an obligation to consider the evidence in view of 
that very high Constitutional threshold. It should pursue the 
impeachment process only if there is evidence implicating that 
high standard.
    The House must approach the question with solemnity and 
with care, for history teaches that an ``impeachable offense'' 
is no ordinary kind of wrongdoing. The Framers included 
specific provisions for impeachment in the Constitution itself 
because they understood that the most severe political remedy 
was necessary to remedy the most serious forms of public 
wrongdoing. Impeachment is a basic constitutional safeguard, 
designed both to correct harms to the system of government 
itself and to protectthe people from ongoing malfeasance. 
Nothing less than the gravest executive wrongdoing can justify 
impeachment. The Constitution leaves lesser wrongs to the political 
process and to public opinion.
    Presidential impeachment is thus a matter of incomparable 
gravity. As Professor Charles Black stated,

        [t]he presidency is a prime symbol of our national 
        unity. The election of the president (with his 
        alternate, the vice-president) is the only political 
        act that we perform together as a nation; voting in the 
        presidential election is certainly the political choice 
        most significant to the American people, and the most 
        closely attended to by them. No matter, then, can be of 
        higher political importance than our considering 
        whether, in any given instance, this act of choice is 
        to be undone, and the chosen president dismissed from 
        office in disgrace. Everyone must shrink from this most 
        drastic of measures.

Impeachment: A Handbook 1 (1974). Presidential impeachment is 
thus an ``awful step.'' Ibid. The Framers knew this. For that 
reason they framed the constitutional procedure with precision 
and specified grounds for impeachment with great care.
    The Framers deliberately chose to make ``high Crimes and 
Misdemeanors'' the standard of an impeachable offense. They 
were familiar with English common law and parliamentary history 
and they borrowed the expression directly from the English law 
of impeachment. They did so knowing that the expression was a 
term of art and they made the choice after deliberate rejection 
of alternative formulations of the impeachment standard.
    The Framers intended the 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.'' 1 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 phrase, impeachment 
was thought necessary to remedy ``[a]ttempts to subvert the 
    \1\ 2 Max Farrand, The Records of the Federal Convention of 1787 
550 (Rev. ed. 1966).
    In English practice, the term ``high crimes and 
misdemeanors'' had been applied to various offenses, the common 
elements of which were their severity and the fact that the 
wrongdoing was directed against the state.2 The 
English cases included misappropriation of public funds, 
interfering in elections, accepting bribes, neglect of duty, 
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.'' 
    \2\ See Raoul Berger, Impeachment: The Constitutional Problems, 67-
73 (1973).
    \3\ Michael J. Gerhardt, The Constitutional Limits to Impeachment 
and Its Alternatives, 68 Tex. L. Rev. 1, 82 (1989) (emphasis added).
    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.'' The 
Federalist No. 65 at 331 (Gary Wills ed. 1982). This 
``inquest'' is perhaps the gravest process known to our 
Constitution. No act touches morefundamental 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.
    For these reasons, the impeachment process must be 
painstaking and deliberate. It must focus only on such harms as 
the Framers intended to be redressed by the incomparably severe 
act of impeachment. And most importantly, it must be understood 
for what it is--a process of inquiry. That process is itself 
the exercise of a public trust ``of delicacy and magnitude.'' 
4 Accordingly, if the process is begun it is only 
just that the members engaged in this solemn task withhold 
judgment until the process is complete and all the facts are 
known. Our Constitution's most basic values and the 
requirements of simple justice together demand no less.
    \4\ Joseph Story, Commentaries on the Constitution Sec. 745 (1st 
Ed. 1833); Federalist 65 at 331.
    The President is sole head of one branch of our 
government--indeed, in a certain sense the President is the 
Executive Branch. The Constitution provides that ``[t]he 
executive Power shall be vested in a President of the United 
States of America.'' U.S. Const. art. II, Sec. 1. The President 
is the only government official to have been popularly elected 
by all the American people. When the people elect a President, 
the popular will is expressed in its most important, most 
visible and most unmistakable form.5 The impeachment 
process, by definition, threatens to undo the popular will. 
Impeachment presents the prospect of reversing the electoral 
mandate that brought the executive to office. Conviction upon 
articles of impeachment actually does so.
    \5\ 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.
    For these reasons, impeachment is limited to only certain 
forms of potential wrongdoing 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.

Federalist 65 at 330-31.
    The Framers and early commentators on the Constitution are 
in accord on the question of impeachment's intended 
consequence. 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.'' J. Wilson, Works 426 (R. McCloskey, ed. 1967) 
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.'' Joseph Story, 
Commentaries on the Constitution Sec. 744 (1st Ed. 
1833).6 That understanding of the Framers and early 
commentators reflected the historical understanding of 
impeachable offenses in England. `` `High crimes and 
misdemeanors' were a category of political crimes against the 
state.'' Berger, Impeachment, at 61 (emphasis in original). 
Therefore, the Framers ``intended that a president be removable 
from office for the commission of great offenses against the 
Constitution.'' 7
    \6\ At the time of the Constitution's framing, ``[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.'' Julie O'Sullivan, The Interaction Between Impeachment and the 
Independent Counsel Statute, 86 Geo. L.J. 2193, 2210 (1998) (emphasis 
added) (forthcoming).
    \7\ John R. Labovitz, Presidential Impeachment 94 (1978).
    Impeachment therefore addresses public wrongdoing, whether 
denominated a ``political crime[ ] against the state,'' 
8 or ``an act of malfeasance or abuse of office,'' 
9 or a ``great offense[s] against the federal 
government.'' 10 In short, impeachment is a 
necessary Constitutional check by a coordinate branch of 
government upon serious and aggravated abuses of executive 
power that, given the President's four-year term, might 
otherwise go unchecked.
    \8\ Berger, Impeachment at 61.
    \9\ Ronald D. Rotunda, An Essay on the Constitutional Parameters of 
Federal Impeachment, 76 Ky. L.J. 707, 724 (1987/1988).
    \10\ Gerhardt, 68 Tex. L. Rev. at 85.
    Holders of public office are therefore not to be impeached 
for private conduct, however wrongful. To the contrary, only 
``serious assaults on the integrity of the processes of 
government,'' 11 and ``such crimes as would so stain 
a president as to make his continuance in office dangerous to 
public order'' 12 should constitute impeachable 
offenses. Conduct which is not an ``offense[ ] against the 
government,'' 13 or ``malfeasance or abuse of 
office,'' 14 and which bears no ``functional 
relationship'' 15 to public office, does not 
constitute grounds for impeachment. Allegations concerning 
private conduct--private sexual conduct in particular--simply 
do not implicate high crimes or misdemeanors.
    \11\ Charles L. Black, Impeachment: A Handbook 38-39 (1974).
    \12\ Id.
    \13\ Labovitz at 26.
    \14\ Rotunda at 726.
    \15\ Id.
    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.'' Story, 
Commentaries Sec. 744 (emphasis added). 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. 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.'' 16
    \16\ Julie O'Sullivan, The Interaction Between Impeachment and the 
Independent Counsel Statute, 86 Geo. L.J. at 2220.
    Impeachment's public character is further evidenced by the 
fact that, as Justice Story expressed it, the process is 
conducted ``by the representatives of the nation, in their 
public capacity,'' and ``in the face of the nation.'' Story, 
Commentaries Sec. 686. Constitutionally, impeachment's public 
function demands public accountability. Elected officials are 
no more qualified than ordinary voters to assess the private 
wrongs of public officeholders. The Constitution's impeachment 
mechanism does not exist to punish such wrongs.
    The public character of impeachable wrongs is also 
reflected in the fact that the remedy imposed for commission of 
impeachable acts is a wholly public one. Impeachment results in 
removal from office and possible disqualification from further 
office. U.S. Const. art. I, Sec. 3, cl. 7.
    To say that impeachment is fundamentally a ``political'' 
process, however, is not to say that it is ``partisan'' in 
nature. Indeed, the Framers warned against the spirit of 
partisanship in impeachment proceedings. In Federalist 65, 
Hamilton wrote that the impeachment process threatened to 
``agitate the passions of the whole community . . . to divide 
it into parties . . . [to] connect itself with pre-existing 
factions [and] to enlist their animosities, partialities, 
influence and interest.'' Id. at 331. Justice Story warned of 
the danger that ``the decision [to impeach] will be regulated 
more by the comparative strength of the parties, than by the 
strength of the proofs.'' Commentaries Sec. 744. Only 
substantial evidence of presidential wrongdoing that threatened 
the processes of government or the public order can justify 
this grave and ideally bipartisan process.
    What is ultimately intended by impeachment's truly 
``political'' nature is the manner of limitation the 
Constitution allows one elected (political) branch to place on 
the other elected (political) branch, the Presidency. 
Impeachment is necessarily a public act conducted by public 
bodies (the Houses of Congress exercising their 
constitutionally allotted portion of impeachment power) against 
a public officeholder (here, the President). Exercise of that 
limiting function is justified only when the people's 
representatives conclude that the people themselves must be 
protected from their own elected executive.
    Impeachment must therefore be approached with the utmost 
solemnity. The process must focus on public acts, performed in 
the President's public capacity, and affecting the public 
interest. Cognizant of the enormous harm that must follow the 
bare suggestion of formal impeachment processes, the House 
should pursue an impeachment inquiry if and only if there is 
credible evidence of actions constituting fundamental injuries 
to the governmental process. Indeed, the Committee should 
consider and approve articles of impeachment only for such acts 
as have,in its judgment, so seriously threatened the integrity 
of governmental processes as to have made the President's continuation 
in office a threat to the public order.
    Impropriety falling short of that high standard does not 
meet the constitutional measure. It must be left to the court 
of public opinion and the judgment of history.

                  II. The Relevant Factual Background

    The Monica Lewinsky investigation is the most recent phase 
of an amorphous, languorous, expensive, and seemingly 
interminable investigation into the affairs of a small Arkansas 
real estate firm, Whitewater Development Company, Inc. In 
January, 1994, Attorney General Reno made an administrative 
appointment (the Ethics in Government Act of 1978 having 
expired) of Robert B. Fiske, Jr., to investigate the 
relationship of the President and Mrs. Clinton to Whitewater, 
Madison Guaranty Savings & Loan Association, and Capital 
Management Services. After the reenactment of the Ethics in 
Government Act, the Special Division for the Purpose of 
Appointing Independent Counsels of the Court of Appeals 
appointed Kenneth W. Starr, a former high official in two 
Republican administrations, to replace Mr. Fiske on August 5, 
1994, and gave him a generally similar grant of investigatory 
    During the past four and a half years, the President has 
cooperated extensively with this investigation. He has given 
testimony by deposition at the White House to the Independent 
Counsel on four separate occasions, and on two other occasions, 
he gave videotaped deposition testimony for Whitewater 
defendants and was cross-examined by the Independent Counsel. 
He has submitted written interrogatory answers, produced more 
than 90,000 pages of documents and other items, and provided 
information informally in a variety of ways. The OIC subpoenaed 
from the President, and reviewed, virtually every personal 
financial record and gubernatorial campaign finance record that 
exists for the period from the mid-1980s to the present, in its 
endless search to find something to use against the President. 
This comprehensive and thorough financial review yielded the 
OIC nothing.
    In May 1994, President Clinton was sued civilly by Ms. 
Paula Jones, who made various claims arising out of an 
encounter on May 8, 1991, when the President was Governor of 
Arkansas. Various constitutional questions were litigated, and 
it was not until the Supreme Court's decision on May 27, 1997 
17 that the case proceeded to discovery. The 
Independent Counsel had no jurisdiction with respect to the 
Jones case, but there were occasional press reports that the 
OIC was in fact investigating the President's personal 
    \17\ Clinton v. Jones, ________ U.S. ________, 117 S.Ct. 1636 
    \18\ See, e.g., ``Starr Probes Clinton Personal Life--Whitewater 
Prosecutors Question Troopers About Women,'' The Washington Post (June 
25, 1997), at A1.

           III. The President's Testimony About Ms. Lewinsky

    In his grand jury testimony on August 17, 1998, the 
President acknowledged having had an improperly intimate 
relationship with Ms. Lewinsky. This is enormously difficult 
for any person to do even in private, much less in public.
    It is important to recognize that the improper relationship 
with Ms. Lewinsky ended in early 1997, at the President's 
behest. It therefore had been over for almost a year at the 
time of the President's deposition in the Jones case. From 
feelings both of friendship and responsibility, the President 
remained in touch with Ms. Lewinsky after the improper 
relationship ended and tried to help her: none of this help was 
improper or conditioned on her behaving (or testifying) in any 
particular way.
    It is not true that the President had an improper 18-month 
relationship with Ms. Lewinsky, as several media reports have 
alleged. In his grand jury deposition, he testified that on 
certain occasions in early 1996 and once in early 1997, he 
engaged in improper conduct with Ms. Lewinsky. These encounters 
did not consist of sexual intercourse, and they did not consist 
of ``sexual relations'' as he understood that term to be 
defined at his Jones deposition on January 17, 1998 (explained 
infra), but they did involve inappropriate intimate contact. 
These inappropriate encounters ended, at the President's 
insistence, in early 1997, not because of the imminence of 
discovery, not because of the Jones case (which the Supreme 
Court had not yet decided), but because he knew they were 
wrong. On August 17, 1998, the President expressed regret to 
the grand jury and, later, to the country, that what began as a 
friendship came to include this conduct, and he took full 
responsibility. He has frequently, to different audiences, made 
similar expressions of regret and apology.
    In this investigation, no stone has been left unturned--or 
(we believe) unthrown. In simple fairness, therefore, it is 
important to distinguish between what the President has 
acknowledged and what the OIC merely alleges (on the basis of 
evidence we have not yet seen).

