TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
[Page S191]
____
[In the Senate of the United States Sitting as a Court of Impeachment]
In re Impeachment of William Jefferson Clinton,
President of
the United States
TRIAL MEMORANDUM OF PRESIDENT
WILLIAM JEFFERSON CLINTON
David E. Kendall
Charles F.C. Ruff
Nicole K. Seligman
Gregory B. Craig
Emmet T. Flood
Bruce R. Lindsey
Max Stier
Cheryl D. Mills
Glen Donath
Lanny A. Breuer
Alicia L. Marti
Office of the White House Counsel
Williams & Connolly
The White House
725 12th Street, N.W.
Washington, D.C. 20502
Washington, D.C. 20005
January 13, 1999.
TABLE OF CONTENTS
I. INTRODUCTION
A. The Constitutional Standard
for Impeachment Has Not Been
Satisfied
B. The President Did Not Commit
Perjury or Obstruct Justice
C. Compound Charges and Vagueness
II. BACKGROUND
A. The Whitewater Investigative
Dead-End
B. The Paula Jones Litigation
C. The President's Grand Jury
Testimony About Ms. Lewinsky
D. Proceedings in the House of
Representatives
III. THE CONSTITUTIONAL STANDARD
AND BURDEN OF PROOF FOR
DECISION
A. The Offenses Alleged Do Not
Meet the Constitutional
Standard of High Crimes and Misdemeanors
1. The Senate Has a Constitutional
Duty to Confront the
Question Whether Impeachable Offenses Have
Been Alleged
2. The Constitution Requires a
High Standard of Proof of
``High Crimes and Misdemeanors'' for Removal
a. The Constitutional Text and
Structure Set an
Intentionally High Standard for Removal
b. The Framers Believed that Impeachment
and Removal Were
Appropriate Only for Offenses Against the
System of
Government
3. Past Precedents Confirm that
Allegations of Dishonesty
Do Not Alone State Impeachable Offenses
a. The Fraudulent Tax Return Allegation
Against President
Nixon
b. The Financial Misdealing Allegation
Against Alexander
Hamilton
4. The Views of Prominent Historians
and Legal Scholars
Confirm that Impeachable Offenses Are Not
Present
a. No Impeachable Offense Has
Been Stated Here
b. To Make Impeachable Offenses
of These Allegations Would
Forever Lower the Bar in a Way Inimical to
the Presidency and
to Our Government of Separated Powers
5. Comparisons to Impeachment
of Judges Are Wrong
B. The Standard of Proof
IV. THE PRESIDENT SHOULD BE ACQUITTED
ON ARTICLE I
A. Applicable Law
B. Structure of the Allegations
C. Response to the Particular
Allegations in Article I
1. The President denies that he
made materially false or
misleading statements to the grand jury about
``the nature
and details of his relationship'' with Monica
Lewinsky
2. The President denies that he
made perjurious, false and
misleading statements to the grand jury about
testimony he
gave in the Jones case
3. The President denies that he
made perjurious, false and
misleading statements to the grand jury about
the statements
of his attorney to Judge Wright during the
Jones deposition
4. The President denies that he
made perjurious, false and
misleading statements to the grand jury when
he denied
attempting ``to influence the testimony of
witnesses and to
impede the discovery of evidence'' in the
Jones case
V. THE PRESIDENT SHOULD BE ACQUITTED
ON ARTICLE II
A. Applicable Law
B. Structure of the Allegations
C. Response to the Particular
Allegations in Article II
1. The President denies that on
or about December 17, 1997,
he ``corruptly encouraged'' Monica Lewinsky
``to execute a
sworn affidavit in that proceeding that he
knew to be
perjurious, false and misleading''
2. The President denies that on
or about December 17, 1997,
he ``corruptly encouraged'' Monica Lewinsky
``to give
perjurious, false and misleading testimony
if and when called
to testify personally'' in the Jones litigation
3. The President denies that he
``corruptly engaged in,
encouraged, or supported a scheme to conceal
evidence''--
gifts he had given to Monica Lewinsky--in
the Jones case
a. Ms. Lewinsky's December 28
Meeting with the President
b. Ms. Currie's Supposed Involvement
in Concealing Gifts
c. The Obstruction-by-Gift-Concealment
Charge Is at Odds
With the President's Actions
4. The President denies that he
obstructed justice in
connection with Monica Lewinsky's efforts
to obtain a job in
New York in an effort to ``corruptly prevent''
her ``truthful
testimony'' in the Jones case
a. The Complete Absence of Direct
Evidence Supporting This
Charge
b. Background of Ms. Lewinsky's
New York Job Search
c. The Committee Report's Circumstantial
Case
(1) Monica Lewinsky's December
11 meeting with Vernon
Jordan
(2) The January job interviews
and the Revlon employment
offer
d. Conclusion
5. The President denies that he
``corruptly allowed his
attorney to make false and misleading statements
to a Federal
judge'' concerning Monica Lewinsky's affidavit
6. The President denies that he
obstructed justice by
relating ``false and misleading statements''
to ``a potential
witness,'' Betty Currie, ``in order to corruptly
influence
[her] testimony''
7. The President denies that he
obstructed justice when he
relayed allegedly ``false and misleading statements''
to his
aides
VI. THE STRUCTURAL DEFICIENCIES
OF THE ARTICLES PRECLUDE A
CONSTITUTIONALLY SOUND VOTE
A. The Articles Are Both Unfairly
Complex and Lacking in
Specificity
1. The Structure of Article I
2. The Structure of Article II
B. Conviction on These Articles
Would Violate the
Constitutional Requirement That Two-Thirds
of the Senate
Reach Agreement that Specific Wrongdoing Has
Been Proven
1. The Articles Bundle Together
Disparate Allegations in
Violation of the Constitution's Requirements
of Concurrence
and Due Process
a. The Articles Violate the Constitution's
Two-Thirds
Concurrence Requirement
b. Conviction on the Articles
Would Violate Due Process
Protections that Forbid Compound Charges in
a Single
Accusation
C. Conviction on These Articles
Would Violate Due Process
Protections Prohibiting Vague and Nonspecific
Accusations
1. The Law of Due Process Forbids
Vague and Nonspecific
Charges
2. The Allegations of Both Articles
Are Unconstitutionally
Vague
D. The Senate's Judgment Will
Be Final and That Judgment
Must Speak Clearly and Intelligibly
VII. THE NEED FOR DISCOVERY
VIII. CONCLUSION
TRIAL MEMORANDUM OF PRESIDENT WILLIAM JEFFERSON CLINTON
I. Introduction
Twenty-six months ago, more than
90 million Americans left
their homes and work places to travel to schools,
church
halls and other civic centers to elect a President
of the
United States. And on January 20, 1997, William
Jefferson
Clinton was sworn in to serve a second term
of office for
four years.
The Senate, in receipt of Articles
of Impeachment from the
House of Representatives, is now gathered
in trial to
consider whether that decision should be set
aside for the
remaining two years of the President's term.
It is a power
contemplated and authorized by the Framers
of the
Constitution, but never before employed in
our nation's
history. The gravity of what is at stake--the
democratic
choice of the American people--and the solemnity
of the
proceedings dictate that a decision to remove
the President
from office should follow only from the most
serious of
circumstances and should be done in conformity
with
Constitutional standards and in the interest
of the Nation
and its people.
The Articles of Impeachment that
have been exhibited to the
Senate fall far short of what the Founding
Fathers had in
mind when they placed in the hands of the
Congress the power
to impeach and remove a President from office.
They fall far
short of what the American people demand be
shown and proven
before their democratic choice is reversed.
And they even
fall far short of what a prudent prosecutor
would require
before presenting a case to a judge or jury.
Take away the elaborate trappings
of the Articles and the
high-flying rhetoric that has accompanied
them, and we see
clearly that the House of Representatives
asks the Senate to
remove the President from office because he:
* used the phrase ``certain occasions''
to describe
the frequency of his improper intimate contacts
with Ms.
Monica Lewinsky. There were, according to
the House Managers,
eleven such contacts over the course of approximately
500
days.
Should the will of the people
be overruled and the
President of the United States be removed
from office because
he used the phrase ``certain occasions'' to
describe eleven
events over some 500 days? That is what the
House of
Representatives asks the Senate to do.
* used the word ``occasional''
to describe the
frequency of inappropriate telephone conversations
between he
and Monica Lewinsky. According to Ms. Lewinsky,
the President
and Ms. Lewinsky engaged in between ten and
fifteen such
conversations spanning a 23-month period.
Should the will of the people
be overruled and the
President of the United States be removed
from office because
he used the word ``occasional'' to describe
up to 15
telephone calls over a 23-month period? That
is what the
House of Representatives asks the Senate to
do.
* said the improper relationship
with Ms. Lewinsky
began in early 1996, while she recalls that
it began in
November 1995. And he said the contact did
not include
touching certain parts of her body, while
she said it did.
Should the will of the people
be overruled and the
President of the United States be removed
from office because
two people have a
[Page S192]
different recollection of the details of a
wrongful
relationship--which the President has admitted?
That is what
the House of Representatives asks the Senate
to do.
The Articles of Impeachment are
not limited to the examples
cited above, but the other allegations of
wrongdoing are
similarly unconvincing. There is the charge
that the
President unlawfully obstructed justice by
allegedly trying
to find a job for Monica Lewinsky in exchange
for her silence
about their relationship. This charge is made
despite the
fact that no one involved in the effort to
find work for Ms.
Lewinsky--including Ms. Lewinsky herself--testifies
that
there was any connection between the job search
and the
affidavit. Indeed, the basis for that allegation,
Ms.
Lewinsky's statements to Ms. Tripp, was expressly
repudiated
by Ms. Lewinsky under oath.
There is also the charge that
the President conspired to
obstruct justice by arranging for Ms. Lewinsky
to hide gifts
that he had given her, even though the facts
and the
testimony contain no evidence that he did
so. In fact, the
evidence shows that the President gave her
new gifts on the
very day that the articles allege he conspired
to conceal his
gifts to her.
In the final analysis, the House
is asking the Senate to
remove the President because he had a wrongful
relationship
and sought to keep the existence of that relationship
private.
Nothing said in this Trial Memorandum
is intended to excuse
the President's actions. By his own admission,
he is guilty
of personal failings. As he has publicly stated,
``I don't
think there is a fancy way to say that I have
sinned.'' He
has misled his family, his friends, his staff,
and the Nation
about the nature of his relationship with
Ms. Lewinsky. He
hoped to avoid exposure of personal wrongdoing
so as to
protect his family and himself and to avoid
public
embarrassment. He has acknowledged that his
actions were
wrong.
By the same token, these actions
must not be
mischaracterized into a wholly groundless
excuse for removing
the President from the office to which he
was twice elected
by the American people. The allegations in
the articles and
the argument in the House Managers' Trial
Memorandum do not
begin to satisfy the stringent showing required
by our
Founding Fathers to remove a duly elected
President from
office, either as a matter of fact or law.
a. the constitutional standard for impeachment has not been satisfied
There is strong agreement among
constitutional and legal
scholars and historians that the substance
of the articles
does not amount to impeachable offenses. On
November 6, 1998,
430 Constitutional law professors wrote:
``Did President Clinton commit
`high Crimes and
Misdemeanors' warranting impeachment under
the Constitution?
We . . . believe that the misconduct alleged
in the report of
the Independent Counsel . . . does not cross
the threshold. .
. . [I]t is clear that Members of Congress
could violate
their constitutional responsibilities if they
sought to
impeach and remove the President for misconduct,
even
criminal misconduct, that fell short of the
high
constitutional standard required for impeachment.''
On October 28, 1998, more than
400 historians issued a
joint statement warning that because impeachment
had
traditionally been reserved for high crimes
and misdemeanors
in the exercise of executive power, impeachment
of the
President based on the facts alleged in the
OIC Referral
would set a dangerous precedent. ``If carried
forward, they
will leave the Presidency permanently disfigured
and
diminished, at the mercy as never before of
caprices of any
Congress. The Presidency, historically the
center of
leadership during our great national ordeals,
will be
crippled in meeting the inevitable challenges
of the
future.''
We address why the charges in
the two articles do not rise
to the level of `high Crimes and Misdemeanors''
in Section
III, Constitutional Standard and Burden of
Proof.
B. The President Did Not Commit Perjury or Obstruct Justice
Article I alleges perjury before
a federal grand jury.
Article II alleges obstruction of justice.
Both perjury and
obstruction of justice are statutory crimes.
In rebutting the
allegations contained in the articles of impeachment,
this
brief refers to the facts as well as to laws,
legal
principles, court decisions, procedural safeguards,
and the
Constitution itself. Those who seek to remove
the President
speak of the ``rule of law.'' Among the most
fundamental
rules of law are the principles that those
who accuse have
the burden of proof, and those who are accused
have the right
to defend themselves by relying on the law,
established
procedures, and the Constitution. These principles
are not
``legalisms'' but rather the very essence
of the ``rule of
law'' that distinguishes our Nation from others.
We respond, in detail, to those
allegations whose substance
we can decipher in Section IV, The President
Should Be
Acquitted on Article I, and in Section V,
The President
Should Be Acquitted on Article II.
C. Compound Charges and Vagueness
If there were any doubt that the
House of Representatives
has utterly failed in its constitutional responsibility
to
the Senate and to the President, that doubt
vanishes upon
reading the Trial Memorandum submitted by
the House Managers.
Having proferred two articles of impeachment,
each of which
unconstitutionally combines multiple offenses
and fails to
give even minimally adequate notice of the
charges it
encompasses, the House--three days before
the Managers are to
open their case--is still expanding, not refining,
the scope
of those articles. In further violation of
the most basic
constitutional principles, their brief advances,
merely as
``examples,'' nineteen conclusory allegations--eight
of
perjury under Article I and eleven of obstruction
of justice
under Article II, some of which have never
appeared before,
even in the Report submitted by the Judiciary
Committee
(``Committee Report''), much less in the Office
of
Independent Counsel (``OIC'') Referral or
in the articles
themselves.\1\ If the target the Managers
present to the
Senate and to the President is still moving
now, what can the
President expect in the coming days? Is there
any point at
which the President will be given the right
accorded a
defendant in the most minor criminal case--to
know with
certainty the charges against which he must
defend?
---------------------------------------------------------------------------
\1\ For example, the House managers add a charge
that the
President engaged in ``legalistic hair splitting
[in his
response to the 81 questions] in an obvious
attempt to skirt
the whole truth and to deceive and obstruct''
the Committee.
This charge was specifically rejected by the
full House of
Representatives when it rejected Article IV.
---------------------------------------------------------------------------
The Senate, we know, fully appreciates
these concerns and
has, in past proceedings, dealt appropriately
with articles
far less flawed than these. The constitutional
concerns
raised by the House's action are addressed
in Section VI, The
Structural Deficiencies of the Articles Preclude
a
Constitutionally Sound Vote.
II. Background
A. The Whitewater Investigative Dead-End
The Lewinsky investigation emerged
in January 1998 from the
long-running Whitewater investigation. On
August 5, 1994, the
Special Division of the United States Court
of Appeals for
the District of Columbia Court Circuit appointed
Kenneth W.
Starr as Independent Counsel to conduct an
investigation
centering on two Arkansas entities, Whitewater
Development
Company, Inc., and Madison Guaranty Savings
and Loan
Association.
In the spring of 1997, OIC investigators,
without any
expansion of jurisdiction, interviewed Arkansas
state
troopers who had once been assigned to the
Governor's
security detail, and ``[t]he troopers said
Starr's
investigators asked about 12 to 15 women by
name, including
Paula Corbin Jones. . . .'' Woodward &
Schmidt, ``Starr
Probes Clinton Personal Life,'' The Washington
Post (June 25,
1997) at A1 (emphasis added). ``The nature
of the questioning
marks a sharp departure from previous avenues
of inquiry in
the three-year old investigation. . . . Until
now, . . . what
has become a wide-ranging investigation of
many aspects of
Clinton's governorship has largely steered
clear of questions
about Clinton's relationships with women.
. . .'' \2\ One of
the most striking aspects of this new phase
of the Whitewater
investigation was the extent to which it focused
on the Jones
case. One of the troopers interviewed declared,
``[t]hey
asked me about Paula Jones, all kinds of questions
about
Paula Jones, whether I saw Clinton and Paula
together and how
many times.'' \3\
---------------------------------------------------------------------------
\2\ Ibid. Trooper Roger Perry, a 21-year veteran
of the
Arkansas state police, stated that he ``was
asked about the
most intimate details of Clinton's life: `I
was left with the
impression that they wanted me to show he
was a womanizer. .
. . All they wanted to talk about was women.'
'' Ibid.
(Ellipsis in original).
\3\ Ibid.
---------------------------------------------------------------------------
In his November 19, 1998, testimony
before the House
Judiciary Committee, Mr. Starr conceded that
his agents had
conducted these interrogations and acknowledged
that at that
time, he had not sought expansion of his jurisdiction
from
either the Special Division or the Attorney
General.\4\ Mr.
Starr contended that these inquiries were
somehow relevant to
his Whitewater investigation: ``we were, in
fact
interviewing, as good prosecutors, good investigators
do,
individuals who would have information that
may be relevant
to our inquiry about the President's involvement
in
Whitewater, in Madison Guaranty Savings and
Loan and the
like.''\5\ It seems irrefutable, however,
that the OIC was in
fact engaged in an unauthorized attempt to
gather
embarrassing information about the President--information
wholly unrelated to Whitewater or Madison
Guaranty Savings
and Loan, but potentially relevant to the
lawsuit filed by
Paula Jones.
---------------------------------------------------------------------------
\4\ Transcript of November 19, 1998 House Judiciary
Committee
Hearing at 377-378.
\5\ Ibid. at 378.
---------------------------------------------------------------------------
B. The Paula Jones Litigation
The Paula Jones lawsuit made certain
allegations about
events she said had occurred three years earlier,
in 1991,
when the President was Governor of Arkansas.
Discovery in the
case had been stayed until the Supreme Court's
decision on
May 27, 1997, denying the President temporary
immunity from
suit.\6\ Shortly thereafter, Ms. Jones' legal
team began a
public relations offensive against the President,
headed by
Ms. Jones' new spokesperson, Mr. Susan Carpenter-McMillan,
and her new counsel affiliated with the conservation
Rutherford Institute.\7\ ``I will
[Page S193]
never deny that when I first heard about this
case I said,
``Okay, good. We're gonna get that little
slimeball,' said
Ms. Carpenter-McMillan.''\8\ While Ms. Jones'
previous
attorneys, Messrs. Gilbert Davis and Joseph
Cammarata, had
largely avoided the media, as the Jones civil
suit
increasingly became a partisan vehicle to
try to damage the
President, public personal attacks became
the order of the
day.\9\ As is now well known, this effort
led ultimately to
the Jones lawyers being permitted to subpoena
various women,
to discover the nature of their relationship,
if any, with
the President, allegedly for the purpose of
determining
whether they had information relevant to the
sexual
harassment charge. Among these women was Ms.
Lewinsky.
---------------------------------------------------------------------------
\6\ Clinton v. Jones, 520 U.S. 681 (1997).
\7\ Ms. Jones was described as having ``accepted
financial
support of a Virginia conservative group,''
which intended to
``raise $100,000 or more on Jones's behalf,
although the
money will go for expenses and not legal fees.''
``Jones
Acquires New Lawyers and Backing,'' The Washington
Post
(October 2, 1998) at A1. Jones' new law firm,
the Dallas-
based Radar, Campbell, Fisher and Pyke, had
``represented
conservatives in antiabortion cases and other
causes.'' Ibid.
See also Dallas Lawyers Agree to Take on Paula
Jones' Case--
Their Small Firm Has Ties to Conservative
Advocacy Group,''
The Los Angeles Times (Oct. 2, 1997) (Rutherford
Institute a
``conservative advocacy group.'').
\8\ ``Cause Celebre: An Antiabortion Activist
Makes Herself
the Unofficial Mouthpiece for Paula Jones.''
The Washington
Post (July 23, 1998) at C1. Ms. Carpenter-McMillan,
``a
cause-oriented, self-defined conservative
feminist''',
described her role as `flaming the White House''
and declared
```Unless Clinton wants to be terribly embarrassed,
he'd
better cough up what Paula needs. Anybody
that comes out and
testifies against Paula better have the past
of a Mother
Teresa, because our investigators will investigate
their
morality.''' ``Paula Jones' Team Not All About
Teamwork,''
USA Today (Sept. 29, 1997) at 4A.
\9\ After Ms. Jones' new team had been in
action for three
months, one journalist commented: ``In six
years of public
controversy over Clinton's personal life,
what is striking in
some ways is how little the debate changes.
As in the
beginning, many conservatives nurture the
hope that the past
will be Clinton's undoing. Jone's adviser,
Susan Carpenter-
McMillan, acknowledged on NBC's `Meet the
Press' yesterday
that her first reaction when she first heard
Jone's claims
about Clinton was, ``Good, we're going to
get that little
slime ball.'' (Harris, ``Jones Case Tests
Political
Paradox,'' The Washington Post (Jan. 19, 1998)
at A1.
---------------------------------------------------------------------------
In January 1998, Mr. Linda Tripp
notified the OIC of
certain information she believed she had about
Ms. Lewinsky's
involvement in the Jones case. At that time,
the OIC
investigation began to intrude formally into
the Jones case:
the OIC met with Ms. Tripp through the week
of January 12,
and with her cooperation taped Ms. Lewinsky
discussing the
Jones case and the President. Ms. Tripp also
informed the OIC
that she had been surreptitiously taping conversations
with
Ms. Lewinsky in violation of Maryland law,
and in exchange
for her cooperation, the OIC promised Ms.
Tripp immunity from
federal prosecution, and assistance in protecting
her from
state prosecution.\10\ On Friday, January
16, after Ms. Tripp
wore a body wire and had taped conversations
with Ms.
Lewinsky for the OIC, the OIC received jurisdiction
from the
Attorney General and formalized an immunity
agreement with
Ms. Tripp in writing.
---------------------------------------------------------------------------
\10\ Supplemental Materials to the Referral
to the United
States House of Representatives Pursuant to
Title 28, United
States Code Section 595(C), H. Doc. 105-316
(hereinafter
``Supp.'') at 3758-3759, 4371-4373 (House
Judiciary
Committee) (Sept. 28, 1998).
---------------------------------------------------------------------------
The President's deposition in the
Jones case was scheduled
to take place the next day, on Saturday, January
17. As we
now know, Ms. Tripp met with and briefed the
lawyers for Ms.
Jones the night before the deposition on her
perception of
the relationship between Ms. Lewinsky and
the President--
doing so based on confidences Ms. Lewinsky
had entrusted to
her.\11\ She was permitted to do so even though
she has been
acting all week at the behest of the OIC and
was dependent on
the OIC to use its best efforts to protect
her from state
prosecution. At the deposition the next day,
the President
was asked numerous questions about his relationship
with Ms.
Lewinsky by lawyers who already knew the answers.
---------------------------------------------------------------------------
\11\ Baker, ``Linda Tripp Briefed Jones Team
on Tapes:
Meeting Occurred Before Clinton Deposition,''
The Washington
Post (Feb. 14, 1998) at A1.
---------------------------------------------------------------------------
The Jones case, of course, was
not about Ms. Lewinsky. She
was a peripheral player and, since her relationship
with the
President was concededly consensual, irrelevant
to Ms. Jones'
case. Shortly after the President's deposition,
Chief Judge
Wright ruled that evidence pertaining to Ms.
Lewinsky would
not be admissible at the Jones trial because
``it is not
essential to the core issues in this case.''
\12\ The Court
also ruled that, given the allegations at
issue in the Jones
case, the Lewinsky evidence ``might be inadmissible
as
extrinsic evidence'' under the Federal Rules
of Evidence
because it involved merely the ``specific
instances of
conduct'' of a witness.\13\
---------------------------------------------------------------------------
\12\ Order, at 2, Jones v. Clinton, No. LR-C-94-290
(E.D.
Ark.) (Jan. 29, 1998).
\13\ Ibid.
---------------------------------------------------------------------------
On April 1, 1998, the Court ruled
that Ms. Jones had no
case and granted summary judgment for the
President. Although
Judge Wright ``viewed the record in the light
most favorable
to [Ms. Jones] and [gave] her the benefit
of all reasonable
factual inferences,'' \14\ the Court ruled
that, as a matter
of law, she simply had no case against President
Clinton,
both because ``there is no genuine issue as
to any material
fact'' and because President Clinton was ``entitled
to a
judgment as a matter of law.'' Id. at 11-12.
After reviewing
all the proffered evidence, the Court ruled
that ``the record
taken as a whole could not lead a rational
trier of fact to
find for'' Ms. Jones. Id. at 39.
---------------------------------------------------------------------------
\14\ Jones v. Clinton, No. LR-C-94-290 (E.D.
Ark.),
Memorandum Opinion and Order (April 1, 1998),
at 3 n.3.
---------------------------------------------------------------------------
c. the president's grand jury testimony about ms. lewinsky
On August 17, 1998, the President
voluntarily testified to
the grand jury and specifically acknowledged
that he had had
a relationship with Ms. Lewinsky involving
``improper
intimate contact,'' and that he `'engaged
in conduct that was
wrong.'' App. at 461.\15\ He described how
the relationship
began and how he had ended it early in 1997--long
before any
public attention or scrutiny. He stated to
the grand jury
``it's an embarrassing and personally painful
thing, the
truth about my relationship with Ms. Lewinsky,''
App. at 533,
and told the grand jurors, ``I take full responsibility
for
it. It wasn't her fault, it was mine.'' App.
at 589-90.
---------------------------------------------------------------------------
\15\ Appendices to the Referral to the United
States House of
Representatives Pursuant to Title 28, United
States Code
Section 595(c), H. Doc. 105-311 (hereinafter
``App.'') at 461
(House Judiciary Committee) (Sept. 18, 1998).
---------------------------------------------------------------------------
The President also explained how
he had tried to navigate
the deposition in the Jones case months earlier
without
admitting what he admitted to the grand jury--that
he had
been engaged in an improper intimate relationship
with Ms.
Lewinsky. Id. a 530-531. He further testified
that the
``inappropriate encounters'' with Ms. Lewinsky
had ended, at
his insistence, in early 1997. He declined
to describe,
because of considerations of personal privacy
and
institutional dignity, certain specifics about
his conduct
with Ms. Lewinsky,\16\ but he indicated his
willingness to
answer,\17\ and he did answer, the other questions
put to him
about his relationship with her. No one who
watched the
videotape of this grand jury testimony had
any doubt that the
President admitted to having had an improper
intimate
relationship with Ms. Lewinsky.
---------------------------------------------------------------------------
\16\ ``While I will provide the grand jury
whatever other
information I can, because of privacy considerations
affecting my family, myself, and others, and
in an effort to
preserve the dignity of the office I hold,
this is all I will
say about the specifics of these particular
matters.'' App.
at 461.
\17\ ``I will try to answer, to the best of
my ability, other
questions including questions about my relationship
with Ms.
Lewinsky, questions about my understanding
of the term
`sexual relations,' as I understood it to
be defined at my
January 17th, 1998 deposition; and questions
concerning
alleged subornation of perjury, obstruction
of justice, and
intimidation of witnesses.'' App. at 461.
---------------------------------------------------------------------------
d. proceedings in the house of representatives
On September 9, 1998, Mr. Starr
transmitted a Referral to
the House of Representatives that alleged
eleven acts by the
President related to the Lewinsky matter that,
in the opinion
of the OIC, ``may constitute grounds for an
impeachment.''
