PRELIMINARY MEMORANDUM
CONCERNING REFERRAL OF
OFFICE OF INDEPENDENT COUNSEL
David E. Kendall Charles F.C. Ruff
Nicole K. Seligman Cheryl Mills
Emmet T. Flood Lanny A. Breuer
Max Stier OFFICE OF THE WHITE
Glen Donath HOUSE COUNSEL
Alicia L. Marti The White House
WILLIAMS & CONNOLLY Washington, DC 20005
725 12th Street, N.W.
Washington, DC 20005
September 11, 1998
EXECUTIVE SUMMARY
Summary of Key Points of the President's Case in Anticipation of the Starr Report
1. The President has acknowledged a serious mistake B an
inappropriate relationship with Monica Lewinsky. He has taken
responsibility for his actions, and he has apologized to the country, to his
friends, leaders of his party, the cabinet and most importantly, his family.
1. This private mistake does not amount to an impeachable action.
A relationship outside one=s marriage is wrong B and the President admits
that. It is not a high crime or misdemeanor. The Constitution specifically
states that Congress shall impeach only for Atreason, bribery or other high
crimes and misdemeanors.@ These words in the Constitution were
chosen with great care, and after extensive deliberations.
2. "High crimes and misdemeanors" had a fixed meaning to the
Framers of our Constitution B it meant wrongs committed against
our system of government. The impeachment clause was designed to
protect our country against a President who was using his official powers
against the nation, against the American people, against our society. It was
never designed to allow a political body to force a President from office
for a very personal mistake.
3. Remember B this report is based entirely on allegations
obtained by a grand jury B reams and reams of allegations and
purported Aevidence@ that would never be admitted in court, that has
never been seen by the President or his lawyers, and that was not subject
to cross-examination or any other traditional safeguards to ensure its
credibility.
4. Grand juries are not designed to search for truth. They do not and
are not intended to ensure credibility, reliability, or simple fairness. They
only exist to accuse. Yet this is the process that the Independent Counsel
has chosen to provide the "evidence" to write his report.
5. The law defines perjury very clearly. Perjury requires proof that an
individual knowingly made a false statement while under oath. Answers to
questions that are literally true are not perjury. Even if an answer doesn=t
directly answer the question asked, it is not perjury if it is true B no
accused has an obligation to help his accuser. Answers to fundamentally
ambiguous questions also can never be perjury. And nobody can be
convicted of perjury based on only one other person=s testimony.
6. The President did not commit perjury. Most of the illegal leaks
suggesting his testimony was perjurious falsely describe his
testimony. First of all, the President never testified in the Jones deposition
that he was not alone with Ms. Lewinsky. The President never testified
that his relationship with Ms. Lewinsky was the same as with any other
intern. To the contrary, he admitted exchanging gifts with her, knowing
about her job search, receiving cards and notes from her, and knowing
other details of her personal life that made it plain he had a special
relationship with her.
7. The President has admitted he had an improper sexual
relationship with Ms. Lewinsky. In a civil deposition, he gave narrow
answers to ambiguous questions. As a matter of law, those answers could
not give rise to a criminal charge of perjury. In the face of the President's
admission of his relationship, the disclosure of lurid and salacious
allegations can only be intended to humiliate the President and force him
from office.
8. There was no obstruction of justice. We believe Betty Currie
testified that Ms. Lewinsky asked her to hold the gifts and that the
President never talked to her about the gifts. The President admitted
giving and receiving gifts from Ms. Lewinsky when he was asked about it.
The President never asked Ms. Lewinsky to get rid of the gifts and he
never asked Ms. Currie to get them. We believe that Ms. Currie=s
testimony supports the President=s.
9. The President never tried to get Ms. Lewinsky a job after she
left the White House in order to influence her testimony in the
Paula Jones case. The President knew Ms. Lewinsky was unhappy in
her Pentagon job after she left the White House and did ask the White
House personnel office to treat her fairly in her job search. He never
instructed anyone to hire her, or even indicated that he very much wanted
it to happen. Ms. Lewinsky was never offered a job at the White House
after she left B and it's pretty apparent that if the President had ordered it,
she would have been.
10. The President did not facilitate Ms. Lewinsky=s interview with
Bill Richardson, or her discussions with Vernon Jordan. Betty Currie
asked John Podesta if he could help her with her New York job search
which led to an interview with Bill Richardson, and Ms. Currie also put her
in touch with her longtime friend, Mr. Jordan. Mr. Jordan has made it
clear that this is the case, and, as a private individual, he is free to offer job
advice wherever he sees fit.
11. There was no witness tampering. Betty Currie was not
supposed to be a witness in the Paula Jones case. If she was not
called or going to be called, it was impossible for any conversations the
President had with her to be witness tampering. The President testified that
he did not in any way attempt to influence her recollection.
12. There is no Atalking points@ smoking gun. Numerous illegal
leaks painted the mysterious talking points as the proof that the President
or his staff attempted to suborn the perjury of Monica Lewinsky or Linda
Tripp. The OIC's spokesman said that the "talking points" were the "key"
to Starr even being granted authority to investigate the President's private
life. Yet in the end, Ms. Lewinsky has apparently admitted the talking
points were written by her alone [or with Ms. Tripp's assistance], and the
President was not asked one single question about them in his grand jury
appearance.
13. Invocation of privileges was not an abuse of power. The
President's lawful assertion of privileges in a court of law was only made
on the advice of his Counsel, and was in significant measure validated by
the courts. The legal claims were advanced sparingly and as a last resort
after all attempts at compromise by the White House Counsel's office
were rejected to protect the core constitutional and institutional interests of
this and future presidencies.
14. Neither the President nor the White House played a role in the
Secret Service's lawful efforts to prevent agents from testifying to
preserve its protective function. The President never asked, directed
or participated in any decision regarding the protective function privilege.
Neither did any White House official. The Treasury and Justice
Departments independently decided to respond to the historically
unprecedented subpoenas of Secret Service personnel and to pursue the
privilege to ensure the protection of this and future presidents.
15. The President did not abuse his power by permitting White
House staff to comment on the investigation. The President has
acknowledged misleading his family, staff and the country about the nature
of his relationship with Ms. Lewinsky, and he has apologized and asked
for forgiveness. However, this personal failing does not constitute a
criminal abuse of power. If allowing aides to repeat misleading statements
is a crime, then any number of public officials are guilty of misusing their
office for as long as they fail to admit wrong doing in response to any
allegation about their activities.