                  IV. The Nature of the OIC'S Evidence

    Use of a federal grand jury to compile evidence for 
possible impeachment proceedings in Congress raises numerous 
troubling questions regarding the credibility of that evidence. 
Indeed, given the limited role of a grand jury in our system 
and the total absence of procedural protections in the process, 
the Independent Counsel's insistence that his investigation has 
been a search for ``truth'' is deeply misleading. In fact, it 
has been a one-sided effort to present the worst possible 
version of a limited set of facts.
    Section 595(c) requires the OIC to provide the House with 
``substantial and credible information . . . that may 
constitute grounds for impeachment.'' But a grand jury is a 
totally unsuitable vehicle for generating information that can, 
without more, be taken as credible beyond challenge. The grand 
jury's historic role is not to determine the truth but rather 
to act as an accusatory body. United States v. Williams, 504 
U.S. 36, 51 (1992). The process excludes contrary views of the 
information gathered and fails to identify the kinds of 
exculpatory information that might have been elicited or 
presented had a targeted individual, and not just the OIC, had 
an opportunity to cross-examine and the ability to compel 
    Because it is inherently so one-sided and untested by 
cross-examination, it normally is not permissible to use grand 
jury testimony as a basis for anything other than permitting a 
grand jury to indict or decline to indict. It may constitute 
nothing more than hearsay, Costello v. United States, 350 U.S. 
359, 364 (1956), or even multiple hearsay--evidence which would 
likely be excluded from a trial. Indeed, the information a 
grand jury gathers is not circumscribed by the Federal Rules of 
Evidence at all, see Fed. R. Evid. 1101(d)(2), nor delimited by 
the other safeguards of reliability which would be enforced at 
trial. The testimony a grand jury elicits is not subject to 
impeachment by interested parties, and such testimony may come 
from immunized witnesses, from witnesses who fear prosecution, 
from witnesses prepared by the prosecution, from witnesses with 
a history of untruthfulness--or from disinterested witnesses. 
On the record of the grand jury there need be no distinction 
among these sources, despite the fact that their reliability 
varies greatly.
    In its day-to-day operations, no judge presides over grand 
jury proceedings. United States v. Williams, 504 U.S. 36, 48 
(1992). Grand jury witnesses do not have counsel present. Fed. 
R. Crim P. 6(d). The Double Jeopardy Clause does not prevent a 
grand jury from returning an indictment after a first grand 
jury has declined to do so. Ex Parte United States, 287 U.S. 
241, 250-51 (1932). The exclusionary rule does not apply to 
grand jury proceedings. United States v. Calandra, 414 U.S. 
338, 349 (1974). Grand jury witnesses have no right to respond 
with information, however related, if it is not called for by 
the prosecution, and targets and subjects of its inquiry have 
no compulsory process to gather and present their side of the 
matter. Nor does the target of a grand jury inquiry have any 
right to offset potentially incriminating information with 
exculpatory information in his possession. Williams, 504 U.S. 
at 55. In short, the most basic techniques our adversary system 
of justice employs for testing and assuring the reliability of 
evidence are completely missing in the grand jury context.
    As a consequence, ``reliability'' simply is not the 
touchstone of a grand-jury inquiry. The Supreme Court itself 
has said that ``the mere fact that evidence is unreliable is 
not sufficient to require a dismissal of [an] indictment.'' 
Bank of Nova Scotia v. United States, 487 U.S. 250, 261 (1988). 
The same is true of ``inadequate or incompetent'' evidence. Its 
presence will not justify dismissal of an indictment. Calandra, 
414 U.S. at 345; see also Holt v. United States, 218 U.S. 245 
(1910) (same).
    It must therefore be recognized that it is not the grand 
jury's function to provide information about anything that can 
be taken as true on its face. Its function is not to get atthe 
ultimate truth. The grand jury's inquisitorial powers serve but one 
end: to empower a body of citizens to make a threshold decision whether 
to initiate the search for truth that is the purpose of adversarial 
proceedings or to decline to indict and thereby forego that search 
altogether. Only after the grand jury renders that threshold decision 
does the search for truth really commence because only then are the 
adversary system's credibility-assessing mechanisms available.
    The grand jury secrecy rule, Rule 6(e), Fed. R. Crim. P., 
is justified--indeed, mandated--by this reality. Grand jury 
information is to be kept secret largely because it has been 
generated without the protections of the adversarial system. 
Unlike information presented in a trial setting, grand jury 
information presents an enormous risk that persons' reputations 
will be injured or destroyed on the basis of non-credible or 
insubstantial assertions. That harm may damage both witnesses 
and persons who are subjects of witness testimony. That is why, 
when a grand jury elects to indict, grand jury materials are 
sealed and withheld from the petit jury ultimately convened to 
find the truth and render a verdict.
    Accordingly a fair report from the OIC would, inter alia, 
provide all exculpatory evidence, assess the credibility of 
witnesses in terms of bias, reason to falsify, prior 
inconsistent statements, etc., and draw reasonable inferences. 
A fair report would identify shortcomings in the investigation 
itself, including any excesses, mistakes, errors in judgment, 
or impermissible tactics. A fair report would demonstrate that 
every possible effort had been made to identify all possibly 
exculpatory evidence, and that all such evidence had been given 
appropriate weight. And a fair report would address honestly 
and answer truthfully the following questions:
    (1) What were Linda Tripp's motives in seeking out the OIC 
in January, 1998? Did she articulate a fear of being prosecuted 
in Maryland under that State's anti-taping laws? Why did she 
request immunity from prosecution? Why was she given immunity?
    (2) What role did the OIC play in arranging for Ms. Tripp 
to meet with the Jones lawyers on Friday, January 16, 1998, the 
evening before the President's deposition? Did anyone from the 
OIC drive Ms. Tripp to this meeting? Did the OIC warn Ms. Tripp 
about the criminal law pertaining to sharing with third parties 
the fruits of illegal tapings or even communicating the fact 
that illegal tapes exist? Has anyone at the OIC made any 
assessment of what impact Ms. Tripp's conduct might have on any 
federal immunity deal Ms. Tripp might have obtained from the 
    (3) What authority did the OIC have to wire Linda Tripp and 
attempt to develop evidence before obtaining permission to 
expand its jurisdiction from the Attorney General or the 
Special Division? What prevented the OIC from going directly to 
the Attorney General upon receiving the tapes from Ms. Tripp? 
If the primary basis for the expansion of the OIC's 
jurisdiction was evidence that was obtained in an ultra vires 
manner by the OIC, does that taint other information obtained 
by the OIC?
    (4) What assessment has the OIC made of Ms. Tripp's 
ideological motivations? Was the OIC aware she had submitted an 
anti-Clinton book proposal to avowed Clinton hater Lucianne 
Goldberg? Was the OIC aware of Goldberg's role in Ms. Tripp's 
taping and arrangement for Ms. Lewinsky's use of a messenger 
    (5) How many statements on the Tripp-Lewinsky tapes are 
false or exaggerated? How many statements contradict assertions 
in the OIC's report?
    (6) When Ms. Tripp was asked to record Ms. Lewinsky 
surreptitiously, was this because the OIC was concerned about 
the legality of Ms. Tripp's previous telephone tapes of Ms. 
    (7) What was Ms. Tripp's motivation in initiating the 
surreptitious recording of her conversations with Ms. Lewinsky? 
Did Tripp steer the taped conversations with Ms. Lewinsky to 
obtain details about Ms. Lewinsky's sexual activities? Was the 
taping connected in any way to her relationship with Lucianne 
Goldberg? If Ms. Tripp began to tape Ms. Lewinsky with an 
unlawful purpose, did she commit a violation of the federal 
wiretapping statute (Title III)? If the tapes were obtained in 
violation of federal law, can the tapes or evidence derived 
from them be part of any official proceeding in Congress (see 
18 U.S.C. Sec. 2515)?
    (8) What, if anything, did the OIC offer the press to keep 
secret its investigation into Ms. Lewinsky?
    (9) Why was the OIC in such haste to petition the Attorney 
General for an expansion of jurisdiction? Precisely what was 
the Attorney General told about Ms. Tripp's telephone taping of 
Ms. Lewinsky? Did the ``talking points'' play any role in the 
application? What particular alleged crimes did the OIC seek 
authorization to investigate?
    (10) Ms. Lewinsky's lawyers, William Ginsburg and Nathaniel 
Speights, wrote in an essay in Time (Feb. 16, 1998) that the 
OIC informed them on Friday, January 16, 1998, ``We've got a 
deal, and we want to wire her and record some phone calls;'' 
these lawyers also wrote in that essay that ``[The OIC] wanted 
her [Ms. Lewinsky] wired, and they wanted her to record 
telephone calls with the President of the U.S., Vernon Jordan 
and others--at their will.'' What persons did the OIC intend 
Ms. Lewinsky to record surreptitiously?
    (11) In a letter from the Independent Counsel to the 
President's personal counsel, dated February 6, 1998, the 
Independent Counsel wrote: ``From the beginning, I have made 
the prohibition of leaks a principal priority of the Office. It 
is a firing offense, as well as one that leads to criminal 
prosecution.'' However, Chief Judge Johnson has entered a 
series of orders finding prima facie reason to believe that 
persons in the OIC violated Rule 6(e), Fed. R. Crim. P., by 
illegal leaking (for example, ``[t]he Court finds that the 
serious and repetitive nature of disclosures to the media of 
Rule 6(e) material strongly militates in favor of conducting a 
show cause hearing'' (June 19, 1998, Order, at 5)). Has anyone 
been fired or disciplined by the OIC for illegal leaking? What 
steps have been taken to investigate and discipline OIC 
personnel who have engaged in illegal leaking?

  V. Likely OIC Allegations of Obstruction of Justice, Subornation of 
                 Perjury, and Intimidation of Witnesses

    The OIC obtained jurisdiction on January 16, 1998 to 
investigate possible obstruction of justice, subornation of 
perjury, and intimidation of witnesses in the Jones case. These 
crimes are quite specifically defined in the law, and the 
elements do not always have an obvious meaning. We consider 
first the definition and then the possible conduct to which 
these definitions might be applied.
    The term ``obstruction of justice'' usually refers to 
violations of 18 U.S.C. Sec. 1503, the ``Omnibus Obstruction 
Provision,'' which prohibits the intimidation 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 
    For a conviction under Sec. 1503, the government must prove 
that there was a pending judicial proceeding, that the 
defendant knew of the proceeding, and that 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). Four 
federal courts of appeals have held that 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). 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. Moreover, 
Sec. 1503 does not apply to a party's concealing or withholding 
discoverable documents in civil litigation. See, e.g., Richmark 
v. Timber Falling Consultants, 730 F. Supp. 1525, 1532 (D. Or. 
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'').\19\ 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).
    \19\ Cf. 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.'' 
However, by its terms, it does not purport to reach all forms 
of witness tampering, but only tampering by specified means. In 
order to obtain a conviction under Sec. 1512, the government 
must prove that a defendant knowingly engaged in intimidation, 
physical force, threats, misleading conduct, or corrupt 
persuasion with intent to influence, delay, or prevent 
testimony or cause any person to withhold objects or documents 
from an official proceeding. While there is no ``pending 
proceeding'' requirement for convictions under Sec. 1512, it is 
clear that a defendant must 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 lackof a state of mind.'' 18 U.S.C. Sec. 1515(a)(6). It is 
also clear from the caselaw 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 
     Based upon illegal OIC leaks and press reports, we believe 
that the OIC's principal claims of obstruction, intimidation 
and subornation--the three prongs of the January 1998 expansion 
of jurisdiction--appear to arise out of:

(1) ``Talking Points''

    The so-called ``talking points'' \20\ have been widely 
hailed as the linchpin of any charge of subornation of perjury 
or obstruction of justice. Not only were they touted as the 
``smoking gun'' of the investigation, they were instrumental in 
the OIC efforts to secure an expansion of its jurisdictional 
authority. Charles Bakaly, the OIC spokesman, appearing on Meet 
the Press, emphasized the critical nature of this document to 
the expansion of the OIC jurisdiction:
    \20\ The term ``talking points'' refers to a document apparently 
provided by Ms. Lewinsky to Ms. Tripp in January 1998 regarding 
possible testimony in the Jones case.

          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 ``talking points'' were the basis of thinly veiled 
smears, groundless speculation, and allegations against 
President Clinton, White House aides and others close to the 

          ``And NBC News has learned more about another 
        critical piece of evidence. A memo first discovered by 
        Newsweek that Linda Tripp claims was given to her by 
        Monica Lewinsky. . . . Sources in Starr's office and 
        close to Linda Trippsay they believe the instructions 
came from the White House. If true, that could help support a case of 
obstruction of justice.''--NBC Nightly News, February 4, 1998.
          ``Prosecutors suspect the President and his longtime 
        friend, Vernon Jordan, tried to cover up allegations 
        that Mr. Clinton was involved sexually with former 
        White House intern Monica Lewinsky and other women--
        which is why this document, obtained last night by NBC 
        News, could be a smoking gun. It's called `Points to 
        Make in Affidavit.' Prosecutors say it might as well be 
        called `How to Commit Perjury in the Paula Jones Case.' 
        ''--NBC News at Sunrise, January 22, 1998.
          ``A three page summary telling Linda R. Tripp how to 
        lie in the Paula Jones sexual misconduct lawsuit 
        remains a key reason why independent counsel Kenneth 
        Starr wants to question top White House aides in the 
        Monica Lewinsky sex-and-lies grand jury investigation. 
        Mr. Starr, according to lawyers and other close to the 
        grand jury probe, wants to know what White House Deputy 
        Counsel Bruce R. Lindsey and senior aide Sidney 
        Blumenthal know about the source of the summary, or 
        `talking points,' that were given to Mrs. Tripp by Miss 
        Lewinsky, the former White House intern. The summary, 
        which prosecutors are convinced was not written by Miss 
        Lewinsky, could corroborate accusations of a White 
        House attempt to obstruct justice and suborn perjury in 
        the Jones suit, sources said.''--Washington Times, May 
        18, 1998.
          ``Because of Lindsey's earlier discussions with Tripp 
        about the Willey incident, prosecutors appear to be 
        trying to learn whether he had any role in helping 
        Lewinsky prepare the three-page document. Lindsey, who 
        has been summoned to the grand jury twice, has denied 
        any connection to the talking points.''--Washington 
        Post, March 10, 1998.
          `` `If the author of the talking points is anywhere 
        near the president,' said Jonathan Turley, law 
        professor at George Washington University in 
        Washington, `this case will take a dramatic turn 
        against the White House.' ''--USA Today, July 1, 1998.
          ``The document has emerged as possible evidence of 
        obstruction of justice as Starr investigates whether 
        Clinton or his associates made attempts to conceal the 
        president's encounters with women.''--USA Today, June 
        29, 1998.
          ``Based largely on two pieces of evidence--those 
        talking points and the secret tapes made by Ms. Tripp 
        of her conversations with Ms. Lewinsky--Mr. Starr is 
        trying to determine whether the President, Mr. Jordan, 
        Ms. Lewinsky or others set about to obstruct justice in 
        the Jones case by lying, concealing evidence and 
        tampering with witnesses. These are the central charges 
        in the case, and the participants' versions appear to 
        diverge.''--New York Times, March 7, 1998.
          ``Starr wants to find out if anyone in the White 
        House was involved in preparing the talking points.''--
        The Plain Dealer, February 19, 1998.
          ``The evidence that strikes dread in the White House 
        is a three-page document called `the talking points.' . 
        . . The author of the talking points will most likely 
        be found, is in real danger of going to jail and may 
        not want to go alone for long.''--William Safire, New 
        York Times, February 12, 1998.
          The memo is a critical piece of evidence to 
        Whitewater independent counsel Kenneth Starr because it 
        could be proof of an effort to induce Tripp to lie 
        under oath. Starr's investigators are exploring whether 
        anyone close to Clinton prepared or knew about the 
        talking points.--USA Today, February 6, 1998.

    And the ``talking points'' were regarded throughout the 
investigation as the critical piece of evidence in any charge 
of subornation of perjury or obstruction of justice:

          ``It seems clear that Starr's focus is now on 
        building a case that Clinton or his agents tried to 
        sway the testimony of witnesses in the Jones case. A 
        critical piece of evidence is the `talking points' memo 
        that Lewinsky gave her friend Linda Tripp, apparently 
        advising Tripp on how to fudge her testimony. The 
        document is the only known physical evidence of witness 
        tampering, and its authorship remains one of the great 
        mysteries of the Lewinsky matter.''--Chicago Tribune, 
        April 3, 1998 (emphasis added).
          ``The talking points, which seemed intended to coach 
        Ms. Tripp in possible testimony about Mr. Clinton, are 
        central to Mr. Starr's effort to determine whether 
        obstruction of justice occurred.''--New York Times, 
        July 27, 1998.
          ``Prosecutors regard the legalistic, three-page 
        talking points--intended to guide Tripp's testimony in 
        the Jones lawsuit--as a key piece of evidence in a 
        possible case of obstruction of justice. . . . `Anyone 
        who wrote a document like that is out of is mind,' one 
        prosecutor said. `Those talking points are the smoking 
        gun.' ''--Pittsburgh Post-Gazette, February 8, 1998 
        (emphasis added).
          ``Leakers from the Starr chamber have implied that 
        the talking points are instructions to lie. But lawyers 
        routinely give there clients talking points before a 
        grand jury. The Lewinsky case is about something else, 
        spelled S-E-X.''--Clarence Page, Sun-Sentinel, June 4, 
        1998 (emphasis added).
          ``But a three page document known as the `talking 
        points' may prove to be the most important . . . `The 
        talking points are the closest thing to a smoking gun 
        in this case . . .' legal scholar Paul Rothstein said 
        Tuesday.''--USA Today, July 1, 1998.
          ``The talking points memorandum and the Tripp-
        Lewinsky tapes form the backbone of the independent 
        counsel's inquiry into whether anyone lied or 
        obstructed justice over Ms. Lewinsky's relationship 
        with President Clinton.''--New York Times, June 11, 
          ``The talking points memo, whose authorship is 
        unknown, is of keen interest to Starr.''--Baltimore 
        Sun, February 26, 1998.
          ``It is unclear who wrote the talking points and 
        whether they were given to Ms. Tripp on Jan. 14 to 
        encourage her to give false testimony in the Paula 
        Corbin Jones sexual misconduct lawsuit against the 
        President. These are questions of intense interest to 
        the independent counsel Kenneth W. Starr, said lawyers 
        close to his investigation. . . . The talking points 
        could be an important piece of physical evidence 
        showing that there were unlawful efforts to encourage 
        false testimony in the Jones case.''--New York Times, 
        February 19, 1998.
          ``That suggests one particular piece of evidence will 
        play a huge role: the list of written talking points 
        Lewinsky gave her friend Linda Tripp on how to testify 
        in the Paula Jones sexual harassment case. Who wrote 
        the document is one of the key questions, whoever did 
        could be charged with obstruction of justice.''--
        Chicago Tribune, February 15, 1998.