\18\ The allegations fell into three broad
categories: lying
under oath, obstruction of justice, and abuse
of power.
---------------------------------------------------------------------------
\18\ Referral from Independent Counsel Kenneth
W. Starr in
Conformity with the Requirements of Title
28, United States
Code, Section 595(c), at 1 (House Judiciary
Committee)
(printed September 11, 1998).
---------------------------------------------------------------------------
The House Judiciary held a total
of four hearings and
called but one witness: Kenneth W. Starr.
The Committee
allowed the President's lawyers two days in
which to present
a defense. The White House presented four
panels of
distinguished expert witnesses who testified
that the facts,
as alleged, did not constitute an impeachable
offense, did
not reveal an abuse of power, and would not
support a case
for perjury or obstruction of justice that
any reasonable
prosecutor would bring. White House Counsel
Charles F.C. Ruff
presented argument to the Committee on behalf
of the
President, which is incorporated into this
Trial Memorandum
by reference.\19\
---------------------------------------------------------------------------
\19\ Also incorporated by reference into this
Trial
Memorandum are the four prior submissions
of the President to
the House of Representatives: Preliminary
Memorandum
Concerning Referral of Office of Independent
Counsel
(September 11, 1998) (73 pages); Initial Response
to Referral
of Office of Independent Counsel (September
12, 1998) (42
pages); Memorandum Regarding Standards of
Impeachment
(October 2, 1998) (30 pages); Submission by
Counsel for
President Clinton to the Committee on the
House Judiciary of
the United States House of Representatives
(December 8, 1998)
(184 pages).
---------------------------------------------------------------------------
On December 11 and 12, the Judiciary
Committee voted
essentially along party lines to approve four
articles of
impeachment. Republicans defeated the alternative
resolution
of censure offered by certain Committee Democrats.
Almost
immediately after censure failed in the Committee,
the House
Republican leadership declared publicly that
no censure
proposal would be considered by the full House
when it
considered the articles of impeachment.\20\
---------------------------------------------------------------------------
\20\ See Baker & Eilperin, ``GOP Blocks
Democrats' Bid to
Debate Censure in House: Panel Votes Final,
Trimmed Article
of Impeachment,'' The Washington Post (Dec.
13, 1998) at A1.
---------------------------------------------------------------------------
On December 19, 1998, voting essentially
on party lines,
the House of Representatives approved two
articles of
impeachment: Article I, which alleged perjury
before the
grand jury, passed by a vote of 228 to 206
and Article III,
which alleged obstruction of justice, passed
by a vote of 221
to 212. The full House defeated two other
Articles: Article
II, which alleged that the President committed
perjury in his
civil deposition, and Article IV, which alleged
abuse of
power. Consideration of a censure resolution
was blocked,
even though members of both parties had expressed
a desire to
vote on such an option.
From beginning to end the House
process was both partisan
and unfair. Consider:
* The House released the entire
OIC Referral to the
public without ever reading it, reviewing
it, editing it, or
allowing the President's counsel to review
it;
[Page S194]
* The Chairman of the House Judiciary
Committee said
he had ``no interest in not working in a bipartisan
way'';
\21\
---------------------------------------------------------------------------
\21\ Associated Press (March 25, 1998).
---------------------------------------------------------------------------
* The Chairman also pledged a process
the American
people would conclude was fair; \22\
---------------------------------------------------------------------------
\22\ ``This whole proceeding will fall on its
face if it's
not perceived by the American people to be
fair.'' Financial
Times (Sept. 12, 1998).
---------------------------------------------------------------------------
* The Speaker-Designate of the
House endorsed a vote
of conscience on a motion to censure;\23\
---------------------------------------------------------------------------
\23\ ``The next House Speaker, Robert Livingston,
said the
coming impeachment debate should allow lawmakers
to make a
choice between ousting President Clinton and
imposing a
lesser penalty such as censure. The Louisiana
Republican said
the House can't duck a vote on articles of
impeachment if
reported next month by its Judiciary Committee.
But an
`alternative measure is possible' he said,
and the GOP
leadership should `let everybody have a chance
to vote on the
option of their choice.' '' Wall Street Journal
(Nov. 23,
1998).
---------------------------------------------------------------------------
* Members of the House were shown
secret
``evidence'' in order to influence their vote--evidence
which
the President's counsel still has not been
able to review.
III. The Constitutional Standard and Burden of Proof for
Decision
A. The Offenses Alleged Do Not Meet the Constitutional Standard of High
Crimes and Misdemeanors
1. The Senate Has a Constitutional Duty to
Confront the
Question Whether Impeachable
Offenses Have Been Alleged
It is the solemn duty of the Senate
to consider the
question whether the articles state an impeachable
offense.\24\ That Constitutional question
has not, in the
words of one House Manager, ``already been
resolved by the
House.'' \25\ To the contrary, that question
now awaits the
Senate's measured consideration and independent
judgment.
Indeed, throughout our history, resolving
this question has
been an essential part of the Senate's constitutional
obligation to ``try all Impeachments.'' U.S.
Const. Art.
Sec. 3, cl.7. In the words of John Logan,
a House Manager in
the 1868 proceedings:
---------------------------------------------------------------------------
\24\ In the impeachment trial of Andrew Johnson,
the
President's counsel answered (to at least
one article) that
the matters alleged ``do not charge or allege
the commission
of any act whatever by this respondent, in
his office of
President of the United States, nor the omission
by this
respondent of any act of official obligation
or duty in his
office of President of the United States.''
1 Trial of Andrew
Johnson (1868) (``TAJ'') 53.
\25\ See Statement of Rep. Bill McCollum:
``[A]re these
impeachable offenses, which I think has already
been resolved
by the House. I think constitutionally that's
our job to
do.'' Fox News Sunday (January 3, 1999).
---------------------------------------------------------------------------
``It is the rule that all questions
of law or fact are to
be decided, in these proceedings, by the final
vote upon the
guilt or innocence of the accused. It is also
the rule, that
in determining this general issue senators
must consider the
sufficiency or insufficiency in law or in
fact of every
article of accusation.''\26\
---------------------------------------------------------------------------
\26\ Closing argument of Manager John H. Logan,
2 TAJ 18
(emphasis added). See also Office of Senate
Legal Counsel,
Memorandum on Impeachment Issues at 25-26
(Oct. 7, 1988)
(``Because the Senate acts as both judge and
jury in an
impeachment trial, the Senate's conviction
on a particular
article of impeachment reflects the Senate's
judgment not
only that the accused engaged in the misconduct
underlying
the article but also that the article stated
an impeachable
offense'').
We respectfully suggest that the articles exhibited
here do
not state wrongdoing that constitutes impeachable
offenses
under our Constitution.
2. The Constitution Requires a High Standard
of Proof of
``High Crimes and
Misdemeanors'' for Removal
a. The Constitutional Text and
Structure Set an
Intentionally
High Standard for Removal
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. Constitution, Art. II,
section 4. The
charges fail to meet the high standard that
the Framers
established.\27\
---------------------------------------------------------------------------
\27\ For a more complete discussion of the
Standards for
Impeachment, please see Submission by Counsel
for President
Clinton to the House Judiciary of the United
States House of
Representatives at 24-43 (December 8, 1998);
Memorandum
Regarding Standards of Impeachment (October
2, 1998); and
Impeachment of William Jefferson, President
of the United
States, Report of the Committee on the Judiciary
to Accompany
H. Res. 611, H. Rpt. 105-830, 105th Cong.,
2d Sess. at 332-39
(citing Minority Report). References to pages
2-203 of the
Committee Report will be cited hereinafter
as ``Committee
Report.'' References to pages 329-406 of the
Committee Report
will be cited hereinafter as ``Minority Report.''
---------------------------------------------------------------------------
The syntax of the Constitutional
standard ``Treason,
Bribery or other high Crimes and Misdemeanors''
(emphasis
added) strongly suggests, by the interpretive
principle
noscitur a sociis, \28\ that, to be impeachable
offenses, high crimes and misdemeanors must
be of the
seriousness of ``Treason'' and ``Bribery.''
---------------------------------------------------------------------------
\28\ `` `It is known from its associates' .
. . the meaning
of a word is or may be known from the accompanying
words.''
Black's Law Dictionary 1209 (4th ed. 1968).
---------------------------------------------------------------------------
Our Constitutional structure reaffirms
that the standard
must be a very high one. Ours is a Constitution
of separated
powers. In that Constitution, the President
does not serve at
the will of Congress, but as the directly
elected,\29\
solitary head of the Executive Branch. The
Constitution
reflects a judgment that a strong Executive,
executing the
law independently of legislative will, is
a necessary
protection for a free people.
---------------------------------------------------------------------------
\29\ Of course, that election takes place through
the
mediating activity of the Electoral College.
See U.S. Const.
Art. II, Sec. 1, cl. 2-3 and Amend. XII.
---------------------------------------------------------------------------
These elementary facts of constitutional
structure
underscore the need for a very high standard
for impeachment.
The House Managers, in their Brief, suggest
that the failure
to remove the President would raise the standard
for
impeachment higher than the Framers intended.
They say that
if the Senate does not remove the President,
``The bar will
be so high that only a convicted felon or
a traitor will need
to be concerned.'' But that standard is just
a modified
version of the plain language of Article II,
Section 4 of the
Constitution, which says a President can only
be impeached
and removed for ``Treason, Bribery, or other
high Crimes and
Misdemeanors.'' The Framers wanted a high
bar. It was not the
intention of the Framers that the President
should be subject
to the will of the dominant legislative party.
As Alexander
Hamilton said in a warning against the politicization
of
impeachment: ``There will always be the greater
danger that
the decision will be regulated more by comparative
strength
of parties than by the real demonstrations
of innocence or
guilt.'' Federalist 65. Our system of government
does not
permit Congress to unseat the President merely
because it
disagrees with his behavior or his policies.
The Framers'
decisive rejection of parliamentary government
is one reason
they caused the phrase ``Treason, Bribery
or other high
Crimes and Misdemeanors'' to appear in the
Constitution
itself. They chose to specify those categories
of offenses
subject to the impeachment power, rather than
leave that
judgment to the unfettered whim of the legislature.
Any just and proper impeachment
process must be reasonably
viewed by the public as arising from one of
those rare cases
when the Legislature is compelled to stand
in for all the
people and remove a President whose continuation
in office
threatens grave harm to the Republic. Indeed,
it is not
exaggeration to say--as a group of more than
400 leading
historians and constitutional scholars publicly
stated--that
removal on these articles would ``mangle the
system of checks
and balances that is our chief safeguard against
abuses of
public power.'' \30\ Removal of the President
on these
grounds would defy the constitutional presumption
that the
removal power rests with the people in elections,
and it
would do incalculable damage to the institution
of the
Presidency. If ``successful,'' removal here
``will leave the
Presidency permanently disfigured and diminished,
at the
mercy as never before of the caprices of any
Congress.'' \31\
---------------------------------------------------------------------------
\30\ Statement of Historians in Defense of
the Constitution
(Oct. 28, 1998) (``Statement of Historians'');
see also
Schmitt, ``Scholars and Historians Assail
Clinton Impeachment
Inquiry,'' The New York Times (Oct. 19, 1998)
at A18.
\31\ Statement of Historians.
---------------------------------------------------------------------------
The Framers made the President
the sole nationally elected
public official (together with the Vice-President),
responsible to all the people. Therefore,
when articles of
impeachment have been exhibited, the Senate
confronts this
inescapable question: is the alleged misconduct
so profoundly
serious, so malevolent to our Constitutional
system, that it
justifies undoing the people's decision? Is
the wrong alleged
of a sort that not only demands removal of
the President
before the ordinary electoral cycle can do
its work, but also
justifies the national trauma that accompanies
the
impeachment trial process itself? The wrongdoing
alleged here
does not remotely meet that standard.
b. The Framers Believed that Impeachment
and Removal Were
Appropriate
Only for Offenses Against the System of
Government
``[H]igh Crimes and Misdemeanors''
refers to nothing short
of Presidential actions that are ``great and
dangerous
offenses'' or ``attempts to subvert the Constitution.''
\32\
Impeachment was never intended to be a remedy
for private
wrongs. It was intended to be a method of
removing a
President whose continued presence in the
Office would cause
grave danger to the Nation and our Constitutional
system of
government.\33\ Thus, ``in all but the most
extreme
instances, impeachment should be limited to
abuse of public
office, not private misconduct unrelated to
public office.''
\34\
---------------------------------------------------------------------------
\32\ George Mason, 2 Farrand, The Records of
the Federal
Convention of 1787 550 (Rev. ed. 1966).
\33\ As the 1975 Watergate staff report concluded
``Impeachment is the first step in remedial
process--removal
from office and possible disqualification
from holding future
office. The purpose of impeachment is not
personal
punishment; its function is primarily to maintain
constitutional government. . . . In an impeachment
proceeding
a President is called to account for abusing
powers that only
a President possesses.'' Constitutional Grounds
for
Presidential Impeachment, Report by the Staff
of the
Impeachment Inquiry, House Comm. on Judiciary,
93d Cong., 2d
Sess. at 24 (1974) (``Nixon Impeachment Inquiry'').
\34\ Minority Report at 337.
---------------------------------------------------------------------------
Impeachment was designed to be
a means of redressing
wrongful public conduct. As scholar and Justice
James Wilson
wrote, ``our President . . . is amendable
to [the laws] in
his private character as a citizen, and in
his public
character by impeachment.'' \35\ As such,
impeachment is
limited to certain forms of wrongdoing. Alexander
[Page S195]
Hamilton described the subject of the Senate's
impeachment
jurisdiction as ``those offenses which proceed
from the
misconduct of public men, or in other words
from the abuse or
violation of some public trust. They are of
a nature which
may with peculiar propriety be denominated
POLITICAL, as they
relate chiefly to injuries done to the society
itself.'' \36\
---------------------------------------------------------------------------
\35\ 2 Elliot, The Debate in the Several State
Conventions on
the Adoption of the Federal Constitution 480
(reprint of 2d
ed.)
\36\ The Federalist No. 65 at 331 (Gary Wills
ed. 1982). As
one of the most respected of the early commentators
explained, the impeachment ``power partakes
of a political
character, as it respects injuries to the
society in its
political character.'' Story, Commentaries
on the
Constitution, Sec. 744. (reprint of 1st ed.
1833).
The Framers ``intended that a president
be removable from
office for the commission of great offenses
against the
Constitution.'' \37\ Impeachment therefore
addresses public
wrongdoing, whether denominated a ``political
crime [ ]
against the state,'' \38\ or ``an act of malfeasance
or abuse
of office,'' \39\ or a ``great offense [
] against the
federal government.'' \40\ Ordinary civil
and criminal wrongs
can be addressed through ordinary judicial
processes. And
ordinary political wrongs can be addressed
at the ballot box
and by public opinion. Impeachment is reserved
for the most
serious public misconduct, those aggravated
abuses of
executive power that, given the President's
four-year term,
might otherwise go unchecked.
---------------------------------------------------------------------------
\37\ John Labovitz, Presidential Impeachment
94 (1978).
\38\ Raoul Berger, Impeachment 61 (1973).
\39\ Rotunda, An Essay on the Constitutional
Parameters of
Federal Impeachment, 76 Ky. L.J. 707, 724
(1987/1988).
\40\ Gerhardt, The Constitutional Limits to
Impeachment and
Its Alternatives, 68 Tex. L. Rev. 1, 85 (1989).
---------------------------------------------------------------------------
3. Past Precedents Confirm that Allegations
of Dishonesty Do
Not Alone State Impeachable
Offenses
Because impeachment of a President
nullifies the popular
will of the people, as evidence by an election,
it must be
used with great circumspection. As applicable
precedents
establish, it should not be used to punish
private
misconduct.
a. The Fraudulent Tax Return Allegation
Against President
Nixon
Five articles of impeachment were
proposed against then-
President Nixon by the Judiciary Committee
of the House of
Representatives in 1974. Three were approved
and two were
not. The approved articles alleged official
wrongdoing.
Article I charged President Nixon with ``using
the powers of
his high office [to] engage [ ] . .
. in a course of conduct
or plan designed to delay, impede and obstruct''
the
Watergate investigation.\41\ Article II described
the
President as engaging in ``repeated and continuing
abuse of
the powers of the Presidency in disregard
of the fundamental
principle of the rule of law in our system
of government''
thereby ``us[ing] his power as President to
violate the
Constitution and the law of the land.'' \42\
Article III
charged the President with refusing to comply
with Judiciary
Committee subpoenas in frustration of a power
necessary to
``preserve the integrity of the impeachment
process itself
and the ability of Congress to act as the
ultimate safeguard
against improper Presidential conduct.'' \43\
---------------------------------------------------------------------------
\41\ Impeachment of Richard M. Nixon, President
of the United
States, Report of the Comm. on the Judiciary,
93rd Cong., 2d
Sess, H. Rep. 93-1305 (Aug. 20, 1974) (hereinafter
``Nixon
Report'') at 133.
\42\ Nixon Report at 180.
\43\ Id. 212-13.
---------------------------------------------------------------------------
On article not approved by the
House Judiciary Committee
charged that President Nixon both ``knowingly
and
fraudulently failed to report certain income
and claimed
deductions [for 1969-72] on his Federal income
tax returns
which were not authorized by law.'' \44\ The
President had
signed his returns for those years under penalty
of
perjury,\45\ and there was reason to believe
that the
underlying facts would have supported a criminal
prosecution
against President Nixon himself.\46\
---------------------------------------------------------------------------
\44\ Id. at 220. The President was alleged
to have failed to
report certain income, to have taken improper
tax deductions,
and to have manufactured (either personally
or through his
agents) false documents to support the deductions
taken.
\45\ Given the underlying facts, that act
might have provided
the basis for multiple criminal charges; conviction
on, for
example, the tax evasion charge, could have
subjected
President Nixon to a 5-year prison term.
\46\ See Nixon Report at 344 (``the Committee
was told by a
criminal fraud tax expert that on the evidence
presented to
the Committee, if the President were an ordinary
taxpayer,
the government would seek to send him to jail'')
(Statement
of Additional Views of Mr. Mezvinsky, et al.)
---------------------------------------------------------------------------
Specifying the applicable standard
for impeachment, the
majority staff concluded that ``[b]ecause
impeachment of a
President is a grave step for the nation,
it is to be
predicated only upon conduct seriously incompatible
with
either the constitutional form and principles
of our
government or the proper performance of constitutional
duties
of the president office.'' \47\
---------------------------------------------------------------------------
\47\ Nixon Impeachment Inquiry at 26 (emphasis
added).
---------------------------------------------------------------------------
And the minority views of many
Republican members were in
substantial agreement: ``the framers . . .
were concerned
with preserving the government from being
overthrown by the
treachery or corruption of one man. . . .
[I]t is our
judgment, based upon this constitutional history,
that the
Framers of the United States Constitution
intended that the
President should be removable by the legislative
branch only
for serious misconduct dangerous to the system
of government
established by the Constitution.'' \48\
---------------------------------------------------------------------------
\48\ Nixon Report at 364-365 (Minority Views
of Messrs.
Hutchinson, Smith, Sandman, Wiggins, Dennis,
Mayne, Lott,
Moorhead, Maraziti and Latta).
---------------------------------------------------------------------------
The legal principle that impeachable
offenses required
misconduct dangerous to our system of government
provided one
basis for the Committee's rejection of the
fraudulent-tax-
return charge. As Congressman Hogan (R-Md.)
put the matter,
the Constitution's phrase ``high crime signified
a crime
against the system of government, not merely
a serious
crime,''\49\ As noted, the tax-fraud charge,
involving an act
which did not demonstrate public misconduct,
was rejected by
an overwhelming (and bipartisan) 26-12 margin.\50\
---------------------------------------------------------------------------
\49\ Id. (quoting with approval conclusion
of Nixon
Impeachment Inquiry).
\50\ Nixon Report at 220.
---------------------------------------------------------------------------
b. The Financial Misdealing Allegation
Against Alexander
Hamilton
In 1792, Congress investigated
Secretary of Treasury
Alexander Hamilton for alleged financial misdealings
with a
convicted swindler. Hamilton had made payments
to the
swindler and had urged his wife (Hamilton's
paramour) to burn
incriminating correspondence. Members of Congress
investigated the matter and it came to the
attention of
President Washington and future Presidents
Adams, Jefferson,
Madison and Monroe.
This private matter was not deemed
worthy of removing Mr.
Hamilton as Secretary of the Treasury.\51\
Even when it
eventually became public, it was no barrier
to Hamilton's
appointment to high position in the United
States Army.
Although not insignificant, Hamilton's behavior
was
essentially private. It was certain not regarded
as
impeachable.
---------------------------------------------------------------------------
\51\ See generally Rosenfeld, ``Founding Fathers
Didn't
Flinch,'' The Los Angeles Times (September
18, 1980).
---------------------------------------------------------------------------
4. The Views of Prominent Historians and Legal
Scholars
Confirm that Impeachable
Offenses Are not Present
a. No Impeachable Offense Has
Been Stated Here
There is strong agreement among
consititutional scholars
and historians that the articles do not charge
impeachable
offenses. As Professor Michael Gerhardt summarized
in his
recent testimony before a subcommitte of the
House of
Representatives, there is ``widespread recognition
[of] a
paradigmatic case for impeachment.''\52\ In
such a case,
``there must be a nexus between the misconduct
of an
impeachable official and the latter's official
duties.''\53\
---------------------------------------------------------------------------
\52\ Statement of Professor Michael J. Gerhardt
Before the
House Subcommittee on the Constitution of
the House Judiciary
Committee Regarding the Background and History
of Impeachment
(November 9, 1998) at 13 (``Subcommittee Hearings'').
\53\Ibid. (emphasis added).
---------------------------------------------------------------------------
There is no such nexus here. Indeed
the allegations are so
far removed from official wrongdoing that
their assertion
here threatens to weaken significantly the
Presidency itself.
As the more than 400 prominent historians
and constitutional
scholars warned in their public statement:
``[t]he theory of
impeachment underlying these efforts is unprecedented
in our
history . . . [and is] are extremely ominous
for the future
of our political insitutions. If carried forward,
[the
current processes] will leave the Presidency
permanently
disfigured and diminished, at the mercy as
never before of
the caprices of any Congress.\54\
---------------------------------------------------------------------------
\54\ Statement of Historians.
---------------------------------------------------------------------------
Similarly, in a letter to the House
of Representatives, an
extraordinary group of 430 legal scholars
argued together
that these offenses, even if proven true,
did not rise to the
level of an impeachable offense.\55\ The gist
of these
scholarly objections is that the alleged wrongdoing
is
insufficiently connected to the exercise of
public office.
Because the articles charge wrongdoing of
an essentially
private nature, any harm such behavior poses
is too removed
from our system of government to justify unseating
the
President. Numerous scholars, opining long
before the current
controversy, have emphasized the necessary
connection of
impeachable wrongs to threats against the
state itself. They
have found that impeachment should be reserved
for:
---------------------------------------------------------------------------
\55\ See Letter of 430 Law Professors to Messrs.
Gingrich,
Gephardt, Hyde and Conyers (released Nov.
6, 1998).
---------------------------------------------------------------------------
* ``offenses against the government'';\56\
---------------------------------------------------------------------------
\56\ Labovitx, Presidential Impeachment at
26.
---------------------------------------------------------------------------
* ``political crime against the
state''; \57\
---------------------------------------------------------------------------
\57\ Berger, Impeachment at 61.
---------------------------------------------------------------------------
* ``serious assaults on the integrity
of the
processes of government''; \58\
---------------------------------------------------------------------------
\58\ Charles L. Black, Jr. Impeachment: A Handbook
38-39
(1974).
---------------------------------------------------------------------------
* ``wrongdoing convincingly established
[and] so
egregious that [the President's] continuation
in office is
intolerable'';\59\
---------------------------------------------------------------------------
\59\ Labovitz Presidential Impeachment at 110.
---------------------------------------------------------------------------
* ``malfeasance or abuse of office,''\60\
bearing a
``functional relationship'' to public office;
\61\
---------------------------------------------------------------------------
\60\ Rotunda, 76 Ky. L.J. at 726.
\61\ Ibid.
---------------------------------------------------------------------------
* ``great offense[s] against the
federal
government''; \62\
---------------------------------------------------------------------------
\62\ Gerhardt, 68 Tex. L. Rev. at 85.
---------------------------------------------------------------------------
* ``acts which, like treason and
bribery, undermine
the integrity of government.'' \63\
---------------------------------------------------------------------------
\63\ Committee on Federal Legislation of the
Bar Ass'n of the
City of New York, The Law of Presidential
Impeachment 18
(1974).
The articles contain nothing approximating
that level of
wrongdoing. Indeed the House Managers themselves
acknowledge
that ``the President's [alleged] perjury and
obstruction
[Page S196]
do not directly involve his official conduct.''
\64\
---------------------------------------------------------------------------
\64\ House Br. at 109.
---------------------------------------------------------------------------
b. To Make Impeachable Offenses
of These Allegations would
Forever
Lower the Bar in a Way Inimical to the
Presidency
and to Our Government of Separated powers
These articles allege (1) sexual
misbehavior, (2)
statements about sexual misbehavior and (3)
attempts to
conceal the fact of sexual misbehavior. These
kinds of wrongs
are simply not subjects fit for impeachment.
To remove a
President on this basis would lower the impeachment
bar to an
unprecedented level and create a devastating
precedent. As
Professor Arthur Schlesinger, Jr., addressing
this problem,
has testified:
``Lowering the bar for impeachment
creates a novel . . .
revolutionary theory of impeachment, [and]
. . . would send
us on an adventure with ominous implications
for the
separation of powers that the Constitution
established as the
basis of our political order. It would permanently
weaken the
Presidency.'' \65\
---------------------------------------------------------------------------
\65\ Subcommittee Hearings (Written Statement
of Arthur
Schlesinger, Tr. at 2).
---------------------------------------------------------------------------
The lowering of the bar that Professor
Schlesinger
described must stop here. Professor Jack Rakove
made a
similar point when he stated that ``Impeachment
[is] a remedy
to be deployed only in . . . unequivocal cases
where . . .
the insult to the constitutional system is
grave.'' \66\
Indeed, he said, there ``would have to be
a
high degree of consensus on both sides of
the aisle in
Congress and in both Houses to proceed.''
\67\
---------------------------------------------------------------------------
\66\ Subcommittee Hearings (Written Statement
of Professor
Jack Rakove at 4).
\67\ Subcommittee Hearings (Oral Testimony
of Professor
Rakove).
---------------------------------------------------------------------------
Bipartisan consensus was, of course,
utterly lacking in the
House of Representatives. No civil officer--no
President, no
judge, no cabinet member--has ever been impeached
by so
narrow a margin as supported the articles
exhibited
here.\68\ The closeness and partisan division
of the
vote reflect the constitutionally dubious
nature of the
charges.
