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President Ronald Reagan's political career leading to election as California Governor, in the election of 1966
Film opens showing a still photograph of Ronald Reagan and Nancy Davis when they appeared together in the 1957 film, "Hellcats of the Navy." Although they were married since 1952, She was billed as Nancy Davis in the film. View of the newly wed Reagans cutting their wedding cake in 1952. Best Man, William Holden and his wife, Ardis Ankerson (stage name Brenda Marshall) share the moment with them. Closeup of Reagan and his new wife. Still photograph of Ronald Reagan appearing in the television series, "Death Valley Days." Next he is seen in a chair on the set of the TV series,"General Electric Theater," which he hosted from 1953 until 1962. He also toured General Electric plants to talk about the benefits of the free enterprise system. He is seen seated sharing a meal and posing with women employees of General Electric. Film shifts in time to the year 1932, when Reagan was first eligible to vote. Camera focuses on men's feet and they shuffle on a line at a soup kitchen. Views of men receiving food and drink. President Franklin D. Roosevelt is seen, seated in an open car chatting with people surrounding it. Roosevelt sits in the midst of men playing guitars and banjos. On inauguration day, March 4, 1933, he and his Vice President Henry Wallace are seen in the back of an open car. First Lady, Eleanor Roosevelt, sits just ahead of them. President Harry Truman being sworn in by Chief Justice of the United States Fred Vinson, January 20, 1949, for a second term as President. Views of the Republican National Convention in 1952 when the party chose Dwight D. Eisenhower as its candidate for President. He and his wife Mamie, at the podium together. Ronald Reagan addressing a large group. Supporters walking with Republican Presidential candidate, Richard Nixon, whom Reagan favored over Democrat John F. Kennedy in the 1960 national election. In 1962 Reagan officially became a Republican Party member, supported Barry Goldwater and their candidate for President at the Republican National Convention of 1964. Views of Goldwater at the convention and stepping from an airplane during his campaign. Still photo of Goldwater next to Reagan, and then of Reagan defending Goldwater in a nation-wide address. View of Reagan and wife Nancy, and son, Ronald, walking together across field at their ranch in California. They are surrounded by Republican Party leaders who ask him to run for Governor. He and Nancy laughing about it. Billboard advertising Reagan for Governor, and views of him on the campaign trail. Views of Governor Edmond Brown surrounded by his supporters during the campaign. Reagan speaking during the campaign, and then seen with Nancy when he won the gubernatorial election. Location: United States. Date: December 4, 1980.
NIXON BIOGRAPHY FILM TRANSFER
FILM TRANSFER BIOGRAPHY ON RICHARD NIXON.
11:38:36:02 Montage ftg of Nixon campaigning and at the
Republican National Convention.
11:53:11:01 B&W stills of Nixon as a youth. cu still of
Patricia Ryan, Nixon. cu still of Nixon during his stay in
the navy.
11:55:13:18 Ftg of Nixon when he was a member of the House
of Representatives. Ftg of Nixon's, checkers, speech.
11:58:52:19 cu still of Nixon and Dwight Eisenhower. cu
still of Nixon taking the Vice Presidential oath.
12:00:33:08 ms of Soviet leader Nikita Khrushchev talking
to Nixon. ms of Nixon accepting the nomination of US
President during the 1960 Republican National Convention.
12:02:07:25 vs of the Nixon / John Kennedy television
debates. vs of Vice President Nixon and Senator Kennedy
(D-MASS) discussing issues. ms of Kennedy taking the
Presidential oath. ms of Nixon looking on. cu of a copy of
Nixon's book, Six Crises.
12:05:05:00 Soundbite of Nixon saying, you don't have Nixon
to kick around anymore. vs of Nixon campaigning for Senator
Barry Goldwater (R-ARIZ) during the 1964 Republican National
Convention. ms of Goldwater at the podium.
12:07:42:26 vs of the Richard and Pat Nixon at the podium
during the 1968 Republican National Convention. vs of Nixon
with his running mate Spiro Agnew. Brief shots of Democratic
candidate Vice President Hubert Humphrey and independent
candidate Alabama Governor George Wallace campaigning.
12:11:29:16 vs of Nixon after being declared the winner of
the Presidential election. ms of Nixon sitting in a stadium
watching a baseball game. ms of Nixon with former President
Harry Truman. ms of Nixon playing the piano. vs of Nixon in
Saigon. vs of Nixon shaking hands with US soldiers. vs of
anti Vietnam War protests in the US.
12:16:02:08 ms of Nixon addressing the nation regarding the
Vietnam War. Press conference with Vice President Agnew
regarding news media coverage of the war.
12:19:16:00 Ftg regarding the invasion of Cambodia. vs of
an anti war demonstration on Wall Street. Ftg on the
massacre at Kent State. Nixon addresses the nation regarding
freezing prices throughout the US for a period of 90 days.
12:22:41:06 Ftg of the wedding of Nixon's daughter Tricia.
vs of Senator Edmund Muskie (D-MAINE) campaigning for
President.
12:24:06:14 vs of the Nixons deplaning on arrival in China.
vs of Nixon at the Great Wall. vs of Nixon in the Soviet
Union. ms of Nixon and Soviet leader Leonid Brezhnev signing
the SALT agreement).
12:27:28:22 vs of Democratic Presidential candidate Senator
George McGovern (D-SDAK) at the 1972 Democratic National
Convention. Soundbite of Presidential advisor Henry
Kissinger saying, we believe peace is at hand. Ftg on the
Nixon reelection.
CI:
PERSONALITIES: AGNEW, SPIRO.
PERSONALITIES: BREZHNEV, LEONID.
PERSONALITIES: EISENHOWER, DWIGHT (STILL).
PERSONALITIES: GOLDWATER, BARRY.
PERSONALITIES: HUMPHREY, HUBERT.
PERSONALITIES: KENNEDY, JOHN.
PERSONALITIES: KHRUSHCHEV, NIKITA.
PERSONALITIES: KISSINGER, HENRY.
PERSONALITIES: MCGOVERN, GEORGE.
PERSONALITIES: MUSKIE, EDMUND.
PERSONALITIES: NIXON, PAT.
PERSONALITIES: NIXON, RICHARD.
PERSONALITIES: NIXON, TRICIA.
PERSONALITIES: TRUMAN, HARRY.
PERSONALITIES: WALLACE, GEORGE.
ATROCITIES: MASSACRE, KENT STATE UNIVERSITY.
Demonstrations: anti Vietnam War.
Politics: conventions.
Politics: Presidential campaigns.
US Relations: China.
US Relations: USSR.
War: Vietnam.
NIXON BIOGRAPHY FILM TRANSFER
FILM TRANSFER BIOGRAPHY ON RICHARD NIXON.
11:38:36:02 Montage ftg of Nixon campaigning and at the
Republican National Convention.
11:53:11:01 B&W stills of Nixon as a youth. cu still of
Patricia Ryan, Nixon. cu still of Nixon during his stay in
the navy.
11:55:13:18 Ftg of Nixon when he was a member of the House
of Representatives. Ftg of Nixon's, checkers, speech.
11:58:52:19 cu still of Nixon and Dwight Eisenhower. cu
still of Nixon taking the Vice Presidential oath.
12:00:33:08 ms of Soviet leader Nikita Khrushchev talking
to Nixon. ms of Nixon accepting the nomination of US
President during the 1960 Republican National Convention.
12:02:07:25 vs of the Nixon / John Kennedy television
debates. vs of Vice President Nixon and Senator Kennedy
(D-MASS) discussing issues. ms of Kennedy taking the
Presidential oath. ms of Nixon looking on. cu of a copy of
Nixon's book, Six Crises.
12:05:05:00 Soundbite of Nixon saying, you don't have Nixon
to kick around anymore. vs of Nixon campaigning for Senator
Barry Goldwater (R-ARIZ) during the 1964 Republican National
Convention. ms of Goldwater at the podium.
12:07:42:26 vs of the Richard and Pat Nixon at the podium
during the 1968 Republican National Convention. vs of Nixon
with his running mate Spiro Agnew. Brief shots of Democratic
candidate Vice President Hubert Humphrey and independent
candidate Alabama Governor George Wallace campaigning.
12:11:29:16 vs of Nixon after being declared the winner of
the Presidential election. ms of Nixon sitting in a stadium
watching a baseball game. ms of Nixon with former President
Harry Truman. ms of Nixon playing the piano. vs of Nixon in
Saigon. vs of Nixon shaking hands with US soldiers. vs of
anti Vietnam War protests in the US.
12:16:02:08 ms of Nixon addressing the nation regarding the
Vietnam War. Press conference with Vice President Agnew
regarding news media coverage of the war.
12:19:16:00 Ftg regarding the invasion of Cambodia. vs of
an anti war demonstration on Wall Street. Ftg on the
massacre at Kent State. Nixon addresses the nation regarding
freezing prices throughout the US for a period of 90 days.
12:22:41:06 Ftg of the wedding of Nixon's daughter Tricia.
vs of Senator Edmund Muskie (D-MAINE) campaigning for
President.
12:24:06:14 vs of the Nixons deplaning on arrival in China.
vs of Nixon at the Great Wall. vs of Nixon in the Soviet
Union. ms of Nixon and Soviet leader Leonid Brezhnev signing
the SALT agreement).
12:27:28:22 vs of Democratic Presidential candidate Senator
George McGovern (D-SDAK) at the 1972 Democratic National
Convention. Soundbite of Presidential advisor Henry
Kissinger saying, we believe peace is at hand. Ftg on the
Nixon reelection.
CI:
PERSONALITIES: AGNEW, SPIRO.
PERSONALITIES: BREZHNEV, LEONID.
PERSONALITIES: EISENHOWER, DWIGHT (STILL).
PERSONALITIES: GOLDWATER, BARRY.
PERSONALITIES: HUMPHREY, HUBERT.
PERSONALITIES: KENNEDY, JOHN.
PERSONALITIES: KHRUSHCHEV, NIKITA.
PERSONALITIES: KISSINGER, HENRY.
PERSONALITIES: MCGOVERN, GEORGE.
PERSONALITIES: MUSKIE, EDMUND.
PERSONALITIES: NIXON, PAT.
PERSONALITIES: NIXON, RICHARD.
PERSONALITIES: NIXON, TRICIA.
PERSONALITIES: TRUMAN, HARRY.
PERSONALITIES: WALLACE, GEORGE.
ATROCITIES: MASSACRE, KENT STATE UNIVERSITY.
Demonstrations: anti Vietnam War.
Politics: conventions.
Politics: Presidential campaigns.
US Relations: China.
US Relations: USSR.
War: Vietnam.
NIXON BIOGRAPHY FILM TRANSFER
FILM TRANSFER BIOGRAPHY ON RICHARD NIXON.
11:38:36:02 Montage ftg of Nixon campaigning and at the
Republican National Convention.
11:53:11:01 B&W stills of Nixon as a youth. cu still of
Patricia Ryan, Nixon. cu still of Nixon during his stay in
the navy.
11:55:13:18 Ftg of Nixon when he was a member of the House
of Representatives. Ftg of Nixon's, checkers, speech.
11:58:52:19 cu still of Nixon and Dwight Eisenhower. cu
still of Nixon taking the Vice Presidential oath.
12:00:33:08 ms of Soviet leader Nikita Khrushchev talking
to Nixon. ms of Nixon accepting the nomination of US
President during the 1960 Republican National Convention.
12:02:07:25 vs of the Nixon / John Kennedy television
debates. vs of Vice President Nixon and Senator Kennedy
(D-MASS) discussing issues. ms of Kennedy taking the
Presidential oath. ms of Nixon looking on. cu of a copy of
Nixon's book, Six Crises.
12:05:05:00 Soundbite of Nixon saying, you don't have Nixon
to kick around anymore. vs of Nixon campaigning for Senator
Barry Goldwater (R-ARIZ) during the 1964 Republican National
Convention. ms of Goldwater at the podium.
12:07:42:26 vs of the Richard and Pat Nixon at the podium
during the 1968 Republican National Convention. vs of Nixon
with his running mate Spiro Agnew. Brief shots of Democratic
candidate Vice President Hubert Humphrey and independent
candidate Alabama Governor George Wallace campaigning.
12:11:29:16 vs of Nixon after being declared the winner of
the Presidential election. ms of Nixon sitting in a stadium
watching a baseball game. ms of Nixon with former President
Harry Truman. ms of Nixon playing the piano. vs of Nixon in
Saigon. vs of Nixon shaking hands with US soldiers. vs of
anti Vietnam War protests in the US.
12:16:02:08 ms of Nixon addressing the nation regarding the
Vietnam War. Press conference with Vice President Agnew
regarding news media coverage of the war.
12:19:16:00 Ftg regarding the invasion of Cambodia. vs of
an anti war demonstration on Wall Street. Ftg on the
massacre at Kent State. Nixon addresses the nation regarding
freezing prices throughout the US for a period of 90 days.
12:22:41:06 Ftg of the wedding of Nixon's daughter Tricia.
vs of Senator Edmund Muskie (D-MAINE) campaigning for
President.
12:24:06:14 vs of the Nixons deplaning on arrival in China.
vs of Nixon at the Great Wall. vs of Nixon in the Soviet
Union. ms of Nixon and Soviet leader Leonid Brezhnev signing
the SALT agreement).
12:27:28:22 vs of Democratic Presidential candidate Senator
George McGovern (D-SDAK) at the 1972 Democratic National
Convention. Soundbite of Presidential advisor Henry
Kissinger saying, we believe peace is at hand. Ftg on the
Nixon reelection.
CI:
PERSONALITIES: AGNEW, SPIRO.
PERSONALITIES: BREZHNEV, LEONID.
PERSONALITIES: EISENHOWER, DWIGHT (STILL).
PERSONALITIES: GOLDWATER, BARRY.
PERSONALITIES: HUMPHREY, HUBERT.
PERSONALITIES: KENNEDY, JOHN.
PERSONALITIES: KHRUSHCHEV, NIKITA.
PERSONALITIES: KISSINGER, HENRY.
PERSONALITIES: MCGOVERN, GEORGE.
PERSONALITIES: MUSKIE, EDMUND.
PERSONALITIES: NIXON, PAT.
PERSONALITIES: NIXON, RICHARD.
PERSONALITIES: NIXON, TRICIA.
PERSONALITIES: TRUMAN, HARRY.
PERSONALITIES: WALLACE, GEORGE.
ATROCITIES: MASSACRE, KENT STATE UNIVERSITY.
Demonstrations: anti Vietnam War.
Politics: conventions.
Politics: Presidential campaigns.
US Relations: China.
US Relations: USSR.
War: Vietnam.
NIXON BIOGRAPHY FILM TRANSFER
FILM TRANSFER BIOGRAPHY ON RICHARD NIXON.
11:38:36:02 Montage ftg of Nixon campaigning and at the
Republican National Convention.
11:53:11:01 B&W stills of Nixon as a youth. cu still of
Patricia Ryan, Nixon. cu still of Nixon during his stay in
the navy.
11:55:13:18 Ftg of Nixon when he was a member of the House
of Representatives. Ftg of Nixon's, checkers, speech.
11:58:52:19 cu still of Nixon and Dwight Eisenhower. cu
still of Nixon taking the Vice Presidential oath.
12:00:33:08 ms of Soviet leader Nikita Khrushchev talking
to Nixon. ms of Nixon accepting the nomination of US
President during the 1960 Republican National Convention.
12:02:07:25 vs of the Nixon / John Kennedy television
debates. vs of Vice President Nixon and Senator Kennedy
(D-MASS) discussing issues. ms of Kennedy taking the
Presidential oath. ms of Nixon looking on. cu of a copy of
Nixon's book, Six Crises.
12:05:05:00 Soundbite of Nixon saying, you don't have Nixon
to kick around anymore. vs of Nixon campaigning for Senator
Barry Goldwater (R-ARIZ) during the 1964 Republican National
Convention. ms of Goldwater at the podium.
12:07:42:26 vs of the Richard and Pat Nixon at the podium
during the 1968 Republican National Convention. vs of Nixon
with his running mate Spiro Agnew. Brief shots of Democratic
candidate Vice President Hubert Humphrey and independent
candidate Alabama Governor George Wallace campaigning.
12:11:29:16 vs of Nixon after being declared the winner of
the Presidential election. ms of Nixon sitting in a stadium
watching a baseball game. ms of Nixon with former President
Harry Truman. ms of Nixon playing the piano. vs of Nixon in
Saigon. vs of Nixon shaking hands with US soldiers. vs of
anti Vietnam War protests in the US.
12:16:02:08 ms of Nixon addressing the nation regarding the
Vietnam War. Press conference with Vice President Agnew
regarding news media coverage of the war.
12:19:16:00 Ftg regarding the invasion of Cambodia. vs of
an anti war demonstration on Wall Street. Ftg on the
massacre at Kent State. Nixon addresses the nation regarding
freezing prices throughout the US for a period of 90 days.
12:22:41:06 Ftg of the wedding of Nixon's daughter Tricia.
vs of Senator Edmund Muskie (D-MAINE) campaigning for
President.
12:24:06:14 vs of the Nixons deplaning on arrival in China.
vs of Nixon at the Great Wall. vs of Nixon in the Soviet
Union. ms of Nixon and Soviet leader Leonid Brezhnev signing
the SALT agreement).
12:27:28:22 vs of Democratic Presidential candidate Senator
George McGovern (D-SDAK) at the 1972 Democratic National
Convention. Soundbite of Presidential advisor Henry
Kissinger saying, we believe peace is at hand. Ftg on the
Nixon reelection.
CI:
PERSONALITIES: AGNEW, SPIRO.
PERSONALITIES: BREZHNEV, LEONID.
PERSONALITIES: EISENHOWER, DWIGHT (STILL).
PERSONALITIES: GOLDWATER, BARRY.
PERSONALITIES: HUMPHREY, HUBERT.
PERSONALITIES: KENNEDY, JOHN.
PERSONALITIES: KHRUSHCHEV, NIKITA.
PERSONALITIES: KISSINGER, HENRY.
PERSONALITIES: MCGOVERN, GEORGE.
PERSONALITIES: MUSKIE, EDMUND.
PERSONALITIES: NIXON, PAT.
PERSONALITIES: NIXON, RICHARD.
PERSONALITIES: NIXON, TRICIA.
PERSONALITIES: TRUMAN, HARRY.
PERSONALITIES: WALLACE, GEORGE.
ATROCITIES: MASSACRE, KENT STATE UNIVERSITY.
Demonstrations: anti Vietnam War.
Politics: conventions.
Politics: Presidential campaigns.
US Relations: China.
US Relations: USSR.
War: Vietnam.
NIXON BIOGRAPHY FILM TRANSFER
FILM TRANSFER BIOGRAPHY ON RICHARD NIXON.
11:38:36:02 Montage ftg of Nixon campaigning and at the
Republican National Convention.
11:53:11:01 B&W stills of Nixon as a youth. cu still of
Patricia Ryan, Nixon. cu still of Nixon during his stay in
the navy.
11:55:13:18 Ftg of Nixon when he was a member of the House
of Representatives. Ftg of Nixon's, checkers, speech.
11:58:52:19 cu still of Nixon and Dwight Eisenhower. cu
still of Nixon taking the Vice Presidential oath.
12:00:33:08 ms of Soviet leader Nikita Khrushchev talking
to Nixon. ms of Nixon accepting the nomination of US
President during the 1960 Republican National Convention.
12:02:07:25 vs of the Nixon / John Kennedy television
debates. vs of Vice President Nixon and Senator Kennedy
(D-MASS) discussing issues. ms of Kennedy taking the
Presidential oath. ms of Nixon looking on. cu of a copy of
Nixon's book, Six Crises.
12:05:05:00 Soundbite of Nixon saying, you don't have Nixon
to kick around anymore. vs of Nixon campaigning for Senator
Barry Goldwater (R-ARIZ) during the 1964 Republican National
Convention. ms of Goldwater at the podium.
12:07:42:26 vs of the Richard and Pat Nixon at the podium
during the 1968 Republican National Convention. vs of Nixon
with his running mate Spiro Agnew. Brief shots of Democratic
candidate Vice President Hubert Humphrey and independent
candidate Alabama Governor George Wallace campaigning.
12:11:29:16 vs of Nixon after being declared the winner of
the Presidential election. ms of Nixon sitting in a stadium
watching a baseball game. ms of Nixon with former President
Harry Truman. ms of Nixon playing the piano. vs of Nixon in
Saigon. vs of Nixon shaking hands with US soldiers. vs of
anti Vietnam War protests in the US.
12:16:02:08 ms of Nixon addressing the nation regarding the
Vietnam War. Press conference with Vice President Agnew
regarding news media coverage of the war.
12:19:16:00 Ftg regarding the invasion of Cambodia. vs of
an anti war demonstration on Wall Street. Ftg on the
massacre at Kent State. Nixon addresses the nation regarding
freezing prices throughout the US for a period of 90 days.
12:22:41:06 Ftg of the wedding of Nixon's daughter Tricia.
vs of Senator Edmund Muskie (D-MAINE) campaigning for
President.
12:24:06:14 vs of the Nixons deplaning on arrival in China.
vs of Nixon at the Great Wall. vs of Nixon in the Soviet
Union. ms of Nixon and Soviet leader Leonid Brezhnev signing
the SALT agreement).
12:27:28:22 vs of Democratic Presidential candidate Senator
George McGovern (D-SDAK) at the 1972 Democratic National
Convention. Soundbite of Presidential advisor Henry
Kissinger saying, we believe peace is at hand. Ftg on the
Nixon reelection.
CI:
PERSONALITIES: AGNEW, SPIRO.
PERSONALITIES: BREZHNEV, LEONID.
PERSONALITIES: EISENHOWER, DWIGHT (STILL).
PERSONALITIES: GOLDWATER, BARRY.
PERSONALITIES: HUMPHREY, HUBERT.
PERSONALITIES: KENNEDY, JOHN.
PERSONALITIES: KHRUSHCHEV, NIKITA.
PERSONALITIES: KISSINGER, HENRY.
PERSONALITIES: MCGOVERN, GEORGE.
PERSONALITIES: MUSKIE, EDMUND.
PERSONALITIES: NIXON, PAT.
PERSONALITIES: NIXON, RICHARD.
PERSONALITIES: NIXON, TRICIA.
PERSONALITIES: TRUMAN, HARRY.
PERSONALITIES: WALLACE, GEORGE.
ATROCITIES: MASSACRE, KENT STATE UNIVERSITY.
Demonstrations: anti Vietnam War.
Politics: conventions.
Politics: Presidential campaigns.
US Relations: China.
US Relations: USSR.
War: Vietnam.
NIXON BIOGRAPHY FILM TRANSFER
FILM TRANSFER BIOGRAPHY ON RICHARD NIXON.
11:38:36:02 Montage ftg of Nixon campaigning and at the
Republican National Convention.
11:53:11:01 B&W stills of Nixon as a youth. cu still of
Patricia Ryan, Nixon. cu still of Nixon during his stay in
the navy.
11:55:13:18 Ftg of Nixon when he was a member of the House
of Representatives. Ftg of Nixon's, checkers, speech.
11:58:52:19 cu still of Nixon and Dwight Eisenhower. cu
still of Nixon taking the Vice Presidential oath.
12:00:33:08 ms of Soviet leader Nikita Khrushchev talking
to Nixon. ms of Nixon accepting the nomination of US
President during the 1960 Republican National Convention.
12:02:07:25 vs of the Nixon / John Kennedy television
debates. vs of Vice President Nixon and Senator Kennedy
(D-MASS) discussing issues. ms of Kennedy taking the
Presidential oath. ms of Nixon looking on. cu of a copy of
Nixon's book, Six Crises.
12:05:05:00 Soundbite of Nixon saying, you don't have Nixon
to kick around anymore. vs of Nixon campaigning for Senator
Barry Goldwater (R-ARIZ) during the 1964 Republican National
Convention. ms of Goldwater at the podium.
12:07:42:26 vs of the Richard and Pat Nixon at the podium
during the 1968 Republican National Convention. vs of Nixon
with his running mate Spiro Agnew. Brief shots of Democratic
candidate Vice President Hubert Humphrey and independent
candidate Alabama Governor George Wallace campaigning.
12:11:29:16 vs of Nixon after being declared the winner of
the Presidential election. ms of Nixon sitting in a stadium
watching a baseball game. ms of Nixon with former President
Harry Truman. ms of Nixon playing the piano. vs of Nixon in
Saigon. vs of Nixon shaking hands with US soldiers. vs of
anti Vietnam War protests in the US.
12:16:02:08 ms of Nixon addressing the nation regarding the
Vietnam War. Press conference with Vice President Agnew
regarding news media coverage of the war.
12:19:16:00 Ftg regarding the invasion of Cambodia. vs of
an anti war demonstration on Wall Street. Ftg on the
massacre at Kent State. Nixon addresses the nation regarding
freezing prices throughout the US for a period of 90 days.
12:22:41:06 Ftg of the wedding of Nixon's daughter Tricia.
vs of Senator Edmund Muskie (D-MAINE) campaigning for
President.
12:24:06:14 vs of the Nixons deplaning on arrival in China.
vs of Nixon at the Great Wall. vs of Nixon in the Soviet
Union. ms of Nixon and Soviet leader Leonid Brezhnev signing
the SALT agreement).
12:27:28:22 vs of Democratic Presidential candidate Senator
George McGovern (D-SDAK) at the 1972 Democratic National
Convention. Soundbite of Presidential advisor Henry
Kissinger saying, we believe peace is at hand. Ftg on the
Nixon reelection.
CI:
PERSONALITIES: AGNEW, SPIRO.
PERSONALITIES: BREZHNEV, LEONID.
PERSONALITIES: EISENHOWER, DWIGHT (STILL).
PERSONALITIES: GOLDWATER, BARRY.
PERSONALITIES: HUMPHREY, HUBERT.
PERSONALITIES: KENNEDY, JOHN.
PERSONALITIES: KHRUSHCHEV, NIKITA.
PERSONALITIES: KISSINGER, HENRY.
PERSONALITIES: MCGOVERN, GEORGE.
PERSONALITIES: MUSKIE, EDMUND.
PERSONALITIES: NIXON, PAT.
PERSONALITIES: NIXON, RICHARD.
PERSONALITIES: NIXON, TRICIA.
PERSONALITIES: TRUMAN, HARRY.
PERSONALITIES: WALLACE, GEORGE.
ATROCITIES: MASSACRE, KENT STATE UNIVERSITY.
Demonstrations: anti Vietnam War.
Politics: conventions.
Politics: Presidential campaigns.
US Relations: China.
US Relations: USSR.
War: Vietnam.
NIXON BIOGRAPHY FILM TRANSFER
FILM TRANSFER BIOGRAPHY ON RICHARD NIXON.
11:38:36:02 Montage ftg of Nixon campaigning and at the
Republican National Convention.
11:53:11:01 B&W stills of Nixon as a youth. cu still of
Patricia Ryan, Nixon. cu still of Nixon during his stay in
the navy.
11:55:13:18 Ftg of Nixon when he was a member of the House
of Representatives. Ftg of Nixon's, checkers, speech.
11:58:52:19 cu still of Nixon and Dwight Eisenhower. cu
still of Nixon taking the Vice Presidential oath.
12:00:33:08 ms of Soviet leader Nikita Khrushchev talking
to Nixon. ms of Nixon accepting the nomination of US
President during the 1960 Republican National Convention.
12:02:07:25 vs of the Nixon / John Kennedy television
debates. vs of Vice President Nixon and Senator Kennedy
(D-MASS) discussing issues. ms of Kennedy taking the
Presidential oath. ms of Nixon looking on. cu of a copy of
Nixon's book, Six Crises.
12:05:05:00 Soundbite of Nixon saying, you don't have Nixon
to kick around anymore. vs of Nixon campaigning for Senator
Barry Goldwater (R-ARIZ) during the 1964 Republican National
Convention. ms of Goldwater at the podium.
12:07:42:26 vs of the Richard and Pat Nixon at the podium
during the 1968 Republican National Convention. vs of Nixon
with his running mate Spiro Agnew. Brief shots of Democratic
candidate Vice President Hubert Humphrey and independent
candidate Alabama Governor George Wallace campaigning.
12:11:29:16 vs of Nixon after being declared the winner of
the Presidential election. ms of Nixon sitting in a stadium
watching a baseball game. ms of Nixon with former President
Harry Truman. ms of Nixon playing the piano. vs of Nixon in
Saigon. vs of Nixon shaking hands with US soldiers. vs of
anti Vietnam War protests in the US.
12:16:02:08 ms of Nixon addressing the nation regarding the
Vietnam War. Press conference with Vice President Agnew
regarding news media coverage of the war.
12:19:16:00 Ftg regarding the invasion of Cambodia. vs of
an anti war demonstration on Wall Street. Ftg on the
massacre at Kent State. Nixon addresses the nation regarding
freezing prices throughout the US for a period of 90 days.
12:22:41:06 Ftg of the wedding of Nixon's daughter Tricia.
vs of Senator Edmund Muskie (D-MAINE) campaigning for
President.
12:24:06:14 vs of the Nixons deplaning on arrival in China.
vs of Nixon at the Great Wall. vs of Nixon in the Soviet
Union. ms of Nixon and Soviet leader Leonid Brezhnev signing
the SALT agreement).
12:27:28:22 vs of Democratic Presidential candidate Senator
George McGovern (D-SDAK) at the 1972 Democratic National
Convention. Soundbite of Presidential advisor Henry
Kissinger saying, we believe peace is at hand. Ftg on the
Nixon reelection.
CI:
PERSONALITIES: AGNEW, SPIRO.
PERSONALITIES: BREZHNEV, LEONID.
PERSONALITIES: EISENHOWER, DWIGHT (STILL).
PERSONALITIES: GOLDWATER, BARRY.
PERSONALITIES: HUMPHREY, HUBERT.
PERSONALITIES: KENNEDY, JOHN.
PERSONALITIES: KHRUSHCHEV, NIKITA.
PERSONALITIES: KISSINGER, HENRY.
PERSONALITIES: MCGOVERN, GEORGE.
PERSONALITIES: MUSKIE, EDMUND.
PERSONALITIES: NIXON, PAT.
PERSONALITIES: NIXON, RICHARD.
PERSONALITIES: NIXON, TRICIA.
PERSONALITIES: TRUMAN, HARRY.
PERSONALITIES: WALLACE, GEORGE.