16. The actions of White House attorneys were completely lawful.
The White House Counsel attorneys provided the President and White
House officials with informed, candid advice on issues raised during this
investigation that affected the President's official duties. This was especially
necessary given the fact that impeachment proceedings against the
President were a possible result of the OIC's investigation from Day One.
In fact, throughout the investigation, the OIC relied on the White House
Counsel's office for assistance in gathering information and arranging
interviews and grand jury appearances. The Counsel's office's actions
were well known to the OIC throughout the investigation and no objection
was ever voiced.
This means that the OIC report is left with nothing but the details of a private
sexual relationship, told in graphic details with the intent to embarrass. Given
the flimsy and unsubstantiated basis for the accusations, there is a complete lack of any
credible evidence to initiate an impeachment inquiry concerning the President. And the
principal purpose of this investigation, and the OIC=s report, is to embarrass the
President and titillate the public by producing a document that is little more than an
unreliable, one-sided account of sexual behavior.
Where's Whitewater? The OIC's allegations reportedly include no suggestion of
wrongdoing by the President in any of the areas which Mr. Starr spend four years
investigating: Whitewater, the FBI files and the White House travel office. What began
as an inquiry into a 24 year old land deal in Arkansas has ended as an inquest into brief,
improper personal encounters between the President and Monica Lewinsky. Despite
the exhaustive nature of the OIC's investigation into the Whitewater, FBI files and travel
office matters, and a constant stream of suggestions of misconduct in the media over a
period of years, to this day the OIC has never exonerated the President or the First
Lady of wrongdoing.
PRELIMINARY MEMORANDUM CONCERNING
REFERRAL OF OFFICE OF INDEPENDENT COUNSEL
This document is intended to be a preliminary response to the Referral submitted by the Office of
Independent Counsel to The Congress. Because we were denied the opportunity to review the
content, nature or specifics of the allegations made against the President by the Office of Independent
Counsel (OIC), we do not pretend to offer a point-by-point refutation of those allegations, or a
comprehensive defense of the President.
We commend the House of Representatives for the extraordinary steps it has taken to safeguard the
secrecy of the OIC's allegations. Unfortunately, its efforts were thwarted by unnamed sources
familiar with the details of the OIC's allegations -- sources that could only come from the OIC itself
-- who saw fit to leak elements of the allegations to the news media.
Based on these illegal leaks, as well as our knowledge of the President's testimony, we offer this
document as a summary outline of his side of the case. We will provide you with a specific rebuttal as
soon as we have had a chance to review the materials that the OIC has already transmitted to you.
The simple reality of this situation is that the House is being confronted with evidence of a man's
efforts to keep an inappropriate relationship private. A personal failure that the President has
acknowledged was wrong, for which he apologized, and for which he accepts complete
responsibility. A personal failure for which the President has sought forgiveness from members of his
family, members of the Cabinet, Members of Congress, and the American people. Such a personal
failing does not, however, constitute "treason, bribery and high crimes and misdemeanors" that would
justify the impeachment of the President of the United States.
The President himself has described his conduct as wrong. But no amount of gratuitous details about
the President's relationship with Ms. Lewinsky, no matter how salacious, can alter the fact that:
1) The President did not commit perjury:
2) The President did not obstruct justice;
3) The President did not tamper with witnesses; and
4) The President did not abuse the power of his office.
Impeachment is a matter of incomparable gravity. Even to discuss it is to discuss overturning the
electoral will of the people. For this reason, the Framers made clear, and scholars have long agreed,
that the power should be exercised only in the event of such grave harms to the state as "serious
assaults on the integrity of the processes of government," or "such crimes as would so stain a
president as to make his continuance in office dangerous to public order." Charles L. Black,
Impeachment: A Handbook 38-39 (1974). We do not believe the OIC can identify any conduct
remotely approaching this standard. Instead, from press reports, if true, it appears that the OIC has
dangerously overreached to describe in the most dramatic of terms conduct that not only is not
criminal but is actually proper and lawful.
The President has confessed to indiscretions with Ms. Lewinsky and accepted responsibility and
blame. The allegations concerning obstruction, intimidation, perjury and subornation of perjury that
we anticipate from the OIC are extravagant attempts to transform a case involving inappropriate
personal behavior into one of public misconduct justifying reversal of the judgment of the electorate
of this country.
I. STANDARDS FOR IMPEACHMENT
The Constitution provides that the President shall be removed from office only upon AImpeachment
for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.@ U.S. Const.
Art. II, ' 4. Of course, there is no suggestion of treason or bribery present here. Therefore, the
question confronting the House of Representatives is whether the President has committed a Ahigh
Crime[] or Misdemeanor.@ The House has an obligation to consider the evidence in view of that
very high Constitutional threshold. It should pursue the impeachment process only if there is evidence
implicating that high standard.
The House must approach the question with solemnity and with care, for history teaches that an
"impeachable offense" is no ordinary kind of wrongdoing. The Framers included specific provisions
for impeachment in the Constitution itself because they understood that the most severe political
remedy was necessary to remedy the most serious forms of public wrongdoing. Impeachment is a
basic constitutional safeguard, designed both to correct harms to the system of government itself and
to protect the people from ongoing malfeasance. Nothing less than the gravest executive wrongdoing
can justify impeachment. The Constitution leaves lesser wrongs to the political process and to public
opinion.
Presidential impeachment is thus a matter of incomparable gravity. As Professor Charles Black
stated,
[t]he presidency is a prime symbol of our national unity. The election of the president
(with his alternate, the vice-president) is the only political act that we perform together
as a nation; voting in the presidential election is certainly the political choice most
significant to the American people, and the most closely attended to by them. No
matter, then, can be of higher political importance than our considering whether, in any
given instance, this act of choice is to be undone, and the chosen president dismissed
from office in disgrace. Everyone must shrink from this most drastic of measures.
Impeachment: A Handbook 1 (1974). Presidential impeachment is thus an Aawful step.@ Ibid. The
Framers knew this. For that reason they framed the constitutional procedure with precision and
specified grounds for impeachment with great care.