---------------------------------------------------------------------------
\68\ The present articles were approved by
margins of 228-206
(Article I) and 221-212 (Article II). All
prior resolutions
were approved by substantially wider margins
in the House of
Representatives. See Impeachments of the following
civil
officers: Judge John Pickering (1803) (45-8;
Justice Samuel
Chase (1804) (73-32; Judge James Peck (1830)
143-49; Judge
West Humphreys (1862) (no vote available,
but resolution of
impeachment voted ``without division,'' see
3 Hinds
Precedents of the House of Representatives
Sec. 2386);
President Andrew Johnson (1868) (128-47; Judge
James Belknap
(1876) (unanimous); Judge Charles Swayne (1903)
(unanimous);
Judge Robert Archbald (1912) (223-1); Judge
George English
(1925) (306-62); Judge Harold Louderback (1932)
(183--143);
Judge Halsted Ritter (1933) (181-146); Judge
Harry Claiborne
(1986) (406-0); Judge Walter L. Nixon, Jr.
(1988) (417-0);
Judge Alcee L. Hastings (1988) (413-3). The
impeachment
resolution against Senator William Bount in
1797 was by voice
vote and so no specific count was recorded.
---------------------------------------------------------------------------
When articles are based on sexual
wrongdoing, and when they
have passed only by the narrowest, partisan
margin, the
future of our constitutional politics is in
the balance. The
very stability of our Constitutional government
may depend
upon the Senate's response to these articles.
Nothing about
this case justifies removal of a twice-elected
President,
because no ``high Crimes and Misdemeanors''
are alleged.
5. Comparisons to Impeachment of Judges Are
Wrong
The House Managers suggest that
perjury per se is an
impeachable offense because (1) several federal
judges have
been impeached and removed for perjury, and
(2) those
precedents control this case. See House Br.
at 95-105. That
notion is erroneous. It is blind both to the
qualitative
differences among different allegations of
perjury and the
very basic differences between federal judges
and the
President.
First, the impeachment and removal
of a Federal judge,
while a very solemn task, implicates very
different
considerations than the impeachment of a president.
Federal
judges are appointed without public approval
and enjoy life
tenure without public accountability. Consequently,
they hold
their offices under our Constitution only
``during good
behavior.'' Under our system, impeachment
is the only way to
remove a Federal judge from office--even a
Federal judge
sitting in jail.\69\ By contrast, a president
is
elected by the Nation to a term, limited to
a specified
number of years, and he faces accountability
in the form of
elections.
---------------------------------------------------------------------------
\69\ Former House Judiciary Committee Chairman
Peter Rodino,
during a recent judicial impeachment proceeding,
cogently
explained the unique position that Federal
judges hold in our
Constitutional system:
``The judges of our Federal courts occupy
a unique position
of trust and responsibility in our government:
They are the
only members of any branch that hold their
office for life;
they are purposely insulated from the immediate
pressures and
shifting currents of the body politic. But
with the special
prerogative of judicial independence comes
the most exacting
standard of public and private conduct . .
. The high
standard of behavior for judges is inscribed
in article III
of the Constitution, which provides that judges
``shall hold
offices during good behavior. . . .'' (132
Cong. Rec. H4712
(July 22, 1986) (impeachment of Judge Harry
E. Claiborne)
(emphasis added).
---------------------------------------------------------------------------
Second, whether an allegedly perjurious
statement rises to
the level of an impeachable offense depends
necessarily on
the particulars of that statement, and the
relation of those
statements to the fulfillment of official
responsibilities.
In the impeachment of Judge Harry Claiborne,
the accused had
been convicted of filing false income tax
returns.\70\ As a
judge, Claiborne was charged with the responsibility
of
hearing tax-evasion cases. Once convicted,
he simply could
not perform his official functions because
his personal
probity had been impaired such that he could
not longer be an
arbiter of others' oaths. His wrongdoing bore
a direct
connection to the performance of his judicial
tasks. The
inquiry into President Nixon disclosed similar
wrongdoing,
but the House Judiciary Committee refused
to approve an
article of impeachment against the President
on that basis.
The case of Judge Walter Nixon is similar.
He was convicted
of making perjurious statements concerning
his intervention
in a judicial proceeding, which is to say,
employing the
power and prestige of his office to obtain
advantage for a
party.\71\ Although the proceeding at issue
was not in his
court, his use of the judicial office for
the private gain of
a party to a judicial proceeding directly
implicated his
official functions. Finally, Judge Alcee Hastings
was
impeached and removed for making perjurious
statements at his
trial for conspiring to fix cases in his own
court.\72\ As
with Judges Claiborne and Nixon, Judge Hastings'
perjurious
statements were immediately and incurably
detrimental to the
performance of his official duties. The allegations
against
the President, which (as the Managers acknowledge)
``do not
directly involve his official conduct,'' House
Br. at 109,
simply do not involve wrongdoing of gravity
sufficient to
foreclose effective performance of the Presidential
office.
---------------------------------------------------------------------------
\70\ Proceedings of the United States Senate
in the
Impeachment Trial of Harry E. Claiborne, 99th
Cong., 2d
Sess., S. Doc. 99-48 at 291-98 (1986) (``Claiborne
Proceedings'').
\71\ Proceedings of the United States Senate
in the
Impeachment Trial of Walter L. Nixon, Jr.,
101st Cong., 1st
Sess., S. Doc. 101-22 at 430-440 (1989) (``Judge
Nixon
Proceedings'').
\72\ See Proceedings of the United States
Senate in the
Impeachment Trial of Alcee L. Hastings, 101st
Cong., 1st
Sess., S. Doc. 101-18 (1989).
---------------------------------------------------------------------------
Impeachment scholar John Labovitz,
writing of the judicial
impeachment cases predating Watergate, observed
that:
``For both legal and practical
reasons, th[e] [judicial
impeachment] cases did not necessarily affect
the grounds for
impeachment of a president. The practical
reason was that it
seemed inappropriate to determine the fate
of an elected
chief executive on the basis of law developed
in proceedings
directed at petty misconduct by obscure judges.
The legal
reason was that the Constitution provides
that judges serve
during good behavior. . . . [T]he [good behavior]
clause made
a difference in judicial impeachments, confounding
the
application of these cases to presidential
impeachment''.\73\
\73\ Labovitz, Presidential Impeachment at
92-93 (emphasis
added).
---------------------------------------------------------------------------
Thus, the judicial precedents relied upon by
the House
Managers have only ``limited force when applied
to the
impeachment of a President.''\74\
---------------------------------------------------------------------------
\74\ Office of Senate Legal Counsel, Memorandum
on
Impeachment Issues at 26 (Oct. 7, 1988) (summarizing
view of
some commentators).
---------------------------------------------------------------------------
The most telling rejoinder to the
House's argument comes
from President Ford. His definition of impeachable
offenses,
offered as a congressman in 1970 in connection
with an effort
to impeach Associate Justice William O. Douglas--that
it is,
in essence, ``whatever the majority of the
House of
Representatives considers it to be''--has
been cited. Almost
never noted is the more important aspect of
then-Congressman
Ford's statement--that, in contrast to the
life-tenure of
judges, because presidents can be removed
by the electorate,
``to remove them in midterm . . . would indeed
require crimes
of the magnitude of treason and bribery.''\75\
---------------------------------------------------------------------------
\75\ 116 Cong. Rec. 11912, 11913, (1970).
---------------------------------------------------------------------------
b. the standard of proof
Beyond the question of what constitutes
an impeachable
offense, each Senator must confront the question
of what
standard the evidence must meet to justify
a vote of
``guilty.'' The Senate has, of course, addressed
this issue
before--most recently in the trials of Judge
Claiborne and
Judge Hastings. We recognize that the Senate
chose in the
Claiborne proceedings, and reaffirmed in the
Hastings trial,
not to impose itself any single standard of
proof but,
rather, to leave that judgment to the conscience
of each
senator. Many Senators here today were present
for the debate
on this issue and chose a standard by which
to test the
evidence. For many Senators, however, the
issue is a new one.
And none previously has had to face the issue
in the special
context of a Presidential impeachment.
We argued before the House Judiciary
Committee that it must
treat a vote to impeach as, in effect, a vote
to remove the
President from office and that a decision
of such moment
ought not to be based on anything less than
``clear and
convincing'' evidence. That standard is higher
than the
``preponderance of the evidence'' test applicable
to the
ordinary civil case but lower than the beyond
a reasonable
doubt test applicable to a criminal case.
Nonetheless, we
felt that the clear and convincing standard
was consistent
with the grave responsibility of triggering
a process that
might result in the removal of a president.
In fact, it had
been the standard agreed upon by both Watergate
Committee
majority and minority counsel (as well as
counsel for
President Nixon) twenty-four years ago.
Certainly no lesser standard should
be applied in the
Senate. Indeed, we submit that the gravity
of the decision
the Senate must
[Page S197]
reach should lead each Senator to go further
and ask whether
the House has established guilt beyond a reasonable
doubt.
Both lawyers and laymen too often
treat the standard of
proof as meaningless legal jargon with no
application to the
real world of difficult decisions. But it
is much more than
that. In our system of justice, it is the
guidepost that
shows the way through the labyrinth of conflicting
evidence.
It tells the factfinder to look within and
ask: ``Would I
make the most important decisions of my life
based on the
degree of certainty I have about these facts?''
In the unique
legal-political setting of an impeachment
trial, it protects
against partisan overreaching, and it assures
the public that
this grave decision has been made with care.
In sum, it is a
disciplining force to carry into the deliberations.
This point is given added weight
by the language of the
Constitution. Article I, section 3, clause
6 of the United
States Constitution gives to the Senate ``the
Power to try
all Impeachments. . . . and no Person shall
be convicted
without the Concurrence of two thirds of the
Members
present.'' (Emphasis added.) Use of the words
``try'' and
``convicted'' strongly suggests that an impeachment
trial is
akin to a criminal proceeding and that the
beyond-a-
reasonable-doubt standard of criminal proceedings
should be
used. This position was enunciated in the
Minority Views
contained in the Report of the House Judiciary
Committee on
the impeachment proceedings against President
Nixon (H.Rep.
93-1305 at 377-381) and has been espoused
as the correct
standard by such Senators as Robert Taft,
Jr., Sam Ervin,
Strom Thurmond and John Stennis.\76\
---------------------------------------------------------------------------
\76\ Claiborne Proceedings at 106-107.
---------------------------------------------------------------------------
Even if the clear and convincing
standard nonetheless is
appropriate for judicial impeachments, it
does not follow
that it should be applied where the Presidency
itself is at
stake. With judges, the Senate must balance
its concern for
the independence of the judiciary against
the recognition
that, because judges hold life-time tenure,
impeachment is
the only available means to protect the public
against those
who are corrupt. On the other hand, when a
President is on
trial, the balance to be struck is quite different.
Here the
Senate is asked, in effect, to overturn the
results of an
election held two years ago in which the American
people
selected the head of one of the three coordinate
branches of
government. It is asked to take this action
in circumstances
where there is no suggestion of corruption
or misuse of
office--or any other conduct that places our
system of
government at risk in the two remaining years
of the
President's term, when once again the people
will judge who
they wish to lead them. In this setting, the
evidence should
be tested by the most stringent standard we
know--proof
beyond a reasonable doubt. Only then can the
American people
be confident that this most serious of constitutional
decisions has been given the careful consideration
it
deserves.
IV. The President Should Be Acquitted on Article I
The evidence does not support the
allegations of Article I.
a. applicable law
Article I alleges perjury, along
with false and misleading
statements, before a federal grand jury. Perjury
is a
statutory crime that is set forth in the United
States Code
at 18 U.S.C. Sec. 1623.\77\ Before an accused
may be found
guilty of perjury before a grand jury, a prosecutor
most
prove all elements of the offense.
---------------------------------------------------------------------------
\77\ Section 1623 provides in relevant part:
``(a) Whoever under oath . . . in any proceeding
before or
ancillary to any court or grand jury of the
United States
knowingly makes any false material declaration
or makes or
uses any other information . . . knowing the
same to contain
any false material declaration, shall be fined
under this
title or imprisoned not more than five years,
or both.'' (18
U.S.C. Sec. 1623(a) (1994)).
---------------------------------------------------------------------------
In the criminal law context, Sec.
1623 requires proof
beyond a reasonable doubt of the following
elements: that an
accused (1) while under oath (2) knowingly
(3) made a false
statement as to (4) material facts. The ``materiality''
element is fundamental: it means that testimony
given to a
grand jury may be found perjurious only if
it had a tendency
to influence, impede, or hamper the grand
jury's
investigation. See, e.g., United States v.
Reilly, 33 F.3d
1396, 1419 (3d Cir. 1994); United States v.
Barrett, 111 F.3d
947, 953 (D.C. Cir. 1997). If an answer provided
to a grand
jury has no impact on the grand jury's investigation,
or if
it relates to a subject that the grand jury
is not
considering, it is incapable as a matter of
law of being
perjurious. Thus, alleged false testimony
concerning details
that a grand jury is not investigating cannot
as a matter of
law constitute perjury, since such testimony
by definition is
immaterial. See, e.g., United States v. Lasater,
535 F.2d
1041, 1048 (8th Cir. 1976) (where defendant
admitted signing
letter and testified to its purpose, his denial
of actually
writing letter was not material to grand jury
investigation
and was incapable of supporting perjury charge);
United
States v. Pyle, 156 F.2d 852, 856 (D.C. Cir.
1946) (details
such as whether defendant ``paid the rent
on her Washington
apartment, as she testified that she did''
were ``not
pertinent to the issue being tried;'' therefore,
``the false
statement attributed to [defendant] was in
no way material in
the case in which she made it and did not
constitute perjury
within the meaning of the statute.'') In other
words, mere
falsity--even knowing falsity--is not perjury
if the
statement at issue is not ``material'' to
the matter under
consideration.
An additional ``element'' of perjury
prosecutions, at least
as a matter of prosecutorial practice, is
that a perjury
conviction cannot rest solely on the testimony
of one
witness. In United States v. Weiler, 323 U.S.
606, 608-09
(1945), the Supreme Court observed that the
``special rule
which bars conviction for perjury solely upon
the evidence of
a single witness is deeply rooted in past
centuries.'' While
Sec. 1623 does not literally incorporate the
so-called ``two-
witness'' rule, the case law makes clear that
perjury
prosecutions under this statute require a
high degree of
proof, and that prosecutors should not, as
a matter of reason
and practicality, try to bring perjury prosecutions
based
solely on the testimony of a single witness.
As the Supreme
Court has cautioned, perjury cases should
not rest merely
upon ``an oath against an oath.'' Id. at 609.
Indeed, that is exactly the point
that experienced former
federal prosecutors made to the House Judiciary
Committee. A
panel of former federal prosecutors, some
Republican,
testified that they would not charge perjury
based upon the
facts in this case. For example, Mr. Thomas
Sullivan, a
former United States Attorney for the Northern
District of
Illinois, told the Committee that ``the evidence
set out in
the Starr report would not be prosecuted as
a criminal case
by a responsible federal prosecutor.'' See
Transcript of
``Prosecutorial Standards for Obstruction
of Justice and
Perjury'' Hearing (Dec. 9, 1998); see generally
Minority
Report at 340-47. As Mr. Sullivan emphasized,
``because
perjury and obstruction charges often arise
from private
dealings with few observers, the courts have
required either
two witnesses who testified directly to the
facts
establishing the crime, or, if only one witness
testifies to
the facts constituting the alleged perjury,
that there be
substantial corroborating proof to establish
guilt.'' See
Transcript of ``Prosecutorial Standards for
Obstruction of
Justice and Perjury'' Hearing (Dec. 9, 1998).
The other
prosecutors on the panel agreed. Mr. Richard
J. Davis, who
served as an Assistant United States Attorney
for the
Southern District of New York and as a Task
Force Leader for
the Watergate Special Prosecution Force, testified
that ``it
is virtually unheard of to bring a perjury
prosecution based
solely on the conflicting testimony of two
people.'' Id. A
review of the perjury alleged here thus requires
both careful
scrutiny of the materiality of any alleged
falsehood and
vigilance against conviction merely on an
``oath against an
oath.'' Weiler, 323 U.S. at 609.
b. structure of the allegations
Article I charges that the President
committed perjury when
he testified before the grand jury on August
17, 1998. It
alleges he ``willfully provided perjurious,
false and
misleading testimony to the grand jury concerning
``one or
more of the following: (1) the nature and
details of his
relationship with a subordinate Government
employee; (2)
prior perjurious, false and misleading testimony
he gave in a
Federal civil rights action brought against
him; (3) prior
false and misleading statements he allowed
his attorney to
make to a Federal judge in that civil rights
action; and (4)
his corrupt efforts to influence the testimony
of witnesses
and to impede the discovery of evidence in
that civil rights
action.'' As noted above, the article does
not provide
guidance on the particular statements alleged
to be
perjurious, false and misleading. But by reference
to the
different views in the House Committee Report,
the
presentation of House Majority Counsel David
Schippers, the
OIC Referral, and the Trial Memorandum of
the House Managers,
we have attempted to identify certain statements
from which
members of the House might have chosen.
Subpart (1) alleges that the President
committed perjury
before the grand jury about the details of
his relationship
with Ms. Lewinsky--including apparently such
insignificant
matters as mis-remembering the precise month
on which certain
inappropriate physical contact started, understating
as
``occasional'' his infrequent inappropriate
physical and
telephone contacts with Ms. Lewinsky over
a period of many
months, characterizing their relationship
as starting as a
friendship, and touching Ms. Lewinsky in certain
ways and for
certain purposes during their intimate encounters.
Subpart (2) of Article I alleges
that the President made
perjurious, false and misleading statements
to the grand jury
when he testified about certain responses
he had given in the
Jones civil deposition. The House Managers
erroneously
suggest that in the grand jury President Clinton
was asked
about and reaffirmed his entire deposition
testimony,
including his deposition testimony about whether
he had been
alone with Ms. Lewinsky. See House Br. at
2, 60. That is
demonstrably false. Those statements that
the President did
in fact make in the grand jury, by way of
explaining his
deposition testimony, were truthful. Moreover,
to the extent
this subpart repeats allegations of Article
II of the
original proposed articles of impeachment,
the full House of
Representatives has explicitly considered
and specifically
rejected those charges, and their consideration
would violate
the impeachment procedures mandated by the
Constitution.
Subparts (3) and (4) allege that
the President lied in the
grand jury when he testified about certain
activities in late
1997 and early
[Page S198]
1998. They are based on statements about conduct
that the
House Managers claim constitutes obstruction
of justice under
Article II and in many respects track Article
II. Compare
Article I (3) (perjury in the grand jury concerning
alleged
``prior false and misleading statements he
allowed his
attorney to make to a Federal judge'') with
Article II (5)
(obstructing justice by ``allow[ing] his attorney
to make
false and misleading statements to a Federal
judge) and
compare Article I (4) (perjury in the grand
jury concerning
alleged ``corrupt efforts to influence testimony
of witnesses
and to impede the discovery of evidence'')
with Article II
(3), (6), (7) (obstructing justice when he
(3) ``engaged in,
encouraged, or supported a scheme to conceal
evidence,''
i.e., gifts; (6) ``corruptly influence[d]
the testimony'' of
Betty Currie; (7) ``made false and misleading
statements to
potential witnesses in a Federal grand jury
proceeding in
order to corruptly influence the testimony
of those
witnesses''). These perjury allegations are
without merit
both because the obstruction charges upon
which they are
based are wrong and because the statements
that President
Clinton made in the grand jury about these
charges are true.
Because of the close parallel, and for sake
of brevity in
this submission, we have dealt comprehensively
with these
overlapping allegations in the next section
addressing
Article II (obstruction of justice), and address
them only
briefly in this section.
c. response to the particular allegations in article i
The president testified truthfully
before the grand jury.
There must be no mistake about what the President
said. He
admitted to the grand jury that he had engaged
in an
inappropriate intimate relationship with Ms.
Lewinsky over a
period of many months. He admitted to the
grand jury that he
had been alone with Ms. Lewinsky. He admitted
to the grand
jury that he had mislead his family, his friends
and staff,
and the entire Nation about the nature of
that relationship.
No one who heard the President's August 17
speech or watched
the President's videotaped grand jury testimony
had any doubt
that he had admitted to an ongoing physical
relationship with
Ms. Lewinsky.
The article makes general allegations
about his testimony
but does not specify alleged false statements,
so direct
rebuttal is impossible. In light of this uncertainty,
we set
forth below responses to the allegations that
have been made
by the House Managers, the House Committee,
and the OIC, even
though they were not adopted in the article,
in an effort to
try to respond comprehensively to the charges.
1. The President denies that he made materially
false or
misleading statements
to the grand jury about ``the
nature and details
of his relationship'' with Monica
Lewinsky
(a) Early in his grand jury testimony,
the President
specifically acknowleded that he had had a
relationship with
Ms. Lewinsky that involved ``improper intimate
contact.''
App. at 461. He described how the relationship
began and how
it ended early in 1997--long before any public
attention or
scrutiny.
In response to the first question
about Ms. Lewinsky, the
President read the following statement:
``When I was alone with Ms. Lewinsky
on certain occasions
in early 1996 and once in early 1997, I engaged
in conduct
that was wrong. These encounters did not consist
of sexual
intercourse. They did not constitute sexual
relations as I
understood that term to be defined at my January
17th, 1998
deposition. But they did involve inappropriate
intimate
contact.
``These inappropriate encounteres
ended, at my insistence,
in early 1997. I also had occasional telephone
conversations
with Ms. Lewinsky that included inappropriate
sexual banter.
``I regret that what began as
a friendship came to include
this conduct, and I take full responsibility
for my actions.
``While I will provide the grand
jury whatever other
information I can, because of privacy considerations
affecting my family, myself, and others, and
in an effort to
preserve the dignity of the office I hold,
this is all I will
say about the specifics of these particular
matters.
``I will try to answer, to the
best of my ability, other
questions including questions about my relationship
with Ms.
Lewinsky; questions about my understanding
of the term
`sexual relations', as I understood it to
be denied at my
January 17th, 1998 deposition; and questions
concerning
alleged subornation of perjury, obstruction
of justice, and
intimidation of witnesses.''
App. at 460-62. The President occasionally
referred back to
this statement--but only when asked very specific
questions
about his physical relationship with Ms. Lewinsky--and
he
otherwise responded fully to four hours of
interrogation
about his relationship with Ms. Lewinsky,
his answers in the
civil deposition, and his conduct surrounding
the Jones
deposition.
The articles are silent on precisely
what statements the
President made about his relationship with
Ms. Lewinsky that
were allegedly perjurious. But between the
House Brief and
the Committee Report, both drafted by the
Managers, it
appears there are three aspects of this prepared
statement
that are alleged to be false and misleading
because Ms.
Lewinsky's recollection differs--albeit with
respect to
certain very specific, utterly immaterial
matters: first,
when the President admitted that inappropriate
conduct
occurred ``on certain occasions in early 1996
and once in
1997,'' he allegedly committed perjury because
in the
Managers' view, the first instance of inappropriate
conduct
apparently occurred a few months prior to
``early 1996,'' see
House Br. at 53; second, when the President
admitted to
inappropriate conduct ``on certain occasions
in early 1996
and once in 1997,'' he allegedly committed
perjury because,
according to the House Committee, there were
eleven total
sexual encounters and the term ``on certain
occasions''
implied something other than eleven. see Committee
Report at
34; and third, when the President admitted
that he ``had
occasional telephone conversations with Ms.
Lewinsky that
included sexual banter,'' he allegedly committed
perjury
because, according to the House Committee
(although not Ms.
Lewinsky), seventeen conversations may have
included sexually
explicit conversation, ibid. Apart from the
fact that the
record itself refutes some of the allegations
(for example,
seven of the seventeen calls were only ``possible,''
according even to the OIC, App. at 116-26,
and Ms. Lewinsky
recalled fewer than seventeen, App. at 744),
simply to state
them is to reveal their utter immateriality.
\78\
---------------------------------------------------------------------------
\78\ Even the OIC Referral did not allege perjury
based on
these latter two theories and mentioned the
first only
briefly.
---------------------------------------------------------------------------
The President categorically denies
that his prepared
statement was perjurious, false and misleading
in any
respect. He offered his written statement
to focus the
questioning in a manner that would allow the
OIC to obtain
the information it needed without unduly dwelling
on the
salacious details of his relationship. It
preceded almost
four hours of follow-up questions about the
relationship. It
is utterly remarkable that the Managers now
find fault even
with the President's very painful public admission
of
inappropriate conduct.
In any event, the charges are
totally without merit. The
Committee Report takes issue with the terms
``on certain
occasions'' and ``occasional,'' but neither
phrase implies a
definite or maximum number. ``On certain occasions''--the
phrase introducing discussion of the physical
contacts--has
virtually no meaning other than ``it sometimes
happened.'' It
is unfathomable what objective interpretation
the Majority
gives to this phrase to suggest that it could
be false. An
attack on the phrase ``occasional''--the phrase
introducing
discussion of the inappropriate telephone
contacts--is little
different. Dictionaries define ``occasional''
to mean
``occurring at irregular or infrequent intervals''
or ``now
and then.'' \79\ It is a measure of the Committee
Report's
extraordinary overreaching to suggest that
the eleven
occasions of intimate contact alleged by the
House Majority
over well more than a year did not occur,
by any objective
reading, ``on certain occasions.'' And since
even the OIC
Referral acknowledges that the inappropriate
telephone
contact occurred not ``at least 17 times''
(as the Committee
Report and the Managers suggest, Committee
Report at 8; House
Br. at 11) but between 10 and 15 times over
a 23-month
period,\80\ ``occasional'' would surely seem
not just a
reasonable description but the correct one.
---------------------------------------------------------------------------
\79\ Webster's Collegiate Dictionary (10th
ed. 1997) p. 803;
see also Webster's II New Riverside Dictionary
(1988) p. 812
(``occurring from time to time; infrequent'');
Chambers
English Dictionary (1988 ed.) p. 992 (``occurring
infrequently, irregularly, now and then'');
The American
Heritage Dictionary (2d Coll. ed.) (``occurring
from time to
time''); Webster's New World Dictionary (3d
Coll. ed.) p. 937
(``of irregular occurrence; happening now
and then;
infrequent'').
\80\ The OIC chart of contacts between Ms.
Lewinsky and the
President identifies ten phone conversations
``including
phone sex'' and seven phone conversations
``possibly''
including phone sex. App. at 116-26.
---------------------------------------------------------------------------
Finally, these squabbles are utterly
immaterial. Even if
the President and Ms. Lewinsky disagreed as
to the precise
number of such encounters, it is of no consequence
whatsoever
to anything, given his admission of their
relationship. This
is precisely the kind of disagreement that
the law does not
intend to capture as perjury.
The date of the first intimate
encounter is also totally
immaterial. Having acknowledged the relationship,
the
President had no conceivable motive to misstate
the date on
which it began. The Managers assert that the
President
committed perjury when he testified about
when the
relationship began, but they offer no rationale
for why he
would have done so.\81\ The President had
already made a
painful admission. Any misstatement about
when the intimate
relationship began (if there was a misstatement)
cannot
justify a charge of perjury, let alone the
removal of the
President from office. As Chairman Hyde himself
stated in
reference to this latter allegation, ``It
doesn't strike me
as a terribly
[Page S199]
serious count.'' Remarks of Chairman Hyde at
Perjury Hearing
of December 1, 1998.
---------------------------------------------------------------------------
\81\ The Committee Report did not adopt
the baseless surmise
of the OIC Referral, i.e., that the President
lied about the
starting date of his relationship because
Ms. Lewinsky was
still an intern at the time, whereas she later
became a paid
employee. For good reason. The only support
offered by the
Referral for this conjecture is a comment
Ms. Lewinsky
attributes to the President in which he purportedly
said that
her pink ``intern pass'' ``might be a problem.''