    After all of the rumor and speculation regarding a 
connection between the White House and the ``talking points,'' 
President Clinton was not asked one single question relating to 
the talking points during his August 17 deposition. Ms. 
Lewinsky is reported to have testified that she wrote the 
document without any assistance other than conversations she 
had with Linda Tripp. In the venerable tradition of Whitewater 
allegations, the ``talking points'' were surfaced as important 
and damning evidence of wrongdoing, but in the fullness of time 
and after investigation, have apparently vanished entirely. 
Only the stigma remains.

(2) Ms. Lewinsky's Transfer of Gifts to Betty Currie

    The President frequently gives gifts to and receives gifts 
from friends and supporters; he gave Ms. Lewinsky the same kind 
of gifts he has shared with others. He was not concerned about 
the Jones lawyers' knowledge of the gifts. In the Jones 
deposition, he acknowledged knowing Ms. Lewinsky, acknowledged 
seeing her, acknowledged she had given him gifts, and 
acknowledged he had given her gifts. Moreover, in his grand 
jury testimony, he acknowledged giving Ms. Lewinsky good-bye 
gifts on December 28, 1997, shortly before she moved to New 
York, a date which we believe to be after Ms. Currie picked up 
the box of gifts from Ms. Lewinsky. The gifts simply were not a 
concern to him.
    It is our understanding that Ms. Lewinsky may have 
testified that she raised with the President a concern about 
theJones lawyers' request for gifts from the President and 
that, shortly thereafter, Ms. Currie appeared at her home stating that 
she understood Ms. Lewinsky had something for her. Ms. Lewinsky 
apparently testified that she then provided to Ms. Currie for 
safekeeping a box containing some of the gifts received from the 
    For Ms. Lewinsky's account to be credible, Ms. Currie must 
have been asked by the President to contact Ms. Lewinsky for 
the box. However, her account conflicts directly both with that 
of the President and with what we believe to be Ms. Currie's 
testimony. The President told Ms. Lewinsky she would have to 
produce what she had in response to a request. He did not ever 
suggest that gifts from him should be disposed of, and he did 
not ever ask or instruct Ms. Currie to pick up the gifts from 
Ms. Lewinsky. We believe that Ms. Currie's testimony 
corroborates this recollection. Ms. Currie has apparently 
testified that Ms. Lewinsky initiated the contact with her 
about the box, asking Ms. Currie to come by her apartment 
building, giving a sealed box to her, and asking her to hold on 
to it. Ms. Currie has no knowledge that the President ever even 
knew about the box prior to public disclosures about it, and 
the President testified that he did not learn about the box 
until after the OIC investigation became public.

(3) Job Assistance to Ms. Lewinsky

    The President made certain efforts to try to assure that 
Ms. Lewinsky had a fair shot at a job other than her Pentagon 
position, where she was not happy, and he generally was aware 
of other efforts by his secretary Ms. Currie and his friend Mr. 
Jordan. These actions were totally appropriate. At no time did 
the President ask that Ms. Lewinsky be accorded specially 
favorable or unfavorable treatment because of his relationship 
with her or for any other reason. These actions began well 
before Ms. Lewinsky was ever named a witness in the Jones 
litigation, and they were in no way intended to influence Ms. 
Lewinsky to keep secret what was at that time an already 
terminated relationship. There is no evidence of any link 
whatsoever between the President's actions and possible 
testimony by Ms. Lewinsky in the Jones case.
    In April 1996, Ms. Lewinsky was reassigned from the White 
House to the Pentagon. Although the transfer was viewed as a 
promotion, the President became aware that Ms. Lewinsky was 
upset about it, did not see it as a positive change, and feared 
that the transfer would be appear to be a demotion or ``black 
mark'' on her resume. To the extent that Ms. Lewinsky was 
criticized for spending more time in the West Wing than was 
required by her responsibilities in the Office of Legislative 
Affairs, the President felt responsible.
    In the summer of 1997, the President spoke to Marsha Scott, 
the deputy personnel director at the White House, and inquired 
about the possibility of a position being available for Ms. 
Lewinsky in the White House. He never ordered Ms. Scott or 
anyone else to provide her special treatment or directed that 
she be given a job at the White House. He simply wanted to 
assure that she had been treated fairly and asked only that Ms. 
Scott look into the possibility of a position at the White 
House for Ms. Lewinsky if it was appropriate. Ms. Lewinsky was 
never offered an opportunity to return to the White House--as a 
result of that conversation or otherwise.
    In the fall of 1997, Ms. Betty Currie spoke to Mr. John 
Podesta about finding a job for Ms. Lewinsky in New York, and 
Mr. Podesta ultimately spoke to Ambassador Bill Richardson 
about the matter. The Ambassador agreed to interview Ms. 
Lewinsky for a position in his New York office. The President 
was not involved in arranging the Richardson interview. When 
Ms. Lewinsky indicated to Ms. Currie that she preferred a job 
in the private sector, Ms. Currie contacted Mr. Jordan, her 
long-time friend, to see whether he would be willing to make 
inquiries regarding a job opportunity for Ms. Lewinsky in the 
private sector. Mr. Jordan referred her for interviews at 
American Express and Revlon, and to the advertising agency of 
Young & Rubicam. As Mr. Jordan said in his January 22, 1998 
statement on the matter:

          Throughout my professional career, I have been 
        privileged to assist people with their vocational 
        aspirations. I have done so for two reasons. first, I 
        stand on the shoulders of many individuals who have 
        helped me. Second, I believe ``to whom much is given 
        much is required'' so I have tried to lend a helping 
          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. And I have met 
        with some success, from paralegals to mailroom clerks, 
        to corporate directors, to CEO's.I was pleased to be 
helpful to Ms. Lewinsky whose drive, ambition, and personality were 
impressive. She was referred by Ms. Betty Currie, a secretary to the 

Mr. Jordan is a private individual who is free to offer job 
assistance to whomever he chooses.
    Questions have been raised about a connection between the 
timing of Ms. Lewinsky's affidavit (which was executed January 
7 and filed January 16) and the timing of any job offer. There 
was no connection. Francis Carter, Esq., Ms. Lewinsky's 
attorney at the time she executed the affidavit, apparently has 
stated that Ms. Lewinsky never asked him to delay the filing of 
an affidavit until after she had secured a job in New York and 
never suggested when the affidavit should be filed. The 
Washington Post, June 19, 1998. Indeed, Mr. Carter has reported 
that he himself delayed the filing of the affidavit while he 
attempted to persuade the Jones attorneys to withdraw the 
subpoena to Ms. Lewinsky. Ibid.
    Indeed, it was totally appropriate for Mr. Jordan to refer 
Ms. Lewinsky to Francis Carter to represent her in the Jones 
litigation. Mr. Carter is a highly respected lawyer who would 
owe his duty to Ms. Lewinsky and represent her interests. 
Assuring a witness has her own counsel in whom she may confide 
is the surest and most appropriate way to protect the integrity 
of the process. As Mr. Jordan indicated in his January 22 
statement, the referral was ``at her request'' and Mr. Jordan 
simply ``took her to Mr. Carter's office, introduced them, and 
returned to my office.'' Ms. Lewinsky paid Mr. Carter herself. 
Mr. Carter has said that Mr. Jordan brought Ms. Lewinsky to his 
office, introduced them, and told him that she had been 
subpoenaed in the Jones case and needed an attorney. The 
Washington Post, June 19, 1998. According to Mr. Carter, Mr. 
Jordan did not suggest what should be done or how the matter 
should be handled, but promptly left. Ibid. Mr. Carter has 
stated, ``I never received any kind of information from [Ms. 
Lewinsky] at any time that contradicted anything that's in that 
affidavit.'' Ibid.
     Finally, in January of 1998, the President asked Mr. 
Erskine Bowles whether the legislative affairs office where Ms. 
Lewinsky once had worked would be able to give Ms. Lewinsky a 
reference that would not be negative. The President understood 
from Ms. Lewinsky that she thought she could get a good 
reference from The Department of Defense but hoped for a White 
House reference that was at least neutral. The President did 
not instruct anyone to provide such a reference and did not 
follow up on the inquiry. This innocuous query for an honest 
reference cannot conceivably be a basis for any charge of 

                        VI. ``Abuses of Power''

    From the very beginning, the Lewinsky investigation has 
been about potential impeachment--a direct attack by the OIC on 
the constitutional status of the President. It is in that 
context that the OIC's allegations of abuse of power must be 
    Any charge the OIC might make that the President has abused 
the powers of his office through the assertion of privileges--
privileges that were asserted at the initiation and 
recommendation of the Counsel's Office, not by the President 
himself--is utterly baseless. Indeed, those charges are more a 
reflection of the OIC's unfettered abuse of his authority and 
his wholesale abandonment of any prosecutorial judgment in his 
campaign to prevent the President from consulting with his most 
senior advisors in confidence. No prosecutor, not even during 
Watergate, ever has contemplated the sort of sweeping intrusion 
into the President's ability to obtain advice that has been 
undertaken by the OIC. At bottom, the Independent Counsel 
believes that, merely because he demands confidential 
information, the President may not defend himself against 
impeachment without raising a charge that he is thereby abusing 
his power.
    Before moving to these issues, one other point is worthy of 
note. It has been suggested in media reports that one of the 
grounds for impeachment advanced by the OIC is that the 
President abused his power by denying to his staff, in the days 
immediately following disclosure of the Lewinsky investigation, 
that he had engaged in any improper conduct when he knew that 
they might be called as witnesses before the grand jury and 
knew that they were making public statements in his defense. If 
this allegation were not so serious, such a suggestion would be 
    Implicit in the allegation is the notion that any official, 
in any branch of the government, who makes a statement about 
his own conduct, or indeed any other matter, that is not 
absolutely true is liable for misusing his office for so long 
as he fails to admit wrongdoing, for the official's staff will 
inevitable repeat his explanation in any number of forums. It 
would follow, therefore, according to what appears to be the 
OIC's reasoning, that no official could mount a defense to 
impeachment, or to ethics charges, or to a criminal 
investigation while remaining in office, for anything other 
than an admission of guilt will be treated as an abuse of his 
official powers.

1. The President's Decision to Litigate Privilege Issues Cannot Be 
        Compared to the Abuses of Power Alleged during Watergate

    The Independent Counsel apparently attempts to evoke images 
of Watergate by charging that the President has abused the 
powers of his office. This allegation is simply meritless. In 
the Federalist Papers, Alexander Hamilton described abuse of 
power as the ``corrupt use of the office for personal gain or 
some other improper purpose.'' Former President Nixon's use of 
the Central Intelligence Agency (CIA) to thwart a major 
criminal investigation by the Federal Bureau of Investigation 
(FBI) of a crime in which he was involved, to take but one 
example, fits squarely within that definition. President 
Clinton's lawful assertion of privileges in a court of law and 
the Counsel's Office conduct of its official duties plainly 
does not.
    There is no comparison between the claimed abuses of power 
by President Nixon and the public and lawful assertion of 
privileges during the OIC investigation. Indeed, comparing this 
White House with President Nixon's diminishes the historical 
significance of the unprecedented claims of abuse of power by 
the Nixon administration and attempts to criminalize the proper 
exercise of presidential prerogatives. The specious nature of 
the OIC's allegations reveal the OIC's true motive: to create 
an offense where none exists.
    In July 1974, the House Judiciary Committee lodged serious 
and significant abuse of power charges against President Nixon, 
alleging that President Nixon, among other things:

          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;
          Paid hush money to his advisor;
          Instructed administration officials on how to commit 
          Violated grand jury secrecy rules by obtaining 6(e) 
        material from the Justice Department and passing it on 
        to presidential advisors, who were targets of the 
          Attempted to subvert the IRS and CIA;
          Authorized illegal intelligence gathering activities;
          Directly interfered with the Justice Department's ITT 
        investigation; and,
          Pressured the CIA to interfere with the FBI's 
        investigation of the Watergate break-in--a conversation 
        caught on tape.

    In contrast, the OIC apparently has made such charges of 
abuse against President Clinton, however erroneously, for 
purportedly encouraging the Secret Service to assert privilege 
claims over their testimony and invoking attorney-client and 
executive privileges. President Clinton's privilege claims have 
been open and lawful, and were reviewed and in significant 
measure validated by the courts. Thus, the Nixon investigation 
and precedent stand in sharp contrast to the OIC's 
investigation and baseless charges in this matter.

2. The United States Secret Service's Decision to Pursue A Protective 
        Privilege Was the Proper Exercise of Its Own Authority And In 
        No Way an Abuse of Power By the President

    The assertion of a protective function privilege by the 
Secret Service cannot possibly serve as a basis for the OIC's 
allegations of abuse of power. As a factual matter, the 
President never asked, directed, or participated in any 
decision regarding the protective function privilege. Moreover, 
no one at the White House asked, directed, participated or had 
any role in such decisions. The Treasury and Justice 
Departments independently decided to pursue a privilege for the 
Secret Service to ensure the protection of this and future 
    Second, ignoring significant security concerns expressed by 
the Secret Service, the Independent Counsel sought testimony 
from agents about non-criminal events they may have witnessed 
as well as non-criminal conversations they may have overheard 
in the course of protecting the President. For the first time 
in the history of the Independent Counsel statute, the 
Independent Counsel sought to use the protective service as a 
source of intelligence for admittedly non-criminal activities 
ofa protectee. In the wake of this unprecedented demand, it was 
and continues to be the reasoned judgment of career professionals in 
the Secret Service that the absence of a protective privilege would 
severely impair agents' ability to fulfill their mission to protect 
this and future Presidents (as well as other protectees). The Secret 
Service's position was supported by former presidents and by former 
agents assigned to protect presidents in both Republican as well as 
Democratic administrations.
     Thus, the Justice and Treasury Departments' assertion of a 
protective privilege advanced valid concerns about the Secret 
Service's ability to perform its function. The OIC's suggestion 
that the assertion of this privilege constituted an abuse of 
power not only insults the integrity of career law enforcement 
officials, but that of congressional policy makers too. Indeed, 
because of the Independent Counsel's unorthodox overreaching, 
Senator Hatch vowed to seek legislation to enact the type of 
limited privilege asserted by the Secret Service in response to 
the Independent Counsel's sweeping actions. Congressional Press 
Releases, Senator Orrin Hatch, July 17, 1998.