ATROCITIES: MASSACRE, KENT STATE UNIVERSITY.
Demonstrations: anti Vietnam War.
Politics: conventions.
Politics: Presidential campaigns.
US Relations: China.
US Relations: USSR.
War: Vietnam.
UNITED STATES SENATE 13:00 - 14:00
TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
FROM THE CONGRESSIONAL RECORD:
The CHIEF JUSTICE. The Senate will convene as a Court of Impeachment.
The Chaplain will offer a prayer.
______
PRAYER
The Chaplain, Dr. Lloyd John Ogilvie, offered the following prayer:
Almighty God, whose providential care has never varied all through
our Nation's history, we ask You for a special measure of wisdom for
the women and men of this Senate as they act as jurors in this
impeachment trial. You have been our Nation's refuge and strength in
triumphs and troubles, prosperity and problems. Now, dear Father, help
us through this difficult time. As You guided the Senators to unity in
matters of procedure, continue to make them one in their search for the
truth and in their expression of justice. Keep them focused in a spirit
of nonpartisan patriotism today and in the crucial days to come. Bless
the distinguished Chief Justice as he presides over this trial. We
commit to You all that is said and done and ultimately decided. In Your
holy Name. Amen.
The CHIEF JUSTICE. The Sergeant at Arms will make the proclamation.
The Sergeant at Arms, James W. Ziglar, made proclamation as follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to
keep silent, on pain of imprisonment, while the Senate of the
United States is sitting for the trial of the articles of
impeachment exhibited by the House of Representatives against
William Jefferson Clinton, President of the United States.
The CHIEF JUSTICE. The Presiding Officer recognizes the majority
leader.
Mr. LOTT. Thank you, Mr. Chief Justice.
Installing Equipment And Furniture in the Senate Chamber
Mr. LOTT. I send a resolution to the desk providing for installing
equipment and furniture in the Senate Chamber and ask that it be agreed
to and the motion to reconsider be laid upon the table.
The CHIEF JUSTICE. The clerk will report the resolution by title.
The legislative clerk read as follows:
A resolution (S. Res. 17), to authorize the installation of
appropriate equipment and furniture in the Senate Chamber for
the impeachment trial.
The CHIEF JUSTICE. Without objection, the resolution is considered
and agreed to.
The resolution (S. Res. 17) was agreed to, as follows:
S. Res. 17
Resolved, That in recognition of the unique requirements
raised by the impeachment trial of a President of the United
States, the Sergeant at Arms shall install appropriate
equipment and furniture in the Senate chamber for use by the
managers from the House of Representatives and counsel to the
President in their presentations to the Senate during all
times that the Senate is sitting for trial with the Chief
Justice of the United States presiding.
Sec. 2. The appropriate equipment and furniture referred to
in the first section is as follows:
(1) A lectern, a witness table and chair if required, and
tables and chairs to accommodate an equal number of managers
from the House of Representatives and counsel for the
President which shall be placed in the well of the Senate.
(2) Such equipment as may be required to permit the display
of video, or audio evidence, including video monitors and
microphones, which may be placed in the chamber for use by
the managers from the House of Representatives or the counsel
to the President.
Sec. 3. All equipment and furniture authorized by this
resolution shall be placed in the chamber in a manner that
provides the least practicable disruption to Senate
proceedings.
Privilege of the Floor
Mr. LOTT. Mr. Chief Justice, I now ask unanimous consent floor
privileges be granted to the individuals listed on the document I send
to the desk, during the closed impeachment proceedings of William
Jefferson Clinton, President of the United States.
The CHIEF JUSTICE. Without objection, it is so ordered.
The document follows.
Floor Privileges During Closed Session
David Hoppe, Administrative Assistant, Majority Leader.
Michael Wallace, Counsel, Majority Leader.
Robert Wilkie, Counsel, Majority Leader.
Bill Corr, Counsel, Democratic Leader.
Robert Bauer, Counsel, Democratic Leader.
Andrea La Rue, Counsel, Democratic Leader.
Peter Arapis, Floor Manager, Democratic Whip.
Kirk Matthew, Chief of Staff, Assistant Majority Leader.
Stewart Verdery, Counsel, Assistant Majority Leader.
Tom Griffith, Senate Legal Counsel.
Morgan Frankel, Deputy Senate Legal Counsel.
Loretta Symms, Deputy Sergeant at Arms.
Bruce Kasold, Chief Counsel, Secretary & Sergeant at Arms.
David Schiappa, Assistant Majority Secretary.
Lula Davis, Assistant Minority Secretary.
Alan Frumin, Assistant Parliamentarian.
Kevin Kayes, Assistant Parliamentarian.
Patrick Keating, Assistant Journal Clerk.
Scott Sanborn, Assistant Journal Clerk.
David Tinsley, Assistant Legislative Clerk.
Ronald Kavulick, Chief Reporter.
Jerald Linnell, Official Reporter.
Raleigh Milton, Official Reporter.
Joel Breitner, Official Reporter.
Mary Jane McCarthy, Official Reporter.
Paul Nelson, Official Reporter.
Katie-Jane Teel, Official Reporter.
Patrick Renzi, Official Reporter.
Lee Brown, Staff Assistant, Official Reporter.
Kathleen Alvarez, Bill Clerk.
Simon Sargent, Staff Assistant to Sen. Cleland.
Unanimous-Consent Agreement--Authority to Print Senate Documents
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that the
Secretary of the Senate be authorized to print as a Senate document all
documents filed by the parties together with other materials for the
convenience of all Senators.
The CHIEF JUSTICE. Without objection, it is so ordered.
Mr. LOTT. Mr. Chief Justice, I am about to submit a series of
unanimous-consent agreements and a resolution for the consideration of
the Senate. In addition to these matters, I would like to state for the
information of all Senators that, pursuant to S. Res. 16, the
evidentiary record on which the parties' presentations over the next
days will be based was filed by the House managers yesterday and was
distributed to all Senators through their offices. These materials are
now being printed at the Government Printing Office as Senate
documents. The initial documents of the record have been printed and
are now at each Senator's desk. As the printing of the rest of the
volumes of the record is completed over the next few days, they will
also be placed on the Senators desks for their convenience.
THE JOURNAL
The CHIEF JUSTICE. Without objection, the Journal of the proceedings
of the trial are approved to date.
The Presiding Officer submits to the Senate for printing in the
Senate Journal the following documents:
The precept, issued on January 8, 1999;
The writ of summons, issued on January 8, 1999; and the receipt of
summons, dated January 8, 1999.
The Presiding Officer submits to the Senate for printing in the
Senate Journal the following documents, which were received by the
Secretary of the Senate pursuant to Senate Resolution 16, 106th
Congress, first session:
The answer of William Jefferson Clinton, President of the United
States, to the articles of impeachment exhibited by the House of
Representatives against him on January 7, 1999, received by the
Secretary of the Senate on January 11, 1999;
The trial brief filed by the House of Representatives, received by
the Secretary of the Senate on January 11, 1999;
The trial brief filed by the President, received by the Secretary of
the Senate on January 13, 1999;
The replication of the House of Representatives, received by the
Secretary of the Senate on January 13, 1999; and
The rebuttal brief filed by the House of Representatives, received by
the Secretary of the Senate on January 14, 1999.
Without objection, the foregoing documents will be printed in the
Congressional Record.
The documents follow:
The United States of America, ss:
The Senate of the United States to James W. Ziglar, Sergeant
at Arms, United States Senate, greeting:
You are hereby commanded to deliver to and leave with
William Jefferson Clinton, if conveniently to be found, or if
not, to leave at his usual place of abode, a true and
attested copy of the within writ of summons, together with a
like copy of this precept; and in whichsoever way you perform
the service, let it be done at least 2 days before the answer
day mentioned in the said writ of summons.
Fail not, and make return of this writ of summons and
precept, with your proceedings thereon indorsed, on or before
the day for answering mentioned in the said writ of summons.
Witness Strom Thurmond, President pro tempore of the
Senate, at Washington, D.C., this 8th day of January, 1999,
the two hundred and twenty-third year of the Independence of
the United States.
Attest:
Gary Sisco,
Secretary of the Senate.
____
The United States of America, ss:
The Senate of the United States to William Jefferson Clinton,
greeting:
Whereas the House of Representatives of the United States
of America did, on the 7th day of January, 1999, exhibit to
the Senate articles of impeachment against you, the said
William Jefferson Clinton, in the words following:
``Articles of impeachment exhibited by the House of
Representatives of the United States of America in the name
of itself and of the people of the United States of America,
against William Jefferson Clinton, President of the United
States of America, in maintenance and support of its
impeachment against him for high crimes and misdemeanors.
Article I
``In his conduct while President of the United States,
William Jefferson Clinton, in violation of his constitutional
oath faithfully to execute the office of President of the
United States and, to the best of his ability, preserve,
protect, and defend the Constitution of the United States,
and in violation of his constitutional duty to take care that
the laws be faithfully executed, has willfully corrupted and
manipulated the judicial process of the United States for his
personal gain and exoneration, impeding the administration of
justice, in that:
``On August 17, 1998, William Jefferson Clinton swore to
tell the truth, the whole truth, and nothing but the truth
before a Federal grand jury of the United States. Contrary to
that oath, William Jefferson Clinton 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.
``In doing this, William Jefferson Clinton has undermined
the integrity of his office, has brought disrepute on the
Presidency, has betrayed his trust as President, and has
acted in a manner subversive of the rule of law and justice,
to the manifest injury of the people of the United States.
``Wherefore, William Jefferson Clinton, by such conduct,
warrants impeachment and trial, and removal from office and
disqualification to hold and enjoy any office of honor,
trust, or profit under the United States.
Article II
``In his conduct while President of the United States,
William Jefferson Clinton, in violation of his constitutional
oath faithfully to execute the office of President of the
United States and, to the best of his ability, preserve,
protect, and defend the Constitution of the United States,
and in violation of his constitutional duty to take care that
the laws be faithfully executed, 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 related to a Federal civil rights action brought
against him in a duly instituted judicial proceeding.
``The means used to implement this course of conduct or
scheme included one or more of the following acts:
``(1) On or about December 17, 1997, William Jefferson
Clinton corruptly encouraged a witness in a Federal civil
rights action brought against him to execute a sworn
affidavit in that proceeding that he knew to be perjurious,
false and misleading.
``(2) On or about December 17, 1997, William Jefferson
Clinton corruptly encouraged a witness in a Federal civil
rights action brought against him to give perjurious, false
and misleading testimony if and when called to testify
personally in that proceeding.
``(3) On or about December 28, 1997, William Jefferson
Clinton corruptly engaged in, encouraged, or supported a
scheme to conceal evidence that had been subpoenaed in a
Federal civil rights action brought against him.
``(4) Beginning on or about December 7, 1997, and
continuing through and including January 14, 1998, William
Jefferson Clinton intensified and succeeded in an effort to
secure job assistance to a witness in a Federal civil rights
action brought against him in order to corruptly prevent the
truthful testimony of that witness in that proceeding at a
time when the truthful testimony of that witness would have
been harmful to him.
``(5) On January 17, 1998, at his deposition in a Federal
civil rights action brought against him, William Jefferson
Clinton corruptly allowed his attorney to make false and
misleading statements to a Federal judge characterizing an
affidavit, in order to prevent questioning deemed relevant by
the judge. Such false and misleading statements were
subsequently acknowledged by his attorney in a communication
to that judge.
``(6) On or about January 18 and January 20-21, 1998,
William Jefferson Clinton related a false and misleading
account of events relevant to a Federal civil rights brought
against him to a potential witness in that proceeding, in
order to corruptly influence the testimony of that witness.
``(7) On or about January 21, 23, and 26, 1998, William
Jefferson Clinton made false and misleading statements to
potential witnesses in a Federal grand jury proceeding in
order to corruptly influence the testimony of those
witnesses. The false and misleading statements made by
William Jefferson Clinton were repeated by the witnesses to
the grand jury, causing the grand jury to receive false and
misleading information.
``In all of this, William Jefferson Clinton has undermined
the integrity of his office, has brought disrepute on the
Presidency, has betrayed his trust as President, and has
acted in a manner subversive to the rule of law and justice,
to the manifest injury of the people of the United States.
``Wherefore, William Jefferson Clinton, by such conduct,
warrants impeachment and trial, and removal from office and
disqualification to hold and enjoy any office of honor,
trust, or profit under the United States.''
And demand that you, the said William Jefferson Clinton,
should be put to answer the accusations as set forth in said
articles, and that such proceedings, examinations, trials,
and judgments might be thereupon had as are agreeable to law
and justice.
You, the said William Jefferson Clinton, are therefore
hereby summoned to file with the Secretary of the United
States Senate, S-220 The Capitol, Washington, D.C., 20510, an
answer to the said articles of impeachment no later than noon
on the 11th day of January, 1999, and therefore to abide by,
obey, and perform such orders, directions, and judgments as
the Senate of the United States shall make in the premises
according to the Constitution and laws of the United States.
Hereof you are not to fail.
Witness Strom Thurmond, President pro tempore of the
Senate, at Washington, D.C., this 8th day of January, 1999,
the two hundred and twenty-third year of the Independence of
the United States.
Attest:
Gary Sisco,
Secretary of the Senate.
____
The foregoing writ of summons, addressed to William
Jefferson Clinton, President of the United States, and the
foregoing precept, addressed to me, were duly served upon the
said William Jefferson Clinton, by my delivering true and
attested copies of the same to Charles Ruff, at the White
House, on the 8th day of January, 1999, at 5:27 p.m.
Attest:
James W. Ziglar,
Sergeant at Arms.
Loretta Symms,
Deputy Sergeant at Arms.
Dated: January 8, 1999.
Witnesseth:
Gary Sisco, Secretary,
United States Senate.
____
[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
ANSWER OF PRESIDENT WILLIAM JEFFERSON CLINTON TO THE ARTICLES OF
IMPEACHMENT
The Honorable William Jefferson Clinton, President of the
United States, in response to the summons of the Senate of
the United States, answers the accusations made by the House
of Representatives of the United States in the two Articles
of Impeachment it has exhibited to the Senate as follows:
Preamble
The Charges in the Articles Do Not Constitute High Crimes or
Misdemeanors
The charges in the two Articles of Impeachment do not
permit the conviction and removal from office of a duly
elected President. The President has acknowledged conduct
with Ms. Lewinsky that was improper. But Article II, Section
4 of 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.'' The charges in the articles do not rise to
the level of ``high Crimes and Misdemeanors'' as contemplated
by the Founding Fathers, and they do not satisfy the rigorous
constitutional standard applied throughout our Nation's
history. Accordingly, the Articles of Impeachment should be
dismissed.
The President Did Not Commit Perjury or Obstruct Justice
The President denies each and every material allegation of
the two Articles of Impeachment not specifically admitted in
this answer.
Article I
President Clinton denies that he made perjurious, false and
misleading statements before the federal grand jury on August
17, 1998.
Factual Responses to Article I
Without waiving his affirmative defenses, President Clinton
offers the following factual responses to the allegations in
Article I:
(1) The President denies that he made perjurious, false and
misleading statements to the grand jury about ``the
nature and details of his relationship'' with Monica
Lewinsky
There is a myth about President Clinton's testimony before
the grand jury. The myth is that the President failed to
admit his improper intimate relationship with Ms. Monica
Lewinsky. The myth is perpetuated by Article I, which accuses
the President of lying about ``the nature and details of his
relationship'' with Ms. Lewinsky.
The fact is that the President specifically acknowledged to
the grand jury that he had an improper intimate relationship
with Ms. Lewinsky. He said so, plainly and clearly: ``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 involve inappropriate
intimate contact.'' The President described to the grand jury
how the relationship began and how it ended at his insistence
early in 1997--long before any public attention or scrutiny.
He also described to the grand jury how he had attempted to
testify in the deposition in the Jones case months earlier
without having to acknowledge to the Jones lawyers what he
ultimately admitted to the grand jury--that he had an
improper intimate relationship with Ms. Lewinsky.
The President read a prepared statement to the grand jury
acknowledging his relationship with Ms. Lewinsky. The
statement was offered at the beginning of his testimony to
focus the questioning in a manner that would allow the Office
of Independent Counsel to obtain necessary information
without unduly dwelling on the salacious details of the
relationship. The President's statement was followed by
almost four hours of questioning. If it is charged that his
statement was in any respect perjurious, false and
misleading, the President denies it. The President also
denies that the statement was in any way an attempt to thwart
the investigation.
The President states, as he did during his grand jury
testimony, that he engaged in improper physical contact with
Ms. Lewinsky. The President was truthful when he testified
before the grand jury that he did not engage in sexual
relations with Ms. Lewinsky as he understood that term to be
defined by the Jones lawyers during their questioning of him
in that deposition. The President further denies that his
other statements to the grand jury about the nature and
details of his relationship with Ms. Lewinsky were
perjurious, false, and misleading.
(2) The President denies that he made perjurious, false and
misleading statements to the grand jury when he testified
about statements he had made in the Jones deposition
There is a second myth about the President's testimony
before the grand jury. The myth is that the President adopted
his entire Jones deposition testimony in the grand jury. The
President was not asked to and did not broadly restate or
reaffirm his Jones deposition testimony. Instead, in the
grand jury he discussed the bases for certain answers he
gave. The President testified truthfully in the grand jury
about statements he made in the Jones deposition. The
President stated to the grand jury that he did not attempt to
be helpful to or assist the lawyers in the Jones deposition
in their quest for information about his relationship with
Ms. Lewinsky. He truthfully explained to the grand jury his
efforts to answer the questions in the Jones deposition
without disclosing his relationship with Ms. Lewinsky.
Accordingly, the full, underlying Jones deposition is not
before the Senate.
Indeed, the House specifically considered and rejected an
article of impeachment based on the President's deposition in
the Jones case. The House managers should not be allowed to
prosecute before the Senate an article of impeachment which
the full House has rejected.
(3) The President denies that he made perjurious, false and
misleading statements to the grand jury about
``statements he allowed his attorney to make'' during the
Jones deposition
The President denies that he made perjurious, false and
misleading statements to the grand jury about the statements
his attorney made during the Jones deposition. The President
was truthful when he explained to the grand jury his
understanding of certain statements made by his lawyer,
Robert Bennett, during the Jones deposition. The President
also was truthful when he testified that he was not focusing
on the prolonged and complicated exchange between the
attorneys and Judge Wright.
(4) The President denies that he made perjurious, false and
misleading statements to the grand jury concerning
alleged efforts ``to influence the testimony of witnesses
and to impede the discovery of evidence'' in the Jones
case
For the reasons discussed more fully in response to Article
II, the President denies that he attempted to influence the
testimony of any witness or to impede the discovery
of evidence in the Jones case. Thus, the President denies
that he made perjurious, false and misleading statements
before the grand jury when he testified about these
matters.
First Affirmative Defense: Article I Does Not Meet the Constitutional
Standard for Conviction and Removal
For the same reasons set forth in the preamble of this
answer, Article I does not meet the rigorous constitutional
standard for conviction and removal from office of a duly
elected President and should be dismissed.
Second Affirmative Defense: Article I Is Too Vague To Permit Conviction
and Removal
Article I is unconstitutionally vague. No reasonable person
could know what specific charges are being leveled against
the President. It alleges that the President provided the
grand jury with ``perjurious, false, and misleading
testimony'' concerning ``one or more'' of four subject areas.
But it fails to identify any specific statement by the
President that is alleged to be perjurious, false and
misleading. The House has left the Senate and the President
to guess at what it had in mind.
One of the fundamental principles of our law and the
Constitution is that a person has a right to know what
specific charges he or she is facing. Without such fair
warning, no one can prepare the defense to which every person
is entitled. The law and the Constitution also mandate
adequate notice to jurors so they may know the basis for the
vote they must make. Without a definite and specific
identification of false statements, a trial becomes a moving
target for the accused. In addition, the American people
deserve to know upon what specific statements the President
is being judged, given the gravity and effect of these
proceedings, namely nullifying the results of a national
election.
Article I sweeps broadly and fails to provide the required
definite and specific identification. Were it an indictment,
it would be dismissed. As an article of impeachment, it is
constitutionally defective and should fail.
Third Affirmative Defense: Article I Charges Multiple Offense in One
Article
Article I is fatally flawed because it charges multiple
instances of alleged perjurious, false and misleading
statements in one article. The Constitution provides that
``no person shall be convicted without the Concurrence of two
thirds of the Members present,'' and Senate Rule XXIII
provides that ``an article of impeachment shall not be
divisible for the purpose of voting thereon at any time
during the trial.'' 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 ``one
or more'' of four topic areas. This creates the very real
possibility that conviction could occur even though Senators
were in wide disagreement as to the alleged wrong committed.
Put simply, the structure of Article I presents the
possibility that the President could be convicted even though
he would have been acquitted if separate votes were taken on
each allegedly perjurious statement. For example, it would be
possible for the President to be convicted and removed from
office with as few as 17 Senators agreeing that any single
statement was perjurious, because 17 votes for each of the
four categories in Article I would yield 68 votes, one more
than necessary to convict and remove.
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. Accordingly,
Article I should fail.
Factual Responses to Article II
Without waiving his affirmative defenses, President Clinton
offers the following factual responses to the 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''
The President denies that he encouraged Monica Lewinsky to
execute a false affidavit in the Jones case. Ms. Lewinsky,
the only witness cited in support of this allegation, denies
this allegation as well. Her testimony and proffered
statements are clear and unmistakable:
``[N]o one even asked me to lie and I was never
promised a job for my silence.''
``Neither the President nor anyone ever directed
Lewinsky to say anything or to lie . . .''
``Neither the Pres[ident] nor Mr. Jordan (or
anyone on their behalf) asked or encouraged Ms. L[ewinsky] to
lie.''
The President states that, sometime in December 1997, Ms.
Lewinsky asked him whether she might be able to avoid
testifying the Jones case because she knew nothing about Ms.
Jones or the case. The President further states that he told
her he believed other witnesses had executed affidavits, and
there was a chance they would not have to testify. The
President denies that he ever asked, encouraged or suggested
that Ms. Lewinsky file a false affidavit or lie. The
President states that he believed that Ms. Lewinsky could
have filed a limited but truthful affidavit that might have
enabled her to avoid having to testify in the Jones case.
(2) The President denies that on or about December 17, 1997,
he ``corruptly encouraged'' Monica Lewinsky ``to give
perjurious, false and misleading testimony of and when
called to testify personally'' in the Jones litigation
Again, the President denies that he encouraged Ms. Lewinsky
to lie if and when called to testify personally in the Jones
case. The testimony and proffered statements of Monica
Lewinsky, the only witness cited in support of this
allegation, are clear and unmistakable:
[N]o one ever asked me to lie and I was never
promised a job for my silence.''
``Neither the President nor anyone ever directed
Lewinsky to say anything or to lie . . .''
``Neither the Pres[ident] nor Mr. Jordan (or
anyone on their behalf) asked or encouraged Ms. L[ewinsky] to
lie.''
The President states that, prior to Ms. Lewinsky's
involvement in the Jones case, he and Ms. Lewinsky might have
talked about what to do to conceal their relationship from
others. Ms. Lewinsky was not a witness in any legal
proceeding at that time. Ms. Lewinsky's own testimony and
statements support the President's recollection. Ms. Lewinsky
testified that she ``pretty much can'' exclude the
possibility that she and the President ever had discussions
about denying the relationship after she learned she was a
witness in the Jones case. Ms. Lewinsky also stated that
``they did not discuss the issue [of what to say about their
relationship] is specific relation to the Jones matter,'' and
that ``she does not believe they discussed the content of any
deposition that [she] might be involved in at a later date.''
(3) The President denies that on or about December 28, 1997,
he ``corruptly engaged in, encouraged, or supported a
scheme to conceal evidence'' in the Jones case
The President denies that he engaged in, encouraged, or
supported any scheme to conceal evidence from discovery in
the Jones case, including any gifts he had given to Ms.
Lewinsky. The President states that he gave numerous gifts to
Ms. Lewinsky prior to December 28, 1997. The President states
that, sometime in December, Ms. Lewinsky inquired as to what
to do if she were asked in the Jones case about the gifts he
had given her, to which the President responded that she
would have to turn over whatever she had. The President
states that he was unconcerned about having given her gifts
and, in fact, that he gave Ms. Lewinsky additional gifts on
December 28, 1997. The President denies that he ever asked
his secretary, Ms. Betty Currie, to retrieve gifts he had
given Ms. Lewinsky, or that he ever asked, encouraged, or
suggested that Ms. Lewinsky conceal the gifts. Ms. Currie
told prosecutors as early as January 1998 and repeatedly
thereafter that it was Ms. Lewinsky who had contacted her
about retrieving gifts.
(4) The President denies that he obstructed justice in
connection with Monica Lewinsky's efforts to obtain a job
in New York to ``corruptly prevent'' her ``truthful
testimony'' in the Jones case
The President denies that he obstructed justice in
connection with Ms. Lewinsky's job search in New York or
sought to prevent her truthful testimony in the Jones case.
The President states that he discussed with Ms. Lewinsky her
desire to obtain a job in New York months before she was
listed as a potential witness in the Jones case. Indeed, Ms.
Lewinsky was offered a job in New York at the United Nations
more than a month before she was identified as a possible
witness. The President also states that he believes that Ms.
Lewinsky raised with him, again before she was ever listed as
a possible witness in the Jones case, the prospect of having
Mr. Vernon Jordan assist in her job search. Ms. Lewinsky
corroborates his recollection that it was her idea to ask for
Mr. Jordan's help. The President also states that he was
aware that Mr. Jordan was assisting Ms. Lewinsky to obtain
employment in New York. The President denies that any of
these efforts had any connection whatsoever to Ms. Lewinsky's
status as a possible or actual witness in the Jones case. Ms.
Lewinsky forcefully confirmed the President's denial when she
testified, ``I was never promised a job for my silence.''
(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
The President denies that he corruptly allowed his attorney
to make false and misleading statements concerning Ms.
Lewinsky's affidavit to a Federal judge during the Jones
deposition. The President denies that he was focusing his
attention on the prolonged and complicated exchange between
his attorney and Judge Wright.
(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''
The President denies that he obstructed justice or
endeavored in any way to influence any potential testimony of
Ms. Betty Currie. The President states that he spoke with Ms.
Currie on January 18, 1998. The President testified that, in
that conversation, he was trying to find out what the facts
were, what Ms. Currie's perception was, and whether his own
recollection was correct about certain aspects of his
relationship with Ms. Lewinsky. Ms. Currie testified that she
felt no pressure ``whatsoever'' from the President's
statements and no pressure ``to agree with [her] boss.'' The
President denies knowing or believing that Ms. Currie would
be a witness in any proceeding at the time of this
conversation. Ms. Currie had not been on any of the witness
lists proffered by the Jones lawyers. President Clinton
states that, after the Independent Counsel investigation
became public, when Ms. Currie was scheduled to testify, he
told Ms. Currie to ``tell the truth.''
(7) The President denies that he obstructed justice when he
relayed allegedly ``false and misleading statements'' to
his aides
The President denies that he obstructed justice when he
misled his aides about the
nature of his relationship with Ms. Lewinsky in the days
immediately following the public revelation of the Lewinsky
investigation. The President acknowledges that, in the days
following the January 21, 1998, Washington Post article, he
misled his family, his friends and staff, and the Nation to
conceal the nature of his relationship with Ms. Lewinsky. He
sought to avoid disclosing his personal wrongdoing to protect
his family and himself from hurt and public embarrassment.
The President profoundly regrets his actions, and he has
apologized to his family, his friends and staff, and the
Nation. The President denies that he had any corrupt purpose
or any intent to influence the ongoing grand jury
proceedings.
First Affirmative Defense: Article II Does Not Meet the Constitutional
Standard for Conviction and Removal
For the reasons set forth in the preamble of this answer,
Article II does not meet the constitutional standard for
convicting and removing a duly elected President from office
and should be dismissed.
Second Affirmative Defense: Article II Is Too Vague To Permit
Conviction and Removal
Article II is unconstitutionally vague. No reasonable
person could know what specific charges are being leveled
against the President. Article II alleges that the President
``obstructed and impeded the administration of justice'' in
both the Jones case and the grand jury investigation. But it
provides little or no concrete information about the specific
acts in which the President is alleged to have engaged, or
with whom, or when, that allegedly obstructed or otherwise
impeded the administration of justice.
As we set forth in the Second Affirmative Defense to
Article I, one of the fundamental principles of our law and
the Constitution is that a person has the right to know what
specific charges he or she is facing. Without such fair
warning, no one can mount the defense to which every person
is entitled. Fundamental to due process is the right of the
President to be adequately informed of the charges so that he
is able to confront those charges and defend himself.
Article II sweeps too broadly and provides too little
definite and specific identification. Were it an indictment,
it would be dismissed. As an article of impeachment, it is
constitutionally defective and should fail.
Third Affirmative Defense: Article II Charges Multiple Offenses in One
Article
For the reasons set forth in the Third Affirmative Defense
to Article I, Article II is constitutionally defective
because it charges multiple instances of alleged acts of
obstruction in one article, which makes it impossible for the
Senate to comply with the Constitutional mandates that any
conviction be by the concurrence of the two-thirds of the
members. Accordingly, Article II should fail.
Respectfully submitted,
David E. Kendall,
Nicole K. Seligman,
Emmet T. Flood,
Max Stier,
Glen Donath,
Alicia Marti,
Williams & Connolly,
725 12th Street, N.W.,
Washington, D.C. 20005.
Charles F. C. Ruff,
Gregory B. Craig,
Bruce R. Lindsey,
Cheryl D. Mills,
Lanny A. Breuer,
Office of the White House Counsel,
The White House,
Washington, D.C. 20502.
Submitted: January 11, 1999.
____
[In the Senate of the United States Sitting as a Court of Impeachment]
In re Impeachment of President William Jefferson Clinton
TRIAL MEMORANDUM OF THE UNITED STATES HOUSE OF REPRESENTATIVES
Now comes the United States House of Representatives, by
and through its duly authorized Managers, and respectfully
submits to the United States Senate its Brief in connection
with the Impeachment Trial of William Jefferson Clinton,
President of the United States.
Summary
The President is charged in two Articles with: (1) Perjury
and false and misleading testimony and statements under oath
before a federal grand jury (Article I), and (2) engaging in
a course of conduct or scheme to delay and obstruct justice
(Article II).