Referral at
149-50. But even Ms. Lewinsky indicated that
the President
was not referring to her intern status, but
rather was noting
that, as an intern with a pink ``intern pass,''
she had only
limited access to the West Wing of the White
House. App. at
1567 (Lewinsky FBI 302 8/24/98). Moreover,
Ms. Lewinsky had
in fact become an employee by late 1995, so
even under the
OIC theory the President could have acknowledged
such
intimate contact in 1995.
---------------------------------------------------------------------------
(b) The Managers also assert that
the President lied when,
after admitting that he had an inappropriate
sexual
relationship with Ms. Lewinsky, he maintained
that he did not
touch Ms. Lewinsky in a manner that met the
definition used
in the Jones deposition. See House Br. at
54. The President
admits that he engaged in appropriate physical
contact with
Ms. Lewinsky, but has testified that he did
not engage in
activity that met the convoluted and truncated
definition he
was presented in the Jones deposition.\82\
---------------------------------------------------------------------------
\82\ At the deposition, the Jones attorneys
presented a
broad, three-part definition of the term ``sexual
relations''
to be used by them in the questioning. Judge
Wright ruled
that two parts of the definition were ``too
broad'' and
eliminated them. Dep. at 22. The President,
therefore, was
presented with the following definition (as
he understood it
to have been amended by the Court):
Definition of Sexual Relations--
For the purposes of this deposition, a person
engages in
``sexual relations'' when the person knowingly
engages in or
causes--
(1) contact with the genitalia, anus, groin,
breast, inner
thigh, or buttocks of any person with an intent
to arouse or
gratify the sexual desire of any person;
(2) contact between any part of the person's
body or an
object and the genitals and anus of another
person; or
(3) contact between the genitals or anus of
the person and
any part of another person's body.
``Contact'' means intentional touching, either
directly or
through clothing.
---------------------------------------------------------------------------
It is important to note that this
Jones definition was not
of the President's making. It was one provided
to him by the
Jones' lawyers for their questioning of him.
Under that
definition, oral sex performed by Ms. Lewinsky
on the
President would not constitute sexual relations,
while
touching certain areas of Ms. Lewinsky's body
with the intent
to arouse her would meet the definition. The
President
testified in the grand jury that believed
that oral sex
performed on him fell outside the Jones definition.
App. at
544.\83\ As strange as this may sound, a totally
reasonable
reading of the definition supports that conclusion,
as many
commentators have agreed.\84\
---------------------------------------------------------------------------
\83\ The Managers erroneously suggest that
the President's
explanation of his understanding of the Jones
deposition
definition of ``sexual relations'' is a recent
fabrication
rather than an accurate account of his view
at the time of
the deposition. House Br. at 54-55. To support
this
contention, the Managers, among other meritless
arguments,
point to a document produced by the White
House entitled
``January 24, 1998 Talking Points,'' stating
that oral sex
would constitute a sexual relationship for
the President. Id.
at 55. This document, however, was not created,
reviewed or
approved by the President and did not represent
his views. It
is irrelevant to the issue at hand for the
additional reason
that it does not speak by its own terms to
the meaning of the
contorted definition of ``sexual relations''
used in the
Jones deposition.
\84\ See, e.g., Perjury Hearing of December
1, 1998
(Statement of Professor Stephen A. Saltzburg
at 2) (``That
definition defined certain forms of sexual
contact as sexual
relations but, for reasons known only to the
Jones lawyers,
limited the definition to contact with any
person for the
purpose of gratification.''); MSNBC Internight,
August 12,
1998 (Cynthia Alksne) (``[W]hen the definition
finally was
put before the president, it did not include
the receipt of
oral sex''); ``DeLay Urges a Wait For Starr's
Report,'' The
Washington Times (August 31, 1998) (``The
definition of
sexual relations, used by lawyers for Paula
Jones when they
questioned the president, was loosely worded
and may not have
included oral sex''); ``Legally Accurate,''
The National Law
Journal (August 31, 1998) (``Given the narrowness
of the
court-approved definition in [the Jones] case,
Mr. Clinton
indeed may not have perjured himself back
then if, say, he
received oral sex but did not reciprocate
sexually'').
---------------------------------------------------------------------------
This claim comes down to an oath
against an oath about
immaterial details concerning an acknowledged
wrongful
relationship.
2. The President denies that he made perjurious,
false and
misleading statements
to the grand jury about testimony
he gave in the Jones
case
First, it is important to understand
that the allegation of
Article I that the President ``willfully provided
false and
misleading testimony to the grand jury concerning
. . . prior
perjurious, false and misleading testimony
he gave in'' the
Jones deposition is premised on a misunderstanding
of the
President's grand jury testimony. The President
was not asked
to, and he did not, reaffirm his entire Jones
deposition
testimony during his grand jury appearance.
For example,
contrary to popular myth and the undocumented
assertion of
the House Managers, House Br. at 2, the President
was never
even asked in the grand jury about his answer
to the
deposition question whether he and Ms. Lewinsky
had been
``together alone in the Oval Office.'' Dep.
at 52-53,\85\ and
he therefore neither reaffirmed it nor even
addressed it. In
fact, in the grand jury he was asked only
about a small
handful of his answers in the deposition.
As is demonstrated
below, his explanation of these answers were
not
reaffirmations or in any respect evasive or
misleading--they
were completely truthful, and they do not
support a perjury
allegation.
---------------------------------------------------------------------------
\85\ The only questions the OIC asked the President
about
being alone with Ms. Lewinsky did not reference
the
deposition at all. Instead, the OIC asked
the President to
elaborate on his acknowledgement in his prepared
statement
before the grand jury that he had been alone
with Ms.
Lewinsky, App. at 481, and to explain why
he made a
statement, ``I was never alone with her''
to Ms. Currie on
January 18th. See, e.g., App. at 583.
---------------------------------------------------------------------------
The extent to which this allegation
of the House Majority
misses the mark is dramatically apparent when
it is compared
with the OIC's Referral. The OIC did not charge
that the
President's statements about his prior deposition
testimony
were perjurious (apart from the charge discussed
above
concerning the nature and details of his relationship
with
Ms. Lewinsky).\86\ See OIC Ref. at 145. It
would be
remarkable to contemplate charges beyond those
brought by the
OIC, particularly in the context of a perjury
claim where the
OIC chose what to ask the President and itself
conducted the
grand jury session.
---------------------------------------------------------------------------
\86\ Specifically, the Referral alleges that
the President
lied when he testified (1) that ``he believed
that oral sex
was not covered by any of the terms and definitions
for
sexual activity used at the Jones deposition'';
(2) that
their physical contact was more limited than
Ms. Lewinsky's
testimony suggests; and (3) that their intimate
relationship
began in early 1996 and not late 1995. Id.
at 148-49.
---------------------------------------------------------------------------
The House Managers point to a single
statement made by
President Clinton in the grand jury to justify
their
contention that every statement from his civil
deposition is
now fair game. House Br. at 60. Specifically,
the House
Managers rely on President Clinton's explanation
in the grand
jury of his state of mind during the Jones
deposition: ``My
goal in this deposition was to be truthful,
but not
particularly helpful . . . I was determined
to walk through
the mine field of this deposition without
violating the law,
and I believe I did.'' App. at 532. In addition
to being a
true statement of his belief as to his legal
position, this
single remark plainly was not intended as
and was not a broad
reaffirmation of the accuracy of all the statements
the
President made during the Jones deposition.
Indeed, given
that he told the grand jury that he had an
intimate
relationship with Ms. Lewinsky during which
he was alone with
her, no one who heard the grand jury testimony
could have
understood it to be the unequivocal reaffirmation
that is
alleged.
The Managers charge that the President
did not really mean
it when he told the grand jury how he was
trying to be
literally truthful in the Jones deposition
without providing
information about his relationship with Ms.
Lewinsky. The
President had endeavored to navigate the deposition
without
having to make embarrassing admissions about
his
inappropriate, albeit consensual, relationship
with Ms.
Lewinsky. And to do this, the President walked
as close to
the line between (a) truthful but evasive
or non-responsive
testimony and (b) false testimony as he could
without
crossing it. He sought, as he explained to
the grand jury, to
give answers that were literally accurate,
even if, as a
result, they were evasive and thus misleading.
We repeat:
what is at issue here is not the underlying
statements made
by the President in the deposition, but the
President's
explanations in the grand jury of his effort
to walk a fine
line. Anyone who reads or watches that deposition
knows the
President was in fact trying to do precisely
what he has
admitted--to give the lawyers grudging, unresponsive
or even
misleading answers without actually lying.
However successful
or unsuccessful he might have been, there
is no evidence that
controverts the fact that this was indeed
the President's
intention.
An examination of the statements
that the President
actually did make in the grand jury about
his deposition
testimony further demonstrates the lack of
merit in this
article. In the grand jury, the President
only was asked
about three areas of his deposition testimony
that were
covered in the failed impeachment article
alleging perjury in
the civil deposition.\87\ The first topic
was the nature of
any intimate contact with Ms. Lewinsky and
has already been
addressed above.
---------------------------------------------------------------------------
\87\ The proposed article of impeachment alleging
perjury in
the civil deposition, like the two that are
before the Senate, did not identity any specific instances
of false
testimony, but we have made our comparison
with the Committee
Report's elaboration of the deposition perjury
article as it
undoubtedly represents the largest universe
of alleged
perjurious statements.
---------------------------------------------------------------------------
The second topic was the President's
testimony about his
knowledge of gifts he exchanged with Ms. Lewinsky.
In his
grand jury testimony, the President had the
following
exchange with the OIC:
Q: When you testified in the Paula
Jones case, this was
only two and a half weeks after you had given
her these six
gifts, you were asked, at page 75 in your
deposition, lines 2
through 5, ``Well, have you ever given any
gifts to Monica
Lewinsky?'' And you answered, ``I don't recall.''
And you were correct. You pointed
out that you actually
asked them, for prompting, ``Do you know what
they were?''
A: I think what I meant there
was I don't recall what they
were, not that I don't recall whether I had
given them. And
then if you see, they did give me these specifics,
and I gave
them quite a good explanation here. I remembered
very clearly
what the facts were about The Black Dog. .
. .
App. at 502-03. The President's explanation
that he could not
recall the exact gifts that he had given Ms.
Lewinsky and
that he affirmatively sought prompting from
the Jones lawyers
is entirely consistent with his deposition
testimony. This
record plainly does not support a charge of
perjury.
The third and last topic was the
President's deposition
testimony that Ms. Lewinsky's affidavit statement
denying
having a sexual relationship with the President
was correct:
Q: And you indicated that it [Ms.
Lewinsky's affidavit
statement that she had no sexual relationship
with him] was
absolutely correct.
A: I did. . . . I believe at the
time that she filled out
this affidavit, if she believed that
[Page S200]
the definition of sexual relationship was two
people having
intercourse, then this is accurate. And I
believe that this
is the definition that most ordinary Americans
would give it.
. . .
App. at 473. The President's grand jury testimony
was
truthful. As Ms. Lewinsky and Ms. Tripp discussed
long before
any of this matter was public, this was in
fact Ms.
Lewinsky's definition of ``sex'' and apparently
the
President's as well. See Supp. at 2664 (10/3/97
Tape); see
also App. at 1558 (Lewinsky FBI 302 8/19/98).
There is no
evidence whatever that the President did not
believe this
definition of sexual relations, and his belief
finds support
in dictionary definitions, the courts and
commentators.\88\
Moreover, the record establishes that Ms.
Lewinsky shared
this view.\89\ Since the President's grand
jury testimony
about his understanding is corroborated both
by dictionaries
and by his prior statements to Ms. Lewinsky,
it simply cannot
be labeled ``wrong'' or, more seriously, ``perjurious.''
---------------------------------------------------------------------------
\88\ As one court has stated, ``[i]n common
parlance the
terms `sexual intercourse' and `sexual relations'
are often
used interchangeably.'' J.Y. v. D.A, 381 N.E.2d
1270, 1273
(Ind. App. 1978). Dictionary definitions make
the same point:
* Webster's Third New International Dictionary
(1st
ed. 1981) at 2082, defines ``sexual relations''
as
``coitus;''
* Random House Webster's College Dictionary
(1st ed.
1996) at 1229, defines ``sexual relations''
as ``sexual
intercourse; coitus;''
* Merriam-Webster's Collegiate Dictionary
(10th ed.
1997) at 1074, defines ``sexual relations''
as ``coitus;''
* Black's Law Dictionary (Abridged 6th ed.
1991) at
560, defines ``intercourse'' as ``sexual relations;''
and
* Random House Compact Unabridged Dictionary
(2d ed.
1996) at 1775, defines ``sexual relations''
as ``sexual
intercourse; coitus.''
\89\ Ms. Lewinsky took the position early
on that her contact
with the President did not constitute ``sex''
and reaffirmed
that position even after she had received
immunity and began
cooperating with the OIC. For example, in
one of the
conversations surreptitiously taped by Ms.
Tripp, Ms.
Lewinsky explained to Ms. Tripp that she ``didn't
have sex''
with the President because ``[h]aving sex
is having
intercourse.'' Supp. at 2664; see also Supp.
at 1066 (grand
jury testimony of Ms. Neysa Erbland stated
that Ms. Lewinsky
had said that the President and she ``didn't
have sex''). Ms.
Lewinsky reaffirmed this position even after
receiving
immunity, stating in an FBI interview that
``her use of the
term `having sex' means having intercourse.
. . .'' App. at
1558 (Lewinsky FBI 302 8/19/98). Likewise,
in her original
proffer to the OIC, she wrote, ``Ms. L[ewinsky]
was
comfortable signing the affidavit with regard
to the `sexual
relationship' because she could justify to
herself that she
and the Pres[ident] did not have sexual intercourse.''
App.
at 718 (2/1/98 Proffer).
---------------------------------------------------------------------------
The President did not testify falsely
and perjuriously in
the grand jury about his civil deposition
testimony.
3. The President denies that he made perjurious,
false and
misleading statements
to the grand jury about the
statements of his
attorney to Judge Wright during the
Jones deposition
It is remarkable that Article
I contains allegations such
as this one that even the OIC, which conducted
the
President's grand jury appearance, chose not
to include in
the Referral (presumably because there was
no ``substantial
and credible information'' to support the
claim). Subpart (3)
appears to allege that the President lied
in his grand jury
testimony when he characterized his state
of mind in his
civil deposition as his lawyer described the
Lewinsky
affidavit as meaning ``there is no sex of
any kind in any
manner, shape or form.'' Dep. at 53-54. Specifically,
the
House Managers appear to base their perjury
claim on
President Clinton's grand jury statement that
``I'm not even
sure I paid attention to what he [Mr. Bennett]
was saying.''
House Br. at 62.
The House Brief takes issue with
President Clinton's
statement that he was ``not paying a great
deal of attention
to this exchange'' because, it alleges, the
``videotape [of
the deposition] shows the President looking
directly at Mr.
Bennett, paying close attention to his argument
to Judge
Wright.'' Ibid. While it is true that the
videotape shows the
President staring in what is presumably Mr.
Bennett's
direction, there is no evidence whatsoever
that he was indeed
``paying close attention'' to the lengthy
exchange. Notably
absent from the videotape is any action on
the part of the
President that could be read as affirming
Mr. Bennett's
statement, such as a nod of the head, or any
other activity
that could be used to distinguish between
a fixed stare and
true attention to the complicated sparring
of counsel. The
President was a witness in a difficult and
complex deposition
and, as he testified, he was ``focussing on
[his] answers to
the questions.'' App. at 477. It is a safe
bet that the
common law has never seen a perjury charge
based on so
little.\90\
---------------------------------------------------------------------------
\90\ This allegation is nearly identical to
the allegation of
Article II(5), and, for the sake of brevity,
it is addressed at greater length in the response to
Article II, below.
---------------------------------------------------------------------------
4. The President denies that he made perjurious,
false and
misleading statements
to the grand jury when he denied
attempting ``to influence
the testimony of witnesses and
to impede the discovery
of evidence'' in the Jones case
The general language of the final
proviso of Article I,
according to the House Managers, is meant
to signify a wide
range of allegations, see House Br. at 60-69,
although none
were thought sufficiently credible to be included
in the OIC
Referral. These allegations were not even
included in the
summary of the Starr evidence presented to
the Committee on
October 5, 1998, by House Majority Counsel
Schippers. They
are nothing more than an effort to inflate
the perjury
allegations by converting every statement
that the President
made about the subject matter of Article II
into a new count
for perjury. As the discussion of Article
II establishes, the
President did not attempt to obstruct justice.
Thus, his
explanations of his statements in the grand
jury were
truthful.
The House Brief asserts that the
President committed
perjury with respect to three areas of his
grand jury
testimony about the obstruction allegations.
These claims are
addressed thoroughly in the next section along
with the
corresponding Article II obstruction claims,
and they are
addressed in a short form here. The first
claim is that the
President committed perjury ``when he testified
before the
grand jury that he recalled telling Ms. Lewinsky
that if Ms.
Jones' lawyers requested the gifts exchanged
between Ms.
Lewinsky and the President, she should provide
them.'' House
Br. at 63. The House Managers contest the
truthfulness of
this statement by asserting that the President
was
responsible for Ms. Lewinsky's transfer of
gifts to Ms.
Currie in late December. In other words, if
the obstruction
claim is true, they allege, this statement
is not true. As is
laid out in greater detail in the next section,
the House
Manager's view of this matter ignores a wealth
of evidence
establishing that the idea to conceal some
of the gifts she
had received originated with, and was executed
by, Ms.
Lewinsky. See e.g., Supp. at 557 (Currie GJ
1/27/98); Supp.
at 531 (Currie FBI 302 1/24/98); Supp. at
582 (Currie GJ 5/6/
98); App. at 1122 (Lewinsky GJ 8/20/98); see
also App. at
1481 (``LEWINSKY . . . suggested to the President
that Betty
Currie hold the gifts'') (Lewinsky FBI 302
8/1/98).
Second, the House Managers contend
that the President
provided perjurious testimony when he explained
to the grand
jury that he was trying to ``refresh'' his
recollection when
he spoke with Betty Currie on January 18,
1998 about his
relationship with Ms. Lewinsky. House Br.
at 65. The House
Managers completely ignore the numerous statements
that Ms.
Currie makes in her testimony that support
the President's
assertion that he was merely trying to gather
information.
for example, Ms. Currie stated in her first
interview with
the OIC that ``Clinton then mentioned some
of the questions
he was asked at his deposition. Currie advised
the way
Clinton phrased the queries, they were both
statements and
questions at the same time.'' Supp. at 534
(Currie FBI 302 1/
24/98). Ms. Currie's final grand jury testimony
on this issue
also supports the President' explanation of
his questioning:
Q: Now, back again to the four
statements that you
testified the President made to you that were
presented as
statements, did you feel pressured when he
told you those
statements?
A: None whatsoever.
Q: What did you think, or what
was going through your mind
about what he was doing?
A: At that time I felt that he
was--I want to use the word
shocked or surprised that this was an issue,
and he was just
talking.
Q: That was your impression that
he wanted you to say--
because he would end each of the statements
with ``Right?,''
with a question.
A: I do not remember that
he wanted me to say ``Right.''
He would say ``Right'' and I could have said,
``Wrong.''
Q: But he would end each of those
questions with a
``Right?'' and you could either say whether
it was true or
not true?
A: Correct.
Q: Did you feel any pressure to
agree with your boss?
A: None.
Supp. at 668 (Currie GJ 7/22/98) (emphasis
added).
Ms. Currie's testimony supports
the President's assertion
that he was looking for information as a result
of his
deposition. There is no basis to doubt the
President's
explanation that his expectation of a media
onslaught
prompted the conversation. See App. at 583.
Indeed, neither
the testimony of Ms. Currie nor that of the
President--the
only two participants in this conversation--conceivably
supports the inference that he had any other
intent. The
House Managers' contention that the President's
explanation
to the grand jury was perjurious totally disregards
the
testimony of the only two witnesses with first-hand
knowledge
and has no basis in fact or in the evidence.
Finally, the House Managers contend
that President Clinton
``lied about his attempts to influence the
testimony of some
of his top aides.'' House Br. at 68. The basis
for this
charge appears to be the President's testimony
that, although
he said misleading things to his aides about
his relationship
with Ms. Lewinsky, he tried to say things
that were true. Id.
at 69. Once again, the record does not even
approach a case
for perjury. The President acknowledged that
he misled; he
tried, however, not to lie. It is a mystery
how the Managers
could try to disprove this simple statement
of intent.
V. The President Should be Acquitted on Article II
The evidence does not support the
allegations of Article
II.
a. applicable law
Article II alleges obstruction
of justice, a statutory
crime that is set forth in 18 U.S.C. Sec.
1503, the ``Omnibus
Obstruction Provision.'' In the criminal law
context,
Sec. 1503 requires proof of the following
elements: (1) that
[Page S201]
there existed a pending judicial proceeding;
(2) that the
accused knew of the proceeding; and (3) 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). False statements alone
cannot sustain a
conviction under Sec. 1503. See United States
v. Thomas, 916
F.2d 647, 652 (11th Cir. 1990).\91\
---------------------------------------------------------------------------
\91\ 18 U.S.C. Sec. 1512 covers witness tampering.
It is
clear that the allegations in Article II could
not satisfy
the elements of Sec. 1512. That provision
requires proof 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. It is clear from the
case law that
``misleading conduct'' as contemplated by
Sec. 1512 does not
cover scenarios where an accused 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) (reversing conviction
under Sec. 1512
because ``there is simply no support for the
argument that
[defendant] did anything other than ask the
witnesses to
lie''); United States v. King, 762 F.2d 232,
237 (2d Cir.
1985) (``Since the only allegation in the
indictment as to
the means by which [defendant] induced [a
witness] to
withhold testimony was that [the defendant]
misled [the
witness], and since the evidence failed totally
to support
any inference that [the witness] was, or even
could have
been, misled, the conduct proven by the government
was not
within the terms of Sec. 1512.''). Deceit
is thus the
gravamen of an obstruction of justice charge
that is
predicated on witness tampering.
---------------------------------------------------------------------------
B. Structure of the Allegations
Article II exhibited by the House
of Representatives
alleges that the President ``has prevented,
obstructed, and
impeded the administration of justice, and
has to that end
engaged personally, and through his subordinates
and agents,
in a course of conduct or scheme designed
to delay, impede,
cover up, and conceal the existence of evidence
and
testimony'' in the Jones case. The Article
alleges that the
President did so by engaging in ``one or more
of the
following acts'': the President (1) corruptly
encouraged Ms.
Lewinsky ``to execute a sworn affidavit .
. . that he knew to
be perjurious, false and misleading''; (2)
``corruptly
encouraged Ms. Lewinsky to give perjurious,
false, and
misleading testimony if and when called to
testify
personally'' in the Jones case; (3) ``corruptly
engaged in,
encouraged, or supported a scheme to conceal
evidence that
had been subpoenaed'' in the Jones case, namely
gifts given
by him to Ms. Lewinsky; (4) ``intensified
and succeeded in an
effort to secure job assistance'' for Ms.
Lewinsky between
December 7, 1997 and January 14, 1998, ``in
order to
corruptly prevent [her] truthful testimony''
in the Jones
case; (5) ``corruptly allowed his attorney
to make false and
misleading statements'' to Judge Susan Webber
Wright at the
Jones deposition; (6) ``related a false and
misleading
account of events'' involving Ms. Lewinsky
to Betty Currie, a
``potential witness'' in the Jones case, ``in
order to
corruptly influence'' her testimony; and (7)
made false and
misleading statements to certain members of
his staff who
were ``potential'' grand jury witnesses, in
order to
corruptly influence their testimony.
As noted above, this article essentially
duplicates some of
the perjury allegations of Article I (4):
Article II alleges
particular acts of obstruction while Article
I (4) alleges
that the President lied in the grand jury
when he discussed
those allegations.\92\ Both sets of allegations
are
unsupported. Our discussion here of the details
of these
charges will, as well, serve in part as our
response to the
allegations in Article I (4).
---------------------------------------------------------------------------
\92\ Compare Article I (4) (perjury in the
grand jury
concerning alleged ``corrupt efforts to influence
testimony
of witnesses and to impede the discovery of
evidence'') with
Article II (1)-(3), (6) (obstructing justice
when he (1)
``encouraged witness . . . to execute a [false]
sworn
affidavit''; (2) ``encouraged a witness .
. . to give
perjurious, false and misleading testimony'';
(3) ``engaged
in, encouraged, or supported a scheme to conceal
evidence'';
(6) ``corruptly influence[d] the testimony''
of Betty
Currie). Compare also Article I (3) (perjury
in the grand
jury concerning alleged ``prior false and
misleading
statements he allowed his attorney to make
to a Federal
judge'') with Article II (5) (obstructing
justice by
``allow[ing] his attorney to make false and
misleading
statements to a Federal judge).
---------------------------------------------------------------------------
C. Response to the Particular Allegations in Article II
1. The President denies that on or about December
17, 1997,
he ``corruptly encouraged''
Monica Lewinsky ``to execute
a sworn affidavit
in that proceeding that he knew to be
perjurious, false
and misleading''
Article II (1) alleges that the
President ``corruptly
encouraged'' Monica Lewinsky ``to execute
a sworn affidavit
in that proceeding that he knew to be perjurious,
false and
misleading.'' The House Managers allege that
during a
December 17 phone conversation, Ms. Lewinsky
asked the
President what she could do if she were subpoenaed
in the
Jones case and that the President responded,
``Well, maybe
you can sign an affidavit.'' House Br. at
22. This admitted
statement by the President of totally lawful
conduct is the
Managers' entire factual basis for the allegation
in Article
II (1).
The Managers do not allege that
the President ever
suggested to Ms. Lewinsky she should file
a false affidavit
or otherwise told her what to say in the affidavit.
Indeed
they could not, because Ms. Lewinsky has repeatedly
and
forcefully denied any such suggestions:
* ``Neither the Pres[ident] nor
Mr. Jordan (or
anyone on their behalf) asked or encouraged
Ms. L[ewinsky] to
lie.'' App. at 718 (2/1/98 Proffer).
* ``[N]o one ever asked me to
lie and I was never
promised a job for my silence.'' App. at 1161
(Lewinsky GJ 8/
20/98).
* ``Neither the President nor
Jordan ever told
Lewinsky that she had to lie.'' App. at 1398
(Lewinsky FBI
302 7/27/98).
* ``Neither the President nor
anyone ever directed
Lewinsky to say anything or to lie. . . .''
App. at 1400
(Lewinsky FBI 302 7/27/98).
* ``I think I told [Linda Tripp]
that--you know at
various times the President and Mr. Jordan
had told me I have
to lie. That wasn't true.'' App. at 942 (Lewinsky
GJ 8/6/98).
In an attempt to compensate for
the total lack of evidence
supporting their theory,\93\ the Managers
offer their view
that ``both parties knew the affidavit would
have to be false
and misleading in order to accomplish the
desired result.''
House Br. at 22; see also Committee Report
at 65 (the
President ``knew [the affidavit] would have
to be false for
Ms. Lewinsky to avoid testifying''). But there
is no evidence
to support such bald conjecture, and in fact
the opposite is
true. Both Ms. Lewinsky and the President
testified that,
given the particular claims in the Jones
case, they thought
a truthful, limited affidavit might establish
that Ms.