3. The President's Assertions of Executive and Attorney/Client 
        Privilege were Valid and Necessary

    Any charge by the OIC that the President's assertion of 
privileges constitutes an abuse of power is equally baseless. 
The White House advanced claims of privilege only sparingly and 
as a last resort to protect the core constitutional and 
institutional interests of this and future presidencies. In 
pursuing his attack on the institution of the Presidency, the 
OIC took the extreme position that executive privilege was 
inapplicable and that the governmental attorney-client 
privilege did not exist in the face of grand jury subpoena. The 
OIC now seeks to penalize the President for disagreeing with 
its interpretations of the law, despite the fact that the 
courts (and the Department of Justice) both also disagreed with 
the OIC.
            A. The President Followed the Advice of White House Counsel 
                    Regarding the Assertion of Official Privileges
    A necessary component of the OIC's abuse of power 
allegation is that the President initiated the White House's 
claims of privilege--both executive and attorney-client--with 
intent to impede the OIC's investigation. The record completely 
refutes this premise.
    The privilege issue initially arose when the OIC served on 
Bruce Lindsey, Assistant to the President and Deputy Counsel, a 
subpoena seeking his testimony before the grand jury. 
Declaration of Charles F.C. Ruff (``Ruff Dec.'') para.31. Prior 
to Mr. Lindsey's appearance, the White House Counsel met with 
the OIC to discuss privilege issues and to ask the OIC to 
describe with particularity possible areas of inquiry to 
determine whether they would encompass privileged information. 
Id. para.32. The OIC declined to discuss this issue, and later 
stated that it intended to question Mr. Lindsey on areas 
implicating a wide array of privileges because it believed that 
executive and attorney-client privileges were inapplicable to 
information relating to the Lewinsky investigation. Id. 
para.para.32-34. The White House offered, in good faith, to 
provide the OIC with any factual testimony regarding the 
Lewinsky investigation. Id. para.para.45-50. The OIC rejected 
this offer. Id. para.51.
    Instead, the OIC suddenly filed motions to compel the 
testimony of Mr. Lindsey and other senior staff. Id. After 
careful deliberations, the White House Counsel notified the 
President of the privilege issue, explained the failed 
accommodation effort, and recommended that he invoke privilege. 
As he did in every instance, the President accepted the White 
House Counsel's recommendation and authorized the Counsel to 
make the claim of privilege. Id. para.56. Thus, the President's 
decision to claim privilege was never the result of his own 
initiative, but of his Counsel's advice.
            B. The President's Executive Privilege Assertions Were 
                    Upheld by the Court
    To put the OIC's apparent abuse of power charges in 
context, it is important to recognize that the OIC took the 
extraordinary position that executive privilege was 
inapplicable in the face of a grand jury subpoena and that it 
therefore was entitled to immediate and full disclosure of all 
strategic and political communication among the President's 
most senior advisors. This position was squarely at odds with 
the law of the Supreme Court, and of course, the D.C. Circuit. 
Executive privilege is constitutionally-based and covers 
communications relating to the President's official duties and 
the effective functioning of the executive branch. It ensures 
that the President receives frank and candid advice and 
recommendations,which ultimately fosters more informed and 
effective decision-making.
    Here, the President asserted executive privilege over 
communications that relate to matters that affect the 
performance of his official duties. In re Grand Jury 
Proceedings, 1998 U.S. Dist. Lexis 7736, * 7 (D.D.C. 1998); 
Ruff Dec. para.para. 16-30. Indeed, some of these 
communications related to the President's decision whether to 
invoke privilege over other communications. Id. para.para. 26-
    Rather than acknowledge the presumptively privileged nature 
of the information, the OIC maintained that the privilege was 
inapplicable and that it did not have to demonstrate any need 
for the information. Chief Judge Johnson rejected the OIC's 
position holding that the communications were presumptively 
privileged. In re Grand Jury Proceedings, 1998 U.S. Dist. Lexis 
at * 3-10. The Court then required the OIC to make a showing 
that its need for the information was sufficient to overcome 
the privilege. Id. at * 13-21. Although the Court concluded 
that the OIC had met its burden, the Court at no time even 
suggested that the President's assertion of executive privilege 
was groundless, improper, or made in bad faith. In those 
circumstances, it cannot seriously be argued that assertion of 
the privilege was an abuse of power.
            C. The President's Assertion of the Attorney-Client 
                    Privilege was Solidly Grounded in the Law of this 
    For centuries, the law has recognized the attorney-client 
privilege as absolute in protecting the confidentiality of 
communications between lawyers and their clients. The D.C. 
Circuit has also recognized that the attorney-client privilege 
protects confidential communications between government lawyers 
and officials. E.g. Mead Data Control, Inc. v. Dep't of the Air 
Force, 566 F.2d 242 (D.C. Cir. 1977). Courts recognize that a 
government official, like any other citizen, must be able to 
provide information to and seek advice from government lawyers 
without fear of public disclosure. Ultimately, the privilege 
serves an important governmental function by fostering well-
advised and fully-informed decision-making. The possibility 
that those communications may be disclosed will forfeit the 
benefits the privilege was intended to protect.
    Despite the law in the D.C. Circuit recognizing the 
attorney-client privilege in the governmental context, the 
Independent Counsel pushed to breach the bonds of the 
governmental attorney-client privilege. Unlike his 
predecessors, who have respected the professional obligation of 
government attorneys to provide confidential legal advice on 
official matters, the Independent Counsel has insisted that 
government attorneys and clients do not have the right to 
discuss legal issues in confidence. In this context, the White 
House's assertion of the attorney-client privilege was not only 
appropriate, but it was an ethical and institutional 
    Prior to the D.C. Circuit litigation, the OIC was well 
aware that the White House fundamentally disagreed with the OIC 
regarding the applicability and scope of the governmental 
attorney-client privilege. In the Eighth Circuit, the OIC had 
attempted to obtain a White House lawyer's notes that reflected 
confidential communications. In re Grand Jury Subpoena Duces 
Tecum, 112 F.3d 910 (8th Cir. 1997). At the time of that 
litigation, which the White House resisted and the OIC won, 
there was no authority rejecting the existence of a 
governmental attorney-client privilege.
    Two years later, the OIC, in the Lewinsky investigation, 
sought to compel the disclosure of confidential communications 
between the President and his official lawyers in which legal 
advice was either being sought by or provided to the President 
regarding official matters. In view of the law of the D.C. 
Circuit, which recognized an absolute governmental attorney-
client privilege, the White House Counsel recommended, and the 
President asserted, the privilege.
    A recent Supreme Court ruling that rejected the OIC's 
sweeping attack on the attorney-client privilege provided 
additional support for the President's position. In Swidler & 
Berlin v. United States, ________ U.S. ________ (1998); 1998 
U.S. Lexis 4214 (1998), the OIC argued that the personal 
attorney-client privilege should automatically give way to the 
needs of acriminal investigation. The Court rejected the OIC's 
position and stated that ``there is no case authority for the 
proposition that the privilege applies differently in criminal and 
civil cases,'' id. at * 7, supporting the principle that the privilege 
remains absolute in a grand jury context. Accordingly, the President's 
position on the applicability of the privilege in this context had a 
substantial basis in the decisions of both this Circuit and the Supreme 
    Undaunted, the OIC argued that, based upon the non-binding 
Eighth Circuit opinion, the governmental attorney-client 
privilege is inapplicable in a grand jury context. 112 F.3d 910 
(8th Cir. 1997). From an institutional standpoint, the OIC's 
position stripped the President of any ability to obtain 
confidential advice from government lawyers about official 
matters in the event that the OIC made a referral to Congress 
for possible impeachment hearings. In an impeachment context, 
the President is entitled to rely on Counsel's Office lawyers 
to provide critical legal guidance. Without the ability to 
receive such confidential advice, he is left without any legal 
guidance regarding the conduct of his official duties.
    The District Court rejected the OIC's position and held 
that the President had a valid, though qualified, governmental 
attorney-client privilege. In re Grand Jury Proceedings, 1998 
U.S. Dist. Lexis at * 21-52. Performing a need analysis similar 
to executive privilege, 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. 
Once again, the District Court did not suggest that the 
privilege claim was spurious or made in bad faith.
    On appeal, a divided D.C. Circuit Court of Appeals ruled 
that the President had an attorney-client privilege with White 
House Counsel in some contexts, but not this one. In re: Bruce 
R. Lindsey, 1998 U.S. App. Lexis 17066, * 7-43 (D.C. Cir. 
1998). Judge David Tatel, whose dissenting opinion in the Court 
of Appeals' decision in Swidler & Berlin was adopted by the 
Supreme Court, dissented here as well. Consistent with his 
analysis in Swidler & Berlin, Judge Tatel found 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 * 54. Judge Tatel's recognition of the validity of the 
absolute nature of the privilege and the President's need to 
assert this and belies the notion that the assertion was in any 
way an abuse of power.
    The OIC's apparent argument that the assertions of 
privilege were for purposes of delay lacks any evidentiary 
support and, more significantly, overlooks the OIC's own 
dilatory conduct. After Mr. Lindsey was subpoenaed and before 
he was scheduled to testify, the Office of the President 
attempted to avoid litigating these issues by reaching an 
accommodation that would provide the OIC with access to the 
information to which it was entitled while maintaining the 
legitimate confidentiality interests of the President. Id. 
para.para. 31-32. The OIC rejected those efforts and instead 
filed its motion to compel. Id. para. 51. The OIC has continued 
to reject any attempt by the White House to compromise, 
choosing instead to litigate these issues. The Office of the 
President has sought to avoid any delay by agreeing to 
expedited briefing schedules involving privilege litigation, 
and the courts, appreciating the time-sensitivity of the 
issues, have ruled swiftly on these matters.
    In any event, any delay that might have been caused by the 
White House had no substantive impact on the OIC's 
investigation. Privilege claims have been advanced as to only 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 
staffers; in March, they both appeared before the grand jury 
and testified fully. The privilege assertions ultimately 
involved the testimony of only three Counsel's Office lawyers. 
Each of these individuals has testified at length regarding any 
facts they may have possessed about whether the President had a 
relationship with Ms. Lewinsky. The questions as to which they 
asserted privilege were narrow in scope and irrelevant to the 
matters being investigated.
    Finally, substantial delay in the investigation has been 
self-inflicted. The OIC has wandered aimlessly down more alleys 
and byways than any federal prosecutor would appropriatelydo. 
The OIC has called current and former White House staffers before the 
grand jury, and interviewed many others. The OIC has called 
presidential advisers before the grand jury four, five and six times; 
sometimes for only one- or two-hour sessions. Some witnesses appeared 
to testify only to find themselves waiting for hours and then being 
told to return on another day. The OIC has also insisted on exploring 
such irrelevant subjects as White House contacts with the press, and 
has required testimony from attorneys whose primary function was to 
deal with the OIC. Such actions are highly unusual, if not 

4. White House Lawyers Played an Appropriate Role in the Investigation

    Finally, the open and lawful efforts of the White House 
lawyers to assist White House staff obtain lawyers, to speak 
with witnesses and their lawyers, and to provide advice on the 
ramifications of the investigation also cannot be considered an 
abuse of power.
    As a threshold matter, when there is an official nexus 
between the duties of the President and an ongoing 
investigation, which certainly exists here, it is the duty of 
government attorneys to represent their official client. The 
specter of impeachment loomed from the day the Lewinsky story 
broke in the press. Ruff Dec. para.21. Members of the Congress 
asserted that the investigation, which drew explosive media, 
public and congressional attention, burdened the President's 
ability to perform his constitutional and statutory duties. 
Accordingly, the White House Counsel's Office lawyers, among 
others, were responsible for providing the President and White 
House officials with informed, candid advice on the issues 
raised by the investigation that affected the President's 
official duties. Id. para.para.16-30.
    When it suited the OIC's interests, the OIC recognized the 
appropriateness of, and relied on, the White House Counsel's 
efforts. From the beginning of this investigation, the OIC 
sought--and received--the cooperation of the White House 
lawyers in setting up interviews and grand jury appearances of 
current and former White House employees. The OIC, however, 
refused to allow the White House lawyers to represent even the 
most junior, uninvolved witnesses. Thus, all White House 
officials, from the most senior to the most junior, were 
required to obtain private counsel. White House lawyers also 
provided relevant documents to witnesses' attorneys to ensure 
complete and accurate testimony, provided privilege 
instructions and guidance, and followed-up afterwards to 
discuss an individual's interview or grand jury appearance and 
any outstanding issues. All of the Counsel's Office activities 
were well-known to the OIC, and no objection was ever voiced.
    Lastly, it was not uncommon for the White House to be faced 
with inaccurate and spurious stories that seemed to be coming 
from the OIC or ``sources close to the OIC'' shortly after a 
witness testified or was interviewed by the prosecution. 
Indeed, Judge Johnson examined media reports, and concluded 
that theycontained grand jury material and that there was 
evidence that the OIC as the source. In re Grand Jury Proceedings, 
Misc. No. 98-55 (D.D.C. June 19, 1998), Mem. Op. at 6. Accordingly, 
Judge Johnson held that this evidence established a prima facie case 
that the OIC had violated Rule 6(e) and ordered the OIC to appear to 
show cause why it should not be held in contempt for Rule 6(e) 
violations. These leaks created a deluge of press inquiries to the 
White House; not surprisingly, White House Counsel lawyers were 
required to gather information and advise senior staff concerning the 
appropriate response to these inquiries.

                    VII. Allegations of Perjury \21\

    \21\ ``Perjury'' was not even in the original grant of jurisdiction 
to the OIC but reportedly is now the crux of the OIC's case.
    The OIC cannot make out even a colorable claim of perjury. 
If answers are truthful or literally truthful but misleading, 
there is no perjury as a matter of law, no matter how 
misleading the testimony is or is intended to be. The law 
simply does not require the witness to aid his interrogator. 
The Referral seeks to punish the President for being unhelpful 
to those trying to destroy him politically.

A. The Law of Perjury

    Perjury requires proof that a defendant, while under oath, 
knowingly made a false statement as to material facts.\22\ 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 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). It is 
beyond debate that false testimony provided as a result of 
confusion, mistake, faulty memory, carelessness, 
misunderstanding, mistaken conclusions, unjustified inferences 
testified to negligently, or even recklessness does not satisfy 
the ``knowingly'' element. 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-
    \22\ 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.
    Moreover, it is of course clear that a statement must be 
false in order to constitute perjury. It is equally beyond 
debate that the following types of answers are not capable of 
being false and are therefore by definition non-perjurious: 
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 
failures 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.
    Thus, in explaining the law of perjury, the Supreme Court 
and numerous lower federal courts have set forth three clear 
standards. First, 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.'' The second clear rule is 
that answers to questions that are fundamentally ambiguous 
cannot, as a matter of law, be perjurious. Finally, 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 has any question as to credibility or 
truthfulness. 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).
            1. Bronston and ``Literal Truth''
    In United States v. Bronston, 409 U.S. 352 (1973), the 
leading case on the law of perjury, the United States 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 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. 
          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 took 
pains 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 sanction that 
is almost always unwarranted, 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.'' 
    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.\23\ 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. Literally every federal court 
of appeals in the nation concurs in this reading of 
    \23\ 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. 1623(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, 474 n. 7 (8th Cir. 1993); United States v. Reveron 
Martinez, 836 F.2d 684, 689 (1st Cir. 1988); United States v. Lighte, 
782 F.2d 367, 372 (2d Cir. 1986).
    \24\ 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, 1245 (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, 569 (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).
            2. Fundamentally 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 the penitentiary'' 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 

          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.''

    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.25
    \25\ 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).
            3. A Perjury Case Must Not Be Based Solely Upon the 
                    Testimony of a Single Witness
    The law is clear that 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.
    While 18 U.S.C. Sec. 1623 does not incorporate the ``two-
witness rule,'' it is nonetheless clear from the case law that 
perjury prosecutions 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 United States 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 preconditionto 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 criminal cases 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.''

B. The Jones Deposition

    Without knowledge of the OIC's specific allegations it is 
impossible to address why any particular claim of perjury fails 
although we are confident that no colorable claim of perjury 
can be made out. However, illegal leaks and speculation make 
clear that there are certain misperceptions about this 
testimony that can immediately be laid to rest. For example,

          Allegation: The President falsely testified in his 
        Jones deposition that he was never alone with Ms. 

Not so. The President acknowledged in his deposition that he 
met with Ms. Lewinsky on up to five occasions while she worked 
at the White House. (p. 50). He then referred back to that 
testimony when asked if he ever was alone with her in the Oval 
Office (p. 52), and again when asked whether he was alone with 
her in any room in the White House. (p. 59). The Jones lawyers 
did not follow up and ask the President to describe the nature 
of any physical contact that may have occurred on these 

          Allegation: The President falsely testified in his 
        Jones deposition that he never had any improper 
        physical contact of any kind with Ms. Lewinsky.