The Framers deliberately chose to make Ahigh Crimes and Misdemeanors@ the standard of an
impeachable offense. They were familiar with English common law and parliamentary history and they
borrowed the expression directly from the English law of impeachment. They did so knowing that the
expression was a term of art and they made the choice after deliberate rejection of alternative
formulations of the impeachment standard.
The Framers intended the standard to be a high one. They rejected a proposal that the President be
impeachable for "maladministration," for, as James Madison pointed out, such a standard would "be
equivalent to a tenure during the pleasure of the Senate."/ The Framers plainly did not intend to
permit Congress to debilitate the executive by authorizing impeachment for something short of the
most serious harm to the state. In George Mason's apt phrase, impeachment was thought necessary
to remedy "[a]ttempts to subvert the Constitution."
In English practice, the term "high crimes and misdemeanors" had been applied to various offenses,
the common elements of which were their severity and the fact that the wrongdoing was directed
against the state./ The English cases included misappropriation of public funds, interfering in elections,
accepting bribes, neglect of duty, and various forms of corruption. Ibid. These offenses all affected
the discharge of public duties by public officials. In short, under the English practice, Athe critical
element of injury in an impeachable offense was injury to the state.@/
That is why, at the time of the ratification debates, Alexander Hamilton described impeachment as a
Amethod of NATIONAL INQUEST into the conduct of public men.@ The Federalist No. 65 at
331 (Gary Wills ed. 1982). This Ainquest@ is perhaps the gravest process known to our
Constitution. No act touches more fundamental questions of constitutional government than does the
process of Presidential impeachment. No act more directly affects the public interest. No act
presents the potential for greater injustice -- injustice both to the Chief Executive and to the people
who elected him.
For these reasons, the impeachment process must be painstaking and deliberate. It must focus only
on such harms as the Framers intended to be redressed by the incomparably severe act of
impeachment. And most importantly, it must be understood for what it is -- a process of inquiry. That
process is itself the exercise of a public trust Aof delicacy and magnitude.@/ Accordingly, if the
process is begun it is only just that the members engaged in this solemn task withhold judgment until
the process is complete and all the facts are known. Our Constitution=s most basic values and the
requirements of simple justice together demand no less.
The President is sole head of one branch of our government -B indeed, in a certain sense the
President is the Executive Branch. The Constitution provides that A[t]he executive Power shall be
vested in a President of the United States of America.@ U.S. Const. art. II, ' 1. The President is the
only government official to have been popularly elected by all the American people. When the people
elect a President, the popular will is expressed in its most important, most visible and most
unmistakable form./ The impeachment process, by definition, threatens to undo the popular will.
Impeachment presents the prospect of reversing the electoral mandate that brought the executive to
office. Conviction upon articles of impeachment actually does so.
For these reasons, impeachment is limited to only certain forms of potential wrongdoing and it is
intended to redress only certain kinds of harms. Again, in Hamilton=s words:
the subjects of [the Senate=s impeachment] jurisdiction are those offenses which
proceed from the misconduct of public men, or in other words from the abuse of
violation of some public trust. They are of a nature which may with peculiar propriety be
denominated POLITICAL, as they relate chiefly to injuries done to the society itself.
Federalist 65 at 330-31.
The Framers and early commentators on the Constitution are in accord on the question of
impeachment=s intended consequence. In Justice James Wilson's words, impeachments are
Aproceedings of a political nature . . . confined to political characters@ charging only Apolitical
crimes and misdemeanors@ and culminating only in Apolitical punishments.@ J. Wilson, Works 426
(R. McCloskey, ed. 1967) And as Justice Story put the matter, Athe [impeachment] power partakes
of a political character, as it respects injuries to the society in its political character.@ Joseph Story,
Commentaries on the Constitution ' 744 (1st Ed. 1833)./ That understanding of the Framers and
early commentators reflected the historical understanding of impeachable offenses in England.
A=High crimes and misdemeanors= were a category of political crimes against the state.@ Berger,
Impeachment, at 61 (emphasis in original). Therefore, the Framers "intended that a president be
removable from office for the commission of great offenses against the Constitution."/ Impeachment
therefore addresses public wrongdoing, whether denominated a Apolitical crime[] against the
state,@/ or Aan act of malfeasance or abuse of office,"/ or a Agreat offense[s] against the federal
government.@/ In short, impeachment is a necessary Constitutional check by a coordinate branch of
government upon serious and aggravated abuses of executive power that, given the President=s
four-year term, might otherwise go unchecked.
Holders of public office are therefore not to be impeached for private conduct, however wrongful.
To the contrary, only Aserious assaults on the integrity of the processes of government,@/ and
Asuch crimes as would so stain a president as to make his continuance in office dangerous to public
order@/ should constitute impeachable offenses. Conduct which is not an "offense[] against the
government,"/ or Amalfeasance or abuse of office,@/ and which bears no Afunctional relationship@/
to public office, does not constitute grounds for impeachment. Allegations concerning private
conduct-Bprivate sexual conduct in particular--simply do not implicate high crimes or misdemeanors.
Private misconduct, or even public misconduct short of an offense against the state, is not redressable
by impeachment because that solemn process, in Justice Story's words, addresses Aoffences[] which
are committed by public men in violation of their public trust and duties.@ Story, Commentaries '
744 (emphasis added). Impeachment is a political act in the sense that its aims are public; it attempts
to rein in abuses of the public trust committed by public officeholders in connection with conduct in
public office. As one scholar has put it, A[t]he nature of [impeachment] proceedings is dictated by
the harms sought to be redressed B Athe misconduct of public men@ relating to the conduct of their
public office B and the ultimate issue to be resolved B whether they have forfeited through that
conduct their right to continued public trust.@/
Impeachment=s public character is further evidenced by the fact that, as Justice Story expressed it,
the process is conducted Aby the representatives of the nation, in their public capacity,@ and Ain the
face of the nation.@ Story, Commentaries ' 686. Constitutionally, impeachment=s public function
demands public accountability. Elected officials are no more qualified than ordinary voters to assess
the private wrongs of public officeholders. The Constitution=s impeachment mechanism does not
exist to punish such wrongs.
The public character of impeachable wrongs is also reflected in the fact that the remedy imposed for
commission of impeachable acts is a wholly public one. Impeachment results in removal from office
and possible disqualification from further office. U.S. Const. art.I, ' 3, cl. 7.