The evidence contained in the record, when viewed as a
unified whole, overwhelmingly supports both charges.
Perjury and False Statements Under Oath
President Clinton deliberately and willfully testified
falsely under oath when he appeared before a federal grand
jury on August 17, 1998. Although what follows is not
exhaustive, some of the more overt examples will serve to
illustrate.
At the very outset, the President read a prepared
statement, which itself contained totally false assertions
and other clearly misleading information.
The President relied on his statement nineteen
times in his testimony when questioned about his relationship
with Ms. Lewinsky.
President Clinton falsely testified that he was
not paying attention when his lawyer employed Ms. Lewinsky's
false affidavit at the Jones deposition.
He falsely claimed that his actions with Ms.
Lewinsky did not fall within the definition of ``sexual
relations'' that was given at his deposition.
He falsely testified that he answered questions
truthfully at his deposition concerning, among other
subjects, whether he had been alone with Ms. Lewinsky.
He falsely testified that he instructed Ms.
Lewinsky to turn over the gifts if she were subpoenaed.
He falsely denied trying to influence Ms. Currie
after his deposition.
He falsely testified that he was truthful to his
aides when he gave accounts of his relationship, which
accounts were subsequently disseminated to the media and the
grand jury.
Obstruction of Justice
The President engaged in an ongoing scheme to obstruct both
the Jones civil case and the grand jury. Further, he
undertook a continuing and concerted plan to tamper with
witnesses and prospective witnesses for the purpose of
causing those witnesses to provide false and misleading
testimony. Examples abound:
The President and Ms. Lewinsky concocted a cover
story to conceal their relationship, and the President
suggested that she employ that story if subpoenaed in the
Jones case.
The President suggested that Ms. Lewinsky provide
an affidavit to avoid testifying in the Jones case, when he
knew that the affidavit would need to be false to accomplish
its purpose.
The President knowingly and willfully allowed his
attorney to file Ms. Lewinsky's false affidavit and to use it
for the purpose of obstructing justice in the Jones case.
The President suggested to Ms. Lewinsky that she
provide a false account of how she received her job at the
Pentagon.
The President attempted to influence the expected
testimony of his secretary, Ms. Currie, by providing her with
a false account of his meetings with Ms. Lewinsky.
The President provided several of his top aides
with elaborate lies about his relationship with Ms. Lewinsky,
so that those aides would convey the false information to the
public and to the grand jury. When he did this, he knew that
those aides would likely be called to testify, while he was
declining several invitations to testify. By this action, he
obstructed and delayed the operation of the grand jury.
The President conspired with Ms. Lewinsky and Ms.
Currie to conceal evidence that he had been subpoenaed in the
Jones case, and thereby delayed and obstructed justice.
The President and his representatives orchestrated
a campaign to discredit Ms. Lewinsky in order to affect
adversely her credibility as a witness, and thereby attempted
to obstruct justice both in the Jones case and the grand
jury.
The President lied repeatedly under oath in his
disposition in the Jones case, and thereby obstructed justice
in that case.
The President's lies and misleading statements
under oath at the grand jury were calculated to, and did
obstruct, delay and prevent the due administration of justice
by that body.
The President employed the power of his office to
procure a job for Ms. Lewinsky after she signed the false
affidavit by causing his friend to exert extraordinary
efforts for that purpose.
The foregoing are merely accusations of an ongoing pattern
of obstruction of justice, and witness tampering extending
over a period of several months, and having the effect of
seriously compromising the integrity of the entire judicial
system.
The effect of the President's misconduct has been
devastating in several respects.
(1) He violated repeatedly his oath to ``preserve, protect
and defend the Constitution of the United States.''
(2) He ignored his constitutional duty as chief law
enforcement officer to ``take care that the laws be
faithfully executed.''
(3) He deliberately and unlawfully obstructed Paula Jones's
rights as a citizen to due process and the equal protection
of the laws, though he had sworn to protect those rights.
(4) By his pattern of lies under oath, misleading
statements and deceit, he has seriously undermined the
integrity and credibility of the Office of President and
thereby the honor and integrity of the United States.
(5) His pattern of perjuries, obstruction of justice, and
witness tampering has affected the truth seeking process
which is the foundation of our legal system.
(6) By mounting an assault in the truth seeking process, he
has attacked the entire Judicial Branch of government.
The Articles of Impeachment that the House has preferred
state offenses that warrant, if proved, the conviction and
removal from office of President William Jefferson Clinton.
The Articles charge that the President has committed perjury
before a federal grand jury and that he obstructed justice in
a federal civil rights action. The Senate's own precedents
establish beyond doubt that perjury warrants conviction and
removal. During the 1980s, the Senate convicted and removed
three federal judges for committing perjury. Obstruction of
justice under mines the judicial system in the same fashion
that
perjury does, and it also warrants conviction and removal.
Under our Constitution, judges are impeached under the same
standard as Presidents--treason, bribery, or other high
crimes and misdemeanors. Thus, these judicial impeachments
for perjury set the standard here. Finally, the Senate's own
precedents further establish that the President's crimes need
not arise directly out of his official duties. Two of the
three judges removed in the 1980s were removed for perjury
that had nothing to do with their official duties.
Introduction
This Brief is intended solely to advise the Senate
generally of the evidence that the Managers intend to
product, if permitted, and of the applicable legal
principles. It is not intended to discuss exhaustively all of
the evidence, nor does it necessarily include each and every
witness and document that the Managers would produce in the
course of the trial. This Brief, then, is merely an outline
for the use of the Senate in reviewing and assessing the
evidence as it is set forth at trial--it is not, and is not
intended to be a substitute for a trial at which all of the
relevant facts will be developed.
H. Res. 611, 105th Cong. 2nd Sess. (1998)
The House Impeachment Resolution charges the President with
high crimes and misdemeanors in two Articles. Article One
alleges that President Clinton ``willfully corrupted and
manipulated the judicial process of the United States for his
personal gain and exoneration, impeding the administration of
justice'' in that he willfully provided perjurious, false and
misleading testimony to a federal grand jury on August 17,
1998. Article Two asserts that the President ``has prevented,
obstructed, and impeded the administration of justice and
engaged in a course of conduct or scheme designed to delay,
impede, cover up, and conceal the existence of evidence and
testimony related to a federal civil rights action brought
against him.'' Both Articles are now before the Senate of the
United States for trial as provided by the Constitution of
the United States.
The Office of President represents to the American people
and to the world, the strength, the philosophy and most of
all, the honor and integrity that makes us a great nation and
an example for the world. Because all eyes are focused upon
that high office, the character and credibility of any
temporary occupant of the Oval Office is vital to the
domestic and foreign welfare of the citizens. Consequently,
serious breaches of integrity and duty of necessity adversely
influence the reputation of the United States.
This case is not about sex or private conduct. It is about
multiple obstructions of justice, perjury, false and
misleading statements, and witness tampering--all committed
or orchestrated by the President of the United States.
Before addressing the President's lies and obstruction, it
is important to place the events in the proper context. If
this were only about private sex we would not now be before
the Senate. But the manner in which the Lewinsky relationship
arose and continued is important because it is illustrative
of the character of the President and the decisions he made.
Background
Monica Lewinsky, a 22 year old intern, (ML 8/6/98 GJ, p. 8;
H.Doc. 105-311, p. 728) was working at the White House during
the government shutdown in 1995. (ML 8/6/98 GJ, p. 10; H.Doc.
105-311, p. 730) Prior to their first intimate encounter, she
had never even spoken with the President. Sometime on
November 15, 1995, Ms. Lewinsky and President Clinton flirted
with each other. (Id.) The President of the United States of
America then invited this unknown young intern into a private
area off the Oval Office where he kissed her. He then invited
her back later and when she returned, the two engaged in the
first of many acts of inappropriate contact. (ML 8/6/98 GJ,
p. 12; H.Doc. 105-311, p. 732)
Thereafter, the two concocted a cover story. If Ms.
Lewinsky were seen, she was bringing papers to the President.
That story was totally false. (ML 8/6/98 GJ, p. 54; H.Doc.
105-311, p. 774; 8/26/98 Dep., p. 34; H.Doc. 105-311, p.
1314) The only papers she brought were personal messages
having nothing to do with her duties or those of the
President. (ML 8/6/98 GJ, pgs. 54-55; H.Doc. 105-311, pp.
774-775) After Ms. Lewinsky moved from the White House to the
Pentagon, her frequent visits to the President were disguised
as visits to Betty Currie. (Id.) Those cover stories are
important, because they play a vital role in the later
perjuries and obstructions.
Encounters
Over the term of their relationship the following
significant matters occurred:
1. Monica Lewinsky and the President were alone on at least
twenty-one occasions;
2. They had at least eleven personal sexual encounters,
excluding phone sex: Three in 1995, Five in 1996 and Three in
1997;
3. They had at least 55 telephone conversations, at least
seventeen of which involved phone sex;
4. The President gave Ms. Lewinsky twenty presents; and,
5. Ms. Lewinsky gave the President forty presents (O.I.C.
Referral, App., Tab E; H.Doc. 105-311, pgs. 104-111)
These are the essential facts which form the backdrop for
all of the events that followed.
The sexual details of the President's encounters with Ms.
Lewinsky, though relevant, need not be detailed either in
this document or through witness testimony. It is necessary,
though, briefly to outline that evidence, because it will
demonstrate that the President repeatedly lied about that
sexual relationship in his deposition, before the grand jury,
and in his responses to the Judiciary Committee's questions.
He has consistently maintained that Ms. Lewinsky merely
performed acts on him, while he never touched her in a sexual
manner. This characterization not only directly contradicts
Ms. Lewinsky's testimony, but it also contradicts the sworn
grand jury testimony of three of her friends and the
statements by two professional counselors with whom she
contemporaneously shared the details of her relationship.
(O.I.C. Referral, H. Doc. 105-310, pgs. 138-140)
While his treatment of Ms. Lewinsky was offensive, it is
much more offensive for the President to expect the Senate to
believe that in 1995, 1996, and 1997, his intimate contact
with Ms. Lewinsky was so limited that it did not fall within
his narrow interpretation of a definition of ``sexual
relations''. As later demonstrated, he did not even conceive
his interpretation until 1998, while preparing for his grand
jury appearance.
How To View the Evidence
We respectfully submit that the evidence and testimony must
be viewed as a whole; it cannot be compartmentalized. It is
essential to avoid considering each event in isolation, and
then treating it separately. Events and words that may seem
innocent or even exculpatory in a vacuum may well take on a
sinister, or even criminal connotation when observed in the
context of the whole plot. For example, everyone agrees that
Monica Lewinsky testified ``No one ever told me to lie;
nobody ever promised me a job.'' (ML 8/20/98 GJ, p. 105; H.
Doc. 105-311, p. 1161)
When considered alone this would seem exculpatory. However,
in the context of the other evidence, another picture
emerges. Of course no one said. ``Now, Monica, you go in
there and lie.'' They didn't have to. Ms. Lewinsky knew what
was expected of her. Similarly, nobody promised her a job,
but once she signed the false affidavit, she got one.
The Issue
The ultimate issue is whether the President's course of
conduct is such as to affect adversely the Office of the
President and also upon the administration of justice, and
whether he has acted in a manner contrary to his trust as
President and subversive to the Rule of Law and
Constitutional government.
The Beginning
The events that form the basis of these charges actually
began in late 1995. They reached a critical stage in the
winter of 1997 and the first month of 1998. The event
culminated when the President of the United States appeared
before a federal grand jury, raised his right hand to God and
swore to tell the truth, the whole truth, and nothing but the
truth.
december 5-6, 1997
On Friday, December 5, 1997, Monica Lewinsky asked Betty
Currie if the President could see her the next day, Saturday,
but Ms. Currie said that the President was scheduled to meet
with his lawyers all day. (ML 8/6/98 GJ, pgs. 107-108; H.
Doc. 105-311, pgs. 827-828) Later that Friday, Ms. Lewinsky
spoke briefly to the President at a Christmas party. (ML 7/
31/98 Int., p. 1; H. Doc. 105-311, p. 1451; ML 8/6/98 GJ, p.
108; H. Doc. 105-311, p. 828)
The Witness List Is Received
That evening, Paula Jones's attorneys faxed a list of
potential witnesses to the President's attorneys. (849-DC-
00000128; 849-DC-00000121-37; Referral, H. Doc. 105-311, p.
88) The list included Monica Lewinsky. However, Ms. Lewinsky
did not find out that her name was on the list until the
President told her ten days later, on December 17. (ML 8/6/98
GJ, pgs. 121-123; H. Doc. 105-311, pgs. 841-843) That delay
is significant.
Ms. Lewinsky's First Visit
After her conversation with Ms. Currie and seeing the
President at the Christmas party, Ms. Lewinsky drafted a
letter to the President terminating their relationship. (ML-
55-DC-0177); ML 7/31/98 Int., p. 2; H. Doc. 105-311, p. 1452)
The next morning, Saturday, December 6, Ms. Lewinsky went to
the White House to deliver the letter and some gifts for the
President to Ms. Currie. (ML 8/6/98 GJ, pgs. 108-109; H. Doc.
105-311, pgs. 828-829) When she arrived at the White House,
Ms. Lewinsky spoke to several Secret Service officers, and
one of them told her that the President was not with his
lawyers, as she thought, but rather, he was meeting with
Eleanor Mondale. (ML 8/6/98 GJ, p. 111; H. Doc. 105-311, p.
831; Mondale 7/16/98 Int., p. 1; H. Doc. 105-316, pgs. 2907-
2908; H. Doc. 105-311, p. 2654) Ms. Lewinsky called Ms.
Currie from a pay phone, angrily exchanged words with her,
and went home. (ML 8/6/98 GJ, pgs. 112-13; H. Doc. 105-311,
pgs. 832-833; Currie 1/27/98 GJ, p. 27; H. Doc. 105-316, p.
553) After that phone call, Ms. Currie told the Secret
Service watch commander that the President was so upset about
the disclosure of his meeting with Ms. Mondale that he wanted
somebody fired. (Purdie 7/23/98 GJ, pgs. 13, 18-19; H. Doc.
105-316, pgs. 3356-3357).
The Telephone Conversations
At 12:05 p.m., records demonstrate that Ms. Currie paged
Bruce Lindsey with the message: ``Call Betty ASAP.'' (964-DC-
00000862;
H. Doc. 105-311, p. 2722) Around that same time, according to
Ms. Lewinsky, while she was back at her apartment, Ms.
Lewinsky and the President spoke by phone. The President was
very angry; he told Ms. Lewinsky that no one had every
treated him as poorly as she had. (ML 8/6/98 GJ, pgs. 113-14;
H. Doc. 105-311, pgs. 833-834) The President acknowledged to
the grand jury that he was upset about Ms. Lewinsky's
behavior and considered it inappropriate. (WJC 8/17/98 GJ,
p. 85; H.Doc. 105-311, p. 537). Nevertheless, in a sudden
change of mood, he invited her to visit him at the White
House that afternoon. (ML 8/6/98 GJ, p. 114; H.Doc. 105-
311, p. 834)
Ms. Lewinsky's Second Visit
Monica Lewinsky arrived at the White House for the second
time that day and was cleared to enter at 12:52 p.m. (WAVES:
827-DC-00000018) Although, in Ms. Lewinsky's words, the
President was ``very angry'' with her during their recent
telephone conversation, he was ``sweet'' and ``very
affectionate'' during this visit. (ML 8/6/98 GJ, pgs. 113-15;
H.Doc. 105-311, pgs. 833-835). He also told her that he would
talk to Vernon Jordan about her job situation. (ML 8/6/98 GJ,
pgs. 115-16; H.Doc. 105-311, pgs. 835-836)
The Discussions With the Secret Service
The President also suddenly changed his attitude toward the
Secret Service. Ms. Currie informed some officers that if
they kept quiet about the Lewinsky incident, there would be
no disciplinary action. (Williams 7/23/98 GJ, pgs. 25, 27-28;
H.Doc. 105-316, p. 4539; Chinery 7/23/98 GJ, p. 22-23; H.Doc.
105-316, p. 456). According to the Secret Service watch
commander, Captain Jeffrey Purdie, the President personally
told him, ``I hope you use your discretion'' or ``I hope I
can count on your discretion.'' (Purdie 7/23/98 GJ, p. 32;
H.Doc. 105-316, p. 3360; Purdie 7/17/98 GJ, p. 3; H.Doc. 105-
316, p. 3353) Deputy Chief Charles O'Malley, Captain Purdie's
supervisor, testified that he knew of no other time in his
fourteen years of service at the White House where the
President raised a performance issue with a member of the
Secret Service uniformed division. (O'Malley 9/8/98 Dep.,
pgs. 40-41; H.Doc. 105-316, pgs. 3168-3171) After his
conversation with the President, Captain Purdie told a number
of officers that they should not discuss the Lewinsky
incident. (Porter 8/13/98 GJ, p. 12; H.Doc. 105-316, p. 3343;
Niedzwiecki 7/30/98 GJ, pgs. 30-31, H.Doc. 105-316, p. 3114)
When the President was before the grand jury and questioned
about his statements to the Secret Service regarding this
incident, the President testified, ``I don't remember what I
said and I don't remember to whom I said it.'' (WJC 8/17/98
GJ, p. 86; H.Doc. 105-311, p. 534) When confronted with
Captain Purdie's testimony, the President testified, ``I
don't remember anything I said to him in that regard. I have
no recollection of that whatever.'' (WJC 8/17/98 GJ, p. 91;
H.Doc. 105-311, p. 543)
The President's Knowledge of the Witness List
President Clinton testified before the grand jury that he
learned that Ms. Lewinsky was on the Jones witness list that
evening, Saturday, December 6, during a meeting with his
lawyers. (WJC 8/17/98 GJ, p. 83-84; H.Doc. 105-311, p. 535-
536) He stood by this answer in response to Request Number 16
submitted by the Judiciary Committee. (Exhibit 18). The
meeting occurred around 5 p.m., after Ms. Lewinsky had left
the White House. (WAVES: 1407-DC-00000005; Lindsey 3/12/98
GJ, pgs. 64-66; H.Doc. 105-316, pgs. 2418-19) According to
Bruce Lindsey, at the meeting, Bob Bennett had a copy of the
Jones witness list faxed to Mr. Bennett the previous night.
(Lindsey 3/12/98 GJ, pgs. 65-67; H.Doc. 105-316, p. 2419)
(Exhibit 15)
However, during his deposition, the President testified
that he had heard about the witness list before he saw it.
(WJC 1/17/98 Dep., p. 70) In other words, if the President
testified truthfully in his deposition, then he knew about
the witness list before the 5 p.m. meeting. It is valid to
infer that hearing Ms. Lewinsky's name on a witness list
prompted the President's sudden and otherwise unexplained
change from ``very angry'' to ``very affectionate'' that
Saturday afternoon. It is also reasonable to infer that it
prompted him to give the unique instruction to a Secret
Service watch commander to use ``discretion'' regarding Ms.
Lewinsky's visit to the White House, which the watch
commander interpreted as an instruction to refrain from
discussing the incident. (Purdie 7/17/98 GJ, pgs. 20-21;
H.Doc. 105-316, pgs. 3351-3352; Purdie 7/23/98 GJ, pgs. 32-
33; H.Doc. 105-315, pgs. 3360-3361)
The Job Search for Ms. Lewinsky
Monica Lewinsky had been looking for a good paying and high
profile job in New York since the previous July. She was not
having much success despite the President's promise to help.
In early November, Betty Currie arranged a meeting with
Vernon Jordan who was supposed to help. (BC 5/6/98 GJ, p.
176; H.Doc. 105-316, p. 592)
On November 5, Ms. Lewinsky met for twenty minutes with Mr.
Jordan (ML 8/6/98 GJ, pg. 104; H.Doc. 105-311, p. 824) No
action followed; no job interviews were arranged and there
were no further contacts with Mr. Jordan. It was obvious that
he made no effort to find a job for Ms. Lewinsky. Indeed, it
was so unimportant to him that he ``had no recollection of an
early November meeting'' (VJ 3/3/98 GJ, pg. 50; H.Doc. 105-
316, p. 1799) and that finding a job for Ms. Lewinsky was not
a priority (VJ 5/5/98 GJ, p. 76; H.Doc. 105-316, p. 1804)
(Chart R) Nothing happened throughout the month of November,
because Mr. Jordan was either gone or would not return
Monica's calls. (ML 8/6/98 GJ, p. 105-106; H.Doc. 105-311,
pgs. 825-826)
During the December 6 meeting with the President, she
mentioned that she had not been able to get in touch with Mr.
Jordan and that it did not seem he had done anything to help
her. The President responded by stating, ``Oh, I'll talk to
him. I'll get on it,'' or something to that effect. (ML 8/6/
98 GJ, pgs. 115-116; H.Doc. 105-311, p. 836) There was
obviously still no urgency to help Ms. Lewinsky. Mr. Jordan
met the President the next day, December 7, but the meeting
was unrelated to Ms. Lewinsky. (VJ 5/5/98 GJ. pgs. 83, 116;
H.Doc. 105-316, pgs. 1805, 1810)
The December 11, 1997 Activity
The first activity calculated to help Ms. Lewinsky actually
procure employment took place on December 11. Mr. Jordan met
with Ms. Lewinsky and gave her a list of contact names. The
two also discussed the President. (ML 8/6/98 GJ, pgs. 119,
120; H.Doc. 105-311, pgs. 839-840) That meeting Mr. Jordan
remembered. (VJ 3/5/98 GJ, p. 41; H.Doc. 105-316, p. 1798)
Vernon Jordan immediately placed calls to two prospective
employers. (VJ 3/3/98 GJ, pgs. 54, 62-63; H.Doc. 105-316,
pgs. 1800-1802) Later in the afternoon, he even called the
President to give him a report on his job search efforts. (VJ
3/3/98 GJ, pgs. 64-66; H.Doc. 105-316, p. 1802) Clearly, Mr.
Jordan and the President were now very interested in helping
Monica find a good job in New York. (VJ 5/5/98 GJ, p. 95;
H.Doc. 105-316, p. 1807)
Significance of December 11, 1997
This sudden interest was inspired by a court order entered
on December 11, 1997. On that date, Judge Susan Webber Wright
ordered that Paula Jones was entitled to information
regarding any state or federal employee with whom the
President had sexual relations, proposed sexual relations, or
sought to have sexual relations.
The President knew that it would be politically and legally
expedient to maintain an amicable relationship with Monica
Lewinsky. And the President knew that that relationship would
be fostered by finding Ms. Lewinsky a job. This was
accomplished through enlisting the help of Vernon Jordan.
December 17, 1997, Ms. Lewinsky Learns of Witness List
On December 17, 1997, between 2:00 and 2:30 in the morning,
Monica Lewinsky's phone rang unexpectedly. It was the
President of the United States. The President said that he
wanted to tell Ms. Lewinsky two things: one was that Betty
Currie's brother had been killed in a car accident; secondly,
the President said that he ``had some more bad news,'' that
he had seen the witness list for the Paula Jones case and her
name was on it. (ML 8/6/98 GJ, p. 123; H.Doc. 105-311, p.
843) The President told Ms. Lewinsky that seeing her name on
the list ``broke his heart.'' He then told her that ``if
[she] were to be subpoenaed, [she] should contact Betty and
let Betty know that [she] had received the subpoena.'' (Id.)
Ms. Lewinsky asked what she should do if subpoenaed. The
President responded: ``Well, maybe you can sign an
affidavit.'' (Id.) Both parties knew that the Affidavit would
need to be false and misleading to accomplish the desired
result.
The President's ``Suggestion''
Then, the President had a very pointed suggestion for
Monica Lewinsky, a suggestion that left little room for
compromise. He did not specifically tell her to lie. What he
did say is ``you know, you can always say you were coming to
see Betty or that you were bringing me letters.'' (ML 8/6/98
GJ, p. 123; H.Doc. 105-311, p. 843)
In order to understand the significance of this statement,
it is necessary to recall the ``cover stories'' that the
President and Ms. Lewinsky had previously structured in order
to deceive those who protected and worked with the President.
Ms. Lewinsky said she would carry papers when she visited
the President. When she saw him, she would say: ``Oh, gee,
`here are your letters,' wink, wink, wink and he would
answer, `Okay that's good.' '' (ML 8/6/98 GJ, p. 54; H.Doc.
105-311, p. 774) After Ms. Lewinsky left White House
employment, she would return to the Oval Office under the
guise of visiting Betty Currie, not the President. (ML 8/6/98
GJ, p. 55; H.Doc. 105-311, p. 775)
Moreover, Ms. Lewinsky promised the President that she
would always deny the sexual relationship and always protect
him. The President would respond ``that's good'' or similar
language of encouragement. (ML 8/20/98 GJ, p. 22; H.Doc. 105-
311, p. 1078)
So, when the President called Ms. Lewinsky at 2:00 a.m. on
December 17 to tell her she was on the witness list, he made
sure to remind her of those prior ``cover stories.'' Ms.
Lewinsky testified that when the President brought up the
misleading stories, she understood that the two would
continue their pre-existing pattern of deception.
The President's Intention
It became clear that the President had no intention of
making his sexual relationship with Monica Lewinsky a public
affair. And he would use lies, deceit, and deception to
ensure that the truth would not be known.
It is interesting to note that when the grand jury asked
the President whether he remembered calling Monica Lewinsky
at 2:00 a.m., he responded: ``No sir, I don't. But it would .
. . it is quite possible that that happened. . . .'' (WJC 8/
17/98 GJ, p. 115; H.Doc. 105-311, p. 567)
And when he was asked whether he encouraged Monica Lewinsky
to continue the cover stories of ``coming to see Betty'' or
``bringing the letters,'' he answered: ``I don't remember
exactly what I told her that night.'' (WJC 8/17/98 GJ, p.
117; H.Doc. 105-311, p. 565)
Six days earlier, he had become aware that Paula Jones'
lawyers were now able to inquire about other women. Ms.
Lewinsky could file a false affidavit, but it might not work.
It was absolutely essential that both parties told the same
story. He knew that he would lie if asked about Ms. Lewinsky,
and he wanted to make certain that she would lie also. That
is why the President of the United States called a twenty-
four year old woman at 2:00 in the morning.
The Evidence Mounts
But the President had an additional problem. It was not
enough that he (and Ms. Lewinsky) simply deny the
relationship. The evidence was beginning to accumulate.
Because of the emerging evidence, the President found it
necessary to reevaluate his defense. By this time, the
evidence was establishing, through records and eyewitness
accounts, that the President and Monica Lewinsky were
spending a significant amount of time together in the Oval
Office complex. It was no longer expedient simply to refer to
Ms. Lewinsky as a ``groupie'', ``stalker'', ``clutch'', or
``home wrecker'' as the White House first attempted to do.
The unassailable facts were forcing the President to
acknowledge some type of relationship. But at this point, he
still had the opportunity to establish a non-sexual
explanation for their meetings, since his DNA had not yet
been identified on Monica Lewinsky's blue dress.
Need for the Cover Story
Therefore, the President needed Monica Lewinsky to go along
with the cover story in order to provide an innocent,
intimate-free explanation for their frequent meetings. And
that innocent explanation came in the form of ``document
deliveries'' and ``friendly chats with Betty Currie.''
Significantly, when the President was deposed on January
17, 1998, he used the exact same cover stories that had been
utilized by Ms. Lewinsky. In doing so, he stayed consistent
with any future Lewinsky testimony while still maintaining
his defense in the Jones lawsuit.
In the President's deposition, he was asked whether he was
ever alone with Monica Lewinsky. He responded: ``I don't
recall . . . She--it seems to me she brought things to me
once or twice on the weekends. In that case, whatever time
she would be in there, drop it off, exchange a few words and
go, she was there.'' (WJC 1/17/98 Dep., p. 52-53)
Additionally, when questions were posed regarding Ms.
Lewinsky's frequent visits to the Oval Office, the President
did not hesitate to mention Betty Currie in his answers, for
example:
And my recollection is that on a couple of occasions after
[the pizza party meeting], she was there [in the oval office]
but my secretary, Betty Currie, was there with her. (WJC 1/
17/98 Dep., p. 58)
Q. When was the last time you spoke with Monica Lewinsky?
A. I'm trying to remember. Probably sometime before
Christmas. She came by to see Betty sometime before
Christmas. And she was there talking to her, and I stuck my
head out, said hello to her. (WJC 1/17/98 Dep., p. 68)
December 19, 1997, Ms. Lewinsky Is Subpoenaed
On December 19, 1997, Ms. Lewinsky was subpoenaed to
testify in a deposition scheduled for January 23, 1998 in the
Jones case. (ML 8/6/98 GJ, p. 128; H.Doc. 105-311, p. 848)
(Charts F and G) Extremely distraught, she immediately called
the President's closest friend, Vernon Jordan. As noted Ms.
Lewinsky testified that the President previously told her to
call Betty Currie if she was subpoenaed. She called Mr.
Jordan instead because Ms. Currie's brother recently died and
she did not want to bother her. (ML 8/6/98 GJ, pgs. 128-129;
H.Doc. 105-311, pgs. 848, 849)
Vernon Jordan's Role
Mr. Jordan invited Ms. Lewinsky to his office and she
arrived shortly before 5 p.m., still extremely distraught.
Around this time, Mr. Jordan called the President and told
him Ms. Lewinsky had been subpoenaed. (VJ 5/5/98 GJ, p. 145;
H.Doc. 105-316, p. 1815) (Exhibit 1) During the meeting with
Ms. Lewinsky, which Mr. Jordan characterized as
``disturbing'' (VJ 3/3/98 GJ, p. 100; H.Doc. 105-316, p.
1716), she talked about her infatuation with the President.
(VJ 3/3/98 GJ, p. 150; H.Doc. 105-316, p. 1724) Mr. Jordan
decided that he would call a lawyer for her. (VJ 3/3/98 GJ,
p. 161; H.Doc. 105-316, p. 1726)
Mr. Jordan Informs the President
That evening, Mr. Jordan met with the President and relayed
his conversation with Ms. Lewinsky. The details are extremely
important because the President, in his deposition, did not
recall that meeting. Mr. Jordan told the President again that
Ms. Lewinsky had been subpoenaed, that he was concerned about
her fascination with the President, and that Ms. Lewinsky had
asked Mr. Jordan if he thought the President would leave the
First Lady. He also asked the President if he had sexual
relations with Ms. Lewinsky. (VJ 3/3/98 GJ, p. 169; H.Doc
105-3316, p. 1727) The President was asked at his deposition:
Q. Did anyone other than your attorneys ever tell you that
Monica Lewinsky had been served with a subpoena in this case?