Not so. The President was asked whether he had ``an 
extramarital sexual affair'' with Ms. Lewinsky (p. 78) and 
responded that he did not. That term was undefined and 
ambiguous. The President understood the term ``sexual affair'' 
to involve a relationship involving sexual intercourse. He had 
no such relationship with Ms. Lewinsky.
    The President also was asked whether he had ``sexual 
relations'' with Ms. Lewinsky, ``as that term is defined in 
Deposition Exhibit 1, as modified by the Court.'' (p. 59). The 
Court explicitly directed the President's attention to 
Definition Number 1 on Exhibit 1, which the President had 
    The President denied he had ``sexual relations'' with Ms. 
Lewinsky under this definition. Although the President's 
counsel, Mr. Bennett, had invited the Jones lawyers to ask 
specific questions about the President's conduct--``Why don't 
they ask the President what he did, what he didn't do, and then 
we can argue in Court later about what it means?'' (p. 21)--the 
Jones lawyers declined to do so, relying instead on the 
definition. The President was not asked any specific questions 
at all about his physical contact with Ms. Lewinsky, and in 
particular he was not pointedly asked whether he had engaged in 
any of the conduct outside the definition provided. The 
President's testimony in response to these questions was 
accurate. He did not have sexual intercourse with Ms. Lewinsky 
or otherwise engage in sexual conduct covered by the 
definition, as provided by plaintiff and narrowed by the Court.
    The President also testified in the Jones deposition that 
Ms. Lewinsky's affidavit, in which she stated she had never had 
a ``sexual relationship'' with the President, was accurate (p. 
204). He believed this testimony to be truthful. The term 
``sexual relationship'' was not defined in the affidavit or in 
the deposition. The definition of the different term ``sexual 
relations'' utilized by the Jones lawyers did not apply to that 
question. The term ``sexual relationship,'' like sexual affair, 
has no definitive meaning. To the President, that term 
reasonably requires sexual intercourse as a necessary component 
of the relationship. Since his relationship with Ms. Lewinsky 
did not involve intercourse, he truthfully answered that the 
affidavit was accurate.

          Allegation: The President falsely testified in his 
        Jones deposition that his relationship with Ms. 
        Lewinsky was the same as that with any other White 
        House intern.

Not so. The President's answers left no doubt that he had a 
special relationship with Ms. Lewinsky. He acknowledged knowing 
how she had gotten her internship at the White House. 
Heacknowledged meeting with her and knowing where she worked after 
leaving the White House. He acknowledged exchanging small gifts with 
her. He acknowledged that he knew she was moving to New York and that 
her mother had moved there. He acknowledged knowing about her job 
search in New York, and that she had had an interview with (then) U.N. 
Ambassador Bill Richardson. He acknowledged that Mr. Jordan reported on 
his meeting with Ms. Lewinsky about her New York job search. He 
acknowledged receiving cards and notes from her through Ms. Betty 
Currie. The Jones lawyers received affirmative responses to particular 
questions. Had they opted to ask precise questions on other matters, 
they would have received truthful responses. They did not do so.

      VIII. The Lewinsky Expansion of the Whitewater Investigation

    The expansion of the Independent Counsel's jurisdiction to 
encompass the Jones case and Ms. Lewinsky did not occur by 
accident or easily. The OIC deliberately and purposefully 
sought this expansion on an emergency basis. Media accounts 
that the Attorney General herself requested this expansion are 
highly misleading.
    On January 16, 1998, upon the OIC's request, the Special 
Division of the Court of Appeals for the Purpose of Appointing 
Independent Counsels expanded the OIC's jurisdiction to allow 
it to investigate ``whether Monica Lewinsky or others suborned 
perjury, obstructed justice, intimidated witnesses, or 
otherwise violated federal law . . . in dealing with witnesses, 
potential witnesses, attorneys, or others concerning the civil 
case Jones v. Clinton.'' Order, Div. No. 94-1 (Jan. 16, 1998) 
(Div. for Purpose of Appointing Independent Counsel) (D.C. 
Cir.). The series of events that led to this expansion of 
authority raise serious questions as to the motivations and 
manipulations of the OIC in securing this expanded 
    Under the Independent Counsel statute, if the ``independent 
counsel discovers or receives information about possible 
violations of criminal law by [covered persons], which are not 
covered by the prosecutorial jurisdiction of the independent 
counsel, the independent counsel may submit such information to 
the Attorney General.'' 28 U.S.C. Sec. 593 (c)(2)(A). The 
Attorney General is then to conduct a preliminary 
investigation. 28 U.S.C. Sec. 592. The statute did not give the 
OIC authority to conduct its own preliminary investigation in 
order to gather or create evidence to present to the Attorney 
General to support a request for an expansion of jurisdiction.
    According to media reports, Ms. Linda Tripp contacted the 
OIC on Monday, January 12, 1998. There was no particular logic 
to this contact, and she could easily have taken her concerns 
to state or federal authorities. In any event, the OIC arranged 
for Ms. Tripp to wear an F.B.I. recording device and tape 
surreptitiously a conversation that she had with Ms. Lewinsky 
the next day, Tuesday, January 13, 1998 (Ms. Lewinsky had not 
yet filed an affidavit in the Jones case). On Friday, January 
16, 1998, at the OIC's request, Ms. Tripp lured Ms. Lewinsky to 
a meeting, where she was apprehended by OIC agents, who 
confronted her and attempted to pressure her into doing 
surreptitious taping herself. She was informed that an immunity 
agreement was contingent on her not contacting her 
    \26\ Time, Feb. 16, 1998, at 49.
    That same day, the Special Division agreed to expand the 
OIC's authority, based upon the Independent Counsel's earlier 
application to the Attorney General and on the tapes that the 
OIC had already created: ``In a taped conversation with a 
cooperating witness, Ms. Lewinsky states that she intends to 
lie when deposed. In the same conversation, she urges the 
cooperating witness to lie in her own upcoming deposition. . . 
. Independent Counsel Starr has requested that this matter be 
referred to him.'' (Text of Attorney General's Petition to 
Special Division, The Associated Press, January 29, 1998.)
    The Independent Counsel later suggested that the expansion 
of authority prior to the taping was unnecessary, as it was 
already within his jurisdiction. However, the Lewinsky matter 
had no connection whatsoever to the Whitewater activities, or 
any other activities, then being investigated by the OIC. In 
addition, the Attorney General specifically stated in her 
referral to the Special Division that she was seeking an 
expansion of the Independent Counsel's jurisdiction. Or, as 
former independent counsel Michael Zeldin pointed out, ``If he 
had jurisdiction to investigate it when he wired her, why did 
he have to go to court to get it afterward? In some ways, he is 
talkingout of both sides of his mouth. . . . It seems to me 
arguable that he obtained evidence unlawfully. . . .'' Chicago Tribune, 
January 25, 1998. And former independent counsel Lawrence Walsh 
declared, ``A prosecutor has no business getting into that case [Paula 
Jones] unless there's something terrible happening. I question Starr's 
judgment in going into it so hard.'' Chicago Tribune, January 25, 1998.
     Furthermore, the sequence of events suggests that 
Independent Counsel Starr deliberately delayed requesting the 
expansion of jurisdiction. Neither Monica Lewinsky nor 
President Clinton had made any statements under oath in the 
Jones case (at least that had been filed with any court) when 
Linda Tripp approached the OIC on January 12. The only evidence 
the OIC possessed at that time were tapes illegally created by 
Tripp. The OIC itself proceeded to tape the Tuesday, January 13 
conversation between Tripp and Lewinsky. Ms. Lewinsky's 
affidavit was not filed in the Jones case until January 16, and 
the OIC had petitioned the Attorney General the day before for 
an expansion of authority based on the evidence (the Tripp 
tapes and the OIC's tape) that he had acquired without any 
authority to do so.
    Ms. Tripp remained through the day at the hotel where Ms. 
Lewinsky was apprehended by the OIC on Friday, January 16, 
1998.27 During that day, Ms. Jones' lawyers 
repeatedly tried to contact Ms. Tripp for a meeting, but she 
was unavailable. Ibid. Late in the afternoon, when it became 
clear that Ms. Lewinsky would not cooperate in the 
surreptitious taping of others, the Jones lawyers received a 
call arranging a meeting with Ms. Tripp for that night, so she 
could help them prepare for the President's deposition next 
day. Ibid.28 It seems probable that Ms. Tripp, who 
was acting as the OIC's agent under an immunity agreement, must 
have gotten approval for this briefing from the OIC. Ms. Tripp 
met with the Jones lawyers at her home in Maryland that night 
and briefed them on the illegal tapes she had made of Ms. 
Lewinsky, 29 so they could use the contents of those 
tapes in their questioning of the President.30 Ms. 
Tripp is under investigation in the state of Maryland because 
she secretly recorded Ms. Lewinsky and then shared the 
existence and contents of those tapes with the Jones lawyers. 
It is a crime in that state, punishable by imprisonment up to 
five years and a fine of up to $10,000, for a person to 
``wilfully'' record a conversation without the consent of both 
parties or to ``wilfully'' disclose the contents of such an 
illegally recorded conversation. Md. Code Ann. Sec. 10-402 
    \27\ ``Linda Tripp Briefed Jones Team on Tapes,'' The Washington 
Post, Feb. 14, 1998, at A1.
    \28\ The Washington Times, Feb. 15, 1998, at A1, reported:

        ``Yesterday, a source close to Mrs. Jones' legal team 
      confirmed that on Jan. 16, the day before Mrs. Jones' 
      lawyers took a deposition from Mr. Clinton, Mrs. Tripp met 
      for two hours with those lawyers at her suburban Maryland 
      home and discussed at length what Miss Lewinsky had said in 
      some 20 hours of secretly recorded conversations. Mrs. 
      Tripp had already given those tapes to Mr. Starr's 
        With the information from Mrs. Tripp, the Jones lawyers 
      were able to ask Mr. Clinton in his deposition specific 
      questions about his relationship with and gifts to Miss 
      Lewinsky, according to a person informed about the 
      President's testimony.''

    \29\ Under the Maryland electronic surveillance statute, which 
criminalizes taping without the consent of both parties, it is a 
violation of the statute simply to disclose that an illegal tape has 
been made, since the term ``Contents'', as used in the statute to 
define what may not be disclosed, is defined to include ``any 
information concerning the identity of the parties to the communication 
or the existence, substance, purport, or meaning of that 
communication.'' Md. Code Ann. Sec. 10-401(7) (1997) (emphasis added).
    \30\ There is no doubt that the Jones lawyers believed they had a 
significant tactical advantage due to their knowledge of the Tripp 
tapes. They may also have known that Ms. Tripp was an OIC agent. After 
being asked a highly specific series of questions about Ms. Lewinsky, 
the President replied, ``I don't even know what you're talking about, I 
don't think,'' and one of the Jones lawyers, James Fisher, responded, 
``Sir, I think this will come to light shortly, and you'll understand'' 
(p. 85).
    \31\ Recent news reports indicate that Ms. Tripp was specifically 
warned at the Radio Shack store where she brought her tape recorder 
that it was illegal to tape in Maryland without the consent of the 
other party. See, e.g., ``Tripp Was Told of Law at Store,'' The 
Baltimore Sun, Aug. 28, 1998, at A1.
     On January 17, armed with the information obtained from 
Ms. Tripp, Ms. Jones' attorneys deposed President Clinton in 
great detail regarding Ms. Lewinsky. At about this time, the 
OIC sought to prevent press coverage of its attempt to have Ms. 
Lewinsky cooperate in secret taping.32
    \32\ ``Pressgate'', Brill's Content, August 1998, at 128.
    This entire sequence of events--the OIC's delay in 
requesting jurisdiction, the OIC's pressure on reporters to 
withhold public disclosure of the matter,33 the 
OIC's unwillingness to permit Ms. Lewinsky to contact her 
lawyer, and the OIC's dispatch of Ms. Tripp to brief the Jones 
lawyers about the fruits of her illegal taping the day before 
they were to depose the President--suggests an intention by the 
OIC to ensure that the expansion of jurisdiction was kept a 
secret until the President and Ms. Lewinsky had given testimony 
under oath and (if Ms. Lewinsky could be so persuaded) she had 
been enlisted to do surreptitious taping. In other words, 
rather than taking steps to defer or avoid any possible 
interference with the Jones case, the OIC did everything in its 
power--and some things outside its authority--to set up a case 
against the President.
    \33\ See, e.g., Stephen Brill, ``Pressgate'' in Brill's Content 
(August 1998) at 127 (``Isikoff says that when he talked to Starr 
deputy Jackie Bennett, Jr., on Thursday [January 15], Bennett begged 
him to wait until Friday before trying to call Jordan, the White House, 
or Lewinsky about his story. . . . Isikoff says he agreed to hold off 
in exchange for getting a full report on how the stings had gone.'').
                            INITIAL RESPONSE

                             TO REFERRAL OF


    David E. Kendall                            Charles F.C. Ruff
    Nicole K. Seligman                          Cheryl Mills
    Emmet T. Flood                              Lanny A. Breuer
    Max Stier                               OFFICE OF THE WHITE
    Glen Donath                               HOUSE COUNSEL
    Alicia L. Marti                         The White House
WILLIAMS & CONNOLLY                         Washington, DC 20005
725 12th Street, N.W.
Washington, DC 20005
September 12, 1998

    On May 31, 1998, the spokesman for Independent Counsel 
Kenneth W. Starr declared that the Office's Monica Lewinsky 
investigation ``is not about sex. This case is about perjury, 
subornation of perjury, witness tampering, obstruction of 
justice. That is what this case is about.'' 1 Now 
that the 450-page Referral to the United States House of 
Representatives Pursuant to Title 28, United States Code 
Sec. 595(c) (the ``Referral'') is public, it is plain that 
``sex'' is precisely what this four-and-a-half year 
investigation has boiled down to. The Referral is so loaded 
with irrelevant and unnecessary graphic and salacious 
allegations that only one conclusion is possible: its principal 
purpose is to damage the President.
    \1\ CNN Late Edition with Wolf Blitzer (May 31, 1998). Other 
commentators and journalists have made similar assertions. See, e.g., 
The Washington Times (March 19, 1998); The New York Times (March 29, 
1998); ABC Nightline (April 15, 1998); The Washington Times (July 29, 
    The President has acknowledged and apologized for an 
inappropriate sexual relationship with Ms. Lewinsky, so there 
is no need to describe that relationship in ugly detail. No one 
denies that the relationship was wrong or that the President 
was responsible. The Referral's pious defense of its 
pornographic specificity is that, in the Independent Counsel's 

        ``the details are crucial to an informed evaluation of 
        the testimony, the credibility of witnesses, and the 
        reliability of other evidence. Many of the details 
        reveal highly personal information; many are sexually 
        explicit. This is unfortunate, but it is essential.''