To say that impeachment is fundamentally a Apolitical@ process, however, is not to say that it is
Apartisan@ in nature. Indeed, the Framers warned against the spirit of partisanship in impeachment
proceedings. In Federalist 65, Hamilton wrote that the impeachment process threatened to Aagitate
the passions of the whole community . . .to divide it into parties . . . [to] connect itself with
pre-existing factions [and] to enlist their animosities, partialities, influence and interest.@ Id. at 331.
Justice Story warned of the danger that Athe decision [to impeach] will be regulated more by the
comparative strength of the parties, than by the strength of the proofs.@ Commentaries ' 744. Only
substantial evidence of presidential wrongdoing that threatened the processes of government or the
public order can justify this grave and ideally bipartisan process.
What is ultimately intended by impeachment=s truly Apolitical@ nature is the manner of limitation the
Constitution allows one elected (political) branch to place on the other elected (political) branch, the
Presidency. Impeachment is necessarily a public act conducted by public bodies (the Houses of
Congress exercising their constitutionally allotted portion of impeachment power) against a public
officeholder (here, the President). Exercise of that limiting function is justified only when the people's
representatives conclude that the people themselves must be protected from their own elected
executive.
Impeachment must therefore be approached with the utmost solemnity. The process must focus on
public acts, performed in the President=s public capacity, and affecting the public interest. Cognizant
of the enormous harm that must follow the bare suggestion of formal impeachment processes, the
House should pursue an impeachment inquiry if and only if there is credible evidence of actions
constituting fundamental injuries to the governmental process. Indeed, the Committee should consider
and approve articles of impeachment only for such acts as have, in its judgment, so seriously
threatened the integrity of governmental processes as to have made the President=s continuation in
office a threat to the public order.
Impropriety falling short of that high standard does not meet the constitutional measure. It must be left
to the court of public opinion and the judgment of history.
II. THE RELEVANT FACTUAL BACKGROUND
The Monica Lewinsky investigation is the most recent phase of an amorphous, languorous,
expensive, and seemingly interminable investigation into the affairs of a small Arkansas real estate
firm, Whitewater Development Company, Inc. In January, 1994, Attorney General Reno made an
administrative appointment (the Ethics in Government Act of 1978 having expired) of Robert B.
Fiske, Jr., to investigate the relationship of the President and Mrs. Clinton to Whitewater, Madison
Guaranty Savings & Loan Association, and Capital Management Services. After the reenactment of
the Ethics in Government Act, the Special Division for the Purpose of Appointing Independent
Counsels of the Court of Appeals appointed Kenneth W. Starr, a former high official in two
Republican administrations, to replace Mr. Fiske on August 5, 1994, and gave him a generally similar
grant of investigatory jurisdiction.
During the past four and a half years, the President has cooperated extensively with this investigation.
He has given testimony by deposition at the White House to the Independent Counsel on four
separate occasions, and on two other occasions, he gave videotaped deposition testimony for
Whitewater defendants and was cross-examined by the Independent Counsel. He has submitted
written interrogatory answers, produced more than 90,000 pages of documents and other items, and
provided information informally in a variety of ways. The OIC subpoenaed from the President, and
reviewed, virtually every personal financial record and gubernatorial campaign finance record that
exists for the period from the mid-1980s to the present, in its endless search to find something to use
against the President. This comprehensive and thorough financial review yielded the OIC nothing.
In May 1994, President Clinton was sued civilly by Ms. Paula Jones, who made various claims
arising out of an encounter on May 8, 1991, when the President was Governor of Arkansas. Various
constitutional questions were litigated, and it was not until the Supreme Court's decision on May 27,
1997/ that the case proceeded to discovery. The Independent Counsel had no jurisdiction with
respect to the Jones case, but there were occasional press reports that the OIC was in fact
investigating the President's personal life./
III. THE PRESIDENT'S TESTIMONY ABOUT MS. LEWINSKY
In his grand jury testimony on August 17, 1998, the President acknowledged having had an
improperly intimate relationship with Ms. Lewinsky. This is enormously difficult for any person to do
even in private, much less in public.
It is important to recognize that the improper relationship with Ms. Lewinsky ended in early 1997, at
the President's behest. It therefore had been over for almost a year at the time of the President's
deposition in the Jones case. From feelings both of friendship and responsibility, the President
remained in touch with Ms. Lewinsky after the improper relationship ended and tried to help her:
none of this help was improper or conditioned on her behaving (or testifying) in any particular way.
It is not true that the President had an improper 18-month relationship with Ms. Lewinsky, as several
media reports have alleged. In his grand jury deposition, he testified that on certain occasions in early
1996 and once in early 1997, he engaged in improper conduct with Ms. Lewinsky. These encounters
did not consist of sexual intercourse, and they did not consist of "sexual relations" as he understood
that term to be defined at his Jones deposition on January 17, 1998 (explained infra), but they did
involve inappropriate intimate contact. These inappropriate encount
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September 12, 1998
On May 31, 1998, the spokesman for Independent Counsel Kenneth W. Starr declared that theOffice's Monica Lewinsky investigation "is not about sex. This case is about perjury, subornation of perjury, witness tampering, obstruction of justice. That is what this case is about."1 Now that the 450-page Referral to the United States House of Representatives Pursuant to Title 28, United States Code § 595(c) (the "Referral") is public, it is plain that "sex" is precisely what this four-and-a-half year investigation has boiled down to. The Referral is so loaded with irrelevant and unnecessary graphic and salacious allegations that only one conclusion is possible: its principal purpose is to damage the President.
The President has acknowledged and apologized for an inappropriate sexual relationship with Ms. Lewinsky, so there is no need to describe that relationship in ugly detail. No one denies that the relationship was wrong or that the President was responsible. The Referral's pious defense of its pornographic specificity is that, in the Independent Counsel's view: "the details are crucial to an informed evaluation of the testimony, the credibility of witnesses, and the reliability of other evidence. Many of the details reveal highly personal information; many are sexually explicit. This is unfortunate, but it is essential."
Narrative at 20. This statement is patently false. Any fair reader of the Referral will easily discern that many of the lurid allegations, which need not be recounted here, have no justification at all, even in terms of any OIC legal theory. They plainly do not relate, even arguably, to activities which may be within the definition of "sexual relations" in the President's Jones deposition, which is the excuse advanced by the OIC. They are simply part of a hit-and-run smear campaign, and their inclusion says volumes about the OIC's tactics and objectives.