A. I don't think so.
Q. Did you ever talk with Monica Lewinsky about the
possibility that she might be asked to testify in this case?
A. Bruce Lindsey, I think Bruce Lindsey told me that she
was, I think maybe that's the first person told me she was. I
want to be as accurate as I can.
(WJC 1/17/98 Dep., pgs. 68-69)
In the grand jury, the President first repeated his denial
that Mr. Jordan told him Ms. Lewinsky had been subpoenaed.
(WJC 8/17/98 GJ, p. 39; H.Doc. 105-311, p. 491) Then, when
given more specific facts, he admitted that he ``knows now''
that he spoke with Mr. Jordan about the subpoena on the night
of December 19, but his ``memory is not clear. . . .'' (WJC
8/17/98 GJ, pgs. 41-42; H.Doc. 105-311, p. 493-494) In an
attempt to explain away his false deposition testimony,
the President testified in the grand jury that he was
trying to remember who told him first. (WJC 8/17/98 GJ, p.
41; H.Doc. 105-311, pgs. 492-493) But that was not the
question. So his answer was false and misleading. When one
considers the nature of the conversation between the
President and Mr. Jordan, the suggestion that it would be
forgotten defies common sense.
December 28, 1997
December 28, 1997 is a crucial date, because the evidence
shows that the President made false and misleading statements
to the federal court, the federal grand jury and the Congress
of the United States about the events on that date. (Chart J)
It is also a date on which he obstructed justice.
The President's Account
The President testified that it was ``possible'' that he
invited Ms. Lewinsky to the White House for this visit. (WJC
8/17/98 GJ, p. 33; H.Doc. 105-311, p. 485) He admitted that
he ``probably'' gave Ms. Lewinsky the most gifts he had ever
given her on that date, (WJC 8/17/98 GJ, p. 35; H.Doc. 105-
311, p. 487) and that he had given her gifts on other
occasions. (WJC 8/6/98 GJ, p. 35) (Chart D) Among the many
gifts the President gave Ms. Lewinsky on December 28 was a
bear that he said was a symbol of strength. (ML 8/6/98 GJ, p.
176; H.Doc. 105-311, p. 896) Yet only two-and-a-half weeks
later, the President forgot that he had given any gifts to
Ms. Lewinsky.
As an attorney, the President knew that the law will not
tolerate someone who says, ``I don't recall'' when that
answer is unreasonable under the circumstances. He also knew
that, under those circumstances, his answer in the deposition
could not be believed. When asked in the grand jury why he
was unable to remember, even though he had given Ms. Lewinsky
so many gifts only two-and-a-half weeks before the
deposition, the President put forth an obviously contrived
explanation.
``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.''
(WJC 8/17/98 GJ, p. 51; H.Doc. 105-311, p. 503)
Response to Committee Requests
The President adopted that same answer in Response No. 42
to the House Judiciary Committee's Requests For Admission.
(Exhibit 18) He was not asked in the deposition to identify
the gifts. He was simply asked, ``Have you ever'' given gifts
to Ms. Lewinsky. The law does not allow a witness to insert
unstated premises or mental reservations into the question to
make his answer technically true, if factually false. The
essence of lying is in deception, not in words.
The President's answer was false. The evidence also proves
that his explanation to the grand jury and to the Committee
is also false. The President would have us believe that he
was able to analyze questions as they were being asked, and
pick up such things as verb tense in an attempt to make his
statements at least literally true. But when he was asked a
simple, straightforward question, he did not understand it.
Neither his answer in the deposition nor his attempted
explanation is reasonable or true.
Testimony Concerning Gifts
The President was asked in the deposition if Monica
Lewinsky ever gave him gifts. He responded, ``once or
twice.'' (WJC 1/17/98 Dep., p. 77) This is also false
testimony calculated to obstruct justice. He answered this
question in his Response to the House Judiciary Committee by
saying that he receives numerous gifts, and he did not focus
on the precise number. (Exhibit 18) The law again does not
support the President's position. An answer that baldly
understates a numerical fact in response to a specific
quantitative inquiry can be deemed technically true but
actually false. For example, a witness is testifying
falsely if he says he went to the store five times when in
fact he had gone fifty, even though technically he had
also gone five times. So too, when the President answered
once or twice in the face of evidence that Ms. Lewinsky
was frequently bringing gifts, he was lying. (Chart C)
Concealment of Gifts
On December 28, one of the most blatant efforts to obstruct
justice and conceal evidence occurred. Ms. Lewinsky testified
that she discussed with the President the fact that she had
been subpoenaed and that the subpoena called for her to
produce gifts. She recalled telling the President that the
subpoena requested a hat pin, and that caused her concern.
(ML 8/6/98 GJ, pgs. 151-152; H.Doc. 105-311, pgs. 871-872)
The President
told her that it ``bothered'' him, too. (ML 8/20/98 GJ, p.
66; H.Doc. 105-311, p. 1122) Ms. Lewinsky then suggested that
she take the gifts somewhere, or give them to someone, maybe
to Betty. The President answered: ``I don't know'' or ``Let
me think about that.'' (ML 8/6/98 GJ, pgs. 152-153; H.Doc.
105-311, pgs. 872-873) (Chart L) Later that day, Ms. Lewinsky
got a call from Ms. Currie, who said: ``I understand you have
something to give me'' or ``the President said you have
something to give me.'' (ML 8/6/98 GJ, pgs. 154-155; H.Doc.
105-311, pgs. 874-875) Ms. Currie has a fuzzy memory about
this incident, but says that ``the best she can remember,''
Ms. Lewinsky called her. (Currie 5/6/98 GJ, p. 105; H.Doc.
105-316, p. 581)
The Cell Phone Record
There is key evidence that Ms. Currie's fuzzy recollection
is wrong. Ms. Lewinsky said that she thought Ms. Currie
called from her cell phone. (ML 8/6/98 GJ, pgs. 154-155)
(Chart K, Exhibit 2) Ms. Currie's cell phone record
corroborates Ms. Lewinsky and proves conclusively that Ms.
Currie called Monica from her cell phone several hours after
she had left the White House. Moreover, Ms. Currie herself
later testified that Ms. Lewinsky's memory may be better than
hers on this point. (BC 5/6/98 GJ, p. 126; H.Doc. 105-316, p.
584) The facts prove that the President directed Ms. Currie
to pick up the gifts.
Ms. Currie's Later Actions
That conclusion is buttressed by Ms. Currie's actions. If
Ms. Lewinsky had placed the call requesting a gift exchange,
Ms. Currie would logically ask the reason for such a
transfer. Ms. Lewinsky was giving her a box of gifts from the
President yet she did not tell the President of this strange
request. She simply took the gifts and placed them under her
bed without asking a single question. (BC 1/27/98 GJ, pgs.
57-58; H.Doc. 105-316, p. 557; BC 5/6/98 GJ, pgs. 105-108,
114; H.Doc. 105-316, pgs. 581-582)
The President stated in his Response to questions No. 24
and 25 from the House Committee that he was not concerned
about the gifts. (Exhibit 18) In fact, he said that he
recalled telling Monica that if the Jones lawyers request
gifts, she should turn them over. The President testified
that he is ``not sure'' if he knew the subpoena asked for
gifts. (WJC 8/17/98 GJ, pgs. 42-43; H.Doc. 105-311, pgs. 494-
495) Would Monica Lewinsky and the President discuss turning
over gifts to the Jones lawyers if Ms. Lewinsky had not told
him that the subpoena asked for gifts? On the other hand, if
he knew the subpoena requested gifts, why would he give Ms.
Lewinsky more gifts on December 28? Ms. Lewinsky's testimony
reveals the answer. She said that she never questioned ``that
we were ever going to do anything but keep this private'' and
that meant to take ``whatever appropriate steps needed to be
taken'' to keep it quiet. (ML 8/6/98 GJ, pgs. 166; H.Doc.
105-311, p. 886) The only logical inference is that the
gifts--including the bear symbolizing strength--were a tacit
reminder to Ms. Lewinsky that they would deny the
relationship--even in the face of a federal subpoena.
The President's Deposition Testimony
Furthermore, the President, at various times in his
deposition, seriously misrepresented the nature of his
meeting with Ms. Lewinsky on December 28 in order to obstruct
the administration of justice. First, he was asked: ``Did she
tell you she had been served with a subpoena in this case?''
The President answered flatly: ``No. I don't know if she had
been.'' (WJC 1/17/98 Dep., p. 68)
He was also asked if he ``ever talked to Monica Lewinsky
about the possibility of her testifying.'' ``I'm not sure . .
.,'' he said. he then added that he may have joked to her
that the Jones lawyers might subpoena every woman he has ever
spoken to, and that ``I don't think we ever had more of a
conversation than that about it. . . .'' (WJC 1/17/98 Dep.,
p. 70) Not only does Monica Lewinsky directly contradict this
testimony, but the President also directly contradicted
himself before the grand jury. Speaking of his December 28,
1997 meeting, he said that he ``knew by then, of course, that
she had gotten a subpoena'' and that they had a
``conversation about the possibility of her testifying.''
(WJC 8/17/98 Dep., pgs. 35-36) Remember, he had this
conversation about her testimony only two-and-a-half weeks
before his deposition. Again, his version is not reasonable.
January 5-9, 1998, Ms. Lewinsky Signs the Affidavit and Gets a Job
The President knew that Monica Lewinsky was going to
execute a false Affidavit. He was so certain of the content
that when she asked if he wanted to see it, he told her no,
that he had seen fifteen of them. (ML 8/2/98 Int., p. 3;
H.Doc. 105-311, p. 1489) He got his information from
discussions with Ms. Lewinsky and Vernon Jordan generally
about the content of the Affidavit. Moreover, the President
had suggested the Affidavit himself and he trusted Mr. Jordan
to be certain the mission was accomplished.
Additional Presidential Advice
In the afternoon of January 5, 1998, Ms. Lewinsky met with
her lawyer, Mr. Carter, to discuss the Affidavit. (ML 8/6/98
GJ, p. 192; H.Doc. 105-311, p. 912) Her lawyer asked her some
hard questions about how she got her job. (ML 8/6/98 GJ, p.
195; H.Doc. 105-311, p. 915) After the meeting, she called
Betty Currie and said that she wanted to speak to the
President before she signed anything. (ML 8/6/98 GJ, p. 195;
H.Doc. 105-311, p. 915) Ms. Lewinsky and the President
discussed the issue of how she would answer under oath if
asked about how she got her job at the Pentagon. (ML 8/6/98
GJ, p. 197; H.Doc. 105-311, p. 917) The President told her:
``Well, you could always say that the people in Legislative
Affairs got it for you or helped you get it.'' (ML 8/6/98 GJ,
p. 197; H.Doc. 105-311, p. 917) That, too, is false and
misleading.
Vernon Jordan's New Role
The President was also kept advised as to the contents of
the Affidavit by Vernon Jordan. (VJ 5/5/98 GJ, p. 224; H.Doc.
105-316, p. 1828) On January 6, 1998, Ms. Lewinsky picked up
a draft of the Affidavit from Mr. Carter's office. (ML 8/6/98
GJ, p. 199; H.Doc. 105-311, p. 919) She delivered a copy to
Mr. Jordan's office. (ML 8/6/98 GJ, p. 200; H.Doc. 105-311,
p. 920) because she wanted Mr. Jordan to look at the
Affidavit in the belief that if Vernon Jordan gave his
imprimatur, the President would also approve. (ML 8/6/98 GJ,
pgs. 194-195; H.Doc. 105-311, pgs. 914, 915) (Chart M) Ms.
Lewinsky and Mr. Jordan conferred about the contents and
agreed to delete a paragraph inserted by Mr. Carter which
might open a line of questions concerning whether she had
been alone with the President. (ML 8/6/98 GJ, p. 200; H.Doc.
105-311, p. 920) (Exhibit 3) Mr. Jordan maintained that he
had nothing to do with the details of the Affidavit. (VJ 3/5/
98 GJ, p. 12; H.Doc. 105-316, p. 1735) He admits, though,
that he spoke with the President after conferring with Ms.
Lewinsky about the changes made to her Affidavit. (VJ 5/5/
98 GJ, p. 218; H.Doc. 105-316, p. 1827)
Ms. Lewinsky Signs the False Affidavit
The next day, January 7, Monica Lewinsky signed the false
Affidavit. (ML 8/6/98 GJ, pgs. 204-205; H.Doc. 105-311, pgs.
924-925) (Chart N; Exhibit 12) She showed the executed copy
to Mr. Jordan that same day. (VJ 5/5/98 GJ, p. 222; H.Doc.
105-316, p. 1828) (Exhibit 4) Mr. Jordan, in turn, notified
the President that she signed an affidavit denying a sexual
relationship. (VJ 3/5/98 GJ, p. 26; H.Doc. 105-316, p. 1739)
Ms. Lewinsky Gets the Job
On January 8, 1998, Mr. Jordan arranged an interview for
Ms. Lewinsky with MacAndrews and Forbes in New York. (ML 8/6/
98 GJ, p. 206; H.Doc. 105-311, p. 926) The interview went
poorly, so Ms. Lewinsky called Mr. Jordan and informed him.
(ML 8/6/98 GJ, p. 206; H.Doc. 105-311, p. 926) Mr. Jordan,
who had done nothing to assist Ms. Lewinsky's job search from
early November to mid December, then called MacAndrews and
Forbes CEO, Ron Perelman, to ``make things happen, if they
could happen.'' (VJ 5/5/98 GJ, p. 231; H.Doc. 105-316, p.
1829) Mr. Jordan called Ms. Lewinsky back and told her not to
worry. (ML 8/6/98 GJ, pgs. 208-209; H.Doc. 105-311, pgs. 928-
929) That evening, Ms. Lewinsky was called by MacAndrews and
Forbes and told that she would be given more interviews the
next morning. (ML 8/6/98 GJ, p. 209; H.Doc. 105-311, p. 929)
After a series of interviews with MacAndrews and Forbes
personnel, she was informally offered a job. (ML 8/6/98 GJ,
p. 210; H.Doc. 105-311, p. 930) When Ms. Lewinsky called Mr.
Jordan to tell him, he passed the good news on to Betty
Currie stating, ``Mission Accomplished.'' (VJ 5/28/98 GJ, p.
39; H.Doc. 105-316, p. 1898). Later, Mr. Jordan called the
President and told him personally. (VJ 5/28/98 GJ, p. 41;
H.Doc. 105-316, p. 1899) (Chart P)
The Reason for Mr. Jordan's Unique Behavior
After Ms. Lewinsky had spent months looking for a job--
since July according to the President's lawyers--Vernon
Jordan made the critical call to a CEO the day after the
false Affidavit was signed. Mr. Perelman testified that Mr.
Jordan had never called him before about a job
recommendation. (Perelman 4/23/98 Dep., p. 11; H.Doc. 105-
316, p. 3281) Mr. Jordan, on the other hand, said that he
called Mr. Perelman to recommend for hiring: (1) former Mayor
Dinkins of New York; (2) a very talented attorney from Akin
Gump; (3) a Harvard business school graduate; and (4) Monica
Lewinsky. (VJ 3/5/98 GJ, p. 58-59; H.Doc. 105-316, p. 1747)
Even if Mr. Perelman's testimony is mistaken, Ms. Lewinsky's
qualifications do not compare to those of the individuals
previously recommended by Mr. Jordan.
Vernon Jordan was well aware that people with whom Ms.
Lewinsky worked at the White House did not like her (VJ 3/3/
98 GJ, pgs. 43, 59) and that she did not like her Pentagon
job. (VJ 3/3/98 GJ, pgs. 43-44; H.Doc. 105-316, pgs. 1706,
1707) Mr. Jordan was asked if at ``any point during this
process you wondered about her qualifications for
employment?'' He answered: ``No, because that was not my
judgment to make.'' (VJ 3/3/98 GJ, p. 44; H.Doc. 105-316, p.
1707) Yet, when he called Mr. Perelman the day after she
signed the Affidavit, he referred to Ms. Lewinsky as a bright
young girl who is ``terrific.'' (Perelman 4/23/98 Dep., p.
10; H.Doc. 105-316, p. 3281) Mr. Jordan testified that she
had been pressing him for a job and voicing unrealistic
expectations concerning positions and salary. (VJ 3/5/98 GJ,
pgs. 37-38; H.Doc. 105-316, p. 1742) Moreover, she narrated a
disturbing story about the President leaving the First Lady,
and how the President was not spending enough time with her.
Yet, none of that gave Mr. Jordan pause in making
the recommendation, especially after Monica was
subpoenaed. (VJ 3/3/98 GJ, pgs. 156-157; H.Doc. 105-316,
p. 1725)
The Importance of the False Affidavit
Monica Lewinsky's false Affidavit enabled the President,
through his attorneys, to assert at his January 17, 1998
deposition ``. . . there is absolutely no sex of any kind in
any manner, shape of form with President Clinton. . . .''
(WJC, 1/17/98 Dep., p. 54) When questioned by his own
attorney in the deposition, the President stated specifically
that paragraph 8 of Ms. Lewinsky's Affidavit was ``absolutely
true.'' (WJC, 1/17/98 Dep., p. 204) The President later
affirmed the truth of that statement when testifying before
the grand jury. (WJC, 8/17/98 GJ, p. 20-21; H.Doc. 105-311,
pg. 473) Paragraph 8 of Ms. Lewinsky's Affidavit states:
``I have never had a sexual relationship with the
President, he did not propose that we have a sexual
relationship, he did not offer me employment or other
benefits in exchange for a sexual relationship, he did not
deny me employment or other benefits for rejecting a sexual
relationship.''
Significantly, Ms. Lewinsky reviewed the draft Affidavit on
January 6, and signed it on January 7 after deleting a
reference to being alone with the President. She showed a
copy of the signed Affidavit to Vernon Jordan, who called the
President and told him that she had signed it. (VJ, 3/5/98
GJ, pgs. 24-26; H.Doc. 105-316, pgs. 1728, 1739; VJ, 5/5/98
GJ, p. 222; H.Doc. 105-316, p. 1828)
The Rush To File the Affidavit
For the affidavit to work for the President in precluding
questions by the Jones attorneys concerning Ms. Lewinsky, it
had to be filed with the Court and provided to the
President's attorneys in time for his deposition on January
17. On January 14, the President's lawyers called Ms.
Lewinsky's lawyer and left a message, presumably to find out
if he had filed the Affidavit with the Court. (Carrier 6/18/
98 GJ, p. 123; H.Doc. 105-316, p. 423) (Chart O) On January
15, the President's attorneys called her attorney twice. When
they finally reached him, they requested a copy of the
Affidavit and asked him, ``Are we still on time?'' (Carter 6/
18/98 GJ, p. 123; H.Doc. 105-216, p. 423) Ms. Lewinsky's
lawyer faxed a copy on the 15th. (Carter 6/18/98 GJ, p. 123,
H.Doc. 105-316, p. 423) The President's counsel was aware of
its contents and used it powerfully in the deposition.
Ms. Lewinsky's lawyer called the court in Arkansas twice on
January 15 to ensure that the Affidavit could be filed on
Saturday, January 17. (Carter 6/18/98 GJ, pgs. 124-125;
H.Doc. 105-316, pgs. 423-424) (Exhibit 5) He finished the
Motion to Quash Ms. Lewinsky's deposition in the early
morning hours of January 16 and mailed it to the Court
with the false Affidavit attached, for Saturday delivery.
(Carter 6/18/98 GJ, p. 134; H.Doc. 105-316, p. 426) The
President's lawyers left him another message on January
16, saying, ``You'll know what it's about.'' (Carter 6/18/
98 GJ, p. 135; H.Doc. 105-316, p. 426) Obviously, the
President needed that Affidavit to be filed with the Court
to support his plans to mislead Ms. Jones' attorneys in
the deposition, and thereby obstruct justice.
The Newsweek Inquiry
On January 15, Michael Isikoff of Newsweek called Betty
Currie and asked her about Ms. Lewinsky sending gifts to her
by courier. (BC 5/6/98 GJ, p. 123; H.Doc. 105-316, p. 584; ML
8/6/98 GJ, p. 228; H.Doc. 105-311, p. 948) Ms. Currie than
called Ms. Lewinsky and told her about it. (ML 8/6/98 GJ, p.
228-229; H.Doc. 105-311, pgs. 948-949) The President was out
of town, so later, Betty Currie called Ms. Lewinsky back, and
asked for a ride to Mr. Jordan's office. (ML 8/6/98 GJ, p.
229; H.Doc. 105-311, p. 949; Currie 5/6/98 GJ, p. 130-131;
H.Doc. 105-316, p. 585) Mr. Jordan advised her to speak with
Bruce Lindsey and Mike McCurry. (VJ 3/5/98 GJ, p. 71) Ms.
Currie testified that she spoke immediately to Mr. Lindsey
about Isikoff's call. (BC 5/6/98 GJ, p. 127; H.Doc. 105-316,
p. 584)
January 17, 1998, Deposition Aftermath
By the time the President concluded his deposition on
January 17, he knew that someone was talking about his
relationship with Ms. Lewinsky. He also knew that the only
person who had personal knowledge was Ms. Lewinsky herself.
The cover stories that he and Ms. Lewinsky created, and that
he used himself during the deposition, were now in jeopardy.
It became imperative that he not only contact Ms. Lewinsky,
but that he obtain corroboration of his account of the
relationship from his trusted secretary, Ms. Currie. At
around 7 p.m. on the night of the deposition, the President
called Ms. Currie and asked that she come in the following
day, Sunday. (BC 7/22/98 GJ, p. 154-155; H.Doc. 105-316, p.
701 (Exhibit 6) Ms. Currie could not recall the President
ever before calling her that late at home on a Saturday
night. (BC 1/27/98 GJ, p. 69; H.Doc. 105-316, p. 559) (Chart
S) Sometime in the early morning hours of January 18, 1998,
the President learned of a news report concerning Ms.
Lewinsky released earlier that day. (WJC 8/17/98 GJ, p. 142-
143; H.Doc. 105-311, pgs. 594-595) (Exhibit 14)
The Tampering With the Witness, Betty Currie
As the charts indicate, between 11:49 a.m. and 2:55 p.m.,
there were three phone calls between Mr. Jordan and the
President. (Exhibit 7) At about 5 p.m., Ms. Currie met with
the President. (BC 1/27/98 GJ, p. 67; H.Doc. 105-316, p. 558)
He told her that he had just been deposed and that the
attorneys asked several questions about Monica Lewinsky. (BC
1/27/98 GJ, p. 69-70; H.Doc. 105-316, p. 559) He then made a
series of statements to Ms. Currie: (Chart T)
(1) I was never really alone with Monica, right?
(2) You were always there when Monica was there, right?
(3) Monica came on to me, and I never touched her, right?
(4) You could see and hear everything, right?
(5) She wanted to have sex with me, and I cannot do that.
(BC 1/27/98 GJ, pgs. 70-75; H.Doc. 105-316, pgs. 559-560; BC
7/22/98 GJ, pgs. 6-7; H.Doc. 105-316, p. 664)
During Betty Currie's grand jury testimony, she was asked
whether she believed that the President wished her to agree
with the statements:
Q. Would it be fair to say, then--based on the way he
stated [these five points] and the demeanor that he was using
at the time that he stated it to you--that he wished you to
agree with that statement?
A. I can't speak for him, but----
Q. How did you take it? Because you told us at these
[previous] meetings in the last several days that that is how
you took it.
A. [Nodding.]
Q. And you're nodding you head, ``yes,'' is that correct?
A. That's correct.
Q. Okay, with regard to the statement that the President
made to you, ``You remember I was never really alone with
Monica, right?'' Was that also a statement that, as far as
you took, that he wished you to agree with that?
A. Correct.
(BC 1/27/98 GJ, p. 74; H.Doc. 105-316, 559)
Though Ms. Currie would later intimate that she did not
necessarily feel pressured by the President, she did state
that she felt the President was seeking her agreement (or
disagreement) with those statements. (BC 7/22/98 GJ, p. 27;
H.Doc. 105-316, p. 669)
Was This Obstruction of Justice?
The President essentially admitted to making these
statements when he knew they were not true. Consequently, he
had painted himself into a legal corner. Understanding the
seriousness of the President ``coaching'' Ms. Currie, the
argument has been made that those statements to her could not
constitute obstruction because she had not been subpoenaed,
and the President did not know that she was a potential
witness at the time. This argument is refuted by both the law
and the facts.
The United States Court of Appeals rejected this argument,
and stated, ``[A] person may be convicted of obstructing
justice if he urges or persuades a prospective witness to
give false testimony. Neither must the target be scheduled to
testify at the time of the offense, nor must he or she
actually give testimony at a later time.'' United States v.
Shannon, 836 F.2d 1125, 1128 (8th Cir. 1988) (citing, e.g.,
United States v. Friedland, 660 F.2d 919, 931 (3rd Cir.
1981)).
Of course Ms. Currie was a prospective witness, and the
President clearly wanted her to be deposed to corroborate
him, as his testimony demonstrates. The President claims that
he called Ms. Currie into work on a Sunday night only to find
out what she knew. But the President knew the truth about his
relationship with Ms. Lewinsky, and if he had told the truth
during his deposition the day before, then he would have no
reason to worry about what Ms. Currie knew. More importantly,
the President's demeanor, Ms. Currie's reaction to his
demeanor, and the blatant lies that he suggested clearly
prove that the President was not merely interviewing Ms.
Currie. Rather, he was looking for corroboration for his
false cover-up, and that is why he coached her.
January 18, the Search for Ms. Lewinsky
Very soon after his Sunday meeting with Ms. Currie, at 5:12
p.m., the flurry of telephone calls in search of Monica
Lewinsky began. (Chart S) between 5:12 p.m. and 8:28 p.m.,
Ms. Currie paged Ms. Lewinsky four times. ``Kay'' is a
reference to a code name Ms. Lewinsky and Ms. Currie agreed
to when contacting one another. (ML 8/6/98 GJ, p. 216; H.Doc.
105-311, pg. 936) At 11:02 p.m., the President called Ms.
Currie at home to ask if she had reached Lewinsky. (BC 7/22/
98 GJ, p. 160; H. Doc. 105-316, p. 702)
January 19, the Search Continues
The following morning, January 19, Ms. Currie continued to
work diligently on behalf of the President. Between 7:02 a.m.
and 8:41 a.m., she paged Ms. Lewinsky another five times.
(Chart S) (Exhibit 8) After the 8:41 page, Ms. Currie called
the President at 8:43 a.m. and said that she was unable to
reach Ms. Lewinsky. (BC 7/22/98 GJ, pgs. 161-162; H.Doc. 105-
316, p. 703) One minute later, at 8:44 a.m., she again paged
Ms. Lewinsky. This time Ms. Currie's page stated ``Family
Emergency,'' apparently in an attempt to alarm Ms. Lewinsky
into calling back. That may have been the President's idea,
since Ms. Currie had just spoken with him. The President was
obviously quite concerned because he called Betty Currie only
six minutes later, at 8:50 a.m. Immediately thereafter, at
8:51 a.m., Ms. Currie tried a different tact, sending the
message: ``Good news.'' Again, perhaps at the President's
suggestion. If bad news does not get her to call, try good
news. Ms. Currie said that she was trying to encourage Ms.
Lewinsky to call, but there was no sense of ``urgency.'' (BC
7/22/98 GJ, p. 165; H.Doc. 105-316, p. 704) Ms. Currie's
recollection of why she was calling was again fuzzy. She said
at one point that
she believes the President asked her to call Ms. Lewinsky,
and she thought she was calling just to tell her that her
name came up in the deposition. (BC 7/22/98 GJ, p. 162;
H.Doc. 105-316, p. 703) Monica Lewinsky had been subpoenaed;
of course her name came up in the deposition. There was
obviously another and more important reason the President
needed to get in touch with her.
Mr. Jordan and Ms. Lewinsky's Lawyers Join the Search
At 8:56 a.m., the President telephoned Vernon Jordan, who
then joined in the activity. Over a course of twenty-four
minutes, from 10:29 to 10:53 a.m., Mr. Jordan called the
White House three times, paged Ms. Lewinsky, and called Ms.
Lewinsky's attorney, Frank Carter. Between 10:53 a.m. and
4:54 p.m., there are continued calls between Mr. Jordan, Ms.
Lewinsky's attorney and individuals at the White House.
Ms. Lewinsky Replaces Her Lawyer
Later that afternoon, at 4:54 p.m., Mr. Jordan called Mr.
Carter. Mr. Carter relayed that he had been told he no longer
represented Ms. Lewinsky. (VJ 3/5/98 GJ, p. 141; H.Doc. 105-
316, p. 1771) Mr. Jordan then made feverish attempts to reach
the President or someone at the White House to tell them the
bad news, as represented by the six calls between 4:58 p.m.
and 5:22 p.m. Vernon Jordan said that he tried to relay this
information to the White House because ``[t]he President
asked me to get Monica Lewinsky a job,'' and he thought it
was ``information that they ought to have.'' (VJ 6/9/98 GJ,
pgs. 45-46; H.Doc. 105-316, p. 1968) (Chart Q) Mr. Jordan
then called Mr. Carter back at 5:14 p.m. to go over what they
had already talked about. (VJ 3/5/98 GJ, p. 146; H.Doc. 104-
316, p. 1772) Mr. Jordan finally reached the President at
5:56 p.m. and told him that Mr. Carter had been fired. (VJ 6/
9/98 GJ, p. 54; H.Doc. 105-316, p. 1970)
The Reason for the Urgent Search
This activity shows how important it was for the President
of the United States to find Monica Lewinsky to learn to whom
she was talking. Betty Currie was in charge of contacting Ms.
Lewinsky. The President had just completed a deposition in
which he provided false and misleading testimony about his
relationship with Ms. Lewinsky. She was a co-conspirator in
hiding this relationship from the Jones attorneys, and he was
losing control over her. The President never got complete
control over her again.
Article I.--False and Misleading Statements to the Grand Jury
Article I addresses the President's perjurious, false, and
misleading testimony to the grand jury. Four categories of
false grand jury testimony are listed in the Article. Some
salient examples of false statements are described below.
When judging the statements made and the answers given, it is
vital to recall that the President spent literally days
preparing his testimony with his lawyer. He and his attorney
were fully aware that the testimony would center around his
relationship with Ms. Lewinsky and his deposition testimony
in the Jones case.