Narrative at 20. This statement is patently false. Any fair 
reader of the Referral will easily discern that many of the 
lurid allegations, which need not be recounted here, have no 
justification at all, even in terms of any OIC legal theory. 
They plainly do not relate, even arguably, to activities which 
may be within the definition of ``sexual relations'' in the 
President's Jones deposition, which is the excuse advanced by 
the OIC. They are simply part of a hit-and-run smear campaign, 
and their inclusion says volumes about the OIC's tactics and 
    Review of a prosecutor's case necessarily starts with an 
analysis of the charges, and that is what we offer here. This 
is necessarily a very preliminary response, offered on the 
basis of less than a day's analysis and without any access to 
the factual materials cited in the Referral.
    Spectacularly absent from the Referral is any discussion of 
contradictory or exculpatory evidence or any evidence that 
would cast doubt on the credibility of the testimony the OIC 
cites (but does not explicitly quote). This is a failure of 
fundamental fairness which is highly prejudicial to the 
President and it is reason alone to withhold judgment on the 
Referral's allegations until all the prosecutors' evidence can 
be scrutinized--and then challenged, as necessary, by evidence 
from the President.
    The real critique can occur only with access to the 
materials on which the prosecutors have ostensibly relied. Only 
at that time can contradictory evidence be identified and the 
context and consistency (or lack thereof) of the cited evidence 
be ascertained. Since we have not been given access to the 
transcripts and other materials compiled by the OIC, our 
inquiry is therefore necessarily limited. But even with this 
limited access, our preliminary review reaffirms how little 
this highly intrusive and disruptive investigation has in fact 
yielded. In instance after instance, the OIC's allegations fail 
to withstand scrutiny either as a factual matter, or a legal 
matter, or both. The Referral quickly emerges as a portrait of 
biased recounting, skewed analysis, and unconscionable 
    In our Preliminary Memorandum, filed yesterday, at pages 3-
12, we set forth at some length the various ways in which 
impeachable ``high Crimes and Misdemeanors'' have been defined. 
Nothing in the Referral even approximates such conduct. In the 
English practice from which the Framers borrowed the phrase, 
``High Crimes and Misdemeanors'' denoted political offenses, 
the critical element of which was injury to the state. 
Impeachment was intended to redress public offenses committed 
by public officials in violation of the public trust and 
duties. Because presidential impeachment invalidates the will 
of the American people, it was designed to be justified for the 
gravest wrongs--offenses against the Constitution itself. In 
short, only ``serious assaults on the integrity of the 
processes of government,'' 2 and ``such crimes as 
would so stain a president as to make his continuance in office 
dangerous to the public order,'' 3 constitute 
impeachable offenses. The eleven supposed ``grounds for 
impeachment'' set forth in the section of the Referral called 
``Acts That May Constitute Grounds for an Impeachment'' 
(``Acts'') fall far short of that high standard, and their very 
allegation demeans the constitutional process. The document is 
at bottom overreaching in an extravagant effort to find a case 
where there is none.
    \2\ Charles L. Black, Jr. Impeachment: A Handbook--38-39 (1974)
    \3\ Ibid.

         Allegation I--Perjury in January 17, 1998, Deposition

    We begin our response to the OIC's charge that the 
President committed perjury in his January 17 deposition in the 
Jones case with these simple facts: the President's 
relationship with Ms. Lewinsky was wrong; he admitted it was 
wrong; and he has asked for the forgiveness of his family and 
the American people. The perjury charges in the Referral in 
reality serve one principal purpose for the OIC--to provide an 
opportunity to lay out in a public forum as much salacious, 
gratuitous detail as possible with the goal of damaging the 
President and the presidency.
    The OIC begins its catalogue of ``acts that may constitute 
grounds for impeachment'' with the allegation that ``[t]here is 
substantial and credible information that President Clinton 
lied under oath as a defendant in Jones v. Clinton regarding 
his sexual relationship with Monica Lewinsky.'' Acts at 5. The 
OIC contends that, for legal reasons, it must discuss its 
allegations of sexual activity in detail and then goes out of 
its way to supply lurid detail after lurid detail that are 
completely irrelevant to any legal claim, obviously hoping that 
the shock value of its footnotes will overcome the absence of 
legal foundation for the perjury allegation.
    In reaching any fair judgment as to the merits of the OIC's 
claim that the President's testimony establishes a basis for 
impeachment, it is important to understand a few additional 
points. First, the OIC barely acknowledges the elements of 
perjury, including, in particular, the substantial burden that 
must be met to show that the alleged false statements were made 
``knowingly,'' Preliminary Memorandum at 52, or that they were 
material to the Jones proceeding.
    Second, the OIC ignores the careful standards that the 
courts have mandated to prevent the misuse of perjury 
allegations. As was set out in detail in our Preliminary 
Memorandum, pages 51-64, literally true statements cannot be 
the basis for a perjury prosecution, even if a witness intends 
to mislead the questioner. Likewise, answers to inherently 
ambiguous questions cannot constitute perjury. And, normally, a 
perjury prosecution may not rest on the testimony of a single 
    Third, by selectively presenting the facts and failing to 
set out the full context of the answers that it claims may have 
been perjurious, the OIC has presented a wholly misleading 
picture. This tactic is most pronounced in the OIC's 
astonishing failure to set out the initial definition of 
``sexual relations'' presented by the Jones lawyers at 
President Clinton's deposition, two parts of which were 
eliminated by Judge Wright as being ``too broad.'' 4 
The OIC also fails to mention that the Jones lawyers were fully 
able, and indeed were invited by President Clinton's counsel, 
to ask the President specific questions about his sexual 
encounters, but they chose not do so. See Preliminary 
Memorandum at 65.
    \4\ The President was presented with the following definition, as 
he understood the court to have amended:

          Definition of Sexual Relations
          For the purposes of this deposition, a person engages in 
        ``sexual relations'' when the person knowingly engages in or 

                  (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; 
                   (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.
    These surprising and substantial gaps in the Referral, and 
the OIC's purposefully incomplete presentation reflect the 
extreme weakness of the OIC's contention that the President's 
deposition testimony about ``sexual relations'' may constitute 
    As any fair prosecutor would acknowledge, what the OIC 
dismisses as a mere ``semantical defense'' is, in fact, 
reflective of the great care the courts have taken to ensure 
that a witness is not charged with perjury except when the 
government can demonstrate a clear intent to provide false 
testimony. Thus, in any ordinary prosecutor's office, and 
surely in the chambers of the House Judiciary Committee, the 
definitions of such terms as ``sexual affair,'' ``sexual 
relations,'' and ``sexual relationship'' would be seen as vital 
to a determination whether some violation of law had 
occurred.5 The burden that must be met by the OIC 
extends beyond showing that the President was wrong on the 
semantics, it must also show that, because perjury is a 
specific intent crime, he knew he was wrong and intended to 
lie--something that the OIC could not begin to demonstrate. In 
fact, all the OIC has is a witness who gave narrow answers to 
ambiguous questions.
    \5\ For example, dictionary definitions of ``sexual relations'' 
expressly support the President's interpretation. See, e.g., Webster's 
Third International Dictionary (defining ``sexual relations'' as 
``coitus'). Yet, apparently, the OIC did not bother to check a 
dictionary before leveling its accusations.
    Lawyers' arguments, however well taken, should not obscure 
the President's admission that his relationship with Ms. 
Lewinsky was wrong and his acceptance of responsibility for his 
conduct. But one example will suffice to demonstrate the 
inherent weakness of the OIC's claim. The OIC argues that oral 
sex falls within the definition of sexual relations and that 
the President therefore lied when he said he denied having 
sexual relations. It is, however, the President's good faith 
and reasonable interpretation that oral sex was outside the 
special definition of sexual relations provided to him. The OIC 
simply asserts that it disagrees with the President's 
``linguistic parsing,'' and that reasonable people would not 
have agreed with him. Acts at 30. This simply is not the stuff 
of which criminal prosecutions--and surely impeachment 
proceedings--are made.
    What is left, then, is a disagreement about the very 
specific details of certain encounters that the President has 
acknowledged were improper--the very ``oath against oath'' that 
the law and experience reject as a basis for a prosecution, 
because a perjury conviction cannot rest on simple 
inconsistencies and memory disparities between only two 
    Instead of acknowledging the well-settled legal limits on 
perjury cases, or grappling with the important limitations on 
perjury prosecutions, the OIC has chosen to fill its report 
with unnecessary and salacious sex--details that cause pain and 
damage for absolutely no legitimate reason.

    Allegation II--Perjury in August 17, 1998, Grand Jury Testimony

    In its second allegation, the OIC contends that ``[t]here 
is substantial and credible information that President Clinton 
lied under oath to the grand jury about his sexual relationship 
with Monica Lewinsky.'' Acts at 40. In particular, the OIC 
alleges that the President committed perjury three times: (1) 
when he testified that he believed oral sex was not covered by 
any of the terms and definitions for sexual activity used at 
the Jones deposition; (2) when he contradicted Ms. Lewinsky's 
grand jury testimony on the question whether the President 
touched Ms. Lewinsky's breasts or genitalia during their sexual 
activity, since ``[t]here can be no contention that one of them 
has a lack of memory or is mistaken,'' id.; and (3) when he 
testified to a purportedly false date on which his relationship 
with Ms. Lewinsky commenced. None of these ``allegations'' 
makes out a prima facie case of perjury, and none can possibly 
constitute a ``ground'' for impeachment.
    1. The OIC first claims that the President testified 
falsely that he did not believe oral sex to be covered by any 
of the terms and definitions for sexual activity used at the 
Jones deposition. As noted in response to the first allegation, 
supra, the terms ``sexual affair'' and ``sexual relationship'' 
are inherently ambiguous and, when used without definition, 
cannot possibly amount to perjury. The President testified to 
the grand jury about what he believed those terms mean. Not 
content to accept his explanation, the OIC makes the 
extraordinary (and factually unsupported) claim that the 
President committed perjury before the grand jury by lying not 
about some fact but about his belief about the meaning of 
certain words. The OIC then compounds this error by claiming as 
perjury the President's explanation of his understanding of the 
contorted definition of ``sexual relations'' in the Jones suit, 
as modified by the court.
    This claim is quite stunning. The OIC charges the President 
with perjury, saying it is ``not credible'' that the President 
believed oral sex fell outside the definition he was given, 
even though it plainly did, and even though many commentators 
and journalists have stated that they believe that the 
definition of sexual relations in the Jones deposition did not 
include oral sex (performed on the President). See, e.g., 
Internight, August 12, 1998 (Cynthia Alksne) (``when 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.''). 
Despite the fact that several reasonable commentators agree 
with the President's interpretation, the OIC acts as though the 
President's interpretation of the definition in the Jones case 
is both unique and untenable. It is in fact the OIC's theory 
that is untenable.
    It is beyond debate that false testimony provided as a 
result of confusion or mistake cannot as a matter of law 
constitute perjury. See United States v. Dunnigan, 507 U.S. 87, 
94 (1993); Department of Justice Manual, 1997 Supplement, at 9-
69.214. Moreover, if there is any doubt as to the falsity of 
testimony, the issue must be resolved in favor of the accused. 
See United States v. Chaplin, 25 F.3d 1373, 1380 (7th Cir. 
1994) (the government must prove falsity by direct evidence, 
and not inferences). The definitions on which the President 
relied are shared both by dictionaries, see discussion of 
Allegation I, supra, and by commentators. The OIC's very 
allegation that the President committed perjury by re-
explaining his belief and interpretation to the grand jury is 
yet another indication of the extent of the OIC's overreaching 
in this Referral.6
    \6\ This overreaching is compounded by the complete lack of legal 
citation and analysis in the Referral. Perjury is a specific intent 
crime, and is an area of the law in which stringent safeguards have 
been erected to make perjury prosecutions exceedingly difficult. Rather 
than explain how, notwithstanding these safeguards, it has made out a 
valid perjury charge, the OIC has elected simply to forego discussing 
the law entirely.
    2. The OIC's next charge--that the President testified 
falsely when he contradicted Ms. Lewinsky's grand jury 
testimony on the question whether he touched Ms. Lewinsky's 
breasts or genitalia during their sexual activity--is 
substantially identical to the allegation contained in 
Allegation I, supra, and cannot constitute perjury for the same 
reason. The critical issue here is not whether the testimony of 
the President and Ms. Lewinsky differ but whether there is any 
evidence that the President knowingly and intentionally gave 
false testimony. It is worthwhile to note, however, the 
inaccuracy of the OIC's assertion that ``[t]here can be no 
contention that one of them has a lack of memory or is 
mistaken'' about the details of their physical relationship. 
Acts at 40.
    3. The OIC's final allegation here is that the President 
made a false statement to the grand jury regarding the timing 
of the beginning of his relationship with Ms. Lewinsky. Whereas 
the Referral indicates that the President remembers the 
improper relationship beginning early in 1996, Ms. Lewinsky has 
apparently testified that it began November 15, 1995. As a 
legal allegation this claim is frivolous, because the statement 
by the President regarding the timing of the relationship (mid-
November 1995 as opposed to January 1996) was utterly 
immaterial to the grand jury's investigation. The Supreme Court 
has held that ``there is no doubt that materiality is an 
element of perjury.'' Johnson v. United States, ______ U.S. 
______ , 117 S. Ct. 1544, 1548 (1997). The test for materiality 
is whether the statement in question had ``a natural tendency 
to influence, or [be] capable of influencing, the decision of 
the decisionmaking body to which it was addressed.'' United 
States v. Gaudin, 515 U.S. 506, 509 (1995). There is no 
conceivable way in which any statement by the President with 
regard to the date (within a few weeks) of the commencement of 
his relationship with Ms. Lewinsky could possibly have 
influenced the grand jury, and the OIC has of course not 
identified how the grand jury was ``influenced'' by this 
testimony. The President acknowledged to the grand jury his 
improper relationship, beginning early in 1996, with Ms. 
Lewinsky, and his testimony regarding the date that the 
relationship began cannot possibly have influenced the grand 
jury in any decisionmaking function. The mere fact that the OIC 
would allege perjury as a result of an utterly immaterial 
statement speaks volumes about the overreaching in the 

    Allegation III--Meetings and Exchanging Gifts With Ms. Lewinsky

    In its third allegation, the OIC makes various claims of 
perjury based on President Clinton's statements in the Jones 
deposition regarding whether he had been alone with Ms. 
Lewinsky in the Oval Office and in an adjacent hallway and 
whether he and Ms. Lewinsky had exchanged gifts. Like the other 
perjury allegations, the OIC fails to offer a credible case.
    First and foremost, President Clinton did not deny meeting 
alone with Ms. Lewinsky at the White House nor deny that they 
exchanged gifts. In essence, the OIC's complaint is that 
President Clinton was not more forthcoming, which is plainly 
not a ground for perjury, rather than that he knowingly lied 
under oath. This is perhaps most clearly seen in the OIC's 
heading for this allegation, which sets forth the accusation 
that President Clinton ``minimized the number of gifts they had 
exchanged,'' Acts at 45, which of course concedes that he 
acknowledged that gifts were exchanged. There is not much that 
is safe from a perjury prosecution if mere ``minimization'' 
qualifies for the offense. The transcript makes it clear that, 
when asked about particular gifts, the President honestly 
stated his recollection of the particular item.
    Nor can President Clinton's testimony regarding whether he 
was alone with Ms. Lewinsky at various times and places 
constitute perjury. The Jones lawyers often failed to follow up 
on incomplete or unresponsive answers. Read as a whole, the 
deposition makes clear that the President acknowledged being 
alone with Ms. Lewinsky on some occasions. The Referral 
unfortunately mischaracterizes the testimony to suggest an 
absolute denial, for example, transforming a question about 
being alone with Ms. Lewinsky in the Oval Office (where the 
President did not recall engaging in improper contact) into 
being alone at all (``The President lied when he said ``I don't 
recall'' in response to the question whether he had ever been 
alone with Ms. Lewinsky.'' Acts at 51.). And, surprisingly 
since the Jones lawyers had been briefed by Ms. Tripp, the 
Jones lawyers never asked the President whether he was alone 
with Ms. Lewinsky in the study, where some of the alleged 
activity took place. They were free to ask specific follow-up 
questions about the nature and locale of any physical contact, 
and they did not do so. The OIC cannot now hold the President 
to blame for their failure.

 Allegation IV--Discussions With Ms. Lewinsky About Potential Testimony

    The Referral claims that in the following exchange in 
President Clinton's January 17 deposition in the Jones case he 
committed perjury:

          Q: Have you ever talked to Ms. Lewinsky about the 
        possibility that she might be asked to testify in this 
          A: I'm not sure and let me tell you why I'm not sure. 
        It seems to me the  . . . I want to be as accurate as I 
        can here. Seems to me the last time she was there to 
        see Betty before Christmas we were joking about how 
        you-all, with the help of the Rutherford Institute, 
        were going to call every woman I'd ever talked to and . 
        . . ask them that, and so I said you would qualify, or 
        something like that. I don't, I don't think we ever had 
        more of a conversation than that about it, because when 
        I saw how long the witness list was, or I heard about 
        it, before I saw, but actually by the time I saw her 
        name was on it, but I think that was after all this 
        happened. I might have said something like that, so I 
        don't want to say for sure I didn't because I might 
        have said something like that.
          Q: What, if anything, did Monica Lewinsky say in 
          A: Nothing, that I remember. Whatever she said, I 
        don't remember. Probably just some predictable thing.