Review of a prosecutor's case necessarily starts with an analysis of the charges, and that is what we
offer here. This is necessarily a very preliminary response, offered on the basis of less than a day's
analysis and without any access to the factual materials cited in the Referral.
Spectacularly absent from the Referral is any discussion of contradictory or exculpatory evidence or
any evidence that would cast doubt on the credibility of the testimony the OIC cites (but does not
explicitly quote). This is a failure of fundamental fairness which is highly prejudicial to the President
and it is reason alone to withhold judgment on the Referral's allegations until all the prosecutors'
evidence can be scrutinized -- and then challenged, as necessary, by evidence from the President.
The real critique can occur only with access to the materials on which the prosecutors have ostensibly
relied. Only at that time can contradictory evidence be identified and the context and consistency (or
lack thereof) of the cited evidence be ascertained. Since we have not been given access to the
transcripts and other materials compiled by the OIC, our inquiry is therefore necessarily limited. But
even with this limited access, our preliminary review reaffirms how little this highly intrusive and
disruptive investigation has in fact yielded. In instance after instance, the OIC's allegations fail to
withstand scrutiny either as a factual matter, or a legal matter, or both. The Referral quickly emerges
as a portrait of biased recounting, skewed analysis, and unconscionable overreaching.
In our Preliminary Memorandum, filed yesterday, at pages 3-12, we set forth at some length the
various ways in which impeachable "high Crimes and Misdemeanors" have been defined. Nothing in
the Referral even approximates such conduct. In the English practice from which the Framers
borrowed the phrase, "High Crimes and Misdemeanors" denoted political offenses, the critical
element of which was injury to the state. Impeachment was intended to redress public offenses
committed by public officials in violation of the public trust and duties. Because presidential
impeachment invalidates the will of the American people, it was designed to be justified for the
gravest wrongs -- offenses against the Constitution itself. In short, only "serious assaults on the
integrity of the processes of government,"2 and "such crimes as would so stain a president as to make
his continuance in office dangerous to the public order,"3 constitute impeachable offenses. The eleven
supposed "grounds for impeachment" set forth in the section of the Referral called "Acts That May
Constitute Grounds for an Impeachment" ("Acts") fall far short of that high standard, and their very
allegation demeans the constitutional process. The document is at bottom overreaching in an
extravagant effort to find a case where there is none.
Allegation I -- Perjury in January 17, 1998, Deposition
We begin our response to the OIC's charge that the President committed perjury in his January 17
deposition in the Jones case with these simple facts: the President's relationship with Ms. Lewinsky
was wrong; he admitted it was wrong; and he has asked for the forgiveness of his family and the
American people. The perjury charges in the Referral in reality serve one principal purpose for the
OIC -- to provide an opportunity to lay out in a public forum as much salacious, gratuitous detail as
possible with the goal of damaging the President and the presidency.
The OIC begins its catalogue of "acts that may constitute grounds for impeachment" with the
allegation that "[t]here is substantial and credible information that President Clinton lied under oath as
a defendant in Jones v. Clinton regarding his sexual relationship with Monica Lewinsky." Acts at 5.
The OIC contends that, for legal reasons, it must discuss its allegations of sexual activity in detail and
then goes out of its way to supply lurid detail after lurid detail that are completely irrelevant to any
legal claim, obviously hoping that the shock value of its footnotes will overcome the absence of legal
foundation for the perjury allegation.
In reaching any fair judgment as to the merits of the OIC's claim that the President's testimony
establishes a basis for impeachment, it is important to understand a few additional points. First, the
OIC barely acknowledges the elements of perjury, including, in particular, the substantial burden that
must be met to show that the alleged false statements were made "knowingly," Preliminary
Memorandum at 52, or that they were material to the Jones proceeding.
Second, the OIC ignores the careful standards that the courts have mandated to prevent the misuse
of perjury allegations. As was set out in detail in our Preliminary Memorandum, pages 51-64, literally
true statements cannot be the basis for a perjury prosecution, even if a witness intends to mislead the
questioner. Likewise, answers to inherently ambiguous questions cannot constitute perjury. And,
normally, a perjury prosecution may not rest on the testimony of a single witness.
Third, by selectively presenting the facts and failing to set out the full context of the answers that it
claims may have been perjurious, the OIC has presented a wholly misleading picture. This tactic is
most pronounced in the OIC's astonishing failure to set out the initial definition of "sexual relations"
presented by the Jones lawyers at President Clinton's deposition, two parts of which were eliminated
by Judge Wright as being "too broad."4 The OIC also fails to mention that the Jones lawyers were
fully able, and indeed were invited by President Clinton's counsel, to ask the President specific
questions about his sexual encounters, but they chose not do so. See Preliminary Memorandum at
65.
These surprising and substantial gaps in the Referral, and the OIC's purposefully incomplete
presentation reflect the extreme weakness of the OIC's contention that the President's deposition
testimony about "sexual relations" may constitute perjury.
As any fair prosecutor would acknowledge, what the OIC dismisses as a mere "semantical defense"
is, in fact, reflective of the great care the courts have taken to ensure that a witness is not charged
with perjury except when the government can demonstrate a clear intent to provide false testimony.
Thus, in any ordinary prosecutor's office, and surely in the chambers of the House Judiciary
Committee, the definitions of such terms as "sexual affair," "sexual relations," and "sexual relationship"
would be seen as vital to a determination whether some violation of law had occurred.5 The burden
that must be met by the OIC extends beyond showing that the President was wrong on the
semantics, it must also show that, because perjury is a specific intent crime, he knew he was wrong
and intended to lie -- something that the OIC could not begin to demonstrate. In fact, all the OIC has
is a witness who gave narrow answers to ambiguous questions.
Lawyers' arguments, however well taken, should not obscure the President's admission that his
relationship with Ms. Lewinsky was wrong and his acceptance of responsibility for his conduct. But
one example will suffice to demonstrate the inherent weakness of the OIC's claim. The OIC argues
that oral sex falls within the definition of sexual relations and that the President therefore lied when he
said he denied having sexual relations. It is, however, the President's good faith and reasonable
interpretation that oral sex was outside the special definition of sexual relations provided to him. The
OIC simply asserts that it disagrees with the President's "linguistic parsing," and that reasonable
people would not have agreed with him. Acts at 30. This simply is not the stuff of which criminal
prosecutions -- and surely impeachment proceedings -- are made.