Grand Jury Testimony
On August 17, after six invitations, the President of the
United States appeared before a grand jury of his fellow
citizens and took an oath to tell the complete truth. The
President proceeded to equivocate and engage in legalistic
fencing; he also lied. The entire testimony was calculated to
mislead and deceive the grand jury and to obstruct its
process, and eventually to deceive the American people. He
set the tone at the very beginning. In the grand jury a
witness can tell the truth, lie or assert his privileges
against self incrimination. (Chart Y) President Clinton was
given a fourth choice. The President was permitted to read a
statement. (Chart Z; WJC 8/17/98 GJ, pgs. 8-9)
The President's Prepared Statement
That statement itself is demonstrably false in
many particulars. President Clinton claims that he engaged
in inappropriate conduct with Ms. Lewinsky ``on certain
occasions in early 1996 and once in 1997.'' Notice he did
not mention 1995. There was a reason. On three
``occasions'' in 1995, Ms. Lewinsky said she engaged in
sexual contact with the President. Ms. Lewinsky was a
twenty-one year old intern at the time.
The President unlawfully attempted to conceal his three
visits alone with Ms. Lewinsky in 1995 during which they
engaged in sexual conduct. (ML 8/6/98 GJ, pgs. 27-28; H.Doc.
105-311, pgs. 747-748; ML 8/6/98 GJ, Ex. 7; H.Doc. 105-311,
p. 1251; Chart A) Under Judge Wright's ruling, this evidence
was relevant and material to Paula Jones' sexual harassment
claims. (Order, Judge Susan Webber Wright, December 11, 1997,
p. 3)
The President specifically and unequivocally states, ``[The
encounters] did not constitute sexual relations as I
understood that term to be defined at my January 17, 1998
deposition.'' That assertion is patently false. It is
directly contradicted by the corroborated testimony of Monica
Lewinsky. (See eg: ML 8/20/98 GJ, pgs. 31-32; H.Doc. 311, p.
1174; ML 8/26/98 Dep., p. 25, 30; H.Doc. 311, pgs. 1357,
1358)
Evidence indicates that the President and Ms. Lewinsky
engaged in ``sexual relations'' as the President understood
the term to be defined at his deposition and as any
reasonable person would have understood the term to have been
defined.
Contrary to his statement under oath, the President's
conduct during the 1995 visits and numerous additional visits
did constitute ``sexual relations'' as he understood the term
to be defined at his deposition. Before the grand jury, the
President admitted that directly touching or kissing another
person's breast, or directly touching another person's
genitalia with the intent to arouse, would be ``sexual
relations'' as the term was defined. (WJC 8/17/98 GJ, pgs.
94-95; H.Doc 105-311, pgs. 546-547) However, the President
maintained that he did not engage in such conduct. (Id.)
These statements are contradicted by Ms. Lewinsky's testimony
and the testimony of numerous individuals with whom she
contemporaneously shared the details of her encounters with
the President. Moreover, the theory that Ms. Lewinsky
repeated and unilaterally performed acts on the President
while he tailored his conduct to fit a contorted definition
of ``sexual relations'' which he had not contemplated at the
time of the acts, defies common sense.
Moreover, the President had not even formed the contorted
interpretation of ``sexual relations'' which he asserted in
the grand jury until after his deposition had concluded. This
is demonstrated by the substantial evidence revealing the
President's state of mind during his deposition testimony.
First, the President continuously denied at his deposition
any fact that would cause the Jones lawyers to believe that
he and Ms. Lewinsky had any type of improper relationship,
including a denial that they had a sexual affair, (WJC 1/17/
98 Dep., p. 78) not recalling if they were ever alone, (WJC
1/17/98 Dep., pgs. 52-53, 59) and not recalling whether Ms.
Lewinsky had ever given him gifts. (WJC 1/17/98 Dep., pg. 75)
Second, the President testified that Ms. Lewinsky's affidavit
denying a sexual relationship was ``absolutely true'' when,
even by his current reading of the definition, it is
absolutely false. (WJC 1/17/98 Dep., p. 204) Third, the White
House produced a document entitled ``January 24, 1998 Talking
Points,'' stating flatly that the President's definition of
``sexual relations'' included oral sex. (Chart W) Fourth, the
President made statements to staff members soon after the
deposition, saying that he did not have sexual relations,
including oral sex, with Ms. Lewinsky, (Podesta 6/16/98 GJ,
pg. 92; H.Doc. 105-316, p. 3311) and that she threatened to
tell people she and the President had an affair when he
rebuffed her sexual advances. (Blumenthal 6/4/98 GJ, p. 59;
H.Doc. 105-316, p. 185) Fifth, President Clinton's Answer
filed in Federal District Court in response to Paula Jones'
First Amended Complaint states unequivocally that ``President
Clinton denies that he engaged in any improper conduct with
respect to plaintiff or any other woman.'' (Answer of
Defendant William Jefferson Clinton, December 17, 1997, p. 8,
para. 39) Sixth, in President Clinton's sworn Answers to
Interrogatories Numbers 10 and 11, as amended, he flatly
denied that he had sexual relations with any federal
employee. The President filed this Answer prior to his
deposition. Finally, as described below, the President sat
silently while his attorney, referring to Ms. Lewinsky's
affidavit, represented to the court that there was no sex of
any kind or in any manner between the President and Ms.
Lewinsky. (WJC 1/17/98 Dep., pg. 54)
This circumstantial evidence reveals the President's state
of mind at the time of the deposition: his concern was not in
technically or legally accurate answers, but in categorically
denying anything improper. His grand jury testimony about his
state of mind during the deposition is false.
Reasons for the False Testimony
The President did not lie to the grand jury to protect
himself from embarrassment, as he could no longer deny the
affair. Before his grand jury testimony, the President's
semen had been identified by laboratory tests on Ms.
Lewinsky's dress, and during his testimony, he admitted an
``inappropriate intimate relationship'' with Ms. Lewinsky,
In fact, when he testified before the grand jury, he was
only hours away from admitting the affair on national
television. Embarrassment was inevitable. But, if he
truthfully admitted the details of his encounters with Ms.
Lewinsky to the grand jury, he would be acknowledging that
he lied under oath during his deposition when he claimed
that he did not engage in sexual relations with Ms.
Lewinsky. (WJC 1/17/98 Dep., pgs. 78, 109, 204) Instead,
he chose to lie, not to protect his family or the dignity
of his office, but to protect himself from criminal
liability for his perjury in the Jones case.
Additional Falsity in the Prepared Statement
The President's statement continued, ``I regret that what
began as a friendship came to include this conduct [.]'' (WJC
8/17/98 GJ, p. 9; H.Doc. 105-311, p. 461) The truth is much
more troubling. As Ms. Lewinsky testified, her relationship
with the President began with flirting, including Ms.
Lewinsky showing the President her underwear. (ML 7/30/98
Int., p. 5; H.Doc. 105-311, p. 1431) As Ms. Lewinsky candidly
admitted, she was surprised that the President remembered her
name after their first two sexual encounters. (ML 8/26/98
Dep., p. 25; H.Doc. 105-311, p. 1295)
Reason for the Falsity
The President's prepared statement, fraught with untruths,
was not an answer the President delivered extemporaneously to
a particular question. It was carefully drafted testimony
which the President read and relied upon throughout his
deposition. The President attempted to use the statement to
foreclose questioning on an incriminating topic on nineteen
separate occasions. Yet,
this prepared testimony, which along with other testimony
provides the basis for Article I, Item 1, actually
contradicts his sworn deposition testimony.
Contrary Deposition Testimony
In this statement, the President admits that he and Ms.
Lewinsky were alone on a number of occasions. He refused to
make this admission in his deposition in the Jones case.
During the deposition, the following exchange occurred:
Q. Mr. President, before the break, we were talking about
Monica Lewinsky. At any time were you and Monica Lewinsky
together alone in the Oval Office?
A. I don't recall, but as I said, when she worked in the
legislative affairs office, they always had somebody there on
the weekends. I typically work some on the weekends.
Sometimes they'd bring me things on the weekends. She--it
seems to me she brought things to me once or twice on the
weekends. In that case, whatever time she would be in there,
drop if off, exchange a few words and go, she was there. I
don't have any specific recollections of what the issues
were, what was going on, but when the Congress is there,
we're working all the time, and typically I would do some
work on One of the days of the weekends in the afternoon.
Q. So I understand, your testimony is that it was possible,
then, that you were alone with her, but you have no specific
recollection of that ever happening?
A. Yes, that's correct. It's possible that she, in, while
she was working there, brought something to me and that at
the time she brought it to me, she was the only person there.
That's possible.
(WJC 1/17/98 Dep., pgs. 52-53)
After telling this verbose lie under oath, the President
was given an opportunity to correct himself. This exchange
followed:
Q. At any time have you and Monica Lewinsky ever been alone
together in any room in the White House?
A. I think I testified to that earlier. I think that there
is a, it is--I have no specific recollection, but it seems to
me that she was on duty on a couple of occasions working for
the legislative affairs office and brought me some things to
sign, something on the weekend. That's--I have a general
memory of that.
Q. Do you remember anything that was said in any of those
meetings?
A. No. You know, we just had conversation, I don't
remember.
(WJC 1/17/98 Dep., pgs. 52-53)
Before the grand jury, the President maintained that he
testified truthfully at his deposition, a lie which provides,
in part, the basis for Article I, Item 2. He stated, ``My
goal in this deposition was to be truthful, but not
particularly helpful . . . I was determined to walk through
the mind field of this deposition without violating the law,
and I believe I did.'' (WJC 8/17/98 GJ, p. 80; H.Doc. 105-
311, p. 532) But contrary to his deposition testimony, he
certainly was along with Ms. Lewinsky when she was not
delivering papers, as the President conceded in his prepared
grand jury statement.
In other words, the President's assertion before the grand
jury that he was alone with Ms. Lewinsky, but that he
testified truthfully in his deposition, in inconsistent. Yet,
to this day, both the President and his attorneys have
insisted that he did not lie at his deposition and that he
did not lie when he swore under oath that he did not lie at
his deposition.
In addition to his lie about not recalling being alone with
Ms. Lewinsky, the President told numerous other lies at his
deposition. All of those lies are incorporated in Article I,
Item 2.
Testimony Concerning the False Affidavit
Article I, Item 3 charges the President with providing
perjurious, false and misleading testimony before a federal
grand jury concerning false and misleading statements his
attorney Robert Bennett made to Judge Wright at the
President's deposition. In one statement, while objecting to
questions regarding Ms. Lewinsky, Mr. Bennett misled the
Court, perhaps knowingly, stating, ``Counsel [for Ms. Jones]
is fully aware that Ms. Lewinsky has filed, has an affidavit
which they are in possession of saying that there is
absolutely no sex of any kind in any manner, shape or form,
with President Clinton[.]'' (WJC 1/17/98 Dep., pgs. 53-54)
When Judge Wright interrupted Mr. Bennett and expressed her
concern that he might be coaching the President, Mr. Bennett
responded, ``In preparation of the witness for this
deposition, the witness is fully aware of Ms. Lewinsky's
affidavit, so I have not told him a single thing he doesn't
know[.]'' (WJC 1/17/98 Dep., p. 54) (Emphasis added)
When asked before the grand jury about his statement to
Judge Wright, the President testified, ``I'm not even sure I
paid attention to what he was saying,'' (WJC 8/17/98 GJ, p.
24; H.Doc. 105-3131, p. 476) He added, ``I didn't pay much
attention to this conversation, which is why, when you
started asking me about this, I asked to see the
deposition.'' (WJC 8/17/98 GJ, p. 24; H.Doc. 105-311, p. 477)
Finally, ``I don't believe I ever even focused on what Mr.
Bennett said in the exact words he did until I started
reading this transcript carefully for this hearing. That
moment, the whole argument just passed me by.'' (WJC 8/17/98
GJ, p. 29; H. Doc. 105-311, p. 481)
This grand jury testimony defies common sense. During his
deposition testimony, the President admittedly misled Ms.
Jones' attorneys about his affair with Ms. Lewinsky, which
continued while Ms. Jones' lawsuit was pending, because he
did not want the truth to be known. Of course, when Ms.
Lewinsky's name is mentioned during the deposition,
particularly in connection with sex, the President is going
to listen. Any doubts as to whether he listened to Mr.
Bennett's representations are eliminated by watching the
videotape of the President's deposition. The videotape shows
the President looking directly at Mr. Bennett, paying close
attention to his argument to Judge Wright.
False Testimony Concerning Obstruction of Justice
Article I, Item 4 concerns the President's grand jury
perjury regarding his efforts to influence the testimony of
witnesses and his efforts to impede discovery in the Jones
v. Clinton lawsuit. These lies are perhaps the most
troubling, as the President used them in an attempt to
conceal his criminal actions and the abuse of his office.
For example, the President 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. (WJC 8/17/98 GJ,
p. 43; H.Doc. 105-311, p. 495) He stated, ``And I told her
that if they asked her for gifts, she'd have to give them
whatever she had, that that's what the law was.'' (Id.) This
testimony is false, as demonstrated by both Ms. Lewinsky's
testimony and common sense.
Ms. Lewinsky testified that on December 28, 1997, she
discussed with the President the subpoena's request for her
to produce gifts, including a hat pin. She told the President
that it concerned her, (ML 8/6/98 GJ, p. 151; H.Doc. 105-311,
p. 871) and he said that it ``bothered'' him too. (ML 8/20/98
GJ, p. 66; H.Doc. 105-311, p. 1122) Ms. Lewinsky then
suggested that she give the gifts to someone, maybe to Betty.
But rather than instructing her to turn the gifts over to Ms.
Jones' attorneys, the President replied, ``I don't know'' or
``Let me think about that.'' (ML 8/6/98 GJ, p. 152; H.Doc.
105-311, p. 872) Several hours later, Ms. Currie called Ms.
Lewinsky on her cellular phone and said, ``I understand you
have something to give me'' or ``the President said you have
something to give me.'' (ML 8/6/98 GJ, pgs. 154-155; H.Doc.
105-311, pgs. 874-875)
Although Ms. Currie agrees that she picked up the gifts
from Ms. Lewinsky, Ms. Currie testified that ``the best'' she
remembers is that Ms. Lewinsky called her. (BC 5/6/98 GJ, p.
105; H.Doc. 105-316, p. 581) She later conceded that Ms.
Lewinsky's memory may be better than hers on this point. (BC
5/6/98 GJ, p. 126; H.Doc. 105-316, p. 584) A telephone record
corroborates Ms. Lewinsky, revealing that Ms. Currie did call
her from her cellular phone several hours after Ms.
Lewinsky's meeting with the President. The only logical
reason Ms. Currie called Ms. Lewinsky to retrieve gifts from
the President is that the President told her to do so. He
would not have given this instruction if he wished the gifts
to be given to Ms. Jones' attorneys.
Testimony Concerning Ms. Currie
The President again testified falsely when he told the
grand jury that he was simply trying to ``refresh'' his
recollection when he made a series of statements to Ms.
Currie the day after his deposition. (WJC 8/17/98 GJ, p. 131;
H.Doc. 105-311, p. 583) Ms. Currie testified that she met
with the President at about 5:00 P.M. on January 18, 1998,
and he proceeded to make these statements to her:
(1) I was never really alone with Monica, right?
(2) You were always there when Monica was there, right?
(3) Monica came on to me, and I never touched her, right?
(4) You could see and hear everything, right?
(5) She wanted to have sex with me, and I cannot do that.
(BC 1/27/98 GJ, pgs. 70-75; H.Doc. 105-316, pgs. 559-560; BC
7/22/98 GJ, pgs. 6-7; H.Doc. 105-316, p. 664)
Ms. Currie testified that these were more like statements
than questions, and that, as far as she understood, the
President wanted her to agree with the statements. (BC 1/27/
98 GJ, p. 74; H.Doc. 105-316, p. 559)
The President was asked specifically about these statements
before the grand jury. He did not deny them, but said that he
was ``trying to refresh [his] memory about what the facts
were.'' (WJC 8/17/98 GJ, p. 131; H.Doc. 105-311, p. 583) He
added that he wanted to ``know what Betty's memory was about
what she heard,'' (WJC 8/17/98 GJ, p. 54; H.Doc. 105-316, p.
506) and that he was ``trying to get as much information as
quickly as [he] could.'' (WJC 8/17/98 GJ, p. 56; H.Doc. 105-
311, p. 508) Logic demonstrates that the President's
explanation is contrived and false.
A person does not refresh his recollection by firing
declarative sentences dressed up as leading questions to his
secretary. If the President was seeking information, he would
have asked Ms. Currie what she recalled. Additionally, a
person does not refresh his recollection by asking questions
concerning factual scenarios of which the listener was
unaware, or worse, of which the declarant and the listener
knew were false. How would Ms. Currie know if she was always
there when Ms. Lewinsky was there? Ms. Currie, in fact,
acknowledged during her grand jury testimony that Ms.
Lewinsky could have visited the President at the White House
when Ms. Currie was not there. (BC 7/22/98 GJ, pgs.
65-66; H.Doc. 105-316, p. 679) Ms. Currie also testified that
there were several occasions when the President and Ms.
Lewinsky were in the Oval Office or study area without anyone
else present. (BC 1/27/98 GJ, pgs. 32-33, 36-38; H.Doc. 105-
316, pgs. 552-553)
More importantly, the President admitted in his statement
to the grand jury that he was alone with Ms. Lewinsky on
several occasions. (WJC 8/17/98 GJ, pgs. 9-10; H.Doc. 105-
311, pgs. 460-461) Thus, by his own admission, his statement
to Ms. Currie about never being alone with Ms. Lewinsky was
false. And if they were alone together, Ms. Currie certainly
could not say whether the President touched Ms. Lewinsky or
not.
The statement about whether Ms. Currie could see and hear
everything is also refuted by the President's own grand jury
testimony. During his ``intimate'' encounters with Ms.
Lewinsky, he ensured everyone, including Ms. Currie, was
excluded. (WJC 8/17/98 GJ, p. 53; H.Doc. 105-311, p. 505) Why
would someone refresh his recollection by making a false
statement of fact to a subordinate? The answer is obvious--he
would not.
Lastly, the President stated in the grand jury that he was
``downloading'' information in a ``hurry,'' apparently
explaining that he made these statements because he did not
have time to listen to answers to open-ended questions. (WJC
8/17/98 GJ, p. 56; H.Doc. 105-311, p. 508) But, if he was in
such a hurry, why did the President not ask Ms. Currie to
refresh his recollection when he spoke with her on the
telephone the previous evening? He also has no adequate
explanation as to why he could not spend an extra five or 10
minutes with Ms. Currie on January 18 to get her version of
the events. In fact, Ms. Currie testified that she first met
the President on January 18 while he was on the White House
putting green, and he told her to go into the office and he
would be in in a few minutes. (BC 1/27/98 GJ, pgs. 67-70;
H.Doc. 105-316, pgs. 558-559) And if he was in such a hurry,
why did he repeat these statements to Ms. Currie a few days
later? (BC 1/27/98 GJ, pgs. 80-81; H.Doc. 105-316, pgs. 560-
561) The reason for these statements had nothing to do with
time constraints or refreshing recollection; he had just
finished lying during the Jones deposition about these
issues, and he needed corroboration from his secretary.
Testimony About Influencing Aides
Not only did the President lie about his attempts to
influence Ms. Currie's testimony, but he lied about his
attempts to influence the testimony of some of his top aides.
Among the President's lies to his aides, described in detail
later in this brief, were that Ms. Lewinsky did not perform
oral sex on him, and that Ms. Lewinsky stalked him while he
rejected her sexual demands. These lies were then
disseminated to the media and attributed to White House
sources. They were also disseminated to the grand jury.
When the president was asked about these lies before the
grand jury, he testified:
``And so I said to them things that were true about this
relationship. That I used--in the language I used, I said,
there's nothing going on between us. That was true. I said, I
have not had sex with her as I defined it. That was true. And
did I hope that I never would have to be here on this day
giving this testimony? Of course.
``But I also didn't want to do anything to complicate this
matter further. So I said things that were true. They may
have been misleading, and if they were I have to take
responsibility for it, and I'm sorry.''
(WJC 8/17/98 GJ, p. 106; H.Doc. 105-311, p. 558)
To accept this grand jury testimony as truth, one must
believe that many of the President's top aides engaged in a
concerted effort to lie to the grand jury in order to
incriminate him at the risk of subjecting themselves to a
perjury indictment. We suggest that it is illustrative of the
President's character that he never felt any compunction in
exposing others to false testimony charges, so long as he
could conceal his own perjuries. Simply put, such a
conspiracy did not exist.
The above are merely highlights of the President's grand
jury perjury, and there are numerous additional examples. In
order to keep these lies in perspective, three facts must be
remembered. First, before the grand jury, the President was
not lying to cover up an affair and protect himself from
embarrassment, as concealing the affair was now impossible.
Second, the President could no longer argue that the facts
surrounding his relationship with Ms. Lewinsky were somehow
irrelevant or immaterial, as the Office of Independent
Counsel and the grand jury had mandates to explore them.
Third, he cannot claim to have been surprised or unprepared
for questions about Ms. Lewinsky before the grand jury, as he
spent days with his lawyer, preparing responses to such
questions.
The President's Method
Again, the President carefully crafted his statements to
give the appearance of being candid, when actually his intent
was the opposite. In addition, throughout the testimony,
whenever the President was asked a specific question that
could not be answered directly without either admitting the
truth or giving an easily provable false answer, he said, ``I
rely on my statement.'' 19 times he relied on this false and
misleading statement; nineteen times, then, he repeated those
lies in ``answering'' questions propounded to him. (See eg.
WJC 8/17/98 GJ, pg. 139; H.Doc. 105-311, p. 591)
The House Committee's Request
In an effort to avoid unnecessary work and to bring its
inquiry to an expeditious end, the Judiciary Committee of the
House of Representatives submitted to the President 81
requests to admit or deny specific facts relevant to this
investigation. (Exhibit 18) Although, for the most part, the
questions could have been answered with a simple ``admit'' or
``deny,'' the President elected to follow the pattern of
selective memory, reference to other testimony, blatant
untruths, artful distortions, outright lies, and half truths.
When he did answer, he engaged in legalistic hair-splitting
in an obvious attempt to skirt the whole truth and to deceive
and obstruct the due proceedings of the Committee.
The President Repeats His Falsities
Thus, on at least 23 questions, the President professed a
lack of memory. This from a man who is renowned for his
remarkable memory, for his amazing ability to recall details.
In at least 15 answers, the President merely referred to
``White House Records.'' He also referred to his own prior
testimony and that of others. He answered several of the
requests by merely restating the same deceptive answers that
he gave to the grand jury. We will point out several false
statements in this Brief.
In addition, the half-truths, legalistic parsings, evasive
and misleading answers were obviously calculated to obstruct
the efforts of the House Committee. They had the effect of
seriously hampering its ability to inquire and to ascertain
the truth. The President has, therefore, added obstruction of
an inquiry and an investigation before the Legislative Branch
to his obstructions of justice before the Judicial Branch of
our constitutional system of government.
The Early Attack on Ms. Lewinsky
After his deposition, the power and prestige of the Office
of President was marshaled to destroy the character and
reputation of Monica Lewinsky, a young woman that had been
ill-used by the President. As soon as her name surfaced, the
campaign began to muzzle any possible testimony, and to
attack the credibility of witnesses, in a concerted effort to
obstruct the due administration of justice in a lawsuit filed
by one female citizen of Arkansas. It almost worked.
When the President testified at his deposition that he had
no sexual relations, sexual affair or the like with
Monica Lewinsky, he felt secure. Monica Lewinksy, the only
other witness was on board. She had furnished a false
affidavit also denying everything. Later, when he realized
from the January 18, 1998, Drudge Report that there were
taped conversations between Ms. Lewinsky and Linda Tripp,
he had to develop a new story, and he did. In addition, he
recounted that story to White House aides who passed it on
to the grand jury in an effort to obstruct that tribunal
too.
On Wednesday, January 21, 1998, The Washington Post
published a story entitled ``Clinton Accused of Urging Aide
to Lie; Starr Probes Whether President Told Woman to Deny
Alleged Affair to Jones' Lawyers.'' The White House learned
the substance of the Post story on the evening of January 20,
1998.
Mr. Bennett's Remark
After the President learned of the existence of the story,
he made a series of telephone calls.
At 12:08 a.m. he called his attorney, Mr. Bennett, and they
had a conversation. The next morning, Mr. Bennett was quoted
in the Washington Post stating:
``The President adamantly denies he ever had a relationship
with Ms. Lewinsky and she has confirmed the truth of that.''
He added, ``This story seems ridiculous and I frankly smell a
rat.''
Additional Calls
After that conversation, the President had a half hour
conversation with White House counsel, Bruce Lindsey.
At 1:16 a.m., the President called Betty Currie and spoke
to her for 20 minutes.
He then called Bruce Lindsey again.
At 6:30 a.m. the President called Vernon Jordan.
After that, the President again conversed with Bruce
Lindsey.
This flurry of activity was a prelude to the stories which
the President would soon inflict upon top White House aides
and advisors.
The President's Statements to Staff
ERSKINE BOWLES
On the morning of January 21, 1998, the President met with
Whie House Chief of Staff, Erskine Bowles, and his two
deputies, John Podesta and Sylvia Matthews.
Erskine Bowles recalled entering the President's office at
9:00 a.m. that morning. He then recounts the President's
immediate words as he and two others entered the Oval Office:
And he looked up at us and he said the same thing he said
to the American people.
He said, ``I want you to know I did not have sexual
relationships with this woman, Monica Lewinsky. I did not ask
anybody to lie. And when the facts come out, you'll
understand.''
(Bowles, 4/2/98 GJ, p. 84; H.Doc. 105-316, p. 239) After the
President made that blanket denial, Mr. Bowles responded:
I said, ``Mr. President, I don't know what the facts are. I
don't know if they're good, bad, or indifferent. But whatever
they are, you ought to get them out. And you ought to get
them out rignt now.''
(Bowles, 4/2/98 GJ, p. 84; H.Doc. 105-316, p. 239)
When counsel asked whether the President responded to
Bowles' suggestion that he tell the truth, Bowles responded:
I don't think he made any response, but he didn't disagree
with me.
(Bowles, 4/2/98 GJ, p. 84; H.Doc. 105-316, p. 239)
John Podesta
January 21, 1998
Deputy Chief John Podesta also recalled a meeting with the
President on the morning of January 21, 1998.
He testified before the grand jury as to what occurred in
the Oval Office that morning:
A. And we started off meeting--we didn't-- I don't think we
said anything. And I think the President directed this
specifically to Mr. Bowles. He said, ``Erskine, I want you
to know that this story is not true.''
Q. What else did he say?
A. He said that--that he had not had a sexual relationship
with her, and that he never asked anybody to lie.
(Podesta, 6/16/98 GJ, p. 85; H.Doc. 105-316, p. 3310)
January 23, 1998
Two days later, on January 23, 1998, Mr. Podesta had
another discussion with the President:
``I asked him how he was doing, and he said he was working
on this draft and he said to me that he never had sex with
her, and that--and that he never asked--you know, he repeated
the denial, but he was extremely explicit in saying he never
had sex with her.''
Then Podesta testified as follows:
Q. Okay. Not explicit, in the sense that he got more
specific than sex, than the word ``sex.''
A. Yes, he was more specific than that.
Q. Okay, share that with us.
A. Well, I think he said--he said that--there was some
spate. Of, you know, what sex acts were counted, and he said
that he had never had sex with her in any way whatsoever----
Q. Okay.
A. That they had not had oral sex.
(Podesta, 6/16/98 GJ, p. 92; H.Doc. 105-316, p. 3311)
(Exhibit V)
sidney blumenthal
Later in the day on January 21, 1998, the President called
Sidney Blumenthal to his office. It is interesting to note
how the President's lies become more elaborate and pronounced
when he has time to concoct this newest line of defense. When
the President spoke to Mr. Bowles and Mr. Podesta, he simply
denied the story. But, by the time he spoke to Mr.
Blumenthal, the President has added three new angles to his
defense strategy: (1) he now portrays Monica Lewinsky as the
aggressor; (2) he launches an attack on her reputation by
portraying her as a ``stalker''; and (3) he presents himself
as the innocent victim being attacked by the forces of evil.
Note well this recollection by Mr. Blumenthal in his June
4, 1998 testimony: (Chart U)
And it was at this point that he gave his account of what
had happened to me and he said that Monica--and it came very
fast. He said, ``Monica Lewinsky came at me and made a sexual
demand on me.'' He rebuffed her. He said, ``I've gone down
that road before, I've caused pain for a lot of people and
I'm not going to do that again.'' She threatened him. She
said that she would tell people they'd had an affair, that
she was known as the stalker among her peers, and that she
hated it and if she had an affair or said she had an affair
then she wouldn't be the stalker anymore.
(Blumenthal, 6/4/98 GJ, p. 49; H.Doc. 105-316, p. 185)
And then consider what the President told Mr. Blumenthal
moments later:
And he said, ``I feel like a character in a novel. I feel
like somebody who is surrounded by an oppressive force that
is creating a lie about me and I can't get the truth out. I
feel like the character in the novel Darkness at Noon.
And I said to him, ``When this happened with Monica
Lewinsky, were you alone?'' He said, ``Well, I was within
eyesight or earshot of someone.''
(Blumenthal, 6/4/98 GJ, p. 50; H.Doc. 105-316, p. 185)
At one point, Mr. Blumenthal was asked by the grand jury to
describe the President's manner and demeanor during the
exchange.
Q. In response to my question how you responded to the
President's story about a threat or discussion about a threat
from Ms. Lewinsky, you mentioned you didn't
recall specifically. Do you recall generally the nature of
your response to the President?
A. It was generally sympathetic to the President. And I
certainly believed his story. It was a very heartfelt story,
he was pouring out his heart, and I believed him.
(Blumenthal, 6/25/98 GJ, pgs. 16-17; H.Doc. 105-316, pgs.