Lewinsky had nothing relevant to offer. The
President
explained to the grand jury why he believed
that Ms. Lewinsky
would execute a truthful but limited affidavit
that would
have established that she was not relevant
to the Jones
case:\94\
---------------------------------------------------------------------------
\93\ The myth that the President told Ms. Lewinsky
to lie in
her affidavit springs not from the evidence
but from the
surreptitiously recorded Tripp tapes. But
as Ms. Lewinsky
explained to the grand jury, many of the statements
she made
to Ms. Tripp--including on this subject--were
not true: ``I
think I told [Linda Tripp] that--you know
at various times
the President and Mr. Jordan had told me I
have to lie. That
wasn't true.'' App. at 942 (Lewinsky GJ 8/6/98).
\94\ Indeed, the Committee Report alleges
without support
that the President lied to the grand jury
when he indicated
his belief that Ms. Lewinsky could indeed
have filed a
truthful but limited affidavit that might
have gotten her out
of testifying in the Jones case. Article I
(4). This claim
fails for the reasons discussed in the text.
---------------------------------------------------------------------------
* ``But I'm just telling you that
it's certainly
true what she says here, that we didn't have--there
was no
employment, no benefit in exchange, there
was nothing having
to do with sexual harassment. And if she defined
sexual
relationship in the way I think most Americans
do, meaning
intercourse, then she told the truth.'' App.
at 474.
* ``You know, I believed then,
I believe now, that
Monica Lewinsky could have sworn out an honest
affidavit,
that under reasonable circumstances, and without
the benefit
of what Linda Tripp did to her, would have
given her a chance
not to be a witness in this case.'' App. at
521.
* ``I believed then, I believe
today, that she could
execute an affidavit which, under reasonable
circumstances
with fair-minded, nonpolitically-oriented
people, would
result in her being relieved of the burden
to be put through
the kind of testimony that, thanks to Linda
Tripp's work with
you and with the Jones lawyers, she would
have been put
through. I don't think that's dishonest. I
don't think that's
illegal.'' App. at 529.
* ``But I also will tell you that
I felt quite
comfortable that she could have executed a
truthful
affidavit, which would not have disclosed
the embarrassing
details of the relationship that we had had,
which had been
over for many, many months by the time this
incident
occurred.'' App. at 568-69.
* ``I've already told you that
I felt strongly that
she could issue, that she could execute an
affidavit that
would be factually truthful, that might get
her out of having
to testify. . . . And did I hope she'd be
able to get out of
testifying on an affidavit? Absolutely. Did
I want her to
execute a false affidavit? No, I did not.''
App. at 571.
The Jones case involved allegations of a nonconsensual
sexual
solicitation. Ms. Lewinsky's relationship
with the President
was consensual, and she knew nothing about
the factual
allegations of the Jones case.
Ms. Lewinsky similarly recognized
that an affidavit need
not be false in order to accomplish the purpose
of avoiding a
deposition:
* LEWINSKY told TRIPP that the
purpose of the
affidavit was to avoid being deposed. LEWINSKY
advised that
one does this by giving a portion of the whole
story, so the
attorneys do not think you have anything of
relevance to
their case. App. at 1420 (Lewinsky FBI 302
7/29/98) (emphasis
added).
* LEWINSKY advised the goal of
an affidavit is to be
as benign as possible, so as to avoid being
deposed. App. at
1421 (Lewinsky FBI 302 7/29/98) (emphasis
added).
* I thought that signing an affidavit
could range
from anywhere--the point of it would be to
deter or to
prevent me from being deposed and so that
that could range
from anywhere between maybe just somehow mentioning,
you
know, innocuous things or going as far as
maybe having to
deny any kind of a relationship. App. at 842
(Lewinsky GJ 8/
6/98) (emphasis added).
The Committee Report argued that
Ms. Lewinsky must have
known that the President wanted her to lie
because he never
told her to fully detail their relationship
in her affidavit
and because an affidavit fully detailing the
``true nature''
of their relationship would have been damaging
to him in the
Jones case. Committee Report at 65. The Managers
wisely
appear to have abandoned
[Page S202]
this argument.\95\ Ms. Lewinsky plainly was
under no
obligation to volunteer to the Jones lawyers
every last
detail about her relationship with the President--and
the
failure of the President to instruct her to
do so is neither
wrong nor an obstruction of justice. A limited,
truthful
affidavit might have established that Ms.
Lewinsky was not
relevant to the Jones case. The suggestion
that perhaps Ms.
Lewinsky could submit an affidavit in lieu
of a deposition,
as the President knew other potential deponents
in the Jones
case had attempted to do, in order to avoid
the expense,
burden, and humiliation of testifying in the
Jones case was
entirely proper. The notion that the President
of the United
States could face removal from office not
because he told
Monica Lewinsky to lie, or encouraged her
to do so, but
because he did not affirmatively instruct
her to disclose
every detail of their relationship to the
Jones lawyers is
simply not supportable.
---------------------------------------------------------------------------
\95\ The Committee Report argued that Ms. Lewinsky
``contextually understood that the President
wanted her to
lie'' because he never told her to file an
affidavit fully
detailing the ``true nature'' of their relationship.
Committee Report at 65. The only support cited
for this
``contextual understanding'' obstruction theory
advanced by
the Committee Report was a reference back
to the OIC
Referral. The OIC Referral, in turn, advanced
the same
theory, citing only the testimony of Ms. Lewinsky
that, while
the President never encouraged her to lie,
he remained silent
about what she should do or say, and by such
silence, ``I
knew what that meant.'' App. at 954 (Lewinsky
GJ 8/6/98)
(cited in Referral at 174). It is extraordinary
that the
President of the United States could face
removal from office
not because he told Ms. Lewinsky to lie, or
said anything of
the sort, but instead because he stayed silent--and
Ms.
Lewinsky thought she ``knew what that meant.''
---------------------------------------------------------------------------
Moreover, there is significant
evidence in the record that,
at the time she executed the affidavit, Ms.
Lewinsky honestly
believed that her denial of a sexual relationship
was
accurate given what she believed to be the
definition of a
``sexual relationship'':
* ``I never even came close to
sleeping with [the
President] . . . We didn't have sex . . .
Having sex is
having intercourse. That's how most people
would--'' Supp. at
2664 (Lewinsky-Tripp tape 10/3/97).\96\
---------------------------------------------------------------------------
\96\ A friend of Ms. Lewinsky's also testified
that, based on
her close relationship with her, she believed
that Ms.
Lewinsky did not lie in her affidavit based
on her
understanding that when Ms. Lewinsky referred
to ``sex'' she
meant intercourse. Supp. at 4597 (6/23/98
grand jury
testimony of Ms. Dale Young). See also Supp.
at 1066 (grand
jury testimony of Ms. Neysa Erbland stating
that Ms. Lewinsky
had said that the President and she ``didn't
have sex'').
---------------------------------------------------------------------------
* ``Ms. L[ewinsky] was comfortable
signing the
affidavit with regard to the sexual relationship
because she
could justify to herself that she and the
Pres[ident] did not
have sexual intercourse.'' App. at 718 (2/1/98
Proffer).
* ``Lewinsky said that her use
of the term `having
sex' means having intercourse. . . .'' App.
at 1558 (Lewinsky
FBI 302 8/19/98).
The allegation contained in Article
II(1) is totally
unsupported by evidence. It is the product
of a baseless
hypothesis, and it should be rejected.
2. The President denies that on or about December
17, 1997,
he ``corruptly encouraged''
Monica Lewinsky ``to give
perjurious, false
and misleading testimony if and when
called to testify
personally'' in the Jones litigation
Article II (2) alleges that the
President encouraged Ms.
Lewinsky to give false testimony if and when
she was called
to testify personally in the Jones litigation.
Again, Ms.
Lewinsky repeatedly denied that anyone told
her or encouraged
her to lie:
* ``Neither the Pres[ident] nor
Mr. Jordan (or
anyone on their behalf) asked or encouraged
Ms. L[ewinsky] to
lie.'' App. at 718 (2/1/98 Proffer).
* ``[N]o one ever asked me to
lie and I was never
promised a job for my silence.'' App. at 1161
(Lewinsky GJ 8/
20/98).
* ``Neither the President nor
Jordan ever told
Lewinsky that she had to lie.'' App. at 1398
(Lewinsky FBI
302 7/27/98).
* ``Neither the President nor
anyone ever directed
Lewinsky to say anything or to lie. . . .
App. at 1400
(Lewinsky FBI 302 7/27/98).
* ``I think I told [Linda Tripp]
that--you know at
various times the President and Mr. Jordan
had told me I have
to lie. That wasn't true.'' App. at 942 (Lewinsky
GJ 8/6/98)
(emphasis added).
The Managers allege that the President
called Ms. Lewinsky
on December 17 to inform her that she had
been listed as a
potential witness in the Jones case, and that
during this
conversation, he ``sort of said, `You know,
you can always
say you were coming to see Betty or that you
were bringing me
letters.' '' House Br. at 22; App. at 843
(Lewinsky GJ 8/6/
98). Other than the fact that Ms. Lewinsky
recalls this
statement being made in the same conversation
in which she
learned that her name was on the Jones witness
list, the
Managers cite no evidence whatsoever that
supports their
claim that the President encouraged her to
make such
statements ``if and when called to testify
personally in the
Jones case.'' They claim simply that Ms. Lewinsky
had
discussed such explanations for her visits
with the President
in the past. Unremarkably, the President and
Ms. Lewinsky had
been concerned about concealing their improper
relationship
from others while it was ongoing.
Ms. Lewinsky's own testimony and
proffered statements
undercut their case:
* When asked what should be said
if anyone
questioned Ms. Lewinsky about her being with
the President,
he said she should say she was bringing him
letters (when she
worked in Legislative Affairs) or visiting
Betty Currie
(after she left the WH). There is truth to
both of these
statements. . . . [This] occurred prior to
the subpoena in
the Paula Jones case. App. at 709 and 718
(2/1/98 Proffer)
(emphasis added).
* After Ms. Lewinsky was informed,
by the
Pres[ident], that she was identified as a
possible witness in
the Jones case, the Pres[ident] and Ms. L[ewinsky]
discussed
what she should do. The President told her
he was not sure
she would be subpoenaed, but in the event
that she was, she
should contact Ms. Currie. When asked what
to do if she was
subpoenaed, the Pres[ident] suggested she
could sign an
affidavit to try to satisfy their inquiry
and not be deposed.
In general, Ms. L[ewinsky] should say she
visited the WH to
see Ms. Currie and, on occasion when working
at the WH, she
brought him letters when no one else was around.
Neither of
those statements untrue. App. at 712 (2/1/98
Proffer)
(emphasis added).
* To the best of Ms. L[ewinsky]'s
memory, she does
not believe they discussed the content of
any deposition that
Ms. L[ewinsky] might be involved in at a later
date. App. at
712 (2/1/98 Proffer) (emphasis added).
* LEWINSKY advised, though they
did not discuss the
issue in specific relation to the JONES matter,
she and
CLINTON had discussed what to say when asked
about LEWINSKY's
visits to the White House. App. at 1466 (Lewinsky
FBI 302 7/
31/98) (emphasis added).
Ms. Lewinsky's statements indicate
that she asked the
President what to say if ``anyone'' asked
about her visits,
that the President said ``in general'' she
could give such an
explanation, and that they ``did not discuss
the issue in
specific relation to the Jones matter.''
This is consistent with the President's
testimony that he
and Ms. Lewinsky ``might have talked about
what to do in a
non-legal context at some point in the past,''
although he
had no specific memory of that conversation.
App. at 569. The
President also stated in his grand jury testimony
that he did
not recall saying anything like that in connection
with Ms.
Lewinsky's testimony in the Jones case:
Q. And in that conversation, or
in any conversation in
which you informed her she was on the witness
list, did you
tell her, you know, you can always say that
you were coming
to see Betty or bringing me letters? Did you
tell her
anything like that?
A. I don't remember. She was coming
to see Betty. I can
tell you this. I absolutely never asked her
to lie.
App. at 568. Ms. Lewinsky does not testify
that this
discussion was had in reference to testimony
she may or may
not have been called to give personally, and
the Managers'
implication is directly contradicted by Ms.
Lewinsky's
statement that she and the President did not
discuss her
deposition testimony in that conversation.
See App. at 712
(2/1/98 Proffer) (``To the best of Ms. L[ewinsky's]
memory,
she does not believe they discussed [in the
December 17
conversation] the content of any deposition
that Ms.
L[ewinsky] might be involved in at a later
date.'').
In support of this allegation,
the Managers also cite Ms.
Lewinsky's testimony that she told the President
she would
deny the relationship and that the President
made some
encouraging comment. House Br. at 23. Ms.
Lewinsky never
stated that she told the President any such
thing on December
17, or at any other time after she had been
identified as a
witness. Indeed, Ms. Lewinsky testified that
that discussion
did not take place after she learned she was
a witness in the
Jones case:
Q: It is possible that you also
had these discussions
[about denying the relationship] after you
learned that you
were a witness in the Paula Jones case?
A: I don't believe so. No.
Q: Can you exclude that possibility?
A: I pretty much can. I really
don't remember it. I mean,
it would be very surprising for me to be confronted
with
something that would show me different, but
I--it was 2:30 in
the--I mean, the conversation I'm thinking
of mainly would
have been December 17th, which was----
Q: The telephone call.
A: Right. And it was--you know,
2:00, 2:30 in the morning.
I remember the gist of it and I--I really
don't think so.
App. at 1119-20 (Lewinsky GJ 8/20/98) (emphasis
added).
Moreover, Ms. Lewinsky has stated
several times that
neither of these so-called ``cover stories''
was untrue. In
her handwritten proffer, Ms. Lewinsky stated
that she asked
the President what to say if anyone asked
her about her
visits to the Oval Office and he said that
she could say
``she was bringing him letters (when she worked
in
Legislative Affairs) or visiting Betty Currie
(after she left
the White House).'' App. at 709 (Lewinsky
2/1/98 Proffer).
Ms. Lewinsky expressly stated: ``There is
truth to both of
these statements.'' Id. (emphasis added);
see also App. at
712 (2/1/98 Proffer) (``[n]either of those
statements [was]
untrue.'') (emphasis added). Indeed, Ms. Lewinsky
testified
to the grand jury that she did in fact bring
papers to the
President and that on some occasions, she
visited the Oval
Office only to see Ms. Currie:
Q: Did you actually bring [the
President] papers at all?
A: Yes.
Q: All right. Tell us a little
about that.
A: It varied. Sometimes it was
just actual copies of
letters. . . .
[Page S203]
App. at 774-75 (Lewinsky GJ 8/6/98).
``I saw Betty on every time that I was there
. . . most of
the time my purpose was to see the President,
but there were
some times when I did just go see Betty but
the President
wasn't in the office.''
App. at 775 (Lewinsky GJ 8/6/98). The Managers
assert that
those stories were misleading. House Br. at
23; see also
Committee Report at 66 (delivering documents
to the President
was a ``ruse that had no legitimate business
purpose.''). In
other words, while the so-called ``cover stories''
were
literally true, such explanations might have
been misleading.
But literal truth is a critical issue in perjury
and
obstruction cases, as is Ms. Lewinsky's belief
that the
statements were, in fact, literally true.
The allegation contained in Article
II (2) is unsupported
by the evidence and should be rejected.
3. The President denies that he ``corruptly
engaged in,
encouraged, or supported
a scheme to conceal evidence''--
gifts he had given
to Monica Lewinsky--in the Jones case
This allegation charges that the
President participated in
a scheme to conceal certain gifts he had given
to Monica
Lewinsky. It apparently centers on two events
allegedly
occurring in December 1997: (a) a conversation
between the
President and Ms. Lewinsky in which the two
allegedly
discussed the gifts the President had given
Ms. Lewinsky, and
(b) Ms. Currie's receipt of a box of gifts
from Ms. Lewinsky
and storage of them under her bed. The evidence
does not
support the charge.
a. Ms. Lewinsky's December 28
Meeting with the President
Monica Lewinsky met with the President
on December 28,
1997, sometime shortly after 8:00 a.m. to
pick up Christmas
presents. App. at 868 (Lewinsky GJ 8/6/98).
According to Ms.
Lewinsky, she raised the subject of gifts
she had received
from the President in relation to the Jones
subpoena, and
this was the first and only time that this
subject arose.
App. at 1130 (Lewinsky GJ 8/20/98); App. at
1338 (Lewinsky
Depo. 8/26/98).
The House Trial Brief and the
Committee Report quote one
version of Ms. Lewinsky's description of that
December 28
conversation:
``[A]t some point I said to him, `Well, you
know, should I--
maybe I should put the gifts away outside
my house somewhere
or give them to someone, maybe Betty.' And
he sort of said--I
think he responded, `I don't know' or `Let
me think about
that.' And left that topic.'' App. at 872
(Lewinsky GJ 8/6/
98).
In fairness, the Senate should
be aware that Ms. Lewinsky
has addressed this crucial exchange with prosecutors
on at
least ten different occasions, which we lay
out in the margin
for review.\97\ The accounts varied--in some
Ms. Lewinsky
essentially recalled that the President gave
no response, but
the House Managers, like the Committee Report
and the OIC
Referral, cite only the account most favorable
to their case,
failing even to take note of the other inconsistent
recollections. But the important fact about
Ms. Lewinsky's
various descriptions of this conversation
is that, at the
very most, the President stated ``I don't
know'' or ``Let me
think about it'' when Ms. Lewinsky raised
the issue of the
gifts. Even by the account most unfavorable
to the President,
the record is clear and unambiguous that the
President never
initiated any discussion about the gifts nor
did he tell or
even suggest to Ms. Lewinsky that she should
conceal the
gifts.
---------------------------------------------------------------------------
\97\ Those statements, from earliest to latest
in time:
1. Proffer (2/1/98): ``Ms. L then asked if
she should put
away (outside her home) the gifts he had given
her or, maybe,
give them so someone else.'' App. at 715.
2. FBI 302 (7/27/98): ``LEWINSKY expressed
her concern about
the gifts that the President had given LEWINSKY
and
specifically the hat pin that had been subpoenaed
by PAULA
JONES. The President seemed to know what the
JONES subpoena
called for in advance and did not seem surprised
about the
hat pin. The President asked LEWINSKY is she
had told anyone
about the hat pin and LEWINSKY denied that
she had, but may
have said that she gave some of the gifts
to FRANK CARTER. .
. . LEWINSKY asked the President if she should
give the gifts
to someone and the President replied `I don't
know.' '' App.
at 1395.
3. FBI 302 (8/1/98): ``LEWINSKY said that
she was concerned
about the gifts that the President had given
her and
suggested to the President that BETTY CURRIE
hold the gifts.
The President said something like, `I don't
know,' or `I'll
think about it.' The President did not tell
LEWINSKY what to
do with the gifts at that time.'' App. at
1481.
4. Grand Jury (8/6/98): ``[A]t some point
I said to him,
`Well, you know, should I--maybe I should
put the gifts away
outside my house somewhere or give them to
someone, maybe
Betty.' And he sort of said--I think he responded,
`I don't
know' or `Let me think about that.' And left
that topic.''
App. at 872.
5. FBI 302 (8/13/97): ``During their December
28, 1997
meeting, CLINTON did not specifically mention
which gifts to
get rid of.'' App. at 1549.
6. Grand Jury (8/20/98): ``It was December
28th and I was
there to get my Christmas gifts from him.
. . And we spent
maybe about five minutes or so, not very long,
talking about
the case. And I said to him, `Well, do you
think' . . . And
at one point, I said, `Well do you think I
should--' I don't
think I said `get rid of,' I said, `But do
you think I should
put away or maybe give to Betty or give someone
the gifts?'
And he--I don't remember his response. I think
it was
something like, `I don't know,' or `Hmm,'
or--there really
was no response.'' App. at 1121-22.
7. Grand Jury (8/20/98): ``A JUROR: Now, did
you bring up
Betty's name [at the December 28 meeting during
which gifts
were supposedly discussed] or did the President
bring up
Betty's name? THE WITNESS: I think I brought
it up. The
President wouldn't have brought up Betty's
name because he
really didn't--he really didn't discuss it.
. .'' App. at
1122.
8. Grand Jury (8/20/98): ``A JUROR: You had
said that the
President had called you initially to come
get your Christmas
gift, you had gone there, you had a talk,
et cetera, and
there was no--you expressed concern, the President
really
didn't say anything.'' App. at 1126.
9. FBI 302 (8/24/98): ``LEWINSKY advised that
CLINTON was
sitting in the rocking chair in the Study.
LEWINSKY asked
CLINTON what she should do with the gifts
CLINTON had given
her and he either did not respond or responded
`I don't
know.' LEWINSKY is not sure exactly what was
said, but she is
certain that whatever CLINTON said, she did
not have a clear
image in her mind of what to do next.'' App.
at 1566.
10. FBI 302 (9/3/98): ``On December 28, 1997,
in a
conversation between LEWINSKY and the President,
the hat pin
given to Lewinsky by the President was specifically
discussed. They also discussed the general
subject of the
gifts the President had given Lewinsky. However,
they did not
discuss other specific gifts called for by
the PAULA JONES
subpoena. LEWINSKY got the impression that
the President knew
what was on the subpoena.'' App. at 1590.
---------------------------------------------------------------------------
Indeed, on several occasions, Ms.
Lewinsky's accounts of
the President's reaction depict the President
as not even
acknowledging her suggestion. Among those
versions, ignored
by the Committee Report and the Managers,
are the following:
* ``And he--I don't remember his
response. I think
it was something like, `I don't know,''' or
`Hmm,' or--there
really was no response.'' App. at 1122 (Lewinsky
GJ 8/20/98)
(emphasis added).
* ``[The President] either did
not respond or
responded `I don't know.' LEWINSKY is not
sure exactly what
was said, but she is certain that whatever
CLINTON said, she
did not have a clear image in her mind of
what to do next.''
App. at 1566 (Lewinsky FBI 302 8/24/98) (emphasis
added).
* ``The President wouldn't have
brought up Betty's
name, because he really didn't--he really
didn't discuss it .
. .'' App. at 1122 (Lewinsky GJ 8/20/98) (emphasis
added).
* ``A JUROR: You had said that
the President had
called you initially to come get your Christmas
gift, you had
gone there, you had a talk, et cetera, and
there was no--you
expressed concern, the President didn't really
say
anything.'' App. at 1126 (Lewinsky GJ 8/20/98)
(emphasis
added).\98\
---------------------------------------------------------------------------
\98\ Here a grand juror is restating Ms. Lewinsky's
earlier
testimony, with which Ms. Lewinsky appeared
to agree (she did
not dispute the accuracy of the grand juror's
recapitulation).
---------------------------------------------------------------------------
Thus, the evidence establishes
that there was essentially
no discussion of gifts. That December 28 meeting
provides no
evidence of any ``scheme . . . designed to
. . . conceal the
existence'' of any gifts.
b. Ms. Currie's Supposed Involvement
in Concealing Gifts
Because the record is devoid of
any evidence of obstruction
by the President at his December 28 meeting
with Monica
Lewinsky, Article II (3) necessarily depends
on the added
assumption that, after the December 28 meeting,
the President
must have instructed his secretary, Ms. Betty
Currie, to
retrieve the gifts from Ms. Lewinsky, thereby
consummating
the obstruction of justice. As the following
discussion will
demonstrate, the record is devoid of any direct
evidence that
the President discussed this subject with
Ms. Currie. At
most, it conflicted on the question of whether
Ms. Currie or
Ms. Lewinsky initiated the gift retrieval.
We begin with what is certain.
The record is undisputed
that Ms. Currie picked up a box containing
gifts from Ms.
Lewinsky and placed them under her bed at
home. The primary
factual dispute, therefore, is which of the
two initiated the
pick-up. According to the logic of the Committee
Report, if
Ms. Currie initiated the retrieval, she must
have been so
instructed by the President. Committee Report
at 69 (``there
is no reason for her to do so unless instructed
by the
President'').
But the facts are otherwise. Both
Ms. Currie and the
President have denied ever having any such
conversation
wherein the President instructed Ms. Currie
to retrieve the
gifts from Ms. Lewinsky. App. at 502 (President
Clinton GJ 8/
17/98); Supp. at 581 (Currie GJ 5/6/98). In
other words, the
only two parties who could have direct knowledge
of such an
instruction by the President have denied it
took place.
In the face of this direct evidence
that the President did
not ask Ms. Currie to pick up these gifts,
the Committee
Report's obstruction theory hinges on the
inference that Ms.
Currie called Ms. Lewinsky and must have done
so at the
direction of the President. To be sure, Ms.
Lewinsky has
stated on several occasions that Ms. Currie
initiated a call
to her to inquire about retrieving something.
The Managers
and the Committee Report cited the following
passage from Ms.
Lewinsky's grand jury testimony:
Q: What did [Betty Currie] say?
A: She said, ``I understand you
have something to give
me.'' Or, ``The President said you have something
to give
me.'' Along those lines. . . .
Q: When she said something along
the lines of ``I
understand you have something to give me,''
or ``The
President says you have something for me,''
what did you
understand her to mean?
A: The gifts.
App. at 874 (Lewinsky GJ 8/6/98). See also
App. at 715 (2/1/
98 Proffer) (``Ms. Currie called Ms. L later
that afternoon
and said that the Pres. had told her Ms. L
wanted her to hold
onto something for her.'').
[Page S204]
However, Ms. Lewinsky acknowledged
that it was she who
first raised the prospect of Ms. Currie's
involvement in
holding the gifts:
A JUROR: Now, did you bring up
Betty's name or did the
President bring up Betty's name?
[MS. LEWINSKY]: I think I brought
it up. The President
wouldn't have brought up Betty's name because
he really
didn't--he really didn't discuss it.
App. at 1122 (Lewinsky GJ 8/20/98). And contrary
to the
Committee Report's suggestion that Lewinsky's
memory of these
events has been ``consistent and unequivocal''
and she has
``recited the same facts in February, July,
and August,''
Committee Report at 69, Ms. Lewinsky herself
acknowledged at
her last grand jury appearance that her memory
of the crucial
conversation is less than crystal clear:
A JUROR: . . . Do you remember
Betty Currie saying that the
President had told her to call?
[MS. LEWINSKY]: Right now. I don't.
I don't remember. . . .
App. at 1141 (Lewinsky GJ 8/20/98).
Moreover, Ms. Currie has repeatedly
and unvaryingly stated
that it was Ms. Lewinsky who contacted Ms.
Currie about the
gifts, not the other way around. A few examples
include:
* ``LEWINSKY called CURRIE and
advised she had to
return all gifts CLINTON had given LEWINSKY
as there was talk
going around about the gifts.'' Supp. at 531
(Currie FBI 302
1/24/98);
* ``Monica said she was getting
concerned, and she
wanted to give me the stuff the President
had given her--or
give me a box of stuff. It was a box of stuff.''
Supp. at 557
(Currie GJ 1/27/98);
* Q: . . . Just tell us for a
moment how this issue
first arose and what you did about it and
what Ms. Lewinsky
told you.
* A: The best I remember it first
arose with a
conversation. I don't know if it was over
the telephone or in
person. I don't know. She asked me if I would
pick up a box.
She said Isikoff had been inquiring about
gifts.'' Supp. at
582 (Currie GJ 5/6/98);
* ``The best I remember she said
that she wanted me
to hold these gifts--hold this--she may have
said gifts, I'm
sure she said gifts, box of gifts--I don't
remember--because
people were asking questions. And I said,
`Fine.' '' Supp. at
581 (Currie GJ 5/6/98);
* ``The best I remember is Monica
calls me and asks
me if she can give me some gifts, if I'd pick
up some gifts
for her.'' Supp. at 706 (Currie GJ 7/22/98).