What is left, then is a disagreement about the very specific details of certain encounters
that the President has acknowledged were improper -- the very "oath against oath" that
the law and experience reject as a basis for a prosecution, because a perjury conviction
cannot rest on simple inconsistencies and memory disparities between only two
witnesses.
Instead of acknowledging the well-settled legal limits on perjury cases, or grappling with the
important limitations on perjury prosecutions, the OIC has chosen to fill its report with unnecessary
and salacious sex -- details that cause pain and damage for absolutely no legitimate reason.
Allegation II -- Perjury in August 17, 1998, Grand Jury Testimony
In its second allegation, the OIC contends that "[t[here is substantial and credible information that
President Clinton lied under oath to the grand jury about his sexual relationship with Monica
Lewinsky." Acts at 40. In particular, the OIC alleges that the President committed perjury three
times: (1) when he testified that he believed oral sex was not covered by any of the terms and
definitions for sexual activity used at the Jones deposition; (2) when he contradicted Ms. Lewinsky's
grand jury testimony on the question whether the President touched Ms. Lewinsky's breasts or
genitalia during their sexual activity, since "[t]here can be no contention that one of them has a lack of
memory or is mistaken," id.; and (3) when he testified to a purportedly false date on which his
relationship with Ms. Lewinsky commenced. None of these "allegations" makes out a prima facie
case of perjury, and none can possibly constitute a "ground" for impeachment.
1. The OIC first claims that the President testified falsely that he did not believe oral sex to be
covered by any of the terms and definitions for sexual activity used at the Jones deposition. As noted
in response to the first allegation, supra, the terms "sexual affair" and "sexual relationship" are
inherently ambiguous and, when used without definition, cannot possibly amount to perjury. The
President testified to the grand jury about what he believed those terms mean. Not content to accept
his explanation, the OIC makes the extraordinary (and factually unsupported) claim that the President
committed perjury before the grand jury by lying not about some fact but about his belief about the
meaning of certain words. The OIC then compounds this error by claiming as perjury the President's
explanation of his understanding of the contorted definition of "sexual relations" in the Jones suit, as
modified by the court.
This claim is quite stunning. The OIC charges the President with perjury, saying it is "not credible"
that the President believed oral sex fell outside the definition he was given, even though it plainly did,
and even though many commentators and journalists have stated that they believe that the definition
of sexual relations in the Jones deposition did not include oral sex (performed on the President). See,
e.g., Internight, August 12, 1998 (Cynthia Alksne) ("when the definition finally was put before the
president, it did not include the receipt of oral sex."); "DeLay Urges a Wait For Starr's Report," The
Washington Times, August 31, 1998 ("The definition of sexual relations, used by lawyers for Paula
Jones when they questioned the president, was loosely worded and may not have included oral
sex."); "Legally Accurate," The National Law Journal, August 31, 1998 ("Given the narrowness of
the court-approved definition in [the Jones] case, Mr. Clinton indeed may not have perjured himself
back then if, say, he received oral sex but did not reciprocate sexually."). Despite the fact that several
reasonable commentators agree with the President's interpretation, the OIC acts as though the
President's interpretation of the definition in the Jones case is both unique and untenable. It is in fact
the OIC's theory that is untenable.
It is beyond debate that false testimony provided as a result of confusion or mistake cannot as a
matter of law constitute perjury. See United States v. Dunnigan, 507 U.S. 87, 94 (1993);
Department of Justice Manual, 1997 Supplement, at 9-69.214. Moreover, if there is any doubt as to
the falsity of testimony, the issue must be resolved in favor of the accused. See United States v.
Chaplin, 25 F.3d 1373, 1380 (7th Cir. 1994) (the government must prove falsity by direct evidence,
and not inferences). The definitions on which the President relied are shared both by dictionaries, see
discussion of Allegation I, supra, and by commentators. The OIC's very allegation that the President
committed perjury by re-explaining his belief and interpretation to the grand jury is yet another
indication of the extent of the OIC's overreaching in this Referral.6
2. The OIC's next charge - that the President testified falsely when he contradicted Ms. Lewinsky's
grand jury testimony on the question whether he touched Ms. Lewinsky's breasts or genitalia during
their sexual activity -- is substantially identical to the allegation contained in Allegation I, supra, and
cannot constitute perjury for the same reason. The critical issue here is not whether the testimony of
the President and Ms. Lewinsky differ but whether there is any evidence that the President knowingly
and intentionally gave false testimony. It is worthwhile to note, however, the inaccuracy of the OIC's
assertion that "[t]here can be no contention that one of them has a lack of memory or is mistaken"
about the details of their physical relationship. Acts at 40.
3. The OIC's final allegation here is that the President made a false statement to the grand jury
regarding the timing of the beginning of his relationship with Ms. Lewinsky. Whereas the Referral
indicates that the President remembers the improper relationship beginning early in 1996, Ms.
Lewinsky has apparently testified that it began November 15, 1995. As a legal allegation this claim is
frivolous, because the statement by the President regarding the timing of the relationship
(mid-November 1995 as opposed to January 1996) was utterly immaterial to the grand jury's
investigation. The Supreme Court has held that "there is no doubt that materiality is an element of
perjury." Johnson v. United States, ___ U.S. ___, 117 S. Ct. 1544, 1548 (1997). The test for
materiality is whether the statement in question had "a natural tendency to influence, or [be] capable
of influencing, the decision of the decisionmaking body to which it was addressed." United States v.
Gaudin, 515 U.S. 506, 509 (1995). There is no conceivable way in which any statement by the
President with regard to the date (within a few weeks) of the commencement of his relationship with
Ms. Lewinsky could possibly have influenced the grand jury, and the OIC has of course not
identified how the grand jury was "influenced" by this testimony. The President acknowledged to the
grand jury his improper relationship, beginning early in 1996, with Ms. Lewinsky , and his testimony
regarding the date that the relationship began cannot possibly have influenced the grand jury in any
decision-making function. The mere fact that the OIC would allege perjury as a result of an utterly
immaterial statement speaks volumes about the overreaching in the Referral.