192-193)
BETTY CURRIE
When Betty Currie testified before the grand jury, she
could not recall whether she had another one-on-one
discussion with the President on Tuesday, January 20, or
Wednesday, January 21. But she did state that on one of those
days, the President summoned her back to his office. At that
time, the President recapped their now-infamous Sunday
afternoon post-deposition discussion in the Oval Office. It
was at that meeting that the President made a series of
statements to Ms. Currie, to some of which she could not
possibly have known the answers. (e.g. ``Monica came on to me
and I never touched her, right?'') (BC 1/27/98 GJ, pgs. 70-
75; H.Doc. 105-316, pgs. 559-560; BC 7/22/98 GJ, pgs. 6-7;
H.Doc. 105-316, p. 664)
When he spoke to her on January 20 or 21, he spoke in the
same tone and demeanor that he used in his January 18 Sunday
session.
Ms. Currie stated that the President may have mentioned
that she might be asked about Monica Lewinsky. (BC, 1/24/98
Int., p. 8; H.Doc. 105-316, p. 536)
Motive for Lies to Staff
It is abundantly clear that the President's assertions to
staff were designed for dissemination to the American people.
But it is more important to understand that the President
intended his aides to relate that false story to
investigators and grand jurors alike. We know that this is
true for the following reasons: the Special Division had
recently appointed the Office of Independent Counsel to
investigate the Monica Lewinsky matter; the President
realized that Jones' attorneys and investigators were
investigating this matter; the Washington Post journalists
and investigators were exposing the details of the Lewinsky
affair; and, an investigation relating to perjury charges
based on Presidential activities in the Oval Office would
certainly lead to interviews with West Wing employees and
high level staffers. Because the President would not appear
before the grand jury, his version of events would be
supplied by those staffers to whom he had lied. The President
actually acknowledged that he knew his aides might be called
before the grand jury. (WJC 8/17/98 GJ, pgs. 105-109; H.Doc.
105-311, pgs. 557-557)
In addition, Mr. Podesta testified that he knew that he was
likely to be a witness in the ongoing grand jury criminal
investigation. He said that he was ``sensitive about not
exchanging information because I knew I was a potential
witness.'' (Podesta 6/23/98 GJ, p. 79; H.Doc. 105-316, p.
3332) He also recalled that the President volunteered to
provide information about Ms. Lewinsky to him even though Mr.
Podesta had not asked for these details. (Podesta 6/23/98 GJ,
p. 79; H.Doc. 105-316, p. 3332)
In other words, the President's lies and deceptions to his
White House aides, coupled with his steadfast refusal to
testify had the effect of presenting a false account of
events to investigators and grand jurors. The President's
aides believed the President when he told them his contrived
account. The aides' eventual testimony provided the
President's calculated falsehoods to the grand jury which, in
turn, gave the jurors an inaccurate and misleading set of
facts upon which to base any decisions.
Win, Win, Win
President Clinton also implemented a win-at-all-
costs strategy calculated to obstruct the administration
of justice in the Jones case and in the grand jury. This
is demonstrated in testimony presented by Richard ``Dick''
Morris to the federal grand jury.
Mr. Morris, a former presidential advisor, testified that
on January 21, 1998, he met President Clinton and they
discussed the turbulent events of the day. The President
again denied the accusations against him. After further
discussions, they decided to have an overnight poll taken to
determine if the American people would forgive the President
for adultery, perjury, and obstruction of justice. When Mr.
Morris received the results, he called the President:
``And I said, `They're just too shocked by this. It's just
too new, it's too raw.' And I said, `And the problem is
they're willing to forgive you for adultery, but not for
perjury or obstruction of justice or the various other
things.' ''
(Morris 8/18/98 GJ. p. 28; H.Doc. 105-316, p. 2929)
Morris recalls the following exchange:
Morris: And I said, ``They're just not ready for it.''
meaning the voters.
WJC: Well, we just have to win, then.
(Morris 8/18/98 GJ, p. 30; H.Doc. 105-216, p. 2930)
The President, of course, cannot recall this statement,
(Presidential Responses to Questions, Numbers 69, 70, and 71)
The Plot to Discredit Monica Lewinsky
In order to ``win,'' it was necessary to convince the
public, and hopefully the grand jurors who read the
newspapers, that Monica Lewinsky was unworthy of belief. If
the account given by Ms. Lewinsky to Linda Tripp was
believed, then there would emerge a tawdry affair in and near
the Oval Office. Moreover, the President's own perjury and
that of Monica Lewinsky would surface. To do this, the
President employed the full power and credibility of the
White House and its press corps to destroy the witness. Thus
on January 29, 1998:
Inside the White House, the debate goes on about the best
way to destroy That Woman, as President Bill Clinton called
Monica Lewinsky. Should they paint her as a friendly
fantasist or a malicious stalker? (The Plain Dealer)
Again:
``That poor child has serious emotional problems,'' Rep.
Charles Rangel, Democrat of New York, said Tuesday night
before the State of the Union. ``She's fantasizing. And I
haven't heard that she played with a full deck in her other
experiences.'' (The Plain Dealer)
From Gene Lyons, an Arkansas columnist on January 30:
``But it's also very easy to take a mirror's eye view of
this thing, look at this thing from a completely different
direction and take the same evidence and posit a totally
innocent relationship in which the president was, in a sense,
the victim of someone rather like the woman who followed
David Letterman around.'' (NBC News)
From another ``source'' on February 1:
``Monica had become known at the White House, says one
source, as `the stalker.' ''
And on February 4:
``The media have reported that sources describe Lewinsky as
`infatuated' with the president, `star struck' and even `a
stalker'.'' (Buffalo News)
Finally, on January 31:
``One White House aide called reporters to offer
information about Monica Lewinsky's past, her weight problems
and what the aide said was her nickname--`The Stalker.' ''
``Junior staff members, speaking on the condition that they
not be identified, said she was known as a flirt, wore her
skirts too short, and was `A little bit weird.' ''
``Little by little, ever since allegations of an affair
between U.S. President Bill Clinton and Lewinsky surfaced 10
days ago, White House sources have waged a behind-the-scenes
campaign to portray her as an untrustworthy climber obsessed
with the President.''
``Just hours after the story broke, one White House source
made unsolicited calls offering that Lewinsky was the
`troubled' product of divorced parents and may have been
following the footsteps of her mother, who wrote a tell-all
book about the private lives of three famous opera
singers.''
``One story had Lewinsky following former Clinton aide
George Stephanopoulos to Starbucks. After observing what kind
of coffee he ordered, she showed up the next day at his
secretary's desk with a cup of the same coffee to `surprise
him.' '' (Toronto Sun)
This sounds familiar because it is the exact tactic used to
destroy the reputation and credibility of Paula Jones. The
difference is that these false rumors were emanating from the
White House, the bastion of the free world, to protect one
man from being forced to answer for his deportment in the
highest office in the land.
On August 17, 1998, the President testified before the
grand jury. He then was specifically asked whether he knew
that his aides (Blumenthal, Bowles, Podesta and Currie) were
likely to be called before the grand jury.
Q. It may have been misleading, sir, and you knew though,
after January 21st when the Post article broke and said that
Judge Starr was looking into this, you knew that they might
be witnesses. You knew that they might be called into a grand
jury, didn't you?
WJC. That's right. I think I was quite careful what I said
after that. I may have said something to all these people to
that effect, 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 would
get you in trouble. I just wouldn't talk. I, by and large,
didn't talk to people about it.
Q. If all of these people--let's leave Mrs. Currie for a
minute. Vernon Jordan, Sid Blumenthal, John Podesta, Harold
Ickes, Erskine Bowles, Harry Thomasson, after the story
broke, after Judge Starr's involvement was known on January
21st, have said that you denied a sexual relationship with
them. Are you denying that?
WJC. No.
Q. And you've told us that you----
WJC. I'm just telling you what I meant by it. I told you
what I meant by it when they started this deposition.
Q. You've told us now that you were being careful, but that
it might have been misleading. Is that correct?
WJC. It must have been * * * So, what I was trying to do
was to give them something they could--that would be true,
even if misleading in the context of this deposition, and
keep them out of trouble, and let's deal--and deal with what
I thought was the almost ludicrous suggestion that I had
urged someone to lie or tried to suborn perjury, in other
words.
(WJC 8/17/97 GJ, pgs. 106-108; H. Doc. 105-311, pgs. 558-560)
As the President testified before the grand jury, he
maintained that he was being truthful with his aides.
(Exhibit 20) He stated that when he spoke to them, he was
very careful with his wording. The President stated that he
wanted his statement regarding ``sexual relations'' to be
literally true because he was only referring to intercourse.
However, recall that John Podesta said that the President
denied sex ``in any way whatsoever'' ``including oral sex.''
The President told Mr. Podesta, Mr. Bowles, Ms. Williams, and
Harold Ickes that he did not have a ``sexual relationship''
with that woman.
Importantly, seven days after the President's grand jury
appearance, the White House issued a document entitled,
``Talking Points January 24, 1998.'' (Chart W; Exhibit 16)
This ``Talking Points'' document outlines proposed questions
that the President may be asked. It also outlines suggested
answers to those questions. The ``Talking Points'' purport to
state the President's view of sexual relations and his view
of the relationship with Monica Lewinsky. (Exhibit 17)
The ``Talking Points'' state as follows:
Q. What acts does the President believe constitute a sexual
relationship?
A. I can't believe we're on national television discussing
this. I am not about to engage in an ``act-by-act''
discussion of what constitutes a sexual relationship.
Q. Well, for example, Ms. Lewinsky is on tape indicating
that the President does not believe oral sex is adultery.
Would oral sex, to the President, constitute a sexual
relationship?
A. Of course it would.
The President's own talking points refute the President's
``literal truth'' argument.
Effect of the President's Conduct
Some ``experts'' have questioned whether the President's
deportment affects his office, the government of the United
States or the dignity and honor of the country.
Our founders decided in the Constitutional Convention that
one of the duties imposed upon the President is to ``take
care that the laws be faithfully executed.'' Furthermore, he
is required to take an oath to ``Preserve, protect and defend
the Constitution of the United States.'' Twice this President
stood on the steps of the Capitol, raised his right hand to
God and repeated that oath.
The Fifth Amendment to the Constitution of the United
States provides that no person shall ``be deprived of life,
liberty or property without due process of law.``
The Seventh Amendment insures that in civil suits ``the
right of trial by jury shall be preserved.''
Finally, the Fourteenth Amendment guarantees due process of
law and the equal protection of the laws.
The Effect on Ms. Jones' Rights
Paula Jones is an American citizen, just a single citizen
who felt that she had suffered a legal wrong. More important,
that legal wrong was based upon the Constitution of the
United States. She claimed essentially that she was subjected
to sexual harassment, which, in turn, constitutes
discrimination on the basis of gender. The case was not
brought against just any citizen, but against the President
of the United States, who was under a legal and moral
obligation to preserve and protect Ms. Jones' rights. It is
relatively simple to mouth high-minded platitudes and to
prosecute vigorously right violations by someone else. It is,
however, a test of courage, honor and integrity to enforce
those rights against yourself. The President failed that
test. As a citizen, Ms. Jones enjoyed an absolute
constitutional right to petition the Judicial Branch of
government to redress that wrong by filing a lawsuit in the
United States District Court, which she did. At this point
she became entitled to a trial by jury if she chose, due
process of law and the equal protection of the laws no matter
who the defendant was in her suit. Due process contemplates
that right to a full and fair trial, which, in turn, means
the right to call and question witnesses, to cross-examine
adverse witnesses and to have her case decided by an unbiased
and fully informed jury. What did she actually get? None of
the above.
On May 27, 1997, the United States Supreme Court ruled in a
nine to zero decision that, ``like every other citizen,''
Paula Jones ``has a right to an orderly disposition of her
claims.`` In accordance with the Supreme Court's decision,
United States District Judge Susan Webber Wright ruled on
December 11, 1997, that Ms. Jones was entitled to information
regarding state or federal employees with whom the President
had sexual relations from May, 1986 to the present. Judge
Wright had determined that the information was reasonably
calculated to lead to the discovery of admissible evidence.
Six days after this ruling, the President filed an answer to
Ms. Jones' Amended Complaint. The President's Answer stated:
``President Clinton denies that he engaged in any improper
conduct with respect to plaintiff or any other woman.''
Ms. Jones' right to call and depose witnesses was thwarted
by perjurious and misleading affidavits and motions; her
right to elicit testimony from adverse witnesses was
compromised by perjury and false and misleading statements
under oath. As a result, had a jury tried the case, it would
have been deprived of critical information.
That result is bad enough, but it reaches constitutional
proportions when denial of the civil rights is directed by
the President of the United States who twice took an oath to
preserve, protect and defend those rights. But we now know
what the ``sanctity of an oath'' means to the President.
The Effect on the Office of President
Moreover, the President is the spokesman for the government
and the people of the United States concerning both domestic
and foreign matters. His honesty and integrity, therefore,
directly influence the credibility of this country. When, as
here, that spokesman is guilty of a continuing pattern of
lies, misleading statements, and deceits over a long period
of time, the believability of any of his pronouncements is
seriously called into question. Indeed, how can anyone in or
out of our country any longer believe anything he says? And
what does that do to confidence in the honor and integrity of
the United States?
Make no mistake, the conduct of the President is
inextricably bound to the welfare of the people of the United
States. Not only does it affect economic and national
defense, but even more directly, it affects the moral and
law-abiding fibre of the commonwealth,
without which no nation can survive. When, as here, that
conduct involves a pattern of abuses of power, of perjury, of
deceit, of obstruction of justice and of the Congress, and of
other illegal activities, the resulting damage to the honor
and respect due to the United States is, of necessity,
devastating.
The Effect on the System
Again: there is no such thing as non-serious lying under
oath. Every time a witness lies, that witness chips a stone
from the foundation of our entire legal system. Likewise,
every act of obstruction of justice, of witness tampering or
of perjury adversely affects the judicial branch of
government like a pebble tossed into a lake. You may not
notice the effect at once, but you can be certain that the
tranquility of that lake has been disturbed. And if enough
pebbles are thrown into the water, the lake itself may
disappear. So too with the truth-seeking process of the
courts. Every unanswered and unpunished assault upon it has
its lasting effect and given enough of them, the system
itself will implode.
That is why two women who testified before the Committee
had been indicted, convicted and punished severely for false
statements under oath in civil cases. And that is why only
recently a federal grand jury in Chicago indicted four former
college football players because they gave false testimony
under oath to a grand jury. Nobody suggested that they should
not be charged because their motives may have been to protect
their careers and family. And nobody has suggested that the
perjury was non-serious because it involved only lies about
sports; i.e., betting on college football games.
Disregard of the Rule of Law
Apart from all else, the President's illegal actions
constitute an attack upon and utter disregard for the truth,
and for the rule of law. Much worse, they manifest an
arrogant disdain not only for the rights of his fellow
citizens, but also for the functions and the integrity of the
other two co-equal branches of our constitutional system. One
of the witnesses that appeared earlier likened the government
of the United States to a three-legged stool. The analysis is
apt, because the entire structure of our country rests upon
three equal supports: the Legislative, the Judicial, and the
Executive. Remove one of those supports, and the State will
totter. Remove two and the structure will collapse
altogether.
Effect on the Judicial Branch
The President mounted a direct assault upon the truth-
seeking process which is the very essence and foundation of
the Judicial Branch. Not content with that, though, Mr.
Clinton renewed his lies, half-truths and obstruction to this
Congress when he filed his answers to simple requests to
admit or deny. In so doing, he also demonstrated his lack of
respect for the constitutional functions of the Legislative
Branch.
Actions do not lose their public character merely because
they may not directly affect the domestic and foreign
functioning of the Executive Branch. Their significance must
be examined for their effect on the functioning of the entire
system of government. Viewed in that manner, the President's
actions were both public and extremely destructive.
The Conduct Charged Warrants Conviction and Removal
The Articles state offenses that warrant the President's
conviction and removal from office. The Senate's own
precedents establish that perjury and obstruction warrant
conviction and removal from office. Those same precedents
establish that the perjury and obstruction need not have any
direct connection to the officer's official duties.
Precedents
In the 1980s, the Senate convicted and removed from office
three federal judges for making perjurious statements.
Background and History of Impeachment Hearings before the
Subcomm. On the Constitution of the House Comm. on the
Judiciary, 105th Cong., 2nd Sess. at 190-193 (Comm. Print
1998), (Testimony of Charles Cooper) (``Cooper Testimony'')
Although able counsel represented each judge, none of them
argued that perjury or making false statements are not
impeachable offenses. Nor did a single Congressman or
Senator, in any of the three impeachment proceedings, suggest
that perjury does not constitute a high crime and
misdemeanor. Finally, in the cases of Judge Claiborne and
Judge Nixon, it was undisputed that the perjury was not
committed in connection with the exercise of the judges'
judicial powers.
Judge Nixon
In 1989, Judge Walter L. Nixon, Jr., was impeached,
convicted, and removed from office for committing perjury.
Judge Nixon's offense stemmed from his grand jury testimony
and statements to federal officers concerning his
intervention in the state drug prosecution of Drew Fairchild,
the son of Wiley Fairchild, a business partner of Judge
Nixon's.
Although Judge Nixon had no official role or function in
Drew Fairchild's case (which was assigned to a state court
judge), Wiley Fairchild had asked Judge Nixon to help out by
speaking to the prosecutor. Judge Nixon did so, and the
prosecutor, a long-time friend of Judge Nixon's, dropped the
case. When the FBI and the Department of Justice interviewed
Judge Nixon, he denied any involvement whatsoever.
Subsequently, a federal grand jury was empaneled and Judge
Nixon again denied his involvement before that grand jury.
After a lengthy criminal prosecution, Judge Nixon was
convicted on two counts of perjury before the grand jury and
sentenced to five years in prison on each count. Not long
thereafter, the House impeached Judge Nixon by a vote of 417
to 0. The first article of impeachment charged him with
making the false or misleading statement to the grand jury
that he could not ``recall'' discussing the Fairchild case
with the prosecutor. The second article charged Nixon with
making affirmative false or misleading statements to the
grand jury that he had ``nothing whatsoever officially or
unofficially to do with the Drew Fairchild case.'' The third
article alleged that Judge Nixon made numerous false
statements (not under oath) to federal investigators prior
to his grand jury testimony. See 135 Cong. Rec. H1802-03.
The House unanimously impeached Judge Nixon, and the House
Managers' Report expressed no doubt that perjury is an
impeachable offense:
``It is difficult to imagine an act more subversive to the
legal process than lying from the witness stand. A judge who
violates his testimonial oath and misleads a grand jury is
clearly unfit to remain on the bench. If a judge's
truthfulness cannot be guaranteed, if he sets less than the
highest standard for candor, how can ordinary citizens who
appear in court be expected to abide by their testimonial
oath?''
House of Representatives' Brief in Support of the Articles of
Impeachment at 59 (1989). House Manager Sensenbrenner
addressed the question even more directly:
``There are basically two questions before you in
connection with this impeachment. First, does the conduct
alleged in the three articles of impeachment state an
impeachable offense? There is really no debate on this point.
The articles allege misconduct that is criminal and wholly
inconsistent with judicial integrity and the judicial oath.
Everyone agrees that a judge who lies under oath, or who
deceives Federal investigators by lying in an interview, is
not fit to remain on the bench.''
135 Cong. Rec. S14,497 (Statement of Rep. Sensenbrenner)
The Senate agreed, overwhelmingly voting to convict Judge
Nixon of perjury on the first two articles (89-8 and 78-19,
respectively). As Senator Carl Levin explained:
``The record amply supports the finding in the criminal
trial that Judge Nixon's statements to the grand jury were
false and misleading and constituted perjury. Those are the
statements cited in articles I and II and it is on those
articles that I vote to convict Judge Nixon and remove him
from office.''
135 Cong. Rec. S14,637 (Statement of Sen. Levin).
Judge Hastings
Also in 1989, the House impeached Judge Alcee L. Hastings
for, among other things, committing numerous acts of perjury.
The Senate convicted him, and he was removed from office.
Initially, Judge Hastings had been indicted by a federal
grand jury for conspiracy stemming from his alleged bribery
conspiracy with his friend Mr. William Borders to ``fix''
cases before Judge Hastings in exchange for cash payments
from defendants. Mr. Borders was convicted, but, at his own
trial, Judge Hastings took the stand and unequivocally denied
any participation in a conspiracy with Mr. Borders. The jury
acquitted Judge Hastings on all counts. Nevertheless, the
House impeached Judge Hastings, approving seventeen articles
of impeachment, fourteen of which were for lying under oath
at his trial.
The House voted 413 to 3 to impeach. The House Managers'
Report left no doubt that perjury alone is impeachable:
``It is important to realize that each instance of false
testimony charged in the false statement articles is more
than enough reason to convict Judge Hastings and remove him
from office. Even if the evidence were insufficient to prove
that Judge Hastings was part of the conspiracy with William
Borders, which the House in no way concedes, the fact that he
lied under oath to assure his acquittal is conduct that
cannot be tolerated of a United States District Judge. To
bolster one's defense by lying to a jury is separate,
independent corrupt conduct. For this reason alone, Judge
Hastings should be removed from public office.''
The House of Representatives' Brief in Support of the
Articles of Impeachment at 127-28 (1989). Representative John
Conyers (D-Mich.) also argued for the impeachment of Judge
Hastings:
``[W]e can no more close our eyes to acts that constitute
high crimes and misdemeanors when practiced by judges whose
views we approve than we could against judges whose views we
detested. It would be disloyal . . . to my oath of office at
this late state of my career to attempt to set up a double
standard for those who share my philosophy and for those who
may oppose it. In order to be true to our principles, we must
demand that all persons live up to the same high standards
that we demand of everyone else.''
134 Cong. Rec. H6184 (1988) (Statement of Rep. Conyers).
Judge Claiborne
In 1986, Judge Harry E. Claiborne was impeached, convicted,
and removed from office for making false statements under
penalties
of perjury. In particular, Judge Claiborne had filed false
income tax returns in 1979 and 1980, grossly understating his
income. As a result, he was convicted by a jury of two
counts of willfully making a false statement on a federal
tax return in violation of 26 U.S.C. Sec. 7206 (a).
Subsequently, the House unanimously (406-0) approved four
articles of impeachment. The proposition that Claiborne's
perjurious personal income tax filings were not
impeachable was never even seriously considered. As the
House Managers explained:
``[T]he constitutional issues raised by the first two
Articles of Impeachment [concerning the filing of false tax
returns] are readily resolved. The Constitution provides that
Judge Claiborne may be impeached and convicted for ``High
Crimes and Misdemeanors.'' Article II, Section 4. The willful
making or subscribing of a false statement on a tax return is
a felony offense under the laws of the United States. The
commission of such a felony is a proper basis for Judge
Clairborne's impeachment and conviction in the Senate.''
Proceedngs of the United States Senate Impeachment Trial of
Judge Harry E. Clairborne, S. Doc. No. 99-48, at 40 (1986)
(Claiborne Proceedings'') (emphases added).
House Manager Rodino, in his oral argument to the Senate,
emphatically made the same point:
``Honor in the eyes of the American people lies in public
officials who respect the law, not in those who violate the
trust that has been given to them when they are trusted with
public office. Judge Harry E. Claiborne has, sad to say,
undermined the integrity of the judicial branch of
Government. To restore that integrity and to maintain public
confidence in the administration of justice, Judge Claiborne
must be convicted on the fourth Article of Impeachment [that
of reducing confidence in the integrity of the judiciary].''
132 Cong. Rec. S15,481 (1986) (Statement of Rep. Rodino).
The Senate agreed. Telling are the words of then-Senator
Albert Gore, Jr. In voting to convict Judge Claiborne and
remove him from office:
``The conclusion is inescapable that Clairborne filed false
income tax returns and that he did so willfully rather than
negligently. . . . Given the circumstances, it is incumbent
upon the Senate to fulfill its constitutional responsibility
and strip this man of his title. An individual who has
knowingly falsified tax returns has no business receiving a
salary derived from the tax dollars of honest citizens. More
importantly, an individual quality of such reprehensible
conduct ought not be permitted to exercise the awesome powers
which the Constitution entrusts to the Federal Judiciary.''
Claiborne Proceedings, S. Doc. No. 99-48, at 372 (1986).
Application to the President
To avoid the conclusive force of these recent precedents--
and in particular the exact precedent supporting impeachment
for, conviction, and removal for perjury--the only recourse
for the President's defenders is to argue that a high crime
or misdemeanor for a judge is not necessarily a high crime or
misdemeanor for the President. The arguments advanced in
support of this dubious proposition do not withstand serious
scrutiny. See generally Cooper Testimony, at 193.
The Constitution provides that Article III judges ``shall
hold their Offices during good Behavior, U.S. Const. Art.
III, 1. Thus, these arguments suggest that judges are
impeachable for ``misbehavior'' while other federal officials
are only impeachable for treason, bribery, and other high
crimes and misdemeanors.
The staff of the House Judiciary Committee in the 1970s and
the National Commission on Judicial Discipline and Removal in
the 1990s both issued reports rejecting these arguments. In
1974, the staff of the Judiciary Committee's Impeachment
Inquiry issued a report which included the following
conclusion:
``Does Article III, Section 1 of the Constitution, which
states that judges `shall hold their Offices during good
Behaviour,' limit the relevance of the ten impeachments of
judges with respect to presidential impeachment standards as
has been argued by some? It does not. The argument is that
`good behavior' implies an additional ground for impeachment
of judges not applicable to other civil officers. However,
the only impeachment provision discussed in the Convention
and included in the Constitution is Article II, Section 4,
which by its expressed terms, applies to all civil officers,
including judges, and defines impeachment offenses as
`Treason, Bribery, and other high Crimes and Misdemeanors.'
''
Staff of House Comm. on the Judiciary, 93rd Cong. 2d Sess.,
Constitutional Grounds for Presidential Impeachment (Comm.
Print 1974) (``1974 Staff Report'') at 17.
The National Commission on Judicial Discipline and Removal
came to the same conclusion. The Commission concluded that
``the most plausible reading of the phrase `during good
Behavior' is that it means tenure for life, subject to the
impeachment power. . . . The ratification debates about the
federal judiciary seem to have proceeded on the assumption
that good-behavior tenure meant removal only through
impeachment and conviction.'' National Commission on Judicial
Discipline and Removal, Report of the National Commission on
Judicial Discipline and Removal 17-18 (1993) (footnote
omitted).
The record of the 1986 impeachment of Judge Claiborne also
argues against different impeachment standards for federal
judges and presidents. Judge Claiborne filed a motion asking
the Senate to dismiss the articles of impeachment against him
for failure to state impeachable offenses. One of the
motion's arguments was that ``[t]he standard for impeachment
of a judge is different than that for other officers'' and
that the Constitution limited ``removal of the judiciary to
acts involving misconduct related to discharge of office.''
Memorandum in Support of Motion to Dismiss the Articles of
Impeachment on the Grounds They Do Not State Impeachable
Offenses 4 (hereinafter cited as ``Claiborne Motion''),
reprinted in Hearings Before the Senate Impeachment Trial
Committee, 99th Cong., 2d Sess. 245 (1986) (hereinafter cited
as ``Senate Claiborne Hearings'').
Representative Kastenmeier responded that ``reliance on the
term `good behavior' as stating a sanction for judges is
totally misplaced and virtually all commentators agree that
that is directed to affirming the life tenure of judges
during good behavior. It is not to set them down,
differently, as judicial officers from civil officers.'' Id.
at 81-82. He further stated that ``[n]or . . . is there any
support for the notion that . . . Federal judges are not
civil officers of the United States, subject to the
impeachment clause of article II of the Constitution.'' Id.
at 81.
The Senate never voted on Claiborne's motion. However, the
Senate was clearly not swayed by the arguments contained
therein because it later voted to convict Judge Claiborne.
132 Cong. Rec. S15,760-62 (daily ed. Oct. 9, 1986). The
Senate thus rejected the claim that the standard of
impeachable offenses was different for judges than for
presidents.
Moreover, even assuming that presidential high crimes and
misdemeanors could be different from judicial ones, surely
the President ought not be held to a lower standard of
impeachability than judges. In the course of the 1980s
judicial impeachments, Congress emphasized unequivocally that
the removal from office of federal judges guilty of crimes
indistinguishable from those currently charged against the
President was essential to the preservation of the rule of
law. If the perjury of just one judge so undermines the rule
of law as to make it intolerable that he remain in office,
then how much more so does perjury committed by the President
of the United States, who alone is charged with the duty ``to
take Care that the Laws be faithfully executed.'' See
generally, Cooper Testimony at 194)
It is just as devastating to our system of government when
a President commits perjury. As the House Judiciary Committee
stated in justifying an article of impeachment against
President Nixon, the President not only has ``the obligation
that every citizen has to live under the law,'' but in
addition has the duty ``not merely to live by the law but to
see that law faithfully applied.'' Impeachment of Richard M.
Nixon, President of the United States, H. Rept. No. 93-1305,
93rd Cong., 2d Sess. at 180 (1974). The Constitution provides
that he ``shall take Care that the Laws be faithfully
executed.'' U.S. Const. Art. II, Sec. 3. When a President, as
chief law enforcement officer of the United States, commits
perjury, he violates this constitutional oath unique to his
office and casts doubt on the notion that we are a nation
ruled by laws and not men.
Perjury and Obstruction Are as Serious as Bribery
Further evidence that perjury and obstruction warrant
conviction and removal comes directly from the text of the
Constitution. Because the Constitution specifically mentions
bribery, no one can dispute that it is an impeachable
offense. U.S. Const., art. II, Sec. 4. Because the
constitutional language does not limit the term, we must take
it to mean all forms of bribery. Our statutes specifically
criminalize bribery of witnesses with the intent to influence
their testimony in judicial proceedings. 18 U.S.C.
Sec. 201(b)(3) & (4), (c)(2) & (3). See also 18 U.S.C.
Sec. Sec. 1503 (general obstruction of justice statute), 1512
(witness tampering statute). Indeed, in a criminal case, the
efforts to provide Ms. Lewinsky with job assistance in return
for submitting a false affidavit charged in the Articles
might easily have been charged under these statutes. No one
could reasonably argue that the President's bribing a witness
to provide false testimony--even in a private lawsuit--does
not rise to the level of an impeachable offense. The plain
language of the Constitution indicates that it is.
Having established that point, the rest is easy. Bribing a
witness is illegal because it leads to false testimony that
in turn undermines the ability of the judicial system to
reach just results. Thus, among other things, the Framers
clearly intended impeachment to protect the judicial
system from these kinds of attacks. Perjury and
obstruction of justice are illegal for exactly the same
reason, and they accomplish exactly the same ends through
slightly different means. Simple logic establishes that
perjury and obstruction of justice--even in a private
lawsuit--are exactly the types of other high crimes and
misdemeanors that are of the same magnitude as bribery.