The Committee Report attempts
to portray Ms. Currie's
memory as faulty on the key issue of whether
Ms. Lewinsky
initiated the gift retrieval by unfairly referencing
Ms.
Currie's answer to a completely different
question. Ms.
Currie was asked whether she had discussed
with the President
Ms. Lewinsky's ``turning over to [her]'' the
gift he had
given her. Ms. Currie indicated that she could
remember no
such occasion. ``If Monica said [Ms. Currie]
talked to the
President about it,'' she was then asked,
``would that not be
true?'' Then, only on the limited question
of whether Ms.
Currie ever talked to the President about
the gifts--wholly
separate from the issue of who made the initial
contact--did
Ms. Currie courteously defer, ``Then she may
remember better
than I. I don't remember.'' Supp. at 584 (Currie
GJ 5/6/98).
Ironically, it is the substance of this very
allegation--
regarding conversations between Ms. Currie
and the
President--that Ms. Lewinsky told the grand
jury she could
not recall. (In later testimony, referring
to a conversation
she had with the President on January 21,
Ms. Currie
testified that she was ``sure'' that she did
not discuss the
fact that she had a box of Ms. Lewinsky's
belongings under
her bed. Supp. at 705 (Currie GJ 7/22/98).)
To support its theory that Ms.
Currie initiated a call to
Ms. Lewinsky, the House Managers place great
reliance on a
cell phone record of Ms. Currie, calling it
``key evidence
that Ms. Currie's fuzzy recollection is wrong''
and which
``conclusively proves'' that ``the President
directed Ms.
Currie to pick up the gifts.'' House Br. at
33. There is
record of a one-minute call on December 28,
1998 from Ms.
Currie's cell phone to Ms. Lewinsky's home
at 3:32 p.m. Even
assuming Ms. Lewinsky is correct that Ms.
Currie picked up
the gifts on December 28, her own testimony
refutes the
possibility that the Managers' mysterious
3:32 p.m. telephone
call could have been the initial contact by
Ms. Currie to
retrieve the gifts. To the contrary, the timing
and duration
of the call strongly suggest just the opposite.
It is
undisputed that Ms. Lewinsky entered the White
House on the
morning of December 28 at 8:16 a.m. App. at
111 (White House
entry records). While no exit time for Ms.
Lewinsky was
recorded because she inadvertently left her
visitor badge in
the White House, she has testified that the
visit lasted
around an hour. App. at 870-72 (Lewinsky GJ
8/6/98).
Consistent with this timing, records also
indicate that the
President left the Oval Office at 9:52 a.m.,
thus placing Ms.
Lewinsky's exit around 9:30 to 9:45 a.m. App.
at 111. Ms.
Lewinsky has indicated on several occasions
that her
discussion with Betty Currie occurred just
``several hours''
after she left. App. at 875 (Lewinsky GJ 8/6/98);
App. at
1395 (Lewinsky FBI 302 7/27/98). Ms. Lewinsky
three times
placed the timing of the actual gift exchange
with Ms. Currie
``at about 2:00 p.m.'' App at 1127 (Lewinsky
GJ 8/20/98);
App. at 1396 (Lewinsky FBI 302 7/27/98); App.
at 1482
(Lewinsky FBI 302 8/1/98). This, in light
of undisputed
documentary evidence and Ms. Lewinsky's own
testimony, it
becomes clear that the 3:32 p.m. telephone
record relied upon
by the Committee Report in fact is unlikely
to reflect a call
placed to initiate the pick-up.
Apart from this conspicuous timing
defect, there is
another, independent reason to conclude that
the 3:32 p.m.
telephone call could not have been the conversation
Ms.
Lewinsky describes. The 3:32 p.m. call is
documented to have
lasted no longer than one minute, and because
such calls are
rounded up to the nearest minute, it quite
conceivably could
have been much shorter in duration. It is
difficult to
imagine that the conversation reflected in
Ms. Lewinsky's
statements could have taken place in less
than one minute.
Both Ms. Currie and Ms. Lewinsky have described
the various
matters that were discussed in their initial
conversation:
not only was this the first time the topic
of returning gifts
was discussed, which quite likely generated
some discussion
between the two, but they also had to discuss
and arrange a
convenient plan for Ms. Currie to make the
pick-
up.\99\
---------------------------------------------------------------------------
\99\ The OIC Referral, which took great pains
to point out
every allegedly incriminating piece of evidence,
made no
reference to this telephone record, perhaps
because the OIC
knew it tended not to corroborate Ms. Lewinsky's
time line.
In its place, the Referral rested its corroboration
hopes in
the following bizarre analysis: ``More generally,
the person
making the extra effort (in this case, Ms.
Currie) is
ordinarily the person requesting the favor.''
Referral at
170. Wisely, the House Managers chose not
to pursue this
groundless speculation.
---------------------------------------------------------------------------
What, then, to make of this call
so heavily relied upon by
the House Managers? The record is replete
with references
that Ms. Currie and Ms. Lewinsky communicated
very
frequently, especially during this December
1997-January 1998
time period. See, e.g., Supp. at 554 (Currie
GJ 1/27/98)
(many calls around Christmas-time). They often
called or
paged each other to discuss a host of topics,
including Ms.
Lewinsky's pending job search, Ms. Currie's
mother's illness,
and her contacts with Mr. Jordan. There is
simply no reason
to believe this call was anything other than
one of the many
calls and exchanges of pages that these two
shared during the
period.
c. The Obstruction-by-Gift-Concealment
Charge Is at Odds
With the
President's Actions
Ultimately, and irrespective of
the absence of evidence
implicating the President in Ms. Lewinsky's
gift concealment,
the charge fails because it is inconsistent
with other events
of the very same day. There is absolutely
no dispute that the
President gave Ms. Lewinsky numerous additional
gifts during
their December 28 meeting. It must therefore
be assumed that
on the very day the President and Ms. Lewinsky
were
conspiring to hide the gifts he had already
given to her, the
President added to the pile. No stretch of
logic will support
such an outlandish theory.
From the beginning, this inherent
contradiction has puzzled
investigators. If there were a plot to conceal
these gifts,
why did the President give Ms. Lewinsky several
more gifts at
the very moment the concealment plan was allegedly
hatched?
The House Managers OIC prosecutors, grand
jurors, and even
Ms. Lewinsky hopelessly searched for an answer
to that
essential question:
Q: Although, Ms. Lewinsky, I think
what is sort of--it
seems a little odd and, I guess really the
grand jurors
wanted your impression of it, was on the same
day that you're
discussing basically getting the gifts to
Betty to conceal
them, he's giving you a new set of gifts.
A: You know, I have come recently
to look at that as sort
of a strange situation, I think, in the course
of the past
few weeks. . . .
App. at 887-88 (Lewinsky GJ 8/6/98) (emphasis
added). See
House Br. at 34.
The Committee Report fails to
resolve this significant flaw
in its theory.\100\ The report admits that
Ms.
Lewinsky ``can't answer'' why the President
would in one
breath give her gifts and in the next hatch
a plan to take
them back. But it cites only to Ms. Lewinsky's
understanding
of the relationship's pattern of concealment
and how she
contemplated it must apply to the gifts. It
creates the
erroneous impression that the President gave
Ms. Lewinsky
instructions to conceal the gifts in the December
28 meeting
by quoting her testimony that ``from everything
he said to
me'' she would conceal the gifts. But we know
that Ms.
Lewinsky has
[Page S205]
repeatedly testified that no such discussion
ever occurred.
Her reliance on ``everything he said to me''
must, therefore,
reflect her own plan to implement discussions
the two had had
about concealing the relationship long before
her role in the
Jones litigation.
---------------------------------------------------------------------------
\100\ Incredibly, not only does the Committee
Report fail to
offer a sensible answer to this perplexity,
but without any
factual or logical support it accuses the
President of lying
to the grand jury when he testified that he
was not
particularly concerned about the gifts he
had given Ms.
Lewinsky and thus had no compunction about
giving her
additional gifts on December 28. Article I
(4). For whatever
reason, neither the Committee Report nor the
OIC Referral
acknowledges the most reasonable explanation
for these
events: as the President has testified repeatedly,
he was not
concerned about the gifts he had given Ms.
Lewinsky.
* ``I was never hung up about this gift issue.
Maybe
it's because I have a different experience.
But, you know,
the President gets hundreds of gifts a year,
maybe more. I
have always given a lot of gifts to people,
especially if
they give me gifts. And this was no big deal
to me.'' App. at
495.
* ``this gift business . . . didn't bother
me.'' App.
at 496.
* ``I wasn't troubled by this gift issue.''
App. at
497.
* ``I have always given a lot of people gifts.
I have
always been given gifts. I do not think there
is anything
improper about a man giving a woman a gift,
or a woman giving
a man a gift, that necessarily connotes an
improper
relationship. So, it didn't bother me.'' App.
at 498.
---------------------------------------------------------------------------
What this passage confirms is that
Ms. Lewinsky had very
much in her mind that she would do what she
could to conceal
the relationship--a modus operandi she herself
acknowledged
well pre-dated the Jones litigation. That
she took such steps
does not mean that the President knew of or
participated in
them. Indeed, it appears that the entire gift-concealment
plan arose not from any plan suggested by
the President--
which the Committee Report so desperately
struggles to
maintain--but rather more innocently from
the actions of a
young woman taking steps she thought were
best.\101\
---------------------------------------------------------------------------
\101\ As the President has stated about this
potentiality,
``I didn't then, I don't now see this [the
gifts] as a
problem. And if she thought it was a problem,
I think it--it
must have been from a, really a misapprehension
of the
circumstances. I certainly never encouraged
her not to, to
comply lawfully with a subpoena.'' App. at
497-98 (emphasis
added.)
---------------------------------------------------------------------------
In any event, the record evidence
is abundantly clear that
the President has not obstructed justice by
any plan or
scheme to conceal gifts he had given to Ms.
Lewinsky, and
logic and reason fully undercut any such theory.
4. The President denies that he obstructed
justice in
connection with Monica
Lewinsky's efforts to obtain a job
in New York in an
effort to ``corruptly prevent'' her
``truthful testimony''
in the Jones case
Again, in the absence of specifics
in Article II itself, we
look to the Committee Report for guidance
on the actual
charges. The Committee Report would like to
portray this
claim in as sinister a light as possible,
and it alleges that
the President of the United States employed
his close friend
Vernon Jordan to get Monica Lewinsky a job
in New York to
influence her testimony or perhaps get her
away from the
Jones lawyers. To reach this conclusion, and
without the
benefit of a single piece of direct evidence
to support the
charge, it ignores the direct testimony of
several witnesses,
assigns diabolical purposes to a series of
innocuous events,
and then claims that ``[i]t is logical to
infer from this
chain of events'' that the job efforts ``were
motivated to
influence the testimony of'' Ms. Lewinsky.
Committee Report
at 71. Again, the evidence contradicts the
inferences the
Committee Report strives to draw. Ms. Lewinsky's
New York job
search began on her own initiative long before
her
involvement in the Jones case. By her own
forceful testimony,
her job search had no connection to the Jones
case.
Mr. Jordan agreed to help Ms.
Lewinsky not at the direction
of the President but upon the request of Betty
Currie, Mr.
Jordan's long-time friend. And bizarrely,
the idea to involve
Mr. Jordan (which arose well before Ms. Lewinsky
became a
possible Jones witness) came not from the
President but
apparently emanated from Ms. Tripp. In short,
the facts
directly frustrate the House Majority's theory.\102\
---------------------------------------------------------------------------
\102\ This allegation has gone through several
iterations. As
initially referred to the House of Representatives,
the
charge was that the President ``help[ed] Ms.
Lewinsky obtain
a job in New York at a time when she would
have been a
witness against him'' in the Jones case. OIC
Referral at 181.
Faced with the significant evidence that Ms.
Lewinsky's job
efforts had originated long before she became
involved in the
Jones case and were in fact entirely unrelated
to the Jones
case, the Judiciary Committee Majority was
forced to recraft
this claim. Instead of implying a complete
connection between
the job search and the Jones ligitation, the
article now
oddly charges that the President intensified
and succeeded in
an effort to secure job assistance'' for Ms.
Lewinsky ``at a
time when the truthful testimony of [Ms. Lewinsky]
would have
been harmful to him,'' Article II (5) (emphasis
added)--
thereby admitting that the initial effort
was motivated by
appropriate concerns.
---------------------------------------------------------------------------
a. The Complete Absence of Direct
Evidence Supporting This
Charge
It is hard to overstate the importance
of the fact that--by
the House Managers', the Committee Report's
and the OIC's own
admission--there is not one single piece of
direct evidence
to support this charge. Not one. Indeed, just
the contrary is
true. Both Ms. Lewinsky and Mr. Jordan have
repeatedly
testified that there was never an explicit
or implicit
agreement, suggestion, or implication that
Ms. Lewinsky would
be rewarded with a job for her silence or
false testimony.
One need look no further than their own testimony:
Lewsinky: ``[N]o one ever asked
me to lie and I was never
promised a job for my silence.'' App. at 1161
(Lewinsky GJ 8/
20/98);
``There was no agreement with
the President, JORDAN, or
anyone else that LEWINSKY had to sign the
Jones affidavit
before getting a job in New York. LEWINSKY
never demanded a
job from Jordan in exchange for a favorable
affidavit. Nether
the President nor JORDAN ever told LEWINSKY
that she had to
lie.'' App. at 1398 (Lewinsky FBI 302 7/27/98).
Jordan: ``As far as I was concerned,
[the job and the
affidavit] were two very separate matters.''
Supp. at 1737
(Jordan GJ 3/5/98).
``Unequivocally, indubitably,
no''--in response to the
question whether the job search and the affidavit
were in any
way connected. Supp. at 1827 (Jordan GJ 5/5/98).\103\
---------------------------------------------------------------------------
\103\ The only person who suggested any such
quid pro quo was
Ms. Tripp, who repeatedly urged Ms. Lewinsky
to demand such
linkage. App. at 1493 (Lewinsky FBI 302 8/2/98
(``TRIPP told
LEWINSKY not to sign the affidavit until LEWINSKY
had a
job.''). To appease Linda Tripp's repeated
demands on this
point, Ms. Lewinsky ultimately told Ms. Tripp
that she had
told Mr. Jordan she wouldn't sign the affidavit
until she had
a job. But as she later emphasized to the
grand jury, ``That
was definitely a lie, based on something Linda
had made me
promise her on January 9th.'' App. at 1134
(Lewinsky GJ 8/20/
98).
This is the direct evidence. The
House Managers'
circumstantial ``chain of events'' case, House
Br. 39-41,
cannot overcome the hurdle the direct evidence
presents.
b. Background of Ms. Lewinsky's
New York Job Search
By its terms, Article II(4) would
have the Senate evaluate
Ms. Lewinsky's job search by considering only
the
circumstances ``[b]eginning on or about December
7, 1977.''
Article II(4). Although barely mentioned in
the Committee
Report's ``explanation'' of Article II(4),
the significant
events occurring before December 7, 1997 cannot
simply be
ignored because they are inconsistent with
the Majority's
theory. Without reciting every detail, the
undisputed record
establishes that the following facts occurred
long before Ms.
Lewinsky was involved in the Jones case:
First, Ms. Lewinsky had contemplated
looking for a job in
New York as early as July 1997. App. at 1414
(Lewinsky FBI
302 7/29/98) (July 3 letter ``first time [Lewinsky]
mentioned
the possibility of moving to New York'');
App. at 787-788 (On
July 4, 1997, Ms. Lewinsky wrote the President
a letter
describing her interest in a job ``in New
York at the United
Nations''); Committee Report at 10 (``Ms.
Lewinsky had been
searching for a highly paid job in New York
since the
previous July.'') She conveyed that prospect
to a friend on
September 2, 1997. App. at 2811 (Lewinsky
e-mail).
Second, in early October, at the
request of Ms. Currie,
then-Deputy Chief of Staff John Podesta asked
U.N. Ambassador
Bill Richardson to consider Ms. Lewinsky for
a position at
the U.N. Supp. at 3404 (Richardson GJ 4/3/98).
Ms. Currie
testified that she was acting on her own in
this effort.
Supp. at 592 (Currie GJ 5/6/98).
Third, around October 6, Ms. Tripp
told Ms. Lewinsky that
an acquaintance in the White House reported
that it was
unlikely Ms. Lewinsky would ever be re-employed
at the White
House. After this disclosure, Ms. Lewinsky
``was mostly
resolved to look for a job in the private
sector in New
York.'' App. at 1543-44 (Lewinsky FBI 302)
8/13/98; see also
App. at 1460 (Lewinsky FBI 302 7/31/98) (remarks
by the Linda
Tripp acquaintance were the ``straw that broke
the camel's
back'').
Fourth, sometime prior to October
9, 1997, Ms. Tripp and
Ms. Lewinsky discussed the prospect of enlisting
Mr. Vernon
Jordan to assist Ms. Lewinsky in obtaining
a private sector
job in New York. App. at 822-24 (Lewinsky
GJ 8/6/98); see
also App. at 1079 (Lewinsky GJ 8/20/98) (``I
don't remember .
. . if [enlisting Jordan] was my idea or Linda's
idea. And I
know that that came up in discussions with
her, I believe,
before I discussed it with the President'').
On either
October 9 or 11, Ms. Lewinsky conveyed to
the President this
idea of asking Mr. Jordan for assistance.
Id.
Fifth, in mid-October, 1997, Ms.
Lewinsky purchased a book
on jobs in New York. App. at 1462 (Lewinsky
FBI 302 7/31/98).
Ms. Lewinsky completed and sent to Betty Currie
at the White
House a packet of jobs-related materials on
October 15 or 16.
Supp. at 735 (Lewinsky Tripp tape of 10/15/97
conversation).
Sixth, on October 31, 1997, Ms.
Lewinsky interviewed for a
position with Ambassador Bill Richardson at
the United
Nations in New York. Ambassador Richardson
was ``impressed''
with Ms. Lewinsky and, on November 3, offered
her a position,
which she ultimately rejected. Supp. at 3411
(Richardson GJ
4/30/98); Supp. at 3731 (Sutphen GJ 5/27/98).
Ms. Currie
informed the President that Ms. Lewinsky had
received a job
offer at the U.N. Supp. at 592 (Currie GJ
5/6/98). Ambassador
Richardson never spoke to the President or
Mr. Jordan about
Ms. Lewinsky, and he testified emphatically
and repeatedly
that no one pressured him to hire her. Supp.
at 3422-23
(Richardson GJ 4/30/98); Supp. at 3418 (same);
Supp. at 3429
(same).
Seventh, as of late October or
November, Ms. Lewinsky had
told Mr. Kenneth Bacon, her boss at the Pentagon,
that she
wanted to leave the Pentagon and move to New
York. In a
series of conversations, she enlisted his
assistance in
obtaining a private sector job in New York.
Supp. at 11
(Kenneth Bacon FBI 302 2/26/98). In response,
Mr. Bacon
contacted Howard Paster, CEO of the public
relations firm
Hill & Knowlton about Ms. Lewinsky. Id.
Eighth, in November, Ms. Lewinsky
gave notice to the
Pentagon that she would be leaving her Pentagon
job at year's
end. Supp. at 116 (Clifford Bernath GJ 5/21/98).
Ninth, Ms. Lewinsky apparently
had a preliminary meeting
with Mr. Jordan on November 5, 1997 to discuss
her job
search. During this twenty-minute meeting,
Ms. Lewinsky and
Mr. Jordan discussed a list of potential employers
she had
compiled. App. at 1464-65 (Lewinsky FBI 302
7/31/98). In that
meeting, Ms. Lewinsky never informed Mr. Jordan
of any time
constraints on her need for job assistance.
Supp. at 2647
(Lewinsky-Tripp Tape of 11/8/97 conversation).
Mr. Jordan had
to leave town the next day. App. at 1465 (Lewinsky
FBI 302
Form 7/31/98). Ms. Lewinsky had a follow-up
telephone
conversation with Mr. Jordan around Thanksgiving
wherein he
advised her that he was ``working on her job
search'' and
instructed
[Page S206]
her to call him again ``around the first week
of December.''
App. at 1465 (Lewinsky FBI 302 7/31/98); see
also App. at 825
(Lewinsky GJ 8/6/98) (``And so Betty arranged
for me to speak
with [Jordan] again and I spoke with him when
I was in Los
Angeles before--right before Thanksgiving.'')
\104\
Inexplicably, the Committee Report, the presentation
by its
chief counsel, and the Starr Referral all
choose to ignore
this key piece of testimony--that contact
resumed in early
December because Ms. Lewinsky and Mr. Jordan
agreed (in
November) that it would. See Committee Report
at 10 (``Ms.
Lewinsky had no further contacts with Mr.
Jordan at that time
[early November to mid December].''); Schippers
Dec. 10, 1998
Presentation at 38 (``Vernon Jordan, who,
by the way, had
done nothing from early November to mid-December.'');
Referral at 182 (``Ms. Lewinsky had no contact
with . . . Mr.
Jordan for another month [after November 5].'').
---------------------------------------------------------------------------
\104\ Mr. Jordan was then out of the country
from the day
after Thanksgiving until December 4. Supp.
at 1804 (Jordan GJ
5/5/98).
---------------------------------------------------------------------------
In sum, the record is clear that
Ms. Lewinsky decided on
her own to seek a job in New York many months
before her
involvement in the Jones case. She had asked
her Pentagon
boss to help, as well as Ms. Currie, who arranged
indirectly
for Ms. Lewinsky to interview with Ambassador
Richardson at
the United Nations. Mr. Jordan became involved
in the job
search at the request of Ms. Currie (apparently
at the
suggestion of Ms. Tripp) and, notwithstanding
his travels in
November, Supp. at 1811 (Jordan GJ 5/5/98),
kept in contact
with Ms. Lewinsky with plans to reconvene
early in December.
c. The Committee Report's Circumstantial
Case
Article II ignores this background
and merely alleges that
efforts to aid Ms. Lewinsky's job search ``intensified
and
succeeded'' in December 1997. While not adopted
in the
article, the House Brief, the Committee Report,
and the
accompanying final presentation by Majority
Counsel Schippers
offer some guidance as to the meaning of the
actual charge.
They cite three events--Mr. Jordan's December
11 meeting with
Ms. Lewinsky to discuss job prospects in New
York, Ms.
Lewinsky's execution of her Jones affidavit,
and her receipt
of a job--in an effort to portray Ms. Lewinsky's
job search
as sinister. But the full record easily dispels
any
suggestion that there were any obstructive
or improper acts.
(1) Monica Lewinsky's December 11 meeting with Vernon Jordan
The House Managers and the Committee
Report suggest that
Mr. Jordan took action on Ms. Lewinsky's job
search request
only after, and because, Ms. Lewinsky's name
appeared on the
witness list on December 5 and only after,
and because, Judge
Wright ordered the President to answer certain
questions
about ``other women'' on December 11. See
House Br. at 21.
Consider the Committee Report portrayal:
``[T]he effort to obtain a job
for Monica Lewinsky in New
York intensified after the President learned,
on December 6,
1997, that Monica Lewinsky was listed on the
witness list for
the case Jones v. Clinton.\105\
---------------------------------------------------------------------------
\105\ Committee Report at 70. That portrayal
flatly
contradicts the Committee Report's earlier
statement that on
December 6 ``there was still no urgency to
help Lewinsky.''
Committee Report at 10-11.
---------------------------------------------------------------------------
On December 7, 1997, President
Clinton met with Vernon
Jordan at the White House. Ms. Lewinsky met
with Mr. Jordan
on December 11 to discuss specific job contacts
in New York.
Mr. Jordan then made calls to certain New
York companies on
Ms. Lewinsky's behalf. Jordan telephoned President
Clinton to
keep him informed of the efforts to get Ms.
Lewinsky a job.''
Committee Report at 70.
``Something happened that changed
the priority assigned to
the job search. On the morning of December
11, 1997, Judge
Susan Webber Wright ordered President Clinton
to provide
information regarding any state or federal
employee with whom
he had, proposed, or sought sexual relations.
To keep Ms.
Lewinsky satisfied was now of critical importance.''
Committee Report at 11.
The unmistakable intention of this
narrative is to suggest
that, after the President learned Ms. Lewinsky's
name was on
the witness list on December 6, he (1) contacted
Mr. Jordan
on December 7 to engage his assistance for
Ms. Lewinsky, and
only then did Mr. Jordan agree to meet with
Ms. Lewinsky, and
further, that (2) Mr. Jordan met with Ms.
Lewinsky on
December 11 and took concrete steps to help
Ms. Lewinsky only
after and as a result of Judge Wright's December
11 order.
Both suggestions are demonstrably false.
The President had nothing to do
with arranging the December
11 meeting between Mr. Jordan and Ms. Lewinsky.
As the record
indicates, after receiving a request from
Ms. Currie on
December 5 that he meet with Ms. Lewinsky,
and telling Ms.
Currie to have Ms. Lewinsky call him, Ms.
Lewinsky called Mr.
Jordan on December 8. Supp. at 1705 (Jordan
GJ 3/3/98). As
noted above, that call had been presaged by
a conversation
between Mr. Jordan and Ms. Lewinsky around
Thanksgiving in
which Jordan told her ``he was working on
her job search''
and asked her to contact him again ``around
the first week of
December.'' App. at 1465 (Lewinsky FBI 302
7/31/98). In the
December 8 call, the two arranged for Ms.
Lewinsky to come to
Mr. Jordan's office on December 11; on the
same day, Ms.
Lewinsky sent Mr. Jordan via courier a copy
of her resume.
Supp. at 1705 (Jordan GJ 3/3/98). At the time
of that
contact, Mr. Jordan did not even know that
Ms. Lewinsky knew
President Clinton. Id.
In the intervening period before
Ms. Lewinsky's December 11
meeting with Mr. Jordan, the President met
with Mr. Jordan on
December 7. As the Committee Report acknowledges,
that
meeting had nothing to do with Ms. Lewinsky.
Committee Report
at 11. Yet the House Managers' Brief, like
the Committee
Report before it, states that ``the sudden
interest [in
helping Ms. Lewinsky obtain a job] was inspired
by a court
order entered on December 11, 1997'' in the
Jones case.\106\
House Br. at 21. No evidence supports that
supposition. The
December 11 meeting had been scheduled on
December 8. Neither
the OIC Referral nor the Committee Report
nor the Managers'
Brief cites any evidence that the President
or Mr. Jordan had
any knowledge of the contents of that Order
at the time of
the December 11 meeting.
---------------------------------------------------------------------------
\106\ That Order authorized Paula Jones' attorneys
to obtain
discovery relating to certain government employees
``with
whom the President had sexual relations, proposed
sexual
relations, or sought to have sexual relations.''
House Br. at
21.
---------------------------------------------------------------------------
Mr. Jordan met with Ms. Lewinsky
shortly after 1:00 p.m. on
December 11. Supp. at 1863 (Akin Gump visitor
log); Supp. at
1809 (Jordan GJ 5/5/98). In anticipation of
that meeting, Mr.