Allegation III - Meetings and Exchanging Gifts with Ms. Lewinsky
In its third allegation, the OIC makes various claims of perjury based on President Clinton's
statements in the Jones deposition regarding whether he had been alone with Ms. Lewinsky in the
Oval Office and in an adjacent hallway and whether he and Ms. Lewinsky had exchanged gifts. Like
the other perjury allegations, the OIC fails to offer a credible case.
First and foremost, President Clinton did not deny meeting alone with Ms. Lewinsky at the White
House nor deny that they exchanged gifts. In essence, the OIC's complaint is that President Clinton
was not more forthcoming, which is plainly not a ground for perjury, rather than that he knowingly
lied under oath. This is perhaps most clearly seen in the OIC's heading for this allegation, which sets
forth the accusation that President Clinton "minimized the number of gifts they had exchanged," Acts
at 45, which of course concedes that he acknowledged that gifts were exchanged. There is not much
that is safe from a perjury prosecution if mere "minimization" qualifies for the offense. The transcript
makes it clear that, when asked about particular gifts, the President honestly stated his recollection of
the particular item.
Nor can President Clinton's testimony regarding whether he was alone with Ms. Lewinsky at various
times and places constitute perjury. The Jones lawyers often failed to follow up on incomplete or
unresponsive answers. Read as a whole, the deposition makes clear that the President acknowledged
being alone with Ms. Lewinsky on some occasions. The Referral unfortunately mischaracterizes the
testimony to suggest an absolute denial, for example, transforming a question about being alone with
Ms. Lewinsky in the Oval Office (where the President did not recall engaging in improper contact)
into being alone at all ("The President lied when he said "I don't recall" in response to the question
whether he had ever been alone with Ms. Lewinsky." Acts at 51.) And, surprisingly since the Jones
lawyers had been briefed by Ms. Tripp, the Jones lawyers never asked the President whether he was
alone with Ms. Lewinsky in the study, where some of the alleged activity took place. They were free
to ask specific follow-up questions about the nature and locale of any physical contact, and they did
not do so. The OIC cannot now hold the President to blame for their failure.
Allegation IV -- Discussions with Ms. Lewinsky About Potential Testimony
The Referral claims that in the following exchange in President Clinton's January 17 deposition in the
Jones case he committed perjury:
Q: Have you ever talked to Ms. Lewinsky about the possibility that she might be asked to testify in
this lawsuit?
A: I'm not sure and let me tell you why I'm not sure. It seems to me the
. . . I want to be as accurate as I can here. Seems to me the last time she was there to see
Betty before Christmas we were joking about how you-all, with the help of the Rutherford
Institute, were going to call every woman I'd ever talked to and . . . ask them that, and so I
said you would qualify, or something like that. I don't, I don't think we ever had more of a
conversation than that about it, because when I saw how long the witness list was, or I heard
about it, before I saw, but actually by the time I saw her name was on it, but I think that was
after all this happened. I might have said something like that, so I don't want to say for sure I
didn't because I might have said something like that.
Q: What, if anything, did Monica Lewinsky say in response?
A: Nothing, that I remember. Whatever she said, I don't remember. Probably just some predictable
thing.
This answer was literally accurate. The President described a joking conversation that he had with
many women about the possibility that they might be subpoenaed by the Jones lawyers. He made
clear that the recollection of the conversation with Ms. Lewinsky preceded the appearance of Ms.
Lewinsky's name on the witness list (on December 5), saying: "by the time I saw [the witness list on
December 6] her name was on it, but I think that was after all this had happened." The President also
stated three different times in that one answer that he was not certain as to his recollection, saying,
"I'm not sure," "I don't think," and "I might have said something like that." In his grand jury testimony,
additional details of a December 28 conversation with Ms. Lewinsky were provided by the
President. The testimony that the Referral cites is not inconsistent - his first answer indicating he was
referring to a conversation that occurred before she had been named a witness, and his August 17
testimony describing a conversation after she had been subpoenaed in mid-December. The fact that
Ms. Lewinsky recalls additional conversations on the subject, all occurring after she had been named
on the witness list, does not establish that the President's answer was inaccurate. This answer cannot
possibly support a perjury charge.
Allegation V -- Concealing Gifts and an Intimate Note
In its fifth allegation, the OIC contends that President Clinton obstructed justice by concealing gifts he
had given to Ms. Lewinsky. This claim is wholly unfounded and simply absurd. On her December
28, 1998 visit, the President gave Ms. Lewinsky several holiday and going-away gifts. Ms. Lewinsky
apparently testified that, during the visit, she raised a question about the Jones subpoena and
suggested "put[ting] the gifts away outside of my house or somewhere or giv[ing] them to someone,
maybe Betty." Acts at 74-75. To this suggestion, the President, according to Ms. Lewinsky's
reported testimony, responded with something like, "I don't know" or "Hmmm" or "there really was
no response."7 President Clinton contradicts this testimony. But even if one accepts Ms. Lewinsky's
testimony, "I don't know, "Hmmm" and silence do not constitute obstruction of justice.
Moreover, Ms. Lewinsky's testimony is contradicted by Ms. Currie who testified that it was Ms.
Lewinsky, not the President, who asked her to come get the gifts and keep them. The OIC tries to
impugn Ms. Currie's memory in the quoted passage, yet her recollection is consistent with the
testimony of one of the two other parties to the events. Indeed, the OIC's effort to shore up its case
by trying to discount Ms. Currie's testimony on this point is a prime example of the dangers of relying
on the OIC's development and presentation of the evidence. When confronted with testimony not to
its liking from Ms. Currie, the OIC responded by questioning her in a manner clearly designed to
encourage Ms. Currie to restate her recollection in a manner consistent with the OIC's theory of the
case. Acts at 77.8
The OIC's theory of concealment also is belied by Ms. Lewinsky's decision to turn over some, but
not all, of the gifts she had received from the President to Ms. Currie; if the purpose of the exercise
was to avoid having gifts in her possession at the time of the deposition (which of course would not
have been proper), retaining some gifts made no sense. But the OIC is forced to acknowledge that
only one of the several gifts the President gave to Ms. Lewinsky on December 28, 1998 was
included in the box she gave to Ms. Currie for safekeeping. The theory makes no sense.
Ultimately, the only theory that does make sense is the truth, as testified to by the President and Ms.