High Crimes and Misdemeanors
Although Congress has never adopted a fixed definition of
``high crimes and misdemeanors,'' much of the background and
history of the impeachment process contradicts the
President's claim that these offenses are private and
therefore do not warrant conviction and removal. Two reports
prepared in 1974 on the background and history of impeachment
are particularly helpful in evaluating the President's
defense. Both reports support the conclusion that the facts
in this case compel the conviction and removal of President
Clinton.
Many have commented on the report on ``Constitutional
Grounds for Presidential Impeachment'' prepared in February
1974 by the staff of the Nixon impeachment inquiry. The
general principles concerning grounds for impeachment set
forth in that report indicate that perjury and obstruction of
justice are impeachable offenses. Consider this key language
from the staff report describing the type of conduct which
gives rise to impeachment:
``The emphasis has been on the significant effects of the
conduct--undermining the integrity of office, disregard of
constitutional duties and oath of office, arrogation of
power, abuse of the governmental process, adverse impact on
the system of government.''
1974 Staff Report at 26 (emphasis added).
Perjury and obstruction of justice clearly ``undermine the
integrity of office.'' They unavoidably erode respect for the
office of the President. Such offenses obviously involve
``disregard of [the President's] constitutional duties and
oath of office.'' Moreover, these offenses have a direct and
serious ``adverse impact on the system of government.''
Obstruction of justice is by definition an assault on the due
administration of justice--a core function of our system of
government.
The thoughtful report on ``The Law of Presidential
Impeachment'' prepared by the Association of the Bar of the
City of New York in January of 1974 also places a great deal
of emphasis on the corrosive impact of presidential
misconduct on the integrity of office:
It is our conclusion, in summary, that the grounds for
``impeachment are not limited to or synonymous with crimes .
. . Rather, we believe that acts which undermine the
integrity of government are appropriate grounds whether or
not they happen to constitute offenses under the general
criminal law. In our view, the essential nexus to damaging
the integrity of government may be found in acts which
constitute corruption in, or flagrant abuse of the powers of,
official position. It may also be found in acts which,
without directly affecting governmental processes, undermine
that degree of public confidence in the probity of executive
and judicial officers that is essential to the effectiveness
of government in a free society.''
Association of the Bar of the City of New York, The Law of
Presidential Impeachment, (1974) at 161 (emphasis added). The
commission of perjury and obstruction of justice by a
President are acts that without doubt ``undermine that degree
of public confidence in the probity of the [the President]
that is essential to the effectiveness of government in a
free society.'' Such acts inevitably subvert the respect for
law which is essential to the well-being of our
constitutional system.
That the President's perjury and obstruction do not
directly involve his official conduct does not diminish their
significance. The record is clear that federal officials have
been impeached for reasons other than official misconduct. As
set forth above, two recent impeachments of federal judges
are compelling examples. In 1989, Judge Walter Nixon was
impeached, convicted, and removed from office for committing
perjury before a federal grand jury. Judge Nixon's perjury
involved his efforts to fix a state case for the son of a
business partner--a matter in which he had no official
role. In 1986, Judge Harry E. Claiborne was impeached,
convicted, and removed from office for making false
statements under penalty of perjury on his income tax
returns. That misconduct had nothing to do with his
official responsibilities.
Nothing in the text, structure, or history of the
Constitution suggests that officials are subject to
impeachment only for official misconduct. Perjury and
obstruction of justice--even regarding a private matter--are
offenses that substantially affect the President's official
duties because they are grossly incompatible with his
preeminent duty to ``take care that the laws be faithfully
executed.'' Regardless of their genesis, perjury and
obstruction of justice are acts of public misconduct--they
cannot be dismissed as understandable or trivial. Perjury and
obstruction of justice are not private matters; they are
crimes against the system of justice, for which impeachment,
conviction, and removal are appropriate.
The record of Judge Claiborne's impeachment proceedings
affirms that conclusion. Representative Hamilton Fish, the
ranking member of the Judiciary Committee and one of the
House managers in the Senate trial, stated that
``[i]mpeachable conduct does not have to occur in the course
of the performance of an officer's official duties. Evidence
of misconduct, misbehavior, high crimes, and misdemeanors can
be justified upon one's private dealings as well as one's
exercise of public office. That, of course, is the situation
in this case.'' 132 Cong. Rec. H4713 (daily ed. July 22,
1986).
Judge Claiborne's unsuccessful motion that the Senate
dismiss the articles of impeachment for failure to state
impeachable offenses provides additional evidence that
personal misconduct can justify impeachment. One of the
arguments his attorney made for the motion was that ``there
is no allegation . . . that the behavior of Judge Claiborne
in any way was related to misbehavior in his official
function as a judge; it was private misbehavior.'' (Senate
Claiborne Hearings, at 77, Statement of Judge Claiborne's
counsel, Oscar Goodman). (See also Claiborne Motion, at 3)
Representative Kastenmeier responded by stating that ``it
would be absurd to conclude that a judge who had committed
murder, mayhem, rape, or perhaps espionage in his private
life, could not be removed from office by the U.S. Senate.''
(Senate Claiborne Hearings, at 81) Kastenmeier's response was
repeated by the House of Representatives in its pleading
opposing Claiborne's motion to dismiss. (Opposition to
Claiborne Motion at 2)
The Senate did not vote on Judge Claiborne's motion, but it
later voted to convict him. 132 Cong. Rec. S15,760-62 (daily
ed. Oct. 9, 1986). The Senate thus agreed with the House that
private improprieties could be, and were in this instance,
impeachable offenses.
The Claiborne case makes clear that perjury, even if it
relates to a matter wholly separated from a federal officer's
official duties--a judge's personal tax returns--is an
impeachable offense. Judge Nixon's false statements were also
in regard to a matter distinct from his official duties. In
short, the Senate's own precedents establish that misconduct
need not be in one's official capacity to warrant removal.
Conclusion
This is a defining moment for the Presidency as an
institution, because if the President is not convicted as a
consequence of the conduct that has been portrayed, then no
House of Representatives will ever be able to impeach again
and no Senate will ever convict. The bar will be so high that
only a convicted felon or a traitor will need to be
concerned.
Experts pointed to the fact that the House refused to
impeach President Nixon for lying on an income tax return.
Can you imagine a future President, faced with possible
impeachment, pointing to the perjuries, lies, obstructions,
and tampering with witnesses by the current occupant of the
office as not rising to the level of high crimes and
misdemeanors? If this is not enough, what is? How far can the
standard be lowered without completely compromising the
credibility of the office for all time?
Dated: January 11, 1999.
____
APPENDIX
[In the Senate of the United States Sitting as a Court of Impeachment]
In re Impeachment of President William Jefferson Clinton
Appendix to Trial Memorandum of the Managers Appointed by the U.S.
House of Representatives
The United States
House of Representatives
Henry J. Hyde,
F. James Sensenbrenner, Jr.,
Bill McCollum,
George W. Gekas,
Charles T. Canady,
Stephen E. Buyer,
Ed Bryant,
Steve Chabot,
Bob Barr,
Asa Hutchinson,
Chris Cannon,
James E. Rogan,
Lindsey O. Graham.
Managers on the Part of the House
____
Table of Contents
charts
A. The President's Contacts Alone With Lewinsky
B. The President's Telephone Contacts With Lewinsky
C. Lewinsky's Gifts to The President
D. The President's Gifts to Lewinsky
E. 12/5/97 Facsimile Transmission of Witness List in Jones
v. Clinton
F. The December 19, 1997 Subpoena to Lewinsky in Jones v.
Clinton
G. December 19, 1997 Activities Following Lewinsky's
Receipt of Subpoena
H. The President's December 23, 1997 Response to
Interrogatory No. 10 in Jones v. Clinton
I. The President's December 23, 1997 Response to
Interrogatory No. 11 in Jones v. Clinton
J. December 28, 1997, The President's Final Meeting With
Lewinsky and Concealment of Gifts
K. Currie's Cell Phone Records for 12/28/97
L. The President's Statements About Concealing Gifts
M. Lewinsky's Draft Affidavit
N. Lewinsky Final Affidavit dated January 7, 1998 Paragraph
8, Jones v. Clinton
O. Filing Lewinsky's Affidavit and Motion to Quash (1/14/
98-1/17/98)
P. Mission Accomplished: Lewinsky Signs Her Affidavit and
Is Hired By Revlon in New York (1/5/98-1/9/98)
Q. The President's Involvement With Lewinsky's Job Search
R. Jordan's Testimony About His Pre-Witness List Job Search
Efforts
S. Activity Following The President's Deposition (1/17/98-
1/1998)
T. The President's Statements to Currie 1/18/98
U. The President's Denial of Sexual Relations
V. The President's 1/21/98 Denial of Sexual Relations to
Blumenthal, Podesta and Morris
W. The White House 1/24/98 ``Talking Points''
X. The President's Claims That He Was Truthful With Aides
Y. The Three Options of a Grand Jury Witness
Z. The President's Grand Jury ``Statement''
____
[Chart A]
THE PRESIDENT'S CONTACTS ALONE WITH LEWINSKY
Lewinsky White House Employee (7/95-4/96)
1995
11/15/95 (Wed): The President meets alone twice with Lewinsky
in Oval Office study and hallway outside the Oval
Office. (Sexual Encounter)
11/17/95 (Fri): The President meets alone twice with Lewinsky
in The President's private bathroom outside the Oval
Office study. (Sexual Encounter)
12/5/95 (Tues): The President meets alone with Lewinsky in
the Oval Office and study. (No Sexual Encounter)
12/31/95 (Sun): The President meets alone with Lewinsky in
the Oval Office and Oval Office study. (Sexual
Encounter)
1996
1/7/96 (Sun): The President meets alone with Lewinsky in the
bathroom outside the Oval Office study. (Sexual
Encounter)
1/21/96 (Sun): The President meets alone with Lewinsky in the
hallway outside the Oval Office study. (Sexual
Encounter)
2/4/96 (Sun): The President meets alone with Lewinsky in the
Oval Office study and in the adjacent hallway. (Sexual
Encounter)
2/19/96 (Mon): The President meets alone with Lewinsky in the
Oval Office. (No Sexual Encounter)
3/31/96 (Sun): The President meets alone with Lewinsky in
hallway outside the Oval Office. (Sexual Encounter)
4/7/96 (Sun): The President meets alone with Lewinsky in the
hallway outside the Oval Office study and in the Oval
Office study. (Sexual Encounter)
1997
2/28/97 (Fri): The President meets alone with Lewinsky in the
Oval Office private bathroom. (Sexual Encounter)
3/29/97 (Sat): The President meets alone with Lewinsky in the
Oval Office study. (Sexual Encounter)
5/24/97 (Sat): The President meets alone with Lewinsky in the
Oval Office dining room, study and hallway. (No Sexual
Encounter)
7/4/97 (Fri): The President meets alone with Lewinsky in the
Oval Office study and hallway. (No Sexual Encounter)
7/14/97 (Mon): The President meets alone with Lewinsky in
Heinreich's office. (No Sexual Encounter)
7/24/97 (Sat): The President meets alone with Lewinsky in the
Oval Office study. (No Sexual Encounter)
8/16/97 (Sat): The President meets alone with Lewinsky in the
Oval Office study. (Sexual Encounter)
10/11/97 (Sat): The President meets alone with Lewinsky in
the Oval Office study. (No Sexual Encounter)
11/13/97 (Thurs): The President meets alone with Lewinsky in
the Oval Office study. (No Sexual Encounter)
12/6/97 (Sat): The President meets alone with Lewinsky in the
Oval Office study. (No Sexual Encounter)
12/28/97 (Sun): The President meets alone with Lewinsky in
the Oval Office study. (No Sexual Encounter)
____
[Chart B]
THE PRESIDENT'S TELEPHONE CONTACTS WITH LEWINSKY
1/7/96 (Sun): Conversation--first call to ML's home.
1/7/96 (Sun): Conversation--ML at office.
1/15 or 1/16/96 (Mon or Tue): Conversation, approx. 12:30
a.m.--ML at home.*
Approx. 1/28/96 (Sun): Caller ID on ML's office phone
indicated POTUS call.
1/30/96 (Tues): Conversation--during middle of workday at
ML's office.
2/4/96 (Sun): Conversations--ML at office--multiple calls.
2/7 or 2/8/96 (Wed or Thur): Conversation--ML at home.
2/8 or 2/9/96 (Thur or Fri): Conversation--ML at home.*
2/19/96 (Mon): Conversation--ML at home.
Approx. 2/28 2/28 or 3/5/96: Conversation--approx. 20 min.--
after chance meeting in hallway--ML at home.
3/26/96 (Tues): Conversation--approx. 11 a.m.--ML at office.
3/29/96: Conversation--ML at office--approx. 8 p.m.--
invitation to movie.
3/31/96: Conversation--ML at office--approx. 1 p.m.--Pres.
ill.
4/7/96 (Easter Sunday): Conversation----ML at home.
4/7/96 (Easter Sunday): Conversation--ML at home--why ML
left.
4/12/96 (Fri): Conversation--ML at home--daytime.
4/12 or 4/13/96 (Fri or Sat): Conversation--ML at home--after
midnight.
4/22/96 (Mon): Conversations--job talk--ML at home.
4/29 or 4/30/96 (Mon or Tues): Message--after 6:30 a.m.
5/2/96 (Thur): Conversation--ML at home.*
5/6/96 (Mon): Possible phone call.
5/16/96 (Thur): Conversation--ML at home.
5/21/96 (Tues): Conversation--ML at home.*
5/31/96 (Fri): Message.
6/5/96 (Wed): Conversation--ML at home--early evening.
6/23/96 (Sun): Conversation--ML at home.*
7/5 or 7/6/96 (Fri or Sat): Conversation--ML at home.*
7/19/96 (Fri): Conversation--6:30 a.m.--ML at home.*
7/28/96 (Sun): Conversation--ML at home.
8/4/96 (Sun): Conversation--ML at home.*
8/24/96 (Sat): Conversation--ML at home.*
9/5/96 (Thur): Conversation--Pres. In Fla--ML at home.*
9/10/96 (Tues): Message.
9/30/96 (Mon): Conversation.*
10/22/96 (Tues): Conversation--ML at home.*
10/23 or 10/24/96 (early am): Conversation--ML at home.
12/2/96 (Mon): Conversation--approx. 10-15 min.--ML at home.
12/2/96 (Mon): Conversation--later that evening--ML at home--
approx. 10:30 p.m.--Pres fell asleep.*
12/18/96 (Wed): Conversation--approx. 5 min.--10:30 p.m.--ML
at home.
12/30/96 (Mon): Message.
1/12/97 (Sun): Conversation--job talk--ML at home.*
2/8/97 (Sat): Conversation--ML at home--mid-day--11:30-12:00.
2/8/97 (Sat): Conversation--job talk--1:30 or 2:00 p.m.--ML
at home.*
3/12/97 (Wed): Conversation--three minutes--ML at work.
4/26/97 (Sat): Conversation--late afternoon--20 min.--ML at
home.
5/17/97 (Sat): Conversations--multiple calls.
5/18/97 (Sun): Conversations--multiple calls.
7/15/97 (Tues): Conversation--ML at home.
8/1/97 (Fri): Conversation.
9/30/97 (Tues): Conversation.*
10/9 or 10/10/97 (Thur or Fri): Conversation--long, from 2 or
2:30 a.m. until 3:30 or 4:00 a.m.--job talk--argument--
ML at home.
10/23/97 (Thur): Conversation--ML at home--end b/c HRC.
10/30/97 (Thur): Conversation--ML at home--interview prep.
11/12/97 (Wed): Conversation--discuss re: ML visit.*
12/6/97 (Sat): Conversation--approx. 30 min--ML at home.
12/17/ or 12/18/97 (Wed or Thur): Conversation--b/t 2:00 a.m.
and 3:00 a.m.--ML at home--witness list.
1/5/98 (Mon): Conversation.
*Conversation that involved and may have involved phone sex.
[Chart C]
LEWINSKY GIFTS TO THE PRESIDENT
10/24/95: Lewinsky (before the sexual relationship began)
gives her first gift to The President of a matted poem
given by her and other White House interns to
commemorate ``National Boss' Day''. It is the only gift
the President sent to the archives instead of keeping.
11/20/95: Lewinsky gives The President a Zegna necktie.
3/31/96: Lewinsky gives The President a Hugo Boss Tie.
Christmas 1996: Lewinsky gives The President a Sherlock Homes
game and a glow in the dark frog.
Before 8/16/96: Lewinsky gives The President a Zegna necktie
and a t-shirt from Bosnia.
Early 1997: Lewinsky gives The President Oy Ve, a small golf
book, golf balls, golf tees, and a plastic pocket frog.
3/97: Lewinsky gives The President a care package after he
injured his leg including a metal magnet with The
Presidential seal for his crutches, a license plate
with ``Bill'' for his wheelchair, and knee pads with
The Presidential seal.
3/29/97: Lewinsky gives The President her personal copy of
Vox, a book about phone sex, a penny medallion with the
heart cut out, a framed Valentine's Day ad, and a
replacement for the Hugo Boss tie that had the bottom
cut off.
5/24/97: Lewinsky gives The President a Banana Republic
casual shirt and a puzzle on gold mysteries.
7/14/97: Lewinsky gives The President a wooden B, with a frog
in it from Budapest.
Before 8/16/97: Lewinsky gives The President The Notebook.
8/16/97: Lewinsky gives The President an antique book on
Peter the Great, the card game ``Royalty'', and a book,
Disease and Misrepresentation.
10/21/97 or 10/22/97: Lewinsky gives The President a Calvin
Klein tie, and pair of sunglasses.
10/97: Lewinsky gives The President a package Before filled
with Halloween-related items, such as a Halloween
pumpkin lapel pin, a wooden letter opener with a frog
on the handle, and a plastic pumpkin filled with candy.
11/13/97: Lewinsky gives The President an antique paperweight
that depicted the White House.
12/6/97: Lewinsky gives The President Our Patriotic
President: His Life in Pictures, Anecdotes, Sayings,
Principles and Biography; an antique standing cigar
holder; a Starbucks Santa Monica mug; a Hugs and Kisses
box; and a tie from London.
12/28/97: Lewinsky gives The President a hand-painted Easter
Egg and ``gummy boobs'' from Urban Outfitters.
1/4/98: Lewinsky gives Currie a package with her final gift
to The President containing a book entitled The
Presidents of the United States and a love note
inspired by the movie Titanic.
____
[Chart D]
THE PRESIDENT'S GIFTS TO LEWINSKY
12/5/95: The President gives Lewinsky an autographed photo of
himself wearing the Zenga necktie she gave him.*
2/4/96: The President gives Lewinsky a signed ``State of the
Union'' Address.*
3/31/96: The President gives Lewinsky cigars.
2/28/97: The President gives Lewinsky a hat pin*,
``Davidoff'' cigars, and the book the Leaves of Grass
by Walt Whitman as belated Christmas gifts.
The President gives Lewinsky a gold brooch.*
The President gives Lewinsky an Annie Lennox
compact disk.
The President gives Lewinsky a cigar.
7/24/97: The President gives Lewinsky an antique flower pin
in a wooden box, a porcelain object d'art, and a signed
photograph of the President and Lewinsky.*
Early 9/97: The President brings Lewinsky several Black Dog
items, including a baseball cap*, 2 T-shirts*, a hat
and a dress.*
12/28/97: The President gives Lewinsky the largest number of
gifts including:
1. a large Rockettes blanket,*
2. a pin of the New York skyline,*
3. a marblelike bear's head from Vancouver,*
4. a pair of sunglasses,*
5. a small box of cherry chocolates,
6. a canvas bag from the Black Dog,*
7. a stuffed animal wearing a T-shirt from the
Black Dog.*
(*Denotes those items Lewinsky produced to the OIC on 7/29/
98).
____
[GRAPHIC] [TIFF OMITTED] TS14JA99.000
[Chart F]
LEWINSKY SUBPOENA
Jones v. Clinton
December 19, 1997
The Jones v. Clinton subpoena to Lewinsky called for:
(1) Her testimony on January 23, 1998 at 9:30 a.m.;
(2) Production of ``each and every gift including but not
limited to, any and all dresses, accessories, and
jewelry, and/or hat pins given to you by, or on behalf
of, Defendant Clinton;'' and
(3) ``Every document constituting or containing
communications between you and Defendant Clinton,
including letters, cards, notes, memoranda and all
telephone records.''
____
[Chart G]
DECEMBER 19, 1997
(Friday)
Lewinsky is Served with a Subpoena in Jones v. Clinton
1:47-1:48 p.m.: Lewinsky telephones Jordan's office.
3:00-4:00 p.m.: Lewinsky is served with a subpoena in Jones
v. Clinton.
--: Lewinsky telephones Jordan immediately about subpoena.
3:51-3:52 p.m.: Jordan telephones The President and talks to
Debra Schiff.
4:17-4:20 p.m.: Jordan telephones White House Social Office.
4:47 p.m.: Lewinsky meets Jordan and requests that Jordan
notify The President about her subpoena.
5:01-5:05 p.m.: The President telephones Jordan; Jordan
notifies The President about Lewinsky's subpoena.
5:06 p.m.: Jordan telephones attorney Carter to represent
Lewinsky.
Later that Evening: The President meets alone with Jordan at
the White House.
____
[Chart H]
DECEMBER 23, 1997
Jones v. Clinton Interrogatory No. 10
Interrogatory No. 10: Please state the name, address, and
telephone number of each and every individual (other than
Hillary Rodham Clinton) whom you had sexual relations when
you held any of the following positions:
a. Attorney General of the State of Arkansas;
b. Governor of the State of Arkansas;
c. President of the United States.
(Court modifies scope to incidents from May 8, 1986 to the
present involving state or federal employees.)
Supplemental Response to Interrogatory No. 10 (as modified
by direction of the Court): None.
____
[Chart I]
DECEMBER 23, 1997
Jones v. Clinton Interrogatory No. 11
Interrogratory No. 11: Please state the name, address, and
telephone number of each and every individual (other than
Hillary Rodham Clinton) with whom you sought to have sexual
relations, when you held any of the following positions:
a. Attorney General of the State of Arkansas;
b. Governor of the State of Arkansas;
c. President of the United States.
(Court modifies scope to incidents from May 8, 1986 to the
present involving state or federal employees.)
Supplemental Response to Interrogatory No. 11 (as modified
by direction of the Court): None.
____
[Chart J]
DECEMBER 28, 1997
(Sunday)
The President's Final Meeting with Lewinsky and The Concealment of the
Gifts to Lewinsky
8:16 a.m.: Lewinsky meets The President at the White House at
Currie's direction.
The President gives Lewinsky numerous gifts.
The President and Lewinsky discuss the
subpoena, calling for, among other things, the hat
pin. The President acknowledges ``that sort of
bothered [him] too.''
Lewinsky states to The President: ``Maybe I
should put the gifts away outside my house somewhere
or give them to someone, maybe Betty [Currie].''
3:32 p.m.: Currie telephones Lewinsky at home from Currie's
cell phone.
``I understand you have something to give me.'' or
``The President said you have something to give me.''
Later that Day: Currie picks up gifts from Lewinsky.
____
[GRAPHIC] [TIFF OMITTED] TS14JA99.001
[Chart L]
THE PRESIDENT'S STATEMENTS ABOUT CONCEALING GIFTS
12/28/97
``[Lewinsky]: And then at some point I said to him [The
President], `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.''--(Lewinsky Grand Jury 8/6/98 Tr. 152)
____
[Chart M]
AFFIDAVIT OF JANE DOE #
1. My name is Jane Doe # . I am 24 years old and I
currently reside at 700 New Hampshire Avenue, NW.,
Washington, DC 20037.
2. On December 19, 1997, I was served with a subpoena from
the plaintiff to give a deposition and to produce documents
in the lawsuit filed by Paula Corbin Jones against President
William Jefferson Clinton and Danny Ferguson.
3. I can not fathom any reason that the plaintiff would
seek information from me for her case.
4. I have never met Ms. Jones, nor do I have any
information regarding the events she alleges occurred at the
Excelsior Hotel on May 8, 1991 or any other information
concerning any of the allegations in her case.
5. I worked at the White House in the summer of 1995 as a
White House intern. Beginning in December, 1995, I worked in
the Office of Legislative Affairs as a staff assistant for
correspondence. In April, 1996, I accepted a job as assistant
to the Assistant Secretary for Public Affairs at the U.S.
Department of Defense. I maintained that job until December
26, 1997. I am currently unemployed but seeking a new job.
6. In the course of my employment at the White House, I met
President Clinton on several occasions. I do not recall ever
being alone with the President, although it is possible that
while working in the White House Office of Legislative
Affairs I may have presented him with a letter for his
signature while no one else was present. This would have
lasted only a matter of minutes.
7. I have the utmost respect for the President who has
always behaved appropriately in my presence.
8. I have never had a sexual relationship with the
President, he did not propose that we have a sexual
relationship, he did not offer me employment or other
benefits in exchange for a sexual relationship, he did not
deny me employment or other benefits for rejecting a sexual
relationship. I do not know of any other person who had a
sexual relationship with the President, was offered
employment or other benefits in exchange for a sexual
relationship, or was denied employment or other benefits for
rejecting a sexual relationship. The occasions that I saw the
President, with crowds of other people, after I left my
employment at the White House in April, 1996 related to
official receptions, formal functions or events related to
the U.S. Department of Defense, where I was working at the
time. There were other people present on all of these
occasions.
9. Since I do not possess any information that could
possibly be relevant to the allegations made by Paula Jones
or lead to admissible evidence in this case, I asked my
attorney to provide this affidavit to plaintiff's counsel.
Requiring my deposition in this matter would cause
unwarranted attorney's fees and costs, disruption of my life,
especially since I am looking for employment, and constitute
an invasion of my right to privacy.
I declare under the penalty of perjury that the foregoing
is true and correct.
Monica S. Lewinsky.
DISTRICT OF COLUMBIA, ss:
Monica S. Lewinsky, being first duly sworn on oath
according to law, deposes and says that she has read the
foregoing Affidavit of Jane Doe # by her subscribed, that the
matters stated herein are true to the best of her
information, knowledge and belief.
Monica S. Lewinsky.
Subscribed and sworn to before me this ______ day of
__________, 1998.
__________________________
Notary Public, D.C.
My Commission expires: ________
____
[Chart N]
FINAL AFFIDAVIT OF JANE DOE #6 [LEWINSKY]
1/7/98
8. I have never had a sexual relationship with the President,
he did not propose that we have a sexual relationship,
he did not offer me employment or other benefits in
exchange for a sexual relationship, he did not deny me
employment or other benefits for rejecting a sexual
relationship. I do not know of any other person who had
a sexual relationship with the President, was offered
employment or other benefits in exchange for a sexual
relationship, or was denied employment or other
benefits for rejecting a sexual relationship. The
occasions that I saw the President after I left my
employment at the White House in April, 1996, were
official receptions, formal functions or events related
to the U.S. Department of Defense, where I was working
at the time. There were other people present on those
occasions.
____
[Chart O]
LEWINSKY'S AFFIDAVIT GETS FILED
(1/14/98-1/17/98)
January 14, 1998 (Wednesday)
7:45 p.m.: Bennett's firm (Sexton) leaves Carter telephone
message.
--: Carter faxes signed affidavit to Bennett's firm.
January 15, 1998 (Thursday)
9:17 a.m.: Sexton leaves Carter telephone message.
12:59 p.m.: Sexton leaves Carter telephone message.
--: Currie called by Newsweek.
--: Lewinsky drives Currie to meet Jordan.
--: Sexton telephones Carter: ``STILL ON TIME?''
--: Carter telephones Court Clerk for Saturday (1/17/98)
Filing of Affidavit and motion to quash.
January 16, 1998 (Friday)
2 a.m. (Approx.): Carter completes motion to quash Lewinsky's
deposition.
Carter sends by overnight mail motion to quash and
affidavit to Bennett's firm and to the Court.
11:30 a.m.: Sexton message to Carter: ``Please call.''
January 17, 1998 (Saturday)
--: Lewinsky Affidavit is submitted to the Court.
--: The President is deposed.
____
[Chart P]
MISSION ACCOMPLISHED: LEWINSKY SIGNS AFFIDAVIT AND GETS A NEW YORK JOB
(1/5/98-1/9/98)
January 5, 1998
Lewinsky meets with attorney Carter for an hour; Carter
drafts an Affidavit for Lewinsky in an attempt to avert
her deposition testimony in Jones v. Clinton scheduled
for January 23, 1998.
Lewinsky telephones Currie stating that she needs to speak to
the President about an important matter; specifically
that she was anxious about something she needed to
sign--an Affidavit.
The President returns Lewinsky's call; Lewinsky mentions the
Affidavit she'd be signing; Lewinsky offers to show the
Affidavit to The President who states that he doesn't
need to see it because he has already seen about
fifteen others.
january 6, 1998
11:32 a.m.: Carter pages Lewinsky: ``Please call Frank
Carter.'' Lewinsky meets Carter and receives draft
Affidavit.
2:08-2:10 p.m.: Jordan calls Lewinsky. Lewinsky delivers
draft Affidavit to Jordan.
3:14 p.m.: Carter again pages Lewinsky: ``Frank Carter at
[telephone number] will see you tomorrow morning at
10:00 in my office.''
3:26-3:32 p.m.: Jordan telephones Carter.
3:38 p.m.: Jordan telephones Nancy Hernreich, Deputy
Assistant to The President.
3:48 p.m.: Jordan telephones Lewinsky.
3:49 p.m.: Jordan telephones Lewinsky to discuss draft
Affidavit. Both agree to delete implication that she
had been alone with The President.
4:19-4:32 p.m.: The President telephones Jordan.
4:32 p.m.: Jordan telephones Carter.
4:34-4:37 p.m.: Jordan again telephones Carter.
5:15-5:19 p.m.: Jordan telephones White House.
9:26-9:29 a.m.: Jordan telephones Carter.
10:00 a.m.: Lewinsky signs false Affidavit at Carter's
Office.
--: Lewinsky delivers signed Affidavit to Jordan.
11:58 a.m.-12:09 p.m.: Jordan telephones the White House.
5:46-5:56 p.m.: Jordan telephones the White House
(Hernreich's Office).