Jordan had made several calls to prospective
employers about
Ms. Lewinsky. Supp. at 1807-09 (Jordan GJ
5/5/98). Mr. Jordan
spoke about Ms. Lewinsky with Mr. Peter Georgescu
of Young &
Rubicam at 9:45 a.m. that morning, and with
Mr. Richard
Halperin of Revlon around 1:00 p.m., immediately
before
meeting with Ms. Lewinsky. Supp. at 1807-09
(Jordan GJ 5/5/
98). Again, there is no evidence that any
of this occurred
after Mr. Jordan learned of Judge Wright's
order.
Although the Committee Report
claims that a heightened
sense of urgency attached in December which
``intensified''
the job search efforts, it ignores the sworn
testimony of Mr.
Jordan denying any such intensification: ``Oh,
no. I do not
recall any heightened sense of urgency [in
December]. What I
do recall is that I dealt with it when I had
time to do it.''
Supp. at 1811 (Jordan GJ 5/5/98).\107\
---------------------------------------------------------------------------
\107\ Mr. Jordan explained that not much activity
occurred in
November because ``I was traveling.'' Supp.
at 1811 (Jordan
GJ 9/5/98).
---------------------------------------------------------------------------
The ``heightened urgency'' theory
also is undermined by the
simple fact that Mr. Jordan indisputably placed
no pressure
on any company to give Ms. Lewinsky a job
and suggested no
date by which Ms. Lewinsky had to be hired.
The first person
Mr. Jordan contacted, Mr. Georgescu of Young
& Rubicam/
Burson-Marsteller, told investigators that
Mr. Jordan did not
engage in a ``sales pitch'' for Lewinsky.
Supp. at 1222
(Georgescu FBI 302 3/25/98). Mr. Georgescu
told Mr. Jordan
that the company ``would take a look at [Ms.
Lewinsky] in the
usual way,'' Supp. at 1219 (Georgescu FBI
302 1/29/98), and
that once the initial interview was set up,
Ms. Lewinsky
would be ``on [her] own from that point.''
Supp. at 1222
(Georgescu FBI 302 3/25/98). The executive
who interviewed
Ms. Lewinsky at Burson-Marsteller stated that
Ms. Lewinsky's
recruitment process went ``by the book'' and,
``while
somewhat accelerated,'' the process ``went
through the normal
steps.'' Supp. at 111 (Berk FBI 302 3/31/98).
At American Express, Mr. Jordan
contacted Ms. Ursula
Fairbairn, who stated that Mr. Jordan exerted
``no . . .
pressure'' to hire Lewinsky. Supp. at 1087
(Fairbairn FBI 302
2/4/98). Indeed, she considered it ``not unusual
for board
members'' like Mr. Jordan to recommend talented
people for
employment and noted that Mr. Jordan had recently
recommended
another person just a few months earlier.
Id. The person who
interviewed Ms. Lewinsky stated that he felt
``absolutely no
pressure'' to hire her and indeed told her
she did not have
the qualifications necessary for the position.
Supp. at 3521
(Schick FBI 302 1/29/98).
Perhaps most telling of the absence
of pressure applied by
Mr. Jordan is the fact that neither Young
& Rubicam/Burson-
Marsteller or American Express offered Ms.
Lewinsky a job.
Similarly, at MacAndrews &
Forbes/Revlon, where Ms.
Lewinsky ultimately was offered a job (see
below), Mr. Jordan
initially contacted Mr. Halperin, who has
stated that it was
not unusual for Mr. Jordan to make an employment
recommendation. Supp. at 1281 (Halperin FBI
302 1/26/98).
Moreover, he emphasized that Mr. Jordan did
not ``ask [him]
to work on any particular timetable,'' Supp.
at 1294
(Halperin GJ 4/23/98), and that ``there was
no implied time
constraint or requirement for fast action.''
Supp. at 1286
(Halperin FBI 3/27/98.)
(2) The January job interviews
and the Revlon employment
offer
The Committee Report attempts
to conflate separate and
unrelated acts--the signing of the affidavit
and the Revlon
job offer--to sustain its otherwise unsustainable
obstruction
theory. The Committee Report's description
of these events is
deftly misleading:
``The next day, January 7, Monica
Lewinsky signed the false
affidavit. She showed the executed copy to
Mr. Jordan that
same day. She did this so that Mr. Jordan
could report to
President Clinton that it had been signed
and another mission
had been accomplished.
[Page S207]
On January 8, Ms. Lewinsky had
an interview arranged by Mr.
Jordan with MacAndrews & Forbes in New
York. The interview
went poorly. Afterwards, Ms. Lewinsky called
Mr. Jordan and
informed him. Mr. Jordan, who had done nothing
from early
November to mid-December, then called the
chief executive
officer of MacAndrews & Forbes, Ron Perelman,
to ``make
things happen, if they could happen.'' Mr.
Jordan called Ms.
Lewinsky back and told her not to worry. That
evening,
MacAndrews & Forbes called Ms. Lewinsky
and told her that she
would be given more interviews the next morning.
The next morning, Ms. Lewinsky
received her reward for
signing the false affidavit. After a series
of interviews
with MacAndrews & Forbes personnel, she
was informally
offered a job. Committee Report at 18 (citations
omitted).
By this portrayal, the Committee
Report suggests two
conclusions: first, that Ms. Lewinsky was
``reward[ed]'' with
a job for her signing of the affidavit; second,
that the only
reason Ms. Lewinsky was given a second interview
and
ultimately hired at Revlon was Mr. Jordan's
intervention with
Mr. Perelman. Once again, both conclusions
are demonstrably
false.
Mr. Jordan and Ms. Lewinsky have
testified under oath that
there was no causal connection between the
job search and the
affidavit. The only person to draw (or, actually,
recommend)
any such linkage was Ms. Tripp. The factual
record easily
debunks the second insinuation--that Ms. Lewinsky
was hired
as a direct result of Mr. Jordan's call to
Mr. Perelman. One
fact is virtually dispositive: the Revlon
executive who
scheduled Ms. Lewinsky's January 9 interview
and decided to
hire her that same day never even knew about
Mr. Jordan's
call to Mr. Perelman, or any interest Mr.
Perelman might have
in Ms. Lewinsky, and thus could not have been
acting in
furtherance of such a plan.
Ms. Lewinsky initially interviewed
with Mr. Halperin of
MacAndrews & Forbes (Revlon's parent company)
on December 18,
1997. (Mr. Jordan had spoken with Mr. Halperin
on December
11.) Prior to interviewing Ms. Lewinsky, Mr.
Halperin
forwarded a copy of her resume to Mr. Jaymie
Durnan, also of
MacAndrews & Forbes, for his consideration.
Supp. at 1286-87
(Halperin FBI 302 3/27/98). Following his
interview of Ms.
Lewinsky, Mr. Halperin thought that she would
likely be
``shipped to Revlon'' for consideration. Id.
Mr. Durnan received Ms. Lewinsky's
resume from Mr. Halperin
in mid-December and, after reviewing it, decided
to interview
Ms. Lewinsky after the first of the year.
(He was going on
vocation the last two weeks of December).
Supp. at 1053
(Durnan FBI 302 3/27/98). When he returned
from vacation, his
assistant scheduled an interview with Ms.
Lewinsky for
January 7, 1998, but, because of scheduling
problems, he
rescheduled the interview for the next day,
January 8, 1998.
Supp. at 1049 (Durnan FBI 302 1/26/98). Mr.
Durnan's decision
to interview Ms. Lewinsky was made independently
of the
decision by Mr. Halperin to interview her.
Indeed, only when
Mr. Durnan interviewed Ms. Lewinsky in January
did he
discover that she had had a December interview
with Mr.
Halperin. Id.
It was this interview with Mr.
Durnan that Ms. Lewinsky
later described as having gone poorly in her
view. App. at
926 (Lewinsky GJ 8/6/98). The House Managers
(``[t]he
interview went poorly,'' House Br. at 38),
the Committee
Report (``The interview went poorly'', id.
at 21), and the
OIC Referral (``The interview went poorly,''
id. at 184) all
emphasize only Ms. Lewinsky's impression of
the job
interview--for obvious reasons: it tends to
heighten the
supposed relevance of the Jordan call to Mr.
Perelman. In
other words, under this theory, Ms. Lewinsky
had no prospect
of a job at MacAndrews & Forbes/Revlon
until Mr. Jordan
resurrected her chances with Mr. Perelman.
Unfortunately, like so much other
``evidence'' in the
obstruction case, the facts do not bear out
this sinister
theory. Mr. Durnan had no similar impression
that his
interview with Ms. Lewinsky had gone ``poorly.''
In fact,
just the opposite was true: he was ``impressed''
with Ms.
Lewinsky and thought that she would ``fit
in'' with
MacAndrews & Forbes but ``there was nothing
available at that
time which suited her interests.'' Supp. at
1054 (Durnan FBI
302 3/27/98). Mr. Durnan therefore decided
to forward Ms.
Lewinsky's resume to Ms. Allyn Seidman of
Revlon. After the
interview, he called Ms. Seidman and left
her a voicemail
message about his interview with Ms. Lewinsky
and explained
that, while there was no current opening at
MacAndrews &
Forbes, ``perhaps there was something available
at Revlon.''
Id.
In the meantime, Mr. Jordan had
called Mr. Perelman about
Ms. Lewinsky. Mr. Perelman described this
conversation as
``very low key and casual.'' Supp. at 3273
(Perelman FBI 302
1/26/98). Mr. Jordan ``made no specific requests
and did not
request'' him ``to intervene''; nonetheless,
Mr. Perelman
agreed to ``look into it.'' Id. Later that
day, Mr. Durnan
spoke to Mr. Perelman, who mentioned that
he had received a
call from Mr. Jordan about a job candidate.
Mr. Perelman told
Mr. Durnan ``let's see what we can do,'' Supp.
at 3276
(Perelman FBI 302 3/27/98), but Mr. Durnan
never concluded
that hiring Ms. Lewinsky was ``mandatory.''
Supp. at 1055
(Durnan FBI 302 3/27/98). Mr. Perelman later
called Mr.
Jordan and said they would do what they could;
Mr. Jordan
expressed no urgency to Mr. Perelman. Supp.
at 3276 (Perelman
FBI 302 3/27/98).
By the time Mr. Durnan had discussed
Ms. Lewinsky with Mr.
Perelman, he had already forwarded her resume
to Ms. Seidman
at Revlon. Supp. at 1049-50 (Durnan FBI 302
1/26/98). After
speaking with Mr. Perelman, Mr. Durnan spoke
with Ms.
Seidman, following up on the voicemail message
he had left
earlier that day. Supp. at 1055 (Durnan FBI
302 3/27/98).
Upon speaking to Ms. Seidman about Ms. Lewinsky,
however, Mr.
Durnan did not tell Ms. Seidman that CEO Perelman
has
expressed any interest in Ms. Lewinsky. Id.
Rather, he simply
said that if she liked Ms. Lewinsky, she should
hire her.
Supp. at 1050 (Durnan FBI 302 1/26/98).
For her part, Ms. Seidman has
testified that she had no
idea that Mr. Perelman had expressed interest
in Ms.
Lewinsky:
Q: Did [Mr. Durnan] indicate to
you that he had spoken to
anyone else within MacAndrews or Revlon about
Monica
Lewinsky?
A: Not that I recall, no.
Q: Do you have knowledge as to
whether or not Mr. Perelman
spoke with anyone either on the MacAndrews
& Forbes side or
the Revlon side about Monica Lewinsky?
A: No.
Supp. at 3642 (Seidman Depo. 4/23/98). Rather,
Ms. Seidman's
consideration of Ms. Lewinsky proceeded on
the merits.
Indeed, as a result of the interview, Ms.
Seidman concluded
that Ms. Lewinsky was ``bright, articulate
and polished,''
Supp. at 3635 (Seidman FBI 302 1/26/98), and
``a talented,
enthusiastic, bright young woman'' who would
be a ``good fit
in [her] department.'' Supp. at 3643 (Seidman
Depo. 4/23/98).
She decided after the interview to hire Ms.
Lewinsky, and thereafter called Mr. Durnan ``and told
him I thought she was
great,'' Id.
In sum, Ms. Seidman made the decision
to grant an interview
and hire Ms. Lewinsky on the merits. She did
not even know
that Mr. Perelman had expressed any interest
in Ms. Lewinsky
or that Mr. Jordan had spoken to Mr. Perelman
the day before.
As amply demonstrated, the House Managers'
Jordan-Perelman
intervention theory just doesn't hold water.
d. Conclusion
From the preceding discussion
of the factual record, two
conclusions are inescapable. First, there
is simply no direct
evidence to support the job-for-silence obstruction
theory.
From her initial proffer to the last minutes
of her grand
jury appearance, the testimony of Ms. Lewinsky
has been clear
and consistent: she was never asked or encouraged
to lie or
promised a job for her silence or for a favorable
affidavit.
Mr. Jordan has been equally unequivocal on
this point.
Second, the ``chain of events'' circumstantial
case upon
which this obstruction allegation must rest
falls apart after
inspection of the full evidentiary record.
Ms. Lewinsky's job
search began on her own volition and long
before she was ever
a witness in the Jones case. Mr. Jordan's
assistance
originated with a request from Ms. Currie,
which had no
connection to events in the Jones litigation.
No pressure was
applied to anyone at any time. And Ms. Lewinsky's
ultimate
hiring had absolutely no connection to her
signing of the
affidavit in the Jones case. Viewed on this
unambiguous
record, the job-search allegations are plainly
unsupportable.
5. The President denies that he ``corruptly
allowed his
attorney to make false
and misleading statements to a
Federal judge'' concerning
Monica Lewinsky's affidavit
Article II (5) charges that the
President engaged in an
obstruction of justice because he ``did not
say anything''
during his Jones deposition when his attorney
cited the
Lewinsky affidavit to Judge Wright and stated
that ``there is
no sex of any kind in any manner, shape, or
form.'' Committee
Report at 72. The rationale underlying this
charge of
obstruction of justice hinges on an odd combination
of a
bizarrely heightened legal obligation, a disregard
of the
actual record testimony, and a good does of
amateur
psychology. This claim is factually and legally
baseless.
The law, of course, imposes no
obligation on a client to
monitor every statement and representation
made by his or her
lawyer. Particularly in the confines of an
ongoing civil
deposition, where clients are routinely counseled
to focus on
the questions posed of them and their responses
and ignore
all distractions, it is totally inappropriate
to try to
remove a President from office because of
a statement by his
attorney. Indeed, the President forcefully
explained to the
grand jury that he was not focusing on the
exchange between
lawyers but instead concentrating on his own
testimony:
* ``I'm not even sure I paid much
attention to what
he was saying. I was thinking, I was ready
to get on with my
testimony here and they were having these
constant
discussions all through the deposition.''
App. at 476;
* ``I was not paying a great deal
of attention to
this exchange. I was focusing on my own testimony.''
App. at
510;
* ``I'm quite sure that I didn't
follow all the
interchanges between the lawyers all that
carefully.'' App.
at 510;
* ``I am not even sure that when
Mr. Bennett made
that statement that I was concentrating on
the exact words he
used.'' App. at 511;
* ``When I was in there, I didn't
think about my
lawyers. I was, frankly, thinking about myself
and my
testimony and trying to answer the questions.''
App. at 512;
* ``I didn't pay any attention
to this colloquy that
went on. I was waiting for my instructions
as a witness to go
forward. I was
[Page S208]
worried about my own testimony.'' App. at 513.
The Committee Report ignores the
President's repeated and
consistent description of his state of mind
during the
deposition exchange. Instead, the Committee
Report and
majority counsel's final presentation undertake
a novel
exercise in video psychology, claiming that
by studying the
President's facial expressions and by noting
that he was
``looking in Mr. Bennett's direction' during
the exchange, it
necessarily follows that the President was
in fact listening
to and concentrating on every single word
uttered by his
attorney \108\ and knowingly made a decision
not to correct
his attorney.
---------------------------------------------------------------------------
\108\ It is upon this same fanciful methodology
that the
Committee Report premises the allegation of
Article I (3)
that the President lied to the grand jury
in providing these
responses. Citing the President's oft-criticized
response
about Mr. Bennett's use of the present tense
in his statement
``there is no sex of any'' (``It depends on
what the meaning
of the word `is' is.'' App. at 510), the Committee
Report
claims that such parsing contradicts the President's
claim
that he was not paying close attention to
the exchange. But
contrary to the Committee Report's suggestion,
the
President's response to this question did
not purport to
describe the President's contemporaneous thinking
at the
deposition, but rather only in retrospect
whether he agreed
with the questioner that it was ``an utterly
false
statement.'' Id. The President later emphasized
that he
``wasn't trying to give . . . a cute answer''
in his earlier
explanation, but rather only that the average
person thinking
in the present tense would likely consider
that Mr. Bennett's
statement was accurate since the relationship
had ended long
ago. App. at 513.
---------------------------------------------------------------------------
The futility of such an exercise
is manifest. It is
especially unsettling when set against the
President's
adamant denials that he harbored any contemporaneous
or
meaningful realization of his attorney's colloquy
with the
Judge. The theory is factually flimsy, legally
unfounded, and
should be rejected.
6. The President denies that he obstructed
justice by
relating ``false and
misleading statements'' to ``a
potential witness,''
Betty Currie, ``in order to
corruptly influence
[her] testimony''
There is no dispute that the President
met with his
secretary, Ms. Currie, on the day after his
Jones deposition
and discussed questions he had been asked
about Ms. Lewinsky.
The Managers cast this conversation in the
most sinister
light possible and alleges that the President
attempted to
influence the testimony of a ``witness'' by
pressuring Ms.
Currie to agree with an inaccurate version
of facts about Ms.
Lewinsky. The Managers claim that ``the President
essentially
admitted to making these statements when he
knew they were
not true.'' House Br. at 47. That is totally
false. The
President admitted nothing of the sort and
the Managers cite
nothing in support. The President has adamantly
denied that
he had any intention to influence Ms. Currie's
recollection
of events or her testimony in any manner.
The absence of any
such intention is further fortified by the
undisputed factual
record establishing that to the President's
knowledge, Ms.
Currie was neither an actual nor contemplated
witness in the
Jones litigation at the time of the conversation.
And
critically, Ms. Currie testified that, during
the
conversation, she did not perceive any pressure
``whatsoever'' to agree with any statement
made by the
President.
The President's actions could
not as a matter of law
support this allegation. To obstruct a proceeding
or tamper
with a witness, there must be both a known
proceeding and a
known witness. In the proceeding that the
President certainly
knew about--the Jones case--Ms. Currie was
neither an actual
nor prospective witness. As for the only proceeding
in which
Ms. Currie ultimately became a witness--the
OIC
investigation--no one asserts the President
could have known
it existed at that time.
At the time of the January 18
conversation.\109\ Ms. Currie
was not a witness in the Jones case, as even
Mr. Starr
acknowledged: ``The evidence is not that she
was on the
witness list, and we have never said that
she was.''
Transcript of November 19, 1998 Testimony
at 192.
---------------------------------------------------------------------------
\109\ Ms. Currie remembers a second conversation
similar in
substance a few days after the January 18
discussion, but
still in advance of the public disclosure
of this matter on
January 21, 1998. Supp. at 561 (Currie GJ
1/27/98).
---------------------------------------------------------------------------
Nor was there any reason to suspect
Ms. Currie would play
any role in the Jones case. The discovery
period was, at the
time of this conversation, in its final days,
and a
deposition of Ms. Currie scheduled and completed
within that
deadline would have been highly unlikely.
Just as the President could not
have intended to influence
the testimony of ``witness'' Betty Currie
because she was
neither an actual nor a prospective witness,
so too is it
equally clear that the President never pressured
Ms. Currie
to alter her recollection. Such lack of real
or perceived
pressure also fatally undercuts this charge.
Despite the
prosecutor's best efforts to coax Ms. Currie
into saying she
was pressured to agree with the President's
statements, Ms.
Currie adamantly denied any such pressure.
As she testified:
Q: Now, back again to the four
statements that you
testified the President made to you that were
presented as
statements, did you feel pressured when he
told you those
statements?
A: None whatsoever.
Q: What did you think, or what
was going through your mind
about what he was doing?
A: At the time I felt that he
was--I want to use the word
shocked or surprised that this was an issue,
and he was just
talking.
* * * * *
Q: That was your impression, that
he wanted you to say--
because he would end each of the statements
with ``Right?'',
with a question.
A: I do not remember that he wanted
me to say ``Right.'' He
would say ``Right'' and I could have said.
``Wrong.''
Q: But he would end each of those
questions with a
``Right?'' and you could either say whether
it was true or
not true?
A: Correct.
Q: Did you feel any pressure to
agree with your boss?
A: None.
Supp. at 668 (Currie GJ 7/22/98). Ms. Currie
explained that
she felt no pressure because she basically
agreed with the
President's statements:
Q: You testified with respect to
the statements as the
President made them, and, in particular, the
four statements
that we've already discussed. You felt at
the time that they
were technically accurate? Is that a fair
assessment of your
testimony?
A: That's a fair assessment.
Q: But you suggested that at the
time. Have you changed
your opinion about it in retrospect?
A: I have not changed my opinion,
no.
Supp. at 667 (Currie GJ 7/22/98); see also
Supp. at 534
(Currie FBI 302 1/24/98) (``Currie advised
that she responded
``right'' to each of the statements because
as far as she
knew, the statements were basically right.'');
Supp. at 665
(Currie GJ 7/22/98) (``I said `Right' to him
because I
thought they were correct, `Right, you were
never really
alone with Monica, right' '').
What, then, to make of this conversation
if there was no
effort to influence Ms. Currie's testimony?
Well, to
understand fully the dynamic, one must remove
the memory of
all that has transpired since January 21 and
place oneself in
the President's position after the Jones deposition.
The
President had just faced unexpectedly detailed
questions
about Ms. Lewinsky. The questions addressed,
at times, minute
details and at other times contained bizarre
inaccuracies
about the relationship. As the President candidly
admitted in
his grand jury testimony, he had long thought
the day would
come when his relationship with Ms. Lewinsky
would become
public:
``I formed an opinion early in
1996, once I got into this
unfortunate and wrong conduct, that when it
stopped, which I
knew I'd have to do and which I should have
done long before
I did, that she would talk about it. Not because
Monica
Lewinsky is a bad person. She's basically
a good girl. She's
a good young woman with a good heart and a
good mind. . . .
But I knew that the minute there was no longer
any contact,
she would talk about this. She would have
to. She couldn't
help it. It was, it was part of her psyche.''
App. at 575-76 (emphasis added). Now, with
the questioning
about Ms. Lewinsky in the Jones case and the
publication of
the first internet report article about Ms.
Lewinsky, the
President knew that a media storm was about
to erupt. And
erupt it did.
So it was hardly surprising that
the President reached out
to Ms. Currie at this time. He was trying
to gather all
available information and assess the political
and personal
consequences that this revelation would soon
have. Though he
did not confide fully in Ms. Currie, he knew
Ms. Currie was
Ms. Lewinsky's main contact and thus could
have additional
relevant information to help him assess and
respond to the
impending media scrutiny. As the President
testified:
``I do not remember how many times
I talked to Betty Currie
or when. I don't. I can't possibly remember
that. I do
remember, when I first heard about this story
breaking,
trying to ascertain what the facts were, trying
to ascertain
what Betty's perception was. I remember that
I was highly
agitated, understandably, I think.''
App. at 593. And further, ``[W]hat I was trying
to determine
was whether my recollection was right and
that she was always
in the office complex when Monica was there.
. . . I thought
what would happen is that it would break in
the press, and I
was trying to get the facts down.'' App. at
507-08 (emphasis
added). As the President concluded: ``I was
not trying to get
Betty Currie to say something that was untruthful.
I was
trying to get as much information as quickly
as I could.''
App. at 508.
Ms. Currie's grand jury testimony
confirms the President's
``agitated'' state of mind and information-gathering
purpose
for the discussion. She testified that the
President
appeared, in her words, to be ``shocked or
surprised that
this was an issue, and he was just talking.''
Supp. at 668
(Currie GJ 7/22/98). She described the President's
remarks as
``both statements and questions at the same
time.'' Supp. at
534 (Currie FBI 302 1/24/98).
Finally, the inference that the
President intended to
influence Ms. Currie's testimony before she
ever became a
witness is firmly undercut by the advice the
President gave
to her when she ultimately did become a witness
in the OIC
investigation:
``And then I remember when I knew
she was going to have to
testify to the grand jury, and I, I felt terrible
because she
had been through this loss of her sister,
this horrible
accident Christmas that killed her
[Page S209]
brother, and her mother was in the hospital.
I was trying to
do--to make her understand that I didn't want
her to, to be
untruthful to the grand jury. And if her memory
was different
than mine, it was fine, just go in there and
tell them what
she thought. So, that's all I remember.''
App. at 593; see also App. at 508 (``I think
Ms. Currie would
also testify that I explicitly told her, once
I realized you
were involved in the Jones case--you, the
Office of
Independent Counsel--and that she might have
to be called as
a witness, that she should just go in there
and tell the
truth, tell what she knew, and be perfectly
truthful.'').\110\
---------------------------------------------------------------------------
\110\ Only groundless speculation and unfounded
inferences
support the Committee Report's mirror allegation
of Article I
(4) that the President lied to the grand jury
when he
described his motivation in discussing these
matters with Ms.
Currie. That allegation should be rejected
for the same
reasons discussed more fully in the text of
this section.
---------------------------------------------------------------------------
In sum, neither the testimony of
Ms. Currie nor that of the
President--the only two participants in this
conversation--
supports the inference that the conversation
had an insidious
purpose. The undisputed evidence shows that
Ms. Currie was
neither an actual nor contemplated witness
in the Jones case.
And when Ms. Currie did ultimately become
a witness in the
Starr investigation, the President told her
to tell the
truth, which she did.
7. The President denies that he obstructed
justice when he
relayed allegedly
``false and misleading statements'' to
his aides
This final allegation of Article
II should be rejected out
of hand. The President has admitted misleading
his family,
his staff, and the Nation about his relationship
with Ms.
Lewinsky, and he has expressed his profound
regret for such
conduct. But this Article asserts that the
President should
be impeached and removed from office because
he failed to be
candid with his friends and aides about the
nature of his
relationship with Ms. Lewinsky. These allegedly
impeachable
denials took place in the immediate aftermath
of the Lewinsky
publicity--at the very time the President
was denying any
improper relationship with Ms. Lewinsky in
nearly identical
terms on national television. Having made
this announcement
to the whole country on television, it is
simply absurd to
believe that he was somehow attempting corruptly
to influence
the testimony of aides when he told them virtually
the same
thing at the same time.\111\ Rather, the evidence
demonstrates that the President spoke with
these individuals
regarding the allegations because of the longstanding
professional and personal relationships he
shared with them
and the corresponding responsibility he felt
to address their
concerns once the allegations were aired.
The Managers point
to no evidence--for there is none--that the
President spoke
to these individuals for any other reason,
and certainly not
that he spoke with them intending to obstruct
any
proceeding.\112\ They simply assert that since
he knew there
was an investigation, his intent had to be
that they relate
his remarks to the investigators and grand
jurors. House Br.
at 80.
---------------------------------------------------------------------------
\111\ As the Supreme Court has held, to constitute
obstruction of justice such actions must be
taken `'with an
intent to influence judicial or grand jury
proceedings.''
United States v. Aguilar, 515 U.S. 592, 599
(1995).
\112\ The Committee Reports's allegation under
Article I (4)
that the President committed perjury before
the grand jury
when, in the course of admitting that he misled
his close
aides, he stated that he endeavored to say
to his aides
``things that were true,'' App. at 557-60,
without disclosing
the full nature of the relationship is simply
bizarre.