Currie and as supported by the fact that the President acknowledged giving Ms. Lewinsky gifts as
early as his January 17, 1998 deposition. The President was unconcerned about the gifts he had
given to Ms. Lewinsky because he frequently exchanges gifts with friends. That is why he gave her
additional gifts on December 28 even though, according to her testimony, he knew the Jones lawyers
were interested in them. Thus, when she raised a question, he told Ms. Lewinsky she had to turn
over what she had; they were of no concern to him. Nonetheless, in response to Ms. Lewinsky's
subsequent request, Ms. Currie drove to Ms. Lewinsky's apartment and picked up a box of gifts
from Ms. Lewinsky and held them for safekeeping. The President did not direct or encourage Ms.
Currie's activities regarding the gifts. He likewise did not obstruct justice by concealing their
existence.
The OIC also argues that the President obstructed justice in the Jones case by destroying an intimate
note that Ms. Lewinsky included in a book she left for him on January 4, 1998.9 The OIC states in
its Referral that the President was served with a document request from the Jones lawyers on
December 16, 1997, that required him to produce this note to the Jones lawyers. The
disingenuousness of this allegation is apparent on several levels.
As a preliminary matter, the President testified that he recalled receiving a book from Ms. Lewinsky,
that he believed he had received it in December, and that he did not recall receiving an accompanying
note. Deposition of the President, August 17, 1998. Contrary to the one-sided presentation of the
purported facts in the OIC's referral, the President may not even have received that note.
Second, the OIC asserts, without basis, that the President purposefully destroyed Ms. Lewinsky's
note because he did not want to have to turn it over to the Jones lawyers. The OIC has absolutely no
basis for assuming that the President was aware of the document request at the time he received the
book. Thus, even assuming the President had received and discarded the note, his acts would not
constitute obstruction of justice.
Finally, setting aside whether the President actually received Ms. Lewinsky's note, or knew whether
it was subject to a document request, at bottom the OIC is transforming a civil discovery issue into
yet another flimsy criminal charge, accusing the President with obstruction of justice on the basis of
his alleged failure to produce this note to the Jones lawyers. As the OIC clearly knows, the
obstruction of justice statute does not apply to a party's concealing or withholding of discoverable
documents in civil litigation. See, e.g., Richmark v. Timber Falling Consultants, 730 F. Supp. 1525,
1532 (D. Or. 1990) ("[t]he parties have not cited and the court has not found any case in which a
person was charged with obstruction of justice for concealing or withholding discovery in a civil
case"). Demonstrable non-compliance with the rules is sanctioned civilly as an abuse of the discovery
process. See Rule 37, Fed. R. Civ. P. ("Failure to Make Disclosure or Cooperate in Discovery:
Sanctions"). Therefore, even if, as the OIC alleges, the President received and discarded the note in
the wake of an outstanding request -- which the President testified he did not --those actions would
not constitute obstruction of justice. The OIC's allegation is missing both the facts and the law.
Allegation VI -- Concealment of the Relationship
In the sixth allegation, the OIC contends that there is substantial and credible information that:
(i) President Clinton and Ms. Lewinsky had an understanding that they would lie under oath in the
Jones case about their relationship; and
(ii) President Clinton endeavored to obstruct justice by suggesting that Ms. Lewinsky file an affidavit
so that she would not be deposed, she would not contradict his testimony, and he could attempt to
avoid questions about Ms. Lewinsky at his deposition.
The essence of the OIC's argument is that, because the President and Ms. Lewinsky attempted to
conceal the improper nature of their relationship while it was going on and because the President
failed affirmatively to assure that each statement contained in the affidavit filed by Ms. Lewinsky was
true, he therefore obstructed justice. The Referral fails even to allege facts that, if true, would
constitute obstruction of justice under the law as set out in our Preliminary Memorandum at pp.
21-25.
First, the Referral alleges that during the course of their admittedly improper relationship, the
President and Ms. Lewinsky concealed the nature of their relationship from others. This is hardly a
remarkable proposition. The use of "cover stories" to conceal such a relationship, apart from any
proceeding, is not unusual and not an obstruction of justice.
The Referral alleges only one specific statement that Ms. Lewinsky claims the President made to her
regarding the substance of her testimony. Ms. Lewinsky testified that the President told her, "You
know, you can always say you were coming to see Betty or that you were bringing me letters." Act at
98. As an initial matter, the President testified that he did not recall saying anything like that in
connection with Ms. Lewinsky's testimony in the Jones case. But even if he did, neither of those two
ambiguous statements would be false. And most importantly, as even the OIC concedes, Narrative
at 29, the President never instructed her to lie.
The Referral also alleges that the President somehow obstructed justice by suggesting to Ms.
Lewinsky that she could sign an affidavit in the Jones case. But the Referral again fails to establish
how this might constitute obstruction. The OIC makes no contention that the President ever told Ms.
Lewinsky to file a false affidavit. A suggestion to submit written testimony under oath in a judicial
proceeding, if he made it, is hardly improper - let alone an obstruction of justice. The President was
aware that other potential deponents in the Jones case had filed affidavits in an attempt to avoid the
expense, burden, and humiliation of testifying in the Jones case, and that there was a chance that
doing so might enable Ms. Lewinsky to avoid testifying. Even if the affidavit did not "disclose the true
nature of their relationship," as the OIC asserts, since the Jones case concerned allegations of
nonconsensual sexual solicitation, a truthful albeit limited affidavit might have allowed her to have
avoided giving a Jones deposition. But the President never told Ms. Lewinsky what to say in the
affidavit, knew that Ms. Lewinsky had her own lawyer to protect her interests, and expressly
declined the opportunity to review the content of the affidavit, according to Ms. Lewinsky. Narrative
at 203. The OIC's position appears to be that this is somehow obstruction of justice -- that the
President had an affirmative duty to ensure that Ms. Lewinsky volunteered in her affidavit all
information in which the Jones lawyers might possibly have an interest. There simply is no such duty
under the law, nor does the OIC cite any basis for such a duty. Civil litigation is based upon an
adversarial process of determining truth, and a party is under no affirmative obligation to assist an
opponent in every way it can.
Finally, the OIC suggests that the President was "knowingly responsible" for a misstatement of fact to
a federal judge because he failed to correct a statement made by his lawyer to the court in the Jone