This answer was literally accurate. The President described a 
joking conversation that he had with many women about the 
possibility that they might be subpoenaed by the Jones lawyers. 
He made clear that the recollection of the conversation with 
Ms. Lewinsky preceded the appearance of Ms. Lewinsky's name on 
the witness list (on December 5), saying: ``by the time I saw 
[the witness list on December 6] her name was on it, but I 
think that was after all this had happened.'' The President 
also stated three different times in that one answer that he 
was not certain as to his recollection, saying, ``I'm not 
sure,'' ``I don't think,'' and ``I might have said something 
like that.'' In his grand jury testimony, additional details of 
a December 28 conversation with Ms. Lewinsky were provided by 
the President. The testimony that the Referral cites is not 
inconsistent--his first answer indicating he was referring to a 
conversation that occurred before she had been named a witness, 
and his August 17 testimony describing a conversation after she 
had been subpoenaed in mid-December. The fact that Ms. Lewinsky 
recalls additional conversations on the subject, all occurring 
after she had been named on the witness list, does not 
establish that the President's answer was inaccurate. This 
answer cannot possibly support a perjury charge.

          Allegation V--Concealing Gifts and an Intimate Note

    In its fifth allegation, the OIC contends that President 
Clinton obstructed justice by concealing gifts he had given to 
Ms. Lewinsky. This claim is wholly unfounded and simply absurd. 
On her December 28, 1997 visit, the President gave Ms. Lewinsky 
several holiday and going-away gifts. Ms. Lewinsky apparently 
testified that, during the visit, she raised a question about 
the Jones subpoena and suggested ``put[ting] the gifts away 
outside of my house or somewhere or giv[ing] them to someone, 
maybe Betty.'' Acts at 74-75. To this suggestion, the 
President, according to Ms. Lewinsky's reported testimony, 
responded with something like, ``I don't know'' or ``Hmmm'' or 
``there really was no response.'' \7\ President Clinton 
contradicts this testimony. But even if one accepts Ms. 
Lewinsky's testimony, ``I don't know,'' ``Hmmm'' and silence do 
not constitute obstruction of justice.
    \7\ The ambiguity and indeterminacy of Ms. Lewinsky's testimony 
here, as quoted by the OIC, dramatically illustrates the need to review 
carefully all the materials which the OIC cryptically cites in the 
    Moreover, Ms. Lewinsky's testimony is contradicted by Ms. 
Currie who testified that it was Ms. Lewinsky, not the 
President, who asked her to come get the gifts and keep them. 
The OIC tries to impugn Ms. Currie's memory in the quoted 
passage, yet her recollection is consistent with the testimony 
of one of the two other parties to the events. Indeed, the 
OIC's effort to shore up its case by trying to discount Ms. 
Currie's testimony on this point is a prime example of the 
dangers of relying on the OIC's development and presentation of 
the evidence. When confronted with testimony not to its liking 
from Ms. Currie, the OIC responded by questioning her in a 
manner clearly designed to encourage Ms. Currie to restate her 
recollection in a manner consistent with the OIC's theory of 
the case. Acts at 77.\8\
    \8\ The lengths to which the OIC is willing to go to force evidence 
into the picture it wants to draw is further revealed by its citation 
to the fact that Ms. Currie drove to Ms. Lewinsky's apartment to pick 
up the gifts as evidence that Ms. Lewinsky's story, rather than Ms. 
Currie's, is the correct one. According to the OIC, ``the person making 
the extra effort (in this case, Ms. Currie) is ordinarily the person 
requesting the favor.'' Acts at 83. There is no basis in logic or 
experience for this position.
    The OIC's theory of concealment also is belied by Ms. 
Lewinsky's decision to turn over some, but not all, of the 
gifts she had received from the President to Ms. Currie; if the 
purpose of the exercise was to avoid having gifts in her 
possession at the time of the deposition (which of course would 
not have been proper), retaining some gifts made no sense. But 
the OIC is forced to acknowledge that only one of the several 
gifts the President gave to Ms. Lewinsky on December 28, 1997 
was included in the box she gave to Ms. Currie for safekeeping. 
The theory makes no sense.
    Ultimately, the only theory that does make sense is the 
truth, as testified to by the President and Ms. Currie and as 
supported by the fact that the President acknowledged giving 
Ms. Lewinsky gifts as early as his January 17, 1998 deposition. 
The President was unconcerned about the gifts he had given to 
Ms. Lewinsky because he frequently exchanges gifts with 
friends. That is why he gave her additional gifts on December 
28 even though, according to her testimony, he knew the Jones 
lawyers were interested in them. Thus, when she raised a 
question, he told Ms. Lewinsky she had to turn over what she 
had; they were of no concern to him. Nonetheless, in response 
to Ms. Lewinsky's subsequent request, Ms. Currie drove to Ms. 
Lewinsky's apartment and picked up a box of gifts from Ms. 
Lewinsky and held them for safekeeping. The President did not 
direct or encourage Ms. Currie's activities regarding the 
gifts. He likewise did not obstruct justice by concealing their 
    The OIC also argues that the President obstructed justice 
in the Jones case by destroying an intimate note that Ms. 
Lewinsky included in a book she left for him on January 4, 
1998.\9\ The OIC states in its Referral that the President was 
served with a document request from the Jones lawyers on 
December 16, 1997, that required him to produce this note to 
the Jones lawyers. The disingenuousness of this allegation is 
apparent on several levels.
    \9\ The United States Secret Service WAVES records do not reflect a 
clearance request or an entry into the White House complex by Ms. 
Lewinsky on this date (or any other date in 1998).
    As a preliminary matter, the President testified that he 
recalled receiving a book from Ms. Lewinsky, that he believed 
he had received it in December, and that he did not recall 
receiving an accompanying note. Deposition of the President, 
August 17, 1998. Contrary to the one-sided presentation of the 
purported facts in the OIC's referral, the President may not 
even have received that note.
    Second, the OIC asserts, without basis, that the President 
purposefully destroyed Ms. Lewinsky's note because he did not 
want to have to turn it over to the Jones lawyers. The OIC has 
absolutely no basis for assuming that the President was aware 
of the document request at the time he received the book. Thus, 
even assuming the President had received and discarded the 
note, his acts would not constitute obstruction of justice.
    Finally, setting aside whether the President actually 
received Ms. Lewinsky's note, or knew whether it was subject to 
a document request, at bottom the OIC is transforming a civil 
discovery issue into yet another flimsy criminal charge, 
accusing the President with obstruction of justice on the basis 
of his alleged failure to produce this note to the Jones 
lawyers. As the OIC clearly knows, the obstruction of justice 
statute does not apply to a party's concealing or withholding 
of discoverable documents in civil litigation. See, e.g., 
Richmark v. Timber Falling Consultants, 730 F. Supp. 1525, 1532 
(D. Or. 1990) (``[t]he parties have not cited and the court has 
not found any case in which a person was charged with 
obstruction of justice for concealing or withholding discovery 
in a civil case''). Demonstrable non-compliance with the rules 
is sanctioned civilly as an abuse of the discovery process. See 
Rule 37, Fed. R. Civ. P. (``Failure to Make Disclosure or 
Cooperate in Discovery: Sanctions''). Therefore, even if, as 
the OIC alleges, the President received and discarded the note 
in the wake of an outstanding request--which the President 
testified he did not--those actions would not constitute 
obstruction of justice. The OIC's allegation is missing both 
the facts and the law.

             Allegation VI--Concealment of the Relationship

    In the sixth allegation, the OIC contends that there is 
substantial and credible information that:

          (i) President Clinton and Ms. Lewinsky had an 
        understanding that they would lie under oath in the 
        Jones case about their relationship; and
          (ii) President Clinton endeavored to obstruct justice 
        by suggesting that Ms. Lewinsky file an affidavit so 
        that she would not be deposed, she would not contradict 
        his testimony, and he could attempt to avoid questions 
        about Ms. Lewinsky at his deposition.

The essence of the OIC's argument is that, because the 
President and Ms. Lewinsky attempted to conceal the improper 
nature of their relationship while it was going on and because 
the President failed affirmatively to assure that each 
statement contained in the affidavit filed by Ms. Lewinsky was 
true, he therefore obstructed justice. The Referral fails even 
to allege facts that, if true, would constitute obstruction of 
justice under the law as set out in our Preliminary Memorandum 
at pp. 21-25.
    First, the Referral alleges that during the course of their 
admittedly improper relationship, the President and Ms. 
Lewinsky concealed the nature of their relationship from 
others. This is hardly a remarkable proposition. The use of 
``cover stories'' to conceal such a relationship, apart from 
any proceeding, is not unusual and not an obstruction of 
    The Referral alleges only one specific statement that Ms. 
Lewinsky claims the President made to her regarding the 
substance of her testimony. Ms. Lewinsky testified that the 
President told her, ``You know, you can always say you were 
coming to see Betty or that you were bringing me letters.'' Act 
at 98. As an initial matter, the President testified that he 
did not recall saying anything like that in connection with Ms. 
Lewinsky's testimony in the Jones case. But even if he did, 
neither of those two ambiguous statements would be false. And 
most importantly, as even the OIC concedes, Narrative at 29, 
the President never instructed her to lie.
    The Referral also alleges that the President somehow 
obstructed justice by suggesting to Ms. Lewinsky that she could 
sign an affidavit in the Jones case. But the Referral again 
fails to establish how this might constitute obstruction. The 
OIC makes no contention that the President ever told Ms. 
Lewinsky to file a false affidavit. A suggestion to submit 
written testimony under oath in a judicial proceeding, if he 
made it, is hardly improper--let alone an obstruction of 
justice. The President was aware that other potential deponents 
in the Jones case had filed affidavits in an attempt to avoid 
the expense, burden, and humiliation of testifying in the Jones 
case, and that there was a chance that doing so might enable 
Ms. Lewinsky to avoid testifying. Even if the affidavit did not 
``disclose the true nature of their relationship,'' as the OIC 
asserts, since the Jones case concerned allegations of 
nonconsensual sexual solicitation, a truthful albeit limited 
affidavit might have allowed her to have avoided giving a Jones 
deposition. But the President never told Ms. Lewinsky what to 
say in the affidavit, knew that Ms. Lewinsky had her own lawyer 
to protect her interests, and expressly declined the 
opportunity to review the content of the affidavit, according 
to Ms. Lewinsky. Narrative at 203. The OIC's position appears 
to be that this is somehow obstruction of justice--that the 
President had an affirmative duty to ensure that Ms. Lewinsky 
volunteered in her affidavit all information in which the Jones 
lawyers might possibly have an interest. There simply is no 
such duty under the law, nor does the OIC cite any basis for 
such a duty. Civil litigation is based upon an adversarial 
process of determining truth, and a party is under no 
affirmative obligation to assist an opponent in every way it 
    Finally, the OIC suggests that the President was 
``knowingly responsible'' for a misstatement of fact to a 
federal judge because he failed to correct a statement made by 
his lawyer to the court in the Jones deposition. The President 
testified to the grand jury that the lawyers' argument at the 
start of the deposition ``passed [him] by;'' he also remarked 
that the statement of his lawyer might be literally true. The 
OIC distorts this response to suggest the President testified 
that he did not correct the statement at the January deposition 
because it might have been true. We do not believe the 
testimony would support that claim.
    There is of course no legal obligation imposed on a client 
to listen to every word his attorney says, and the OIC has no 
evidence that the President even focused on or absorbed his 
attorney's remark. Without any evidence whatsoever, the OIC 
asserts that the President knew what was said, knew he was 
somehow responsible for it, knew it was incorrect and ignored a 
duty to correct it. Yet, again, the OIC has made a wholly 
unsupportable allegation of obstruction of justice.

              Allegation VII--Job Search for Ms. Lewinsky

    In its seventh allegation, the Referral contends that 
certain actions taken on behalf of Ms. Lewinsky in her job 
efforts amounted to obstruction of justice. The Referral 
acknowledges that the case for obstruction based on the job 
search is wholly circumstantial and that there is absolutely 
``no evidence'' of any ``arrangement . . . explicitly spelled 
out.'' Acts at 113 n.361. Noting that the critical issue 
centers on the intent of the party providing the assistance, 
the Referral asks that ``inferences be drawn'' from the 
circumstantial evidence set forth in the Referral chronology. 
Id. at 113.
    But that chronology presents precious little in the way of 
Presidential involvement and nothing that supports an inference 
of any intent to obstruct justice by helping Ms. Lewinsky (to 
the limited extent he did) in her job efforts. It may be the 
OIC's view that the President should have cast Ms. Lewinsky off 
and refused to assist her in any way, simply because the Jones 
case was filed. Fortunately the law requires no such callous 
    The Referral states that the President agreed to help Ms. 
Lewinsky look for a job, Acts at 105; that he said he would 
take care of finding her a reference from someone in the White 
House, Id. at 105; and that after Ms. Lewinsky obtained a job, 
the President asked Erskine Bowles ``could we see if [John 
Hilley] could recommend her, if asked,'' Id. at 111-12. There 
is no suggestion that he ever ordered or directed anyone to 
assist Ms. Lewinsky or asked anyone to give her special 
advantages or disadvantages because of their relationship or 
that he ever linked his relatively insubstantial assistance to 
a requirement that she act--or testify--in a certain way. The 
kinds of actions that are alleged simply do not constitute 
obstruction of justice.
    Indeed, upon close reading, the Referral itself 
acknowledges the following facts, which, if taken as true, are 
all at odds with the notion that the President acted with 
corrupt intent:
           that it was Ms. Lewinsky who initiated 
        discussions about a job in New York; Acts at 104, 
        Narrative at 117;
           that the subject of a job in New York was 
        raised on July 3, 1997--more than three months before 
        the President was served with interrogatories in the 
        Jones case, and more than five months before Ms. 
        Lewinsky's name appeared on a witness list; Acts at 
           that it was Ms. Lewinsky who broached the 
        subject of receiving the President's help in obtaining 
        a job in New York; Acts at 104-05;
           that Ms. Lewinsky presented the President 
        with a list of jobs in which she was interested; Acts 
        at 105;
           that Ms. Lewinsky suggested that a White 
        House job reference would be useful; Acts at 105;
           that Ms. Lewinsky suggested that Vernon 
        Jordan might be able to help her; Acts at 105; and
           that, notwithstanding the Referral's 
        insinuations to the contrary, the President and 
        Ambassador Bill Richardson testified that they never 
        discussed Ms. Lewinsky with each other; Narrative at 
    This account fails to allege facts supporting a case of 
obstruction of justice under the only statute that could 
conceivably apply here, 18 U.S.C. Sec. 1503. Under that 
provision, the government must prove obstruction of justice by 
establishing that there was a pending judicial proceeding, that 
the defendant knew of the proceeding, and that the defendant 
acted ``corruptly'' with the specific intent to obstruct or 
interfere with the proceeding or due administration of justice. 
See, e.g., United States v. Buicey, 876 F.2d 1297, 1314 (7th 
Cir. 1989); United States v. Smith, 729 F. Supp. 1380 (D.C.C. 
1990). Four federal courts of appeals have held that the ``act 
corruptly'' element of the crime requires that the defendant 
have acted with the specific intent to obstruct justice. See, 
e.g., United States v. Moon, 718 F.2d 1219, 1236 (2d Cir.1983); 
United States v. Bashaw, 982 F.2d 168, 170 (6th Cir. 1992); 
United States v. Rasheed, 663 F.2d 843, 847 (9th Cir. 1981). It 
is simply not enough that the effects of a person's actions may 
have had the effect of somehow impeding justice if that was not 
the intent of the person accused. And here it is not even clear 
how the President's limited assistance was meant to or did 
obstruct anything.