---------------------------------------------------------------------------
However, there is no allegation
that the President
attempted to influence these aides' testimony
about their own
personal knowledge or observations. Nor is
there any evidence
that the President knew any of these aides
would ultimately
be witnesses in the grand jury when he spoke
with them. None
was under subpoena at the time the denials
took place and
none had any independent knowledge of any
sexual activity
between the President and Ms. Lewinsky. Indeed,
the only
evidence these witnesses could offer on this
score was the
hearsay repetition of the same public denials
that the
members of the grand jury likely heard on
their home
television sets. Under the strained theory
of this article,
every person who heard the President's public
denial could
have been called to the grand jury to create
still additional
obstructions of justice.
To bolster this otherwise unsupportable
charge, the
Managers point to an excerpt of the President's
testimony
wherein he acknowledged that, to the extent
he shared with
anyone any details of the facts of his relationship
with Ms.
Lewinsky, they could conceivably be called
before the grand
jury--which for the sake of his friends the
President wanted
to avoid:
``I think I was quite careful what
I said after [January
21]. I may have said something to all of these
people to that
effect [denying an improper relationship],
but I'll also--
whenever anybody asked me any details, I said,
look, I don't
want you to be a witness or I turn you into
a witness or give
you information that could get you in trouble.
I just
wouldn't talk. I, by and large, didn't talk
to people about
this.''
App. at 647. The point was not that the President
believed
these people would be witnesses and so decided
to mislead
them, but rather that he decided to provide
as little
information as possible (consistent with his
perceived
obligation to address their legitimate concerns)
in order to
keep them from becoming witnesses solely because
of what he
told them.
In conclusion, this Article fails
as a matter of law and as
a matter of common sense. It should be soundly
rejected.
VI. The Structural Deficiencies of the
Articles Preclude a
Constitutionally Sound Vote
The Constitution prescribes a strict
and exacting standard
for the removal of a popularly elected President.
Because
each of the two articles charges multiple
unspecified wrongs,
each is unconstitutionally flawed in two independent
respects.
First, by charging multiple wrongs
in one article, the
House of Representatives has made it impossible
for the
Senate to comply with the Constitutional mandate
that any
conviction be by the concurrence of two-thirds
of the
members. Since Senate Rules require that an
entire article be
voted as a unit, sixty-seven Senators could
conceivably vote
to convict while in wide disagreement as to
the alleged wrong
committed--for example, they could completely
disagree on
what statement they believe is false--in direct
violation of
the Constitutional requirements of ``Concurrence''
and due
process.
Second, by charging perjury without
identifying a single
allegedly perjurious statement, and charging
obstruction of
justice without identifying a single allegedly
obstructive
action by the President, the House of Representatives
has
failed to inform the Senate either of the
statements it
agreed were perjurious (if it agreed), or
of the actual
conduct by the President that it agreed constituted
obstruction of justice (again, if it agreed).
The result is
that the President does not have the most
basic notice of the
charges against him required by due process
and fundamental
fairness. He is not in a position to defend
against anything
other than a moving target. The guesswork
involved even in
identifying the charges to be addressed in
this Trial
Memorandum highlights just how flawed the
articles are.\113\
---------------------------------------------------------------------------
\113\ The House Managers cannot constitutionally
unbundle the
charges in the articles or provide the missing
specifics.
This is because the Constitution provides
that only the House
of Representatives can amend articles of impeachment,
and
judicial precedent demonstrates that unduly
vague indictments
cannot be cured by a prosecutor providing
a bill of
particulars. Only the charging body--here,
the House--can
particularize an impermissibly vague charge.
Indeed, Senate precedent confirms that the
entire House must
grant particulars when articles of impeachment
are not
sufficiently specific for a fair trial. During
the 1933
impeachment trial of Judge Harold Louderback,
counsel for the
Judge filed a motion to make the original
Article V, the
omnibus or ``catchall'' article, more definite.
77 Cong Rec.
1852, 1854 (1933). The House Managers unanimously
consented
to the motion, which they considered to be
akin to a motion
for a bill of particulars, and the full House
amended Article
V to provide the requested specifics. Id.
Thereafter, the
Clerk of the House informed the Senate that
the House had
adopted an amendment to Article V. Id. Judge
Louderback was
then tried on the amended article. Judge Louderback
was
subsequently acquitted on all five articles.
Impeachment of
Richard M. Nixon, President of the United
States, Report by
Staff of the Impeachment Inquiry, House Comm.
on the
Judiciary, 93d Cong., 2d Sess., Appendix B
at 55 (Feb. 1974).
The power to define and approve articles of
impeachment is
vested by the Constitution exclusively in
the House of
Representatives. U.S. Const. Art I, Sec. 2,
cl. 5. It follows
that any alteration of an Article of Impeachment
can be
performed only by the House. The House cannot
delegate (and
has not delegated) to the Managers the authority
to amend or
alter the Articles, and Senate precedent demonstrates
that
only the House (not the Managers unilaterally)
can effect an
amendment to articles of impeachment.
Case law is consistent with this precedent.
When indictments
are unconstitutionally vague, they cannot
be cured by a
prosecutor's provision of a bill of particulars,
because only
the charging body can elaborate upon vague
charges. As the
Supreme Court noted in Russell v. United States,
369 U.S.
749, 771 (1962):
``It is argued that any deficiency in the
indictments in
these cases could have been cured by bills
of particulars.
But it is a settled rule that a bill of particular
cannot
save an invalid indictment . . . To allow
the prosecutor, or
the court, to make a subsequent guess as to
what was in the
minds of the grand jury at the time they returned
the
indictment would deprive the defendant of
a basic protection
which the guaranty of the intervention of
a grand jury was
designed to secure. For a defendant could
then be convicted
on the basis of facts not found by, and perhaps
not even
presented to, the grand jury which indicted
him. This
underlying principle is reflected by the settled
rule in the
federal courts that an indictment may not
be amended except
by resubmission to the grand jury. . . .''
See also Stirone v. United States, 361 U.S.
212, 214, 216
(1960) quoting Ex Parte Bain, 121 U.S. 1 (1887)
(``If it lies
within the province of a court to charging
part to an
indictment to suit its own notions of what
it ought to have
been or what they grand jury would probably
have made it if
their attention had been called to suggested
changes, the
great importance which the common law attaches
to an
indictment by a grand jury . . . may be frittered
away until
its value is almost destroyed.'').
---------------------------------------------------------------------------
The result is a pair of articles
whose structure does not
permit a constitutionally sound vote to convict.
If they were
counts in an indictment, these articles would
not survive a
motion to dismiss. Under the unique circumstances
of an
impeachment trial, they should fail:
A. The Articles Are Both Unfairly Complex and Lacking in Specificity
A cursory review of the articles
demonstrates that they
each allege multiple and unspecified acts
of wrongdoing.
1. The Structure of Article I
Article I accuses the President
of numerous different
wrongful actions. The introductory paragraph
charges the
President with (i) violating his constitutional
oath
faithfully to execute his office and defend
the
[Page S210]
Constitution; (ii) violating his constitutional
duty to take
care that the laws be faithfully executed;
(iii) willfully
corrupting and manipulating the judicial process;
and (iv)
impeding the administration of justice.
The second paragraph charges the
President with (a)
perjurious, (b) false, and (c) misleading
testimony to the
grand jury concerning ``one or more'' of four
different
subject areas:
(1) the nature and details of
this relationship with a
subordinate government employee;
(2) prior perjurious, false and
misleading testimony he
gave in a Federal civil rights action brought
against him;
(3) prior false and misleading
statements he allowed his
attorney to make to a federal judge in that
action;
(4) his corrupt efforts to influence
the testimony of
witnesses and to impede the discovery of evidence
in that
civil rights action.
The third paragraph alleges that,
as a consequence of the
foregoing, the President has, to the manifest
injury of the
people of the United States:
* undermined the integrity of
his office;
* brought disrepute on the Presidency;
* betrayed his trust as President;
and
* acted in a manner subversive
of the rule of law
and justice.
It is imperative to note that
although Article I alleges
``perjurious, false and misleading'' testimony
concerning
``one or more'' of four general subject areas,
it does not
identify the particular sworn statements by
the President
that were allegedly ``perjurious,'' (and therefore
potentially illegal), or ``false'' or ``misleading''
(and
therefore not unlawful). In fact, contrary
to the most basic
rules of fairness and due process, Article
I does not
identify a single specific statement that
is at issue.
In sum, Article I appears to charge
the President with four
general forms of wrongdoing (violations of
two oaths,
manipulation of legal process, impeding justice),
involving
three (perjurious, false, misleading) distinct
types of
statements, concerning different subjects
(relationship to
Ms. Lewinsky, prior deposition testimony,
prior statements of
his attorney, obstruction of justice),\114\
resulting in four
species of harms either to the Presidency
(undermining its
integrity, bringing it into disrepute) or
to the people
(acting in a manner subversive of the rule
of law and to the
manifest injury of the people). And it alleges
all of this
without identifying a single, specific perjurious,
false or
misleading statement.
---------------------------------------------------------------------------
\114\ It appears that each of these topic areas
includes
various, unspecified allegedly perjurious,
false and
misleading statements.
---------------------------------------------------------------------------
Absent a clear statement of which
statements are alleged to
have been perjurious, and which specific acts
are alleged to
have been undertaken with the purpose of obstructing
the
administration of justice, it is impossible
to prepare a
defense. It is a fundamental tenet of our
jurisprudence that
an accused must be afforded notice of the
specific charges
against which he must defend. Neither the
Referral of the
Office of the Independent Counsel, nor the
Committee Report
of the Judiciary Committee, nor the House
Managers' Trial
Memorandum was adopted by the House, and none
of them can
provide the necessary particulars. It is impossible
to know
whether the different statements and acts
charged in the
Referral, or the Report, or the Trial Memorandum,
or all, or
none, are what the House had in mind when
it passed the
Articles.
2. The Structure of Article II
Article II accuses the President
of a variety of wrongful
acts. The introductory paragraph charges the
President with
(i) violating his constitutional oath faithfully
to execute
his office and defend the Constitution and
(ii) violating his
constitutional duty to take care that the
laws be faithfully
executed by (iii) preventing, obstructing
and impeding the
administration of justice by engaging (personally
and through
subordinates and agents) in a scheme designed
to delay,
impede, cover up, and conceal the existence
of evidence and
testimony related to a Federal civil rights
action.
The second paragraph specifies
the various ways in which
the violations in the first paragraph are
said to have
occurred. It states that the harm was effectuated
by
``means'' that are not expressly defined or
delimited, but
rather are said to include ``one or more''
of seven ``acts''
attributed to the President:
(1) corruptly encouraging a witness
to execute a
perjurious, false and misleading affidavit;
(2) corruptly encouraging a witness
to give perjurious,
false and misleading testimony if called to
testify;
(3) corruptly engaging in, encouraging
or supporting a
scheme to conceal evidence;
(4) intensifying and succeeding
in an effort to secure job
assistance to a witness in order to corruptly
prevent the
truthful testimony of that witness at a time
when that
witness's truthful testimony would have been
harmful;
(5) allowing his attorney to make
false and misleading
statements to a federal judge in order to
prevent relevant
questioning;
(6) relating a false and misleading
account of events to a
potential witness in a civil rights action
in order to
corruptly influence the testimony of that
person;
(7) making false and misleading
statements to potential
witnesses in a Federal grand jury proceeding
in order to
corruptly influence their testimony and causing
the grand
jury to receive false and misleading information.
The third paragraph alleges that,
as a result of the
foregoing, the President has, to the manifest
injury of the
people of the United States:
* undermined the integrity of
his office;
* brought disrepute on the Presidency;
* betrayed his trust as President;
and
* acted in a manner subversive
of the rule of law
and justice.
As with the first article, Article
II does not set forth a
single specific act alleged to have been performed
by the
President. Instead, it alleges general ``encourage[ment]''
to
execute a false affidavit, provide misleading
testimony, and
conceal subpoenaed evidence. This Article
also includes
general allegations that the President undertook
to
``corruptly influence'' and/or ``corruptly
prevent'' the
testimony of potential witnesses and that
he ``engaged in . .
. or supported'' a scheme to conceal evidence.
Again, the
Senate and the President have been left to
guess at the
charges (if any) actually agreed upon by the
House.
b. conviction on these articles would violate the constitutional
requirement that two-thirds of the senate reach agreement that specific
wrongdoing has been proven
1. The Articles Bundle Together Disparate Allegations
in
Violation of the Constitution's
Requirements of
Concurrence and Due
Process
a. The Articles Violate the Constitution's
Two-Thirds
Concurrence
Requirement
Article I, section 3 of the Constitution
provides that ``no
person shall be convicted [on articles of
impeachment]
without the Concurrence of two thirds of the
Members
present.'' U.S. Const. Art. I, Sec. 3, cl.
6. The
Constitution's requirement is plain. These
must be
``Concurrence,'' which is to say genuine,
reliably
manifested, agreement, among those voting
to convict. Both
the committing of this task to the Senate
and the two-thirds
requirement are important constitutional safeguards
reflecting the Framers' intent that conviction
not come
easily. Conviction demands real and objectively
verifiable
agreement among a substantial supermajority.
Indeed, the two-thirds supermajority
requirement is a
crucial constitutional safeguard. Supermajority
provisions
are constitutional exceptions \115\ to the
presumption that
decisions by legislative bodies shall be made
by majority
rule.\116\ These exceptions serve exceptional
ends. The two-
thirds concurrence rule serves the indispensable
purpose of
protecting the people who chose the President
by election. By
giving a ``veto'' to a minority of Senators,
the Framers
sought to ensure the rights of an electoral
majority--and to
safeguard the people in their choice of Executive.
Only the
Senate and only the requirement of a two-thirds
concurrence
could provide that assurance.
---------------------------------------------------------------------------
\115\ See e.g., U.S. Const. Art. I, Sec. 7,
cl. 2 (two thirds
vote required to override Presidential veto);
U.S. Const.
Art. II, Sec. 2, cl. 2 (two thirds required
for ratification
of treaties); U.S. Const. Art. V (two thirds
required to
propose constitutional amendments); U.S. Const.
Art. I,
Sec. 5, cl. 2 (two thirds required to expel
members of
Congress).
\116\ Madison referred to majority voting
as ``the
fundamental principal of free government.''
Federalist No. 58
at 248 (G. Wills ed. 1982).
---------------------------------------------------------------------------
The ``Concurrence'' required is
agreement that the charges
stated in specific articles have in fact been
proved, and the
language of those articles is therefore critical.
Since the
House of Representatives is vested with the
``sole Power of
Impeachment,'' U.S. Const. Art. I, Sec. 2,
cl. 5, the form of
those articles cannot be altered by the Senate.
And Rule
XXIII of the Rules of Procedure and Practice
in the Senate
when Sitting on Impeachment Trials (``Senate
Rules'')
provides that ``[a]n article of impeachment
shall not be
divisible for the purpose of voting thereon
at any time
during the trial.''
It follows that each Senator may
vote on an article only in
its totality. By the express terms of Article
I, a Senator
may vote for impeachment if he or she finds
that there was
perjurious, false and misleading testimony
in any ``one or
more'' of four topic areas. But that prospect
creates the
very real possibility that ``conviction''
could occur even
though fewer than two-thirds of the Senators
actually agree
that any particular false statement was made.\117\
Put
differently, the article's structure presents
the possibility
that the President could be convicted on Article
I even
though he would have been acquitted if separate
votes were
taken on individual allegedly perjurious statements.
To
illustrate the point, consider that it would
be possible for
conviction to result even with as few as seventeen
Senators
agreeing that any single statement was perjurious,
because
seventeen votes for one statement in each
of four categories
would yield 68 votes, one more than necessary
to convict. The
problem is even worse if Senators agree that
there is a
single perjurious statement but completely
disagree as to
which statement within the 176 pages of transcript
they
believe is perjurious. Such an outcome would
plainly violate
the Constitution's requirement that there
be conviction only
when a two-thirds majority agrees.
---------------------------------------------------------------------------
\117\ There remains the additional problem
that the articles
allege not specific perjurious statements,
but perjury within
a topic area. Perjury as to a category (rather
than as to
specific statements) is an incomprehensible
notion.
---------------------------------------------------------------------------
The very same flaw renders Article
II unconstitutional as
well. That Article alleges a
[Page S211]
scheme of wrongdoing effected through ``means''
including
``one or more'' of seven factually and logically
discrete
``acts.'' That compound structure is fraught
with the
potential to confuse. For example, the Article
alleges both
concealment of gifts on December 28, 1997,
and false
statements to aides in late January 1998.
These two
allegations involve completely different types
of behavior.
They are alleged to have occurred in different
months. They
involved different persons. And they are alleged
to have
obstructed justice in different legal proceedings.
In light
of Senate Rule XXIII's prohibition on dividing
articles, the
combination of such patently different types
of alleged
wrongdoing in a single article creates the
manifest
possibility that votes for conviction on this
article would
not reflect any two-third agreement whatsoever.
The extraordinary problem posed
by such compound articles
is well-recognized and was illustrated by
the proceedings in
the impeachment of Judge Walter Nixon. Article
III of the
Nixon proceedings, like the articles here,
was phrased in the
disjunctive and charged multiple false statements
as grounds
for impeachment. Judge Nixon moved to dismiss
Article III on
a number of grounds, including on the basis
of its compound
structure.\118\ Although that motion was defeated
in the full
Senate by a vote of 34-63,\119\ the 34 Senators
who voted to
dismiss were a sufficient number to block
conviction on
Article III.
---------------------------------------------------------------------------
\118\ See Report of the Senate Impeachment
Trial Committee on
the Articles of Impeachment Against Judge
Walter L. Nixon,
Jr., Hearings Before the Senate Impeachment
Trial Committee,
101st Cong., 1st Sess. at 257, 281-84 (1989).
\119\ Judge Nixon Proceedings at 430-32.
---------------------------------------------------------------------------
Judge Nixon (although convicted
on the first two articles)
was ultimately acquitted on Article III by
a vote of 57
(guilty) to 40 (not guilty).\120\ Senator
Biden, who voted
not guilty on the article, stated that the
structure of the
article made it ``possible . . . for Judge
Nixon to be
convicted under article III even though two-thirds
of the
members present did not agree that he made
any one of the
false statements.'' \121\ Senator Murkowski
concurred: ``I
don't appreciate the omnibus nature of article
III, and I
agree with the argument that the article could
easily be used
to convict Judge Nixon by less than the super
majority vote
required by the Constitution.'' Id. at 464.\122\
And Senator
Dole stated that ``Article III is redundant,
complex and
unnecessarily confusing. . . . It alleges
that Judge Nixon
committed five different offenses in connection
with each of
fourteen separate events, a total of seventy
charges. . . .
[I]t was virtually impossible for Judge Nixon
and his
attorney's to prepare an adequate defense.''
\123\
---------------------------------------------------------------------------
\120\ Id. at 435-36.
\121\ Statement of Senator Joseph R. Biden,
Jr., id. at 459.
\122\ See also Statement of Senator Bailey,
Impeachment of
Judge Harold Louderback, 77 Cong. Rec. 4238
(May 26, 1933)
(respondent should be tried on individual
articles and not on
all of them assembled into one article).
\123\ Statement of Senator Robert Dole, Judge
Nixon
Proceedings at 457.
---------------------------------------------------------------------------
In his written statement filed
after the voting was
completed, Senator Kohl pointed out the dangers
posed by
combining multiple accusations in a single
article:
``Article III is phrased in the
disjunctive. It says that
Judge Nixon concealed his conversations through
`one or more'
of 14 false statements.
``This wording presents a variety
of problems. First of
all, it means that Judge Nixon can be convicted
even if two
thirds of the Senate does not agree on which
of his
particular statements were false. . . .
``The House is telling us that
it's OK to convict Judge
Nixon on Article III even if we have different
visions of
what he did wrong. But that's not fair to
Judge Nixon, to the
Senate, or to the American people. Let's say
we do convict on
Article III. The American people--to say nothing
of history--
would never know exactly which of Judge Nixon's
statements
were regarded as untrue. They'd have to guess.
What's more,
this ambiguity would prevent us from being
totally
accountable to the voters for our decision.''
\124\
\124\ Statement of Senator Herbert H. Kohl,
id. at 449
(emphasis added). Senator Kohl did not believe
that the
constitutional question concerning two-thirds
concurrence had
to be answered in the Judge Nixon proceedings
because he
believed that the bundling problem created
an unfairness (in
effect, a due process violation) that precluded
conviction.
Id.
---------------------------------------------------------------------------
As noted, the Senate acquitted Judge Nixon
on the omnibus
article--very possible because of the constitutional
and
related due process and fairness concerns
articulated by
Senator Kohl and others.\125\
---------------------------------------------------------------------------
\125\ See also Constitutional Grounds for Presidential
Impeachment: Modern Precedents, Report by
the Staff of the
Impeachment Inquiry, Comm. on Judiciary, 105th
Cong., 2d
Sess. at 12 (1998) (discussing Sen. Kohl's
position).
---------------------------------------------------------------------------
The constitutional problems identified
by those Senators
are significant when a single federal judge
(one of roughly
1000) is impeached. But when the Chief Executive
and sole
head of one entire branch of our government
stands accused,
those infirmities are momentous. Fairness
and the appearance
of fairness require that the basis for any
action this body
might take be clear and specific. The Constitution
clearly
forbids conviction unless two thirds of the
Senate concurs in
a judgment. Any such judgment would be meaningless
in the
absence of a finding that specific, identifiable,
wrongful
conduct has in fact occurred. No such conclusion
is possible
under either article as drafted.
b. Conviction on the Articles
Would Violate Due Process
Protections
that Forbid Compound Charges in a Single
Accusation
Even apart from the Constitution's
clear requirement of
``Concurrence'' in Article I, section 3, the
fundamental
principles of fairness and due process that
underlie our
Constitution and permeate our procedural and
substantive law
compel the same outcome. In particular, the
requirement that
there be genuine agreement by the deciding
body before an
accused is denied life, liberty or property
is a cornerstone
of our jurisprudence.\126\
---------------------------------------------------------------------------
\126\ Judicial precedent is persuasive here
on these due
process and fairness questions. Indeed, in
prior impeachment
trials, the Senate has been guided by decisions
of the
courts, because they reflect cumulative wisdom
concerning
fairness and the search for justice. During
the impeachment
trial of Judge Alcee L. Hastings, Senator
Specter stated:
``[T]he impeachment process relies in significant
measure on
decisions of the court and the opinion of
judges . . . [T]he
decisions and interpretations of the courts
should be highly
instructive to us. In our system of Government,
it has been
the courts that through the years have been
called upon to
construe, define and apply the provisions
of our
Constitution. Their decisions reflect our
values and our
evolving notions of justice . . . Although
we are a branch of
Government coequal with the judiciary, and
by the
Constitution vested with the `sole' power
to try
impeachments, I believe that the words and
reasoning of
judges who have struggled with the meaning
and application of
the Constitution and its provisions ought
to be given great
heed because that jurisprudence embodies the
values of
fairness and justice that ought to be the
polestar of our own
determinations.'' (S. Doc. 101-18, 101st Cong.,
1st Sess. at
740-41.)
(As Senator Specter observed, judicial rules
have been
developed and refined over the years to assure
that court
proceedings are fair, and that an accused
is assured the
necessary tools to prepare a proper defense,
including proper
notice.
---------------------------------------------------------------------------
While in the federal criminal context
due process requires
that there be genuine agreement among the
entire jury, see
United States v. Fawley, 137 F.3d 458, 470
(7th Cir. 1998),
Schad v. Arizona, 501 U.S. 624 (1991) (plurality),
in the
impeachment context, that requirement of genuine
agreement
must be expressed by a two-thirds supermajority.
But the
underlying due process principles is the same
in both
settings. This basic principle is bottomed
on two fundamental
notions: (1) that there be genuine agreement--mutuality
of
understanding--among those voting to convict,
and (2) that
the unanimous verdict be understood (by the
accused and by
the public) to have been the product of genuine
agreement.
This principle is given shape
in the criminal law in the
well-recognized prohibition on ``duplicitous''
charges.
``Duplicity is the joining in a single count
of two or more
distinct and separate offenses.'' United States
v. UCO Oil,
546 F.2d 833, 835 (9th Cir. 1976.) In the
law of criminal
pleading, a single count that charges two
or more separate
offenses is duplicitous. See United States
v. Parker, 991
F.2d 1493, 1497-98 (9th Cir. 1993); United
States v. Hawkes,
753 F.2d 355, 357 (4th Cir. 1985).\127\ A
duplicitous charge
in an indictment violates the due process
principle that
``the requisite specificity of the charge
may not be
compromised by the joining of separate offenses.''
Schad v.
Arizona, 501 U.S. 624, 633 (1991) (plurality).
---------------------------------------------------------------------------
\127\ See also Federal Rules of Criminal Procedure,
Rule
8(a): ``Two or more offenses may be charged
in the same
indictment or information in a separate count
for each
offense if the offenses charged . . . are
of the same or
similar charter or are based on the same act
or transaction
or on two or more acts or transactions connected
together or
constituting parts of a common scheme or plan.''
(emphasis
added).
---------------------------------------------------------------------------
More specifically, a duplicitous
charge poses the acute
danger of conviction by a less-than-unanimous
jury; some
jurors may find the defendant guilty of one
charge but not
guilty of a second, while other jurors find
him guilty of a
second charge but not the first. See United
States v. Saleh,
875 F.2d 535, 537 (6th Cir. 1989); United
States v. Stanley,
597 F.2d 866, 871 (4th Cir. 1979); Bins v.
United States, 331
F.2d 390, 393 (5th Cir. 1964).\128\ Our federal
system of
justice simply does not permit conviction
by less than
unanimous agreement concerning a single, identified
charge.
See United States v. Fawley, 137 F.3d 471
(7th Cir. 1998)
(conviction requires unanimous agreement as
to particular
statements); United States v. Holley, 942
F.2d 916, 929 (5th
Cir. 1991) (reversal required where no instruction
was given
to ensure that all jurors concur in conclusion
that at least
one particular statement was false); see also
United States
v. Gipson, 553 F.2d 453, 458-59 (5th Cir.
1977) (right to
unanimous verdict violated by instruction
authorizing
conviction if jury found defendant committed
any one of six
acts proscribed by statute).\129\ The protection
against
conviction by less than full agreement by
the factfinders is
enshrined in Rule 31(a) of the Federal Rules
of Criminal
Procedure which dictates that ``[t]he verdict
shall be
unanimous.'' \130\
---------------------------------------------------------------------------
\128\ Each of the four categories charged here
actually
comprises multiple allegedly perjurious statements.
Thus, the
dangers of duplicitousness are increased exponentially.
\129\ The Supreme Court has stated that ``[u]nanimity
in jury
verdicts is required where the Sixth and Seventh
Amendments
apply.'' Andres v. United States, 333 U.S.
740, 748 (1948);
Apodaca v. Oregon, 406 U.S. 404 (1972) (same).
\130\ That rule gives expression to a criminal
defendant's
due process right to a unanimous verdict.
See United States
v. Fawley, 137 F.2d 458, 4771 (7th Cir. 1988).
Because the
Constitution does not tolerate the risk of
a less than
unanimous verdict in the criminal setting,
``where the
complexity of a case or other factors create
the potential
for confusion as to the
[Continued on page S212]