             Allegation VIII--Conversations with Mr. Jordan

    The OIC asserts in its eighth allegation that the President 
was ``asked during his civil deposition whether he had talked 
to Mr. Jordan about Ms. Lewinsky's involvement in the Jones 
case'' and that he ``stated that he did not recall whether Mr. 
Jordan had talked to Ms. Lewinsky about her involvement in the 
Jones case.'' Acts at 115. This account of the question and 
answer is simply false. The President was not asked that 
question, and he did not give that answer.
    To bolster this extraordinary claim, the OIC misrepresents 
certain of the President's deposition responses. First, the OIC 
quotes one question and answer--

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

but omits the next question and answer, even though it is 
apparent from the text, and the OIC was told by the President, 
that the next question and answer were a continuation:

          Q. Did you ever talk with Monica Lewinsky about the 
        possibility that she might be asked to testify in this 
          A. Bruce Lindsey, I think Bruce Lindsey told me that 
        she was, I think maybe that's the first person told me 
        she was. I want to be as accurate as I can.

This unresponsive answer reflects the President's effort to 
recall, in response to the prior question, where he had first 
learned about the subpoena, but the word ``first'' implies 
there were other people (perhaps Mr. Jordan) who told him. The 
Jones lawyers simply did not pursue this by asking the logical 
follow-up questions.
    Nor do the remaining two passages state what the OIC 
claims. The next passage asked whether, in the past two weeks 
(before January 17) anyone had reported to the President that 
they had had a conversation with Ms. Lewinsky about the 
lawsuit, to which the President replied he did not believe so. 
This response of course does not rule out all conversations 
with Mr. Jordan about Ms. Lewinsky's involvement in the case, 
as the OIC would suggest, but only in the two-week period and 
only accounts of conversations with Ms. Lewinsky, not 
conversations simply about her involvement in the case. 
Moreover, the OIC's 252-page Narrative does not identify 
reports to the President about conversations that Mr. Jordan 
had with Ms. Lewinsky in that time period--instead, it recounts 
only that, 10 days before the deposition, Mr. Jordan left word 
for the President that the affidavit was signed. The last 
passage on which the OIC relies simply asked whether the 
President had heard that Mr. Jordan and Ms. Lewinsky met to 
discuss the case; the President recounted his belief that the 
two had met to discuss the job search--about which the 
President readily acknowledged an awareness. The OIC's 
assertion that the President ``did not recall whether Mr. 
Jordan had talked to Ms. Lewinsky about her involvement in the 
Jones case,'' is simply not supported by the testimony. This 
allegation is a fabrication by the OIC.

                  Allegation IX--``Witness Tampering''

    In its ninth allegation the OIC charges that President 
Clinton obstructed justice and improperly influenced a witness 
when he spoke with Ms. Currie the day after his deposition in 
the Jones case. The OIC's claims are wrong and, again, the 
product of extraordinary overreaching and pejorative 
conjecture--a transparent attempt to draw the most negative 
inference possible about lawful conduct.
    The President's actions could not as a matter of law give 
rise to either charge because Ms. Currie was not a witness in 
any proceeding at the time he spoke with her: her name had not 
appeared on any of the Jones witness lists; she had not been 
named as a witness in the Jones case; there were just two weeks 
of discovery left in the case; and there was no reason to 
suspect she would play any role in that case. The President had 
no reason to suspect that the OIC had embarked on a wholly new 
phase of its four-year investigation, one in which Ms. Currie 
would later be called by the OIC as a witness. To obstruct a 
proceeding or tamper with a witness, there must be both a 
witness and a proceeding. Here, there was neither. Despite the 
OIC's far-fetched suggestion to the contrary, there was no 
reason the President should not have spoken with Ms. Currie 
about Ms. Lewinsky.
    Indeed, it is hardly surprising that the President would 
have reached out to Ms. Currie after the deposition. Ms. Currie 
was Ms. Lewinsky's friend. The President had just faced 
unexpected and hostile questioning by his fierce political 
opponents in the Jones case about Ms. Lewinsky. He was 
obviously puzzled at being asked such detailed (and in some 
cases such bizarrely inaccurate) questions about a past secret 
relationship. He had no one to whom he could talk freely about 
the relationship, but he nonetheless had a desire to find out 
what might have transpired with Ms. Lewinsky and to test his 
recall, since he had not anticipated such detailed questions or 
prepared for them. It was his belief that Ms. Currie was 
unaware that he had engaged in improper activity with Ms. 
Lewinsky. He wanted to reassure himself that that was so. He 
also recalled that in 1997, after the improper relationship 
ended, he had asked Ms. Currie to try always to be present when 
Ms. Lewinsky visited. He wanted to inquire whether that was 
also Ms. Currie's recollection. The President's actions were 
hardly surprising since he had just undergone hostile and 
unexpected questioning in a bitterly contested civil suit.
    Whatever his reasons, however, one simple fact remains. At 
the time he discussed Ms. Lewinsky with Ms. Currie, Ms. Currie 
was not expected to be, nor was she, a witness. Again, the OIC 
has wholly overreached to make baseless allegations of criminal 

                    Allegation X--Refusal To Testify

    The tenth allegation is premised on the OIC's 
misrepresentation of the facts. The assertion that ``[the 
President] simultaneously lied to potential grand jury 
witnesses,'' ``[w]hile refusing to testify for seven months'' 
is a gross distortion of the Referral's own citations.
    The statements to Presidential aides cited by the Referral 
were made either on the day the Lewinsky story broke (January 
21, 1998) or within a few days of that date. Those statements 
were concurrent in time with the President's repeated public 
statements to the country denying sexual relations with Ms. 
Lewinsky. And they were virtually identical in substance. 
Having announced to the whole country on live television that 
he was not having sexual relations with Ms. Lewinsky, it is 
simply absurd to believe that he was somehow attempting to 
corruptly influence the testimony of aides when he told them 
virtually the same thing at the same time.
    And in any event, the mere repetition of a public denial to 
these aides could not have affected the grand jury process. The 
elicited testimony was hearsay. The aides were not witnesses to 
any sexual activity, and they had no first-hand knowledge 
pertinent to the denials. Their testimony as to what they heard 
from the President was truthful--the President in no 
conceivable way sought to alter any other perceptions or 
information they might have had. Their testimony thus was 
merely cumulative of the President's own nationally broadcast 
statements. The suggestion that the President violated section 
1503's prohibition on ``influenc[ing], obstruct[ing], or 
imped[ing] the due administration of justice'' is groundless. 
There is and could be no evidence that the President had a 
specific intent to obstruct justice by his aides' repetition of 
his own denials.
    Nor is there evidence that the President's statements 
constituted ``witness tampering'' in violation of section 1512. 
To make out such a violation, the government must show that the 
behavior knowingly occurred through one of the specific means 
set forth in the statute: intimidation, physical force, 
threats, misleading conduct or corrupt persuasion--with intent 
to influence testimony in a legal proceeding. A defendant must 
be aware of the legal proceeding's existence, and his efforts 
must be aimed specifically at obstructing that proceeding. See 
United States v. Wilson, 565 F. Supp. 1416, 1431 (S.D.N.Y. 
1983). In fact, the President simply repeated to aides 
substantially the same statement he made to the whole country. 
There was no action here intended specifically to influence the 
grand jury through the testimony of Presidential aides. Under 
the OIC's theory, it could have subpoenaed to the grand jury 
any citizen who heard the President's denial and thus have 
created a new violation of law.
    In sum, the President's statements to his aides could not 
have obstructed justice as a matter of law. Their legal duty 
was to answer the prosecutor's questions and to tell the truth 
honestly as they knew it, and the President's comments in no 
conceivable way affected that duty.
    The OIC suggests that the President's delay in 
acknowledging a relationship with Ms. Lewinsky somehow 
contributed to an obstruction of justice because it affected 
how the prosecutors would conduct the investigation. This claim 
is unfounded, as a matter of law. The President had no legal 
obligation to appear before the grand jury absent compulsion 
and every reason not to do so, given the OIC's tactics, illegal 
leaking, and manifest intent to cause him damage.

                     Allegation XI--Abuse of Power

    As the Office of Independent Counsel itself acknowledges, 
Acts at 148, from the very beginning, its investigation was 
focused on the prospect that the information it was gathering 
would be transmitted to the Congress. It is in this context, 
with the threat of impeachment on the horizon, that the OIC's 
last allegation of an abuse of power must be judged.
    The OIC begins with the charge that the President's false 
denial that he had an improper relationship with Ms. Lewinsky--
something that he has now admitted and apologized for--was 
itself an abuse of power because it served to deceive the 
American people. Implicit in this charge is the notion that any 
official, in any branch of the government, who makes a public 
statement about his own conduct, or indeed any other matter, 
that is not true may be removed from office. It would follow, 
therefore, that no official could mount a defense to 
impeachment, or to ethics charges, or to a criminal 
investigation while remaining in office, for anything other 
than an immediate admission of guilt will necessarily be 
    In the Federalist Papers, Alexander Hamilton described 
abuse of power as the ``corrupt use of the office for personal 
gain or some other improper purpose.'' Twenty-four years ago, 
President Nixon's false statements to the public and to the 
courts, which were part of a scheme to obstruct justice through 
the perjury of his senior staff, through payoffs to criminal 
defendants, and through use of the Central Intelligence Agency 
(CIA) to thwart an FBI investigation into crimes in which he 
was involved, fit squarely within that definition. Merely to 
describe that conduct makes clear how different it is from that 
of President Clinton and how far the OIC has been willing to go 
to synthesize its charges of impeachable conduct.
    The manifest desire to create improprieties where none 
exist and to transform personal misconduct into impeachable 
official malfeasance is evident also in the OIC's claim that 
the President's assertion of executive privilege was somehow 
unlawful. Oddly enough, the OIC finds abuse of power both in 
the assertion of the privilege and its withdrawal--surely 
evidence of an overwrought imagination or of a conceit that any 
legal position other than the OIC's is presumptively 
obstructive. In truth, the OIC's decision to invade the 
confidential relationship between the President and his most 
senior advisors and lawyers was unprecedented. It reflects a 
patent abuse of authority by the OIC and a wholesale 
abandonment of any prosecutorial judgment in a campaign to 
prevent the President from consulting meaningfully with his 
advisors. At bottom, the Independent Counsel seems to believe 
that, merely because he chooses to seek confidential 
information from the Office of the President, the President may 
not contest that demand without risking a charge that he is 
abusing his power.
    Reading the OIC's Referral, one would never know which 
party to the executive privilege litigation was right and which 
was wrong on the basic question whether the privilege applied 
to the communications the OIC was seeking to obtain. In the 
District Court, the OIC took the position that executive 
privilege was simply inapplicable in the face of its grand jury 
subpoena because the communications at issue related to the 
President's private conduct, but Chief Judge Johnson rejected 
that claim out of hand. In re Grand Jury Proceedings, 1998 U.S. 
Dist. Lexis 7736 (D.D.C. 1998). Astoundingly, however, the OIC 
simply repeats that claim in the Referral, Acts at 155, with no 
acknowledgement that the court agreed with the White House that 
the privilege had been properly asserted. 10
    \10\ Judge Johnson then asked the OIC to make a showing of its need 
for the information and found that that showing was sufficient to 
overcome the privilege. At that point, the White House elected not to 
pursue the issue as to the non-lawyer advisors, and they testified at 
length before the grand jury.
    More importantly, the OIC's abuse-of-power allegation must 
necessarily rest on the assumption that the President initiated 
the executive privilege claim with intent to impede the OIC's 
investigation. Yet, the record is clear that it was only after 
extensive negotiations in which the White House offered to make 
available to the OIC factual information concerning the 
President's conduct and had its offer rejected out of hand, 
that the White House Counsel notified the President of the 
OIC's demands, explained the failed accommodation effort, and 
recommended that he invoke the privilege. Counsel gave that 
advice because he believed it important to protect the 
constitutional interests of the presidency. Thus, the 
President's decision to claim privilege was not the result of 
his own initiative, much less of any intent to obstruct the 
grand jury investigation, but rather was the result of his 
Counsel's advice.11
    \11\ Similarly, the OIC misleads the Congress and the public by 
blaming the President for pursuing an appeal from rulings of the 
District Court involving executive privilege claims by lawyers in the 
White House Counsel's Office. It does so without acknowledging the fact 
that White House Counsel had informed Independent Counsel Starr, in a 
letter dated September 4, that those appeals had been taken only to 
preserve an issue raised for the first time by the Court of Appeals in 
a recent opinion dealing with the attorney-client privilege.
    Even more egregiously misleading is the claim that the 
President abused his power by ``acquiescing'' in the efforts of 
the Secret Service to assert a protective function privilege. 
First, the OIC characterizes that assertion as frivolous even 
though it reflected the judgment of the law enforcement 
professionals charged with protecting this and future 
presidents and was supported by President Bush.12 
Further, the OIC charges the President with abusing his power 
despite the fact that the OIC knew that he had nothing to do 
with the decision to assert the privilege or to pursue the 
appeal from Judge Johnson's decision. Indeed, the OIC itself 
had argued (in contesting the claim of the Secret Service in 
the district court) that the failure of the President to 
involve himself in the matter was itself a reason for the court 
to reject the Service's claim. The OIC cannot have it both 
    \12\ The OIC also argues that Chief Justice Rehnquist's decision to 
deny a stay reflects a judgment that the Service's claim was frivolous, 
but fails to disclose that the Chief Justice specifically left open the 
prospect that the Court would decide to hear an appeal on the merits.
    Last, the OIC charges that it was an abuse of power for the 
President, at a time when both his personal and official 
interests were in the balance, not to testify before the grand 
jury until August--surely a claim that must astound lawyers and 
laymen alike. Could the OIC truly be taking the position that 
any government official who is the subject of a criminal 
investigation must immediately come forward and testify at a 
prosecutor's whim or risk impeachment? To state the question is 
to answer it.


    It has come down to this.
    After four years, scores of FBI agents, hundreds of 
subpoenas, thousands of documents, and tens of millions of 
dollars. After hiring lawyers, accountants, IRS agents, outside 
consultants, law professors, personal counsel, ethics advisers, 
and a professional public relations expert. After impaneling 
grand juries and leasing office space in three jurisdictions, 
and investigating virtually every aspect of the President's 
business, financial, political, official and, ultimately, 
personal life, the Office of Independent Counsel has presented 
to the House a Referral that no prosecutor would present to any 
    The President has admitted he had an improper relationship 
with Ms. Lewinsky. He has apologized. The wrongfulness of that 
relationship is not in dispute. And yet that relationship is 
the relentless focus of virtually every page of the OIC's 
    In 445 pages, the Referral mentions Whitewater, the failed 
land deal which originated its investigation, twice. It never 
once mentions other issues it has been investigating for 
years--matters concerning the firing of employees of the White 
House travel office and the controversy surrounding the FBI 
files. By contrast, the issue of sex is mentioned more than 500 
times, in the most graphic, salacious and gratuitous manner.
    The Office of Independent Counsel is asking the House of 
Representatives to undertake its most solemn and consequential 
process short of declaring war; to remove a duly, freely and 
fairly elected President of the United States because he had--
as he has admitted--an improper, illicit relationship outside 
of his marriage. Having such a relationship is wrong. Trying to 
keep such a relationship private, while understandable, is 
wrong. But such acts do not even approach the Constitutional 
test of impeachment--``Treason, Bribery, or other high Crimes 
and Misdemeanors.''
    The founders were wise to set such a high standard, and 
were wise to vest this awesome authority in the hands of the 
most democratic and accountable branch of our Government, and 
not in the hands of unaccountable prosecutors.
    We have sought in this Initial Response to begin the 
process of rebutting the OIC's charges against the President--
charges legal experts have said would not even be brought 
against a private citizen. The President did not commit 
perjury. He did not obstruct justice. He did not tamper with 
witnesses. And he did not abuse the power of the office of the