6:50-6:54 p.m.: Jordan telephones the White House and tells
The President that Lewinsky signed an Affidavit.
january 8, 1998
9:21 a.m.: Jordan telephones the White House Counsel's
Office.
9:21 a.m.: Jordan telephones the White House.
--: Lewinsky interviews in New York at MacAndrews & Forbes
Holdings, Inc. (MFH)
11:50-11:51 a.m.: Lewinsky telephones Jordan.
3:09-3:10 p.m.: Lewinsky telephones Jordan.
4:48-4:53 p.m.: Lewinsky telephones Jordan and advises that
the New York MFH Interview went ``Very Poorly.''
4:54 p.m.: Jordan telephones Ronald Perelman in New York, CEO
of Revlon (subsidiary of MFH) ``to make things happen .
. . if they could happen.''
4:56 p.m.: Jordan telephones Lewinsky stating, ``I'm doing
the best I can to help you out.''
6:39 p.m.: Jordan telephones White House Counsel's Office
(Cheryl Mills), possibly about Lewinsky.
Evening: Revlon in New York telephones Lewinsky to set up a
follow-up interview.
9:02-9:03 p.m.: Lewinsky telephones Jordan about Revlon
interview in New York.
january 9, 1998
--: Lewinsky interviews in New York with Senior V.P. Seidman
of MacAndrews & Forbes and two Revlon individuals.
Lewinsky offered Revlon job in New York and
accepts.
1:29 p.m.: Lewinsky telephones Jordan.
4:14 p.m.: Lewinsky telephones Jordan to say that Revlon
offered her a job in New York.
Jordan notifies Currie: ``Mission Accomplished''
and requests she tell The President.
Jordan notifies The President of Lewinsky's New
York job offer. The President replies ``Thank you
very much.''
4:37 p.m.: Lewinsky telephones Carter.
5:04 p.m.: Lewinsky telephones Jordan.
5:05 p.m.: Lewinsky telephones Currie.
5:08 p.m.: The President telephones Currie.
5:09-5:11 p.m.: Lewinsky telephones Jordan.
5:12 p.m.: Currie telephones The President.
5:18-5:20 p.m.: Jordan telephones Lewinsky.
5:21-5:26 p.m.: Lewinsky telephones Currie.
____
[Chart Q]
THE PRESIDENT'S INVOLVEMENT WITH LEWINSKY JOB SEARCH
``Q Why are you trying to tell someone at the White House
that this has happened [Carter had been fired]?
[Jordan]: Thought they had a right to know.
Q Why?
[Jordan]: The President asked me to get Monica Lewinsky a
job. I got her a lawyer. The Drudge Report is out and
she has new counsel. I thought that was information
that they ought to have . . . .'' (Jordan Grand Jury 6/
9/98 Tr. 45-46)
``Q Why did you think the President needed to know that Frank
Carter had been replaced?
[Jordan]: Information. He knew that I had gotten her a job,
he knew that I had gotten her a lawyer. Information. He
was interested in this matter. He is the source of it
coming to my attention in the first place . . . .''
(Jordan Grand Jury 6/9/98 Tr. 58-59)
____
[Chart R]
JORDAN'S PRE-WITNESS LIST JOB SEARCH EFFORTS
``[Jordan]: I have no recollection of an early November
meeting with Ms. Monica Lewinsky. I have absolutely no
recollection of it and I have no record of it.''
(Jordan Grand Jury 3/3/98 Tr. 50)
* * * * *
``Q Is it fair to say that back in November getting Monica
Lewinsky a job on any fast pace was not any priority of
yours?
[Jordan]: I think that's fair to say.'' (Jordan Grand Jury 5/
5/98 Tr. 76)
* * * * *
``[Lewinsky]: [Referring to 12/6/97 meeting with the
President]. I think I said that . . . I was supposed to
get in touch with Mr. Jordan the previous week and that
things did not work out and that nothing had really
happened yet [on the job front].
Q Did the President say what he was going to do?
[Lewinsky]: I think he said he would--you know, this was not
sort of typical of him, to sort of say, `Oh, I'll talk
to him. I'll get on it.' '' (Lewinsky Grand Jury 8/6/98
Tr. 115-116)
* * * * *
``Q But what is also clear is that as of this date, December
11th, you are clear that at that point you had made a
decision that you would try to make some calls to help
get her a job.
[Jordan]: There is no question about that.'' (Jordan Grand
Jury 5/5/98 Tr. 95)
[Chart S]
January 17, 1998
Saturday
4:00 p.m. (approx): THE PRESIDENT finishes
testifying under oath in Jones v. Clinton, et al.
5:19 p.m.: Jordan telephones White House.
5:38 p.m.: THE PRESIDENT telephones Jordan at home.
7:02 p.m.: THE PRESIDENT telephones Currie at home
but does not speak with her.
702: p.m.: THE PRESIDENT places a call to Jordan's
office.
7:13 p.m.: THE PRESIDENT telephones Currie at home
and asks her to meet with him on Sunday.
January 18, 1998
Sunday
6:11 a.m.: Drudge Report Released.
--: The President learns of the Drudge Report and
[Tripp] tapes.
11:49 a.m.: Jordan telephones the White House.
12:30 p.m.: Jordan has lunch with Bruce Lindsey.
Lindsey informs Jordan about the Drudge Report and
[Tripp] tapes.
12:50 p.m.: THE PRESIDENT telephones Jordan at home.
1:11 p.m.: THE PRESIDENT telephones Currie at home.
2:15 p.m.: Jordan telephones the White House.
2:55 p.m.: Jordan telephones THE PRESIDENT.
5:00 p.m.: THE PRESIDENT meets with Currie,
concerning his contacts with Lewinsky.
5:12 p.m.: Currie pages Lewinsky: ``Please call Kay
at home.''
6:22 p.m.: Currie pages Lewinsky: ``Please call Kay
at home.''
7:06 p.m.: Currie pages Lewinsky: ``Please call Kay
at home.''
7:19 p.m.: Jordan telephones Cheryl Mills, White
House Counsel's Office.
8:28 p.m.: Currie pages Lewinsky: ``Call Kay.''
10:09 p.m.: Lewinsky telephones Currie at home.
11:02 p.m.: THE PRESIDENT telephones Currie at home
and asks if she reached Lewinsky.
January 19, 1998
Monday--Martin Luther King Day
7:02 a.m.: Currie pages Lewinsky: ``Please call Kay
at home at 8:00 this morning.''
8:08 a.m.: Currie pages Lewinsky: ``Please call Kay
.''
8:33 a.m.: Currie pages Lewinsky: ``Please call Kay
at home.''
8:37 a.m.: Currie pages Lewinsky: ``Please call Kay
at home. It's a social call. Thank you.''
8:41 a.m.: Currie pages Lewinsky: ``Kay is at home.
Please call.''
8:43 a.m.: Currie telephones The President from home
to say she has been unable to reach Lewinsky.
8:44 a.m.: Currie pages Lewinsky: ``Please call Kate
re: family emergency.''
8:50 a.m. THE PRESIDENT telephones Currie at home.
8:51 a.m.: Currie pages Lewinsky: ``Msg. From Kay.
Please call, have good news.''
8:56 a.m.: THE PRESIDENT telephones Jordan at home.
10:29 a.m.: Jordan telephones the White House from
his office.
10:35 a.m.: Jordan telephones Nancy Hernreich at the
White House.
10:36 a.m.: Jordan pages Lewinsky: ``Please call Mr.
Jordan at [number redacted].''
10:44 a.m.: Jordan telephones Erskine Bowles at the
White House.
10:53 a.m.: Jordan telephones Carter.
10:58 a.m.: THE PRESIDENT telephones Jordan at his
office.
11:04 a.m.: Jordan telephones Bruce Lindsey at the
White House.
11:16 a.m.: Jordan pages Lewinsky: ``Please call Mr.
Jordan at [number redacted].''
11:17 a.m.: Jordan telephones Lindsey at the White
House.
12:31 p.m.: Jordan telephones the White House from a
cellular phone.
--:Jordan lunches with Carter.
1:45 p.m.: THE PRESIDENT telephones Currie at home.
2:29 p.m.: Jordan telephones the White House from a
celluar phone.
2:44 p.m.: Jordan enters the White House and over
the course of an hour meets with THE PRESIDENT, Erskine
Bowles, Bruce Lindsay, Cheryl Mills, Charles Ruff, Rahm
Emanuel and others.
2:46 p.m.: Carter pages Lewinsky: ``Please call
Frank Carter at [number redacted].''
4:51 p.m.: Jordan telephones Currie at home.
4:53 p.m.: Jordan telephones Carter at home.
4:54 p.m.: Jordan telephones Carter at his office.
Carter informs Jordan that Lewinsky has replaced Carter
with a new attorney.
4:58 p.m.: Jordan telephones Lindsey, White House
Counsel's Office.
4:59 p.m.: Jordan telephones Mills, White House
Counsel's Office.
5:00 p.m.: Jordan telephones Lindsey, White House
Counsel's Office.
5:00 p.m.: Jordan telephones Ruff, White House
Counsel's Office.
5:05 p.m.: Jordan telephones Lindsey, White House
Counsel's Office.
5:05 p.m.: Jordan again telephones Lindsey, White
House Counsel's Office.
5:05 p.m.: Jordan telephones the White House.
5:09 p.m.: Jordan telephones Mills, White House
Counsel's Office.
5:14 p.m.: Jordan telephones Carter concerning his
termination as Lewinsky's attorney.
5:22 p.m.: Jordan telephones Lindsey, White House
Counsel's Office.
5:22 p.m.: Jordan telephones Mills, White House
Counsel's Office.
5:55 p.m.: Jordan telephones Currie at home.
5:56 p.m.: THE PRESIDENT telephones Jordan at his
office; Jordan informs The President that Carter was
fired.
6:04 p.m.: Jordan telephones Currie at home.
6:26 p.m.: Jordan telephones Stephen Goodin, an aide
to THE PRESIDENT.
____
[Chart T]
THE PRESIDENT'S POST-DEPOSITION STATEMENTS TO CURRIE
1/18/98
``I was never really alone with Monica, right?''
``You were always there when Monica was there,
right?''
``Monica came on to me, and I never touched her,
right?''
``You could see and hear everything, right?''
``She wanted to have sex with me, and I cannot do
that.''--(Currie Grand Jury 7/22/98 Tr. 6-7; Currie Grand
Jury 1/27/98 Tr. 70-75)
____
[Chart U]
THE PRESIDENT'S DENIALS
1/21/98
``And it was at that point that he gave his account of what
had happened to me [sic]
and he said that Monica--and it came very fast. He said,
`Monica Lewinsky came at me and made a sexual demand on me.'
He rebuffed her. He said, `I've gone down that road before,
I've caused pain for a lot of people and I'm not going to do
that again.'
She threatened him. She said that she would tell people
they'd had an affair, that she was known as the stalker among
her peers, and that she hated it and if she had an affair or
said she had an affair then she wouldn't be the stalker any
more.''--(Blumenthal Grand Jury 6/4/98 Tr. 49)
``And he said, `I feel like a character in a novel. I feel
like somebody who is surrounded by an oppressive force that
is creating a lie about me and I can't get the truth out. I
feel like the character in the novel Darkness at Noon.'
And I said to him, I said, `When this happened with Monica
Lewinsky, were you alone? He said, `Well, I was within
eyesight or earshot of someone.'''--(Blumenthal Grand Jury 6/
4/98 Tr. 50)
____
[Chart V]
``Q. Okay. Share that with us.
A. Well, I think he said--he said that--there was some
spate of, you know, what sex acts were counted, and he said
that he had never had sex with her in any way whatsoever--
Q. Okay.
A--that they had not had oral sex''--(John Podesta Grand
Jury 6/16/98 Tr. 92)
* * * * *
``And I said, `They're just too shocked by this. It's just
too new, it's too raw.' And I said, `And the problem is
they're willing to forgive you [The President] for adultery,
but not for perjury or obstruction of justice or the various
other things.'''--(Dick Morris Grand Jury 8/18/98 Tr. 10, 12,
20)
* * * * *
``And I said, `They're just not ready for it,' meaning the
voters.' And he [The President] said, `Well, we just have to
win, then.'''--(Dick Morris Grand Jury 8/18/98 Tr. 30)
____
[Chart W]
``TALKING POINTS'' *
January 24, 1998
* * * * *
``Q. Well, for example, Ms. Lewinsky is on tape indicating
that the President does not believe oral sex is adultery.
Would oral sex, to the President, constitute a sexual
relationship?''
``A: Of course it would.''
* * * * *
* Produced by the White House pursuant to OIC Subpoena.
____
[Chart X]
THE PRESIDENT CLAIMS HE WAS TRUTHFUL WITH AIDES
[President]: And so I said to them things that were true
about this relationship. That I used--in the language I used,
I said, there's nothing going on between us. That was true. I
said, I have not had sex with her as I defined it. That was
true. And did I hope that I would never have to be here on
this day giving this testimony? Of course.
But I also didn't want to do anything to complicate this
matter further. So I said things that were true. They may
have been misleading, and if they were I have to take
responsibility for it, and I'm sorry.--(The President Grand
Jury 8/17/98 Tr. 106)
____
[Chart Y]
GRAND JURY WITNESSES
A person testifying before a federal grand jury has three
options under the law:
(1) To obey the oath and testify to the truth, the whole
truth and nothing but the truth;
(2) To lie;
(3) To assert the Fifth Amendment or another legally
recognized privilege.
____
[Chart Z]
PRESIDENT'S STATEMENT GRAND JURY TESTIMONY
``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 encounters 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 defined at my
January 17th, 1998 deposition; and questions concerning
alleged subornation of perjury, obstruction of justice, and
intimidation of witnesses. That, Mr. Bittman, is my
statement.''
____
Table of Contents
Exhibits
Telephone records
(1) Summary chart, 12/19/97
(2) Currie Cell phone records, 12/28/97
(3) Summary chart, 1/6/98
(4) Summary chart, 1/7/98
(5) Summary chart, 1/15/98-1/16/98
(6) Summary chart, 1/17/98
(7) Summary chart, 1/18/98
(8) Summary chart, 1/19/98
Court Documents
(9) Jones v. Clinton. Jan. 29, 1998 District Court Order
regarding discovery
(10) President Clinton's Answer to First Amended Complaint.
Jones v. Clinton
(11) In re: Sealed Case, Nos. 98-3053 & 3059, U.S. court of
Appels, District of Columbia
(12) Jane Doe #6 (Lewinsky) Affidavit filed in Jones v.
Clinton
(13) ``Sexual Relations'' definition
Miscellaneous
(14) 1/18/98 Drudge Report
(15) Jones' attorneys fax cover sheet of witness list to
Bennett
(16) White House ``Talking Points,'' January 24, 1998
(17) LA Times 1/25/98 Article regarding White House
``Talking Points''
(18) Response of William J. Clinton to Judiciary Committee
Questions
(19) President Clinton Grand Jury Tr. 138 L. 16-23 (From GJ
Tape 2)
(20) President Clinton Grand Jury Tr. 100 L. 20-25, Tr. 105
L. 19-25, Tr. 106 L. 1-12 (From GJ Tape 3)
(21) President Clinton Deposition Tr. 75 L. 2-8, Tr. 76 L.
24-25, Tr. 77 L. 1-2, (From Dep. Tape 1)
(22) President Clinton Deposition Tr. 52 L. 18-25, Tr. 53
L. 1-9, 10-18, Tr. 58 L. 22-25, Tr. 59 L. 1-3, 7-16, 17-20
(From Dep. Tape 3)
(23) President Clinton Deposition Tr. 78 L. 4-23, (From
Dep. Tape 4)
(24) President Clinton Deposition Tr. 53 L. 22-25, Tr. 54
L. 1-7, 20-25, Tr. 55 L. 1-3 (From Dep. Tape 5)
(25) President Clinton Deposition Tr. 204 L. 5-14, (From
Dep. Tape 8)
(26) President Clinton Grand Jury Tr. 9-11
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____
[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
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
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;
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
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
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
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
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
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
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
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
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. . . .
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.'').
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
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
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.
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
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
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
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
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
legal theory or factual basis which sustains a defendant's
conviction, a specific unanimity instruction is required.''
United States v. Jackson, 879 F.2d 85, 88 (3d Cir. 1989)
(citing United States v. Beros, 833 F.2d 455, 460 (3d Cir.
1987)). Such instructions are required where the government
charges several criminal acts, any of which alone could have
supported the offense charged, because of the need to provide
sufficient guidance to assure that all members of the jury
were unanimous on the same act or acts of illegality. Id. at
88. As the Seventh Circuit recently concluded in a case
alleging multiple false statements, ``the jury should have
been advised that in order to have convicted [the defendant],
they had to unanimously agree that a particular statement
contained in the indictment was falsely made.'' Fawley, 137
F.2d at 470.
---------------------------------------------------------------------------
Thus, where the charging instrument alleges multiple types
of wrongdoing, the unanimity requirement ``means more than a
conclusory agreement that the defendant has violated the
statute in question; there is a requirement of substantial
agreement as to the principal factual elements underlying a
specified offense.'' United States v. Ferris, 719 F.2d 1405,
1407 (9th Cir. 1983) (emphasis added). Accordingly, although
there need not be unanimity as to every bit of underlying
evidence, due process ``does require unanimous agreement as
to the nature of the defendant's violation, not simply that a
violation has occurred.'' McKoy v. North Carolina, 494 U.S.
433, 449 n.5 (1990) (Blackmun, J., concurring). Such
agreement is necessary to fulfill the demands of fairness and
rationality that inform the requirement of due process. See
Schad, 501 U.S. at 637.\131---------------------------------------------------------------------------
\131\ In our federal criminal process, a duplicitous pleading
problem may sometimes be cured by instructions to the jury
requiring unanimous agreement on a single statement, see
Fawley, supra, but that option is not present here. Not only
do the Senate Rules not provide for the equivalent of jury
instructions, they expressly rule out the prospect of
subdividing an article of impeachment for purposes of voting.
See Senate Impeachment Rule XXIII. Nor is the duplicitousness
problem presented here cured by any specific enumeration of
elements necessary to be found by the factfinder. See, e.g.,
Santarpio v. United States, 560 F.2d 448 (1st Cir. 1977)
(duplicitous charge harmless because indictments adequately
set out the elements of the federal crime; appellants were
not misled or prejudiced). Article I does not enumerate
specific elements to be found by the factfinder. To the
contrary, the Article combines multiple types of wrong,
allegedly performed by different types of statements, the
different types occurring in multiple subject matter areas,
and all having a range of allegedly harmful effects.
---------------------------------------------------------------------------
Where multiple accusations are combined in a single charge,
neither the accused nor the factfinder can know precisely
what that charge means. When the factfinder body cannot agree
upon the meaning of the charge, it cannot reach genuine
agreement that conviction is warranted. These structural
deficiencies preclude a constitutionally sound vote on the
articles.
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
Impermissibly vague indictments must be dismissed, because
they ``fail[] to sufficiently apprise the defendant `of what
he must be prepared to meet.' '' United States v. Russell,
369 U.S. 749, 764 (1962) (internal quotation omitted). In
Russell, the indictment at issue failed to specify the
subject matter about which the defendant had allegedly
refused to answer questions before a Congressional
subcommittee. Instead, the indictment stated only that the
questions to which the answers were refused ``were pertinent
to the question then under inquiry'' by the Subcommittee. Id.
at 752. The Court held that because the indictment did not
provide sufficient specificity, it was unduly vague and
therefore had to be dismissed. Id. at 773. The Supreme Court
explained that dismissal is the only appropriate remedy for
an unduly vague indictment, because only the charging body
can elaborate upon vague charges:
``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 grant 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 . .
.''
Id. at 771. See also Stirone v. United States, 361 U.S. 212,
216 (1960); see also United States v. Lattimore, 215 F.2d 847
(D.C. Cir. 1954) (perjury count too vague to be valid cannot
be cured even by bill of particulars); United States v.
Tonelli, 557 F.2d 194, 200 (3d Cir. 1978) (vacating perjury
conviction where ``the indictment . . . did not `set forth
the precise falsehood[s] alleged' '').
Under the relevant case law, the two exhibited Articles
present paradigmatic examples of charges drafted too vaguely
to enable the accused to meet the accusations fairly. More
than a century ago, the Supreme Court stated that ``[i]t is
an elementary principle of criminal pleading, that where the
definition of an offence, whether it be at common law or by
statute, includes generic terms, it is not sufficient that
the indictment shall charge the offence in the same generic
terms as in the definition; but it must state the species--it
must descend to particulars.'' United States v. Cruikshank,
92 U.S. 542, 558 (1875). The Court has more recently
emphasized the fundamental ``vice'' of nonspecific
indictments: that they ``fail[] to sufficiently apprise the
defendant `of what he must be prepared to meet.' '' Russell,
369 U.S. at 764.
The Supreme Court emphasized in Russell that specificity is
important not only for the defendant, who needs particulars
to prepare a defense, but also for the decision-maker, ``so
it may decide whether [the facts] are sufficient in law to
support a conviction, if one should be had.'' Id. at 768
(internal citation and quotation marks omitted). An
unspecific indictment creates a ``moving target'' for the
defendant exposing the defendant to a risk of surprise
through a change in the prosecutor's theory. ``It enables his
conviction to rest on one point and the affirmance of the
conviction to rest on another. It gives the prosecution free
hand on appeal to fill in the gaps of proof by surmise and
conjecture.'' Russell, 369 U.S. at 766. Ultimately, an
unspecific indictment creates a risk that ``a defendant could
. . . be convicted on the basis of facts not found by, and
perhaps not even presented to, the grand jury which indicted
him.'' Id. at 770.
2. The Allegations of Both Articles Are Unconstitutionally
Vague
Article I alleges that in his August 17, 1998 grand jury
testimony, President Clinton provided ``perjurious, false and
misleading'' testimony to the grand jury concerning ``one or
more'' of four subject areas. Article I does not, however,
set forth a single specific statement by the President upon
which its various allegations are predicated. The Article
haphazardly intermingles alleged criminal conduct with
totally lawful conduct, and its abstract generalizations
provide no guidance as to actual alleged perjurious
statements.
Aritcle I thus violates the most fundamental requirement of
perjury indictments. It is fatally vague in three distinct
respects: (1) it does not identify any statements that form
the basis of its allegations,\132\ (2) it therefore does not
specify which of the President's statements to the grand jury
were allegedly ``perjurious,'' which were allegedly
``false,'' and which were allegedly ``misleading,'' and (3)
it does not even specify the subject matter of any alleged
perjurious statement.
---------------------------------------------------------------------------
\132\ One of the cardinal rules of perjury cases is that
``[a] conviction under 18 U.S.C. Sec. 1623 may not stand
where the indictment fails to set forth the precise falsehood
alleged and the factual basis of its falsity with sufficient
clarity to permit a jury to determine its verity and to allow
meaningful judicial review of the materiality of those
falsehoods.'' United States v. Slawik, 548 F.2d 75, 83-84 (3d
Cir. 1977). Courts have vacated convictions for perjury in
instances where ``the indictment . . . did not `set forth the
precise falsehood(s) alleged.'' Tonelli, 577 F.2d at 200.
---------------------------------------------------------------------------
The first defect is fatal, because it is axiomatic that if
the precise perjurious statements are not identified in the
indictment, a defendant cannot possibly prepare his defense
properly. See, e.g., Slawik, 548 F.2d 75, 83-84 (3d Cir.
1977). Indeed, in past impeachment trails in the Senate where
articles of impeachment alleged the making of false
statements, the false statements were specified in the
Articles. For example, in the impeachment trial of Alcee L.
Hastings, Articles of Impeachment II-XIV specified the exact
statements that formed the bases of the false statement
allegations against Judge Hastings.\133\ Similarly, in the
impeachment trial of Walter L. Nixon, Jr., Articles of
Impeachment I-III specified the exact statements that formed
the bases of their false statement allegations.\134\ In this
case, Article I falls far short of specificity standards
provided in previous impeachment trials in the Senate.
---------------------------------------------------------------------------
\133\ Proceedings of the United States Senate in the
Impeachment Trial Alcee L. Hastings, 101st Cong., 1st. Sess.,
S. Doc. 101-18 at 4-7 (1989). See, e.g., Id. at 2 (Article II
alleging that the false statement was ``that Judge Hastings
and Wiliam Borders, of Washington, D.C., never made any
agreement to solicit a bribe from defendants in United States
v. Romano, a case tried before Judge Hastings'').
\134\ Proceedings of the United States Senate in the
Impeachment Trial of Walter L. Nixon, Jr., 101st Cong., 1st
Sess., S. Doc. 101-22 at 430-32 (1989). See, e.g., Id., at
432 (Article I alleging that the false statement was
``Forrest County District Attorney Paul Holmes never
discussed the Drew Fairchild case with Judge Nixon.'').
---------------------------------------------------------------------------
As to the second vagueness defect, there is a significant
legal difference between, on the one hand, statements under
oath which are ``perjurious,'' and those, on the other hand,
which are simply ``false'' or misleading.'' Only the former
could form the basis of a criminal charge. The Supreme Court
has emphatically held that ``misleading'' statements alone
cannot form the basis of a prejury charge. In Bronston v.
United States, 409 U.S. 352 (1973), the Court held that
literally true statements are by definition non-perjurious,
and ``it is no answer to say that here the jury found that
[the defendant] intended to mislead his examiner,'' since
``[a] jury should not be permitted to enage in conjecture
whether an unresponsive answer. . . was intended to mislead
or divert the examiner.'' Id. at 358-60 (emphasis added). The
Court emphasized that ``the perjury statute is not to be
loosely construed, nor the statue invoked simply because a
wily witness succeeds in derailing the questioner so long as
the witness speakes the literal truth.'' Id. Thus,
specification of the exact statements alleged to be
prejurious is required, because ``to hold otherwise would
permit the trial jury to inject its inferences into the grand
jury's indictment, and would allow defendants to be convicted
for immaterial falsehoods or for `intent to mislead' or
`perjury by implication,' which Bronston specifically
prohibited.'' Slawik, 538 F.2d at 83-84 (emphasis added).
Thus, if the House meant that certain statements were
misleading but literally truthful, they might be subject to a
motion to dismiss on the ground that the offense was not
impeachable.
The same is true for allegedly ``false'' answers, because
it is clear that mere ``false'' answers given under oath,
without more, are not criminal. 18 U.S.C. Sec. 1623, the
statute proscribing perjury before a federal grand jury,
requires additional elements beyond falsity, including the
defendant's specific intent to testify falsely and the
statement's materiality to the proceeding. A defense to a
perjury charge is therefore tied directly to the specific
statement alleged to have been perjurious. Did the defendant
know the particular answer was false? Was it material? \135---------------------------------------------------------------------------
\135\ Not surprisingly, courts have specifically held that
because of these additional elements (the lack of which may
undermine a perjury prosecution), a defendant must know
exactly which statements are alleged to form the basis of a
perjury indictment to test whether the requisite elements are
present. See, e.g., United States v. Lattimore, 215 F.2d 847,
850 (D.C. Cir. 1954) (``The accused is entitled under the
Constitution to be advised as to every element in respect to
which it is necessary for him to prepare a defense''). For
example, because of the intent requirement, one potential
defense to a perjury prosecution is that the question to
which the allegedly perjurious statement was addressed was
fundamentally ambiguous, as courts have held that
fundamentally ambiguous questions cannot as a matter of law
produce perjurious answers. See, e.g., Tonelli, 577 F.2d at
199; United States v. Wall, 371 F.2d 398 (6th Cir. 1967). A
separate defense to a perjury prosecution is that the
statement alleged to have been perjurious was not material to
the proceeding. Thus, ``false'' statements alone are not
perjurious if they were not material to the proceeding. By
not specifying which statements are alleged to be ``false''
or ``misleading,'' Article I precludes the President from
preparing a materiality defense, and it also fails to
distinguish allegedly criminal conduct from purely lawful
conduct. As one court explained,
``It is to be observed that * * * it is not sufficient to
constitute the offense that the oath shall be merely false,
but that it must be false in some `material matter.' Applying
that definition to the facts stated in either count of this
indictment, and it would seem that there is an entire lack in
any essential sense to disclose that the particulars as to
which the oath is alleged to have been false were material in
the essential sense required for purposes of an indictment
for this offense.'' (United States v. Cameron, 282 F. 684,
692 (D. Ariz. 1922).).
---------------------------------------------------------------------------
Article I's third vagueness defect is that it does not
specify the subject matter of the alleged perjurious
statements. Instead, it simply alleges that the unspecified
statements by the President to the grand jury were concerning
``one or more'' of four enumerated areas. The ``one or more''
language underscores the reality that the President--and,
critically, the Senate--cannot possibly know what the House
majority had in mind, since it may have failed even to agree
on the subject matter of the alleged perjury. The paramount
importance of this issue may be seen by reference to court
decisions holding that a jury has to ``unanimously agree that
a particular statement contained in the indictment was
falsely made.'' United States v. Fawley, 137 F.3d 458, 471
(7th Cir. 1998) (emphasis added); see also discussion of
unanimity requirement in Section VI.B, supra.
Article II is also unconstitutionally vague. It alleges
that the President ``obstructed and impeded the
administration of justice * * * in a course of conduct or
scheme designed to delay, impede, cover up and conceal''
unspecified evidence and testimony in the Jones case. It sets
forth seven instances in which the President allegedly
``encouraged'' false testimony or the concealment of
evidence, or ``corruptly influenced'' or ``corruptly
prevented'' various other testimony, also unspecified. In
fact, not only does Article II fail to identify a single
specific act performed by the President in this alleged
scheme to obstruct justice, it does not even identify the
``potential witnesses'' whose testimony the President
allegedly sought to ``corruptly influence.''
The President cannot properly defend against Article II
without knowing, at a minimum, which specific acts of
obstruction and/or concealment he is alleged to have
performed, and which ``potential witnesses'' he is alleged to
have attempted to influence. For example, it is clear that,
in order to violate the federal omnibus obstruction of
justice statute, 18 U.S.C. Sec. 1503, an accuser must prove
that there was a pending judicial proceeding, that the
defendant knew of the proceeding, and that the defendant
acted ``corruptly'' with the specific intent to obstruct or
interfere with the proceeding or due administration of
justice. See, e.g., United States v. Bucey, 876 F.2d 1297,
1314 (7th Cir. 1989); United States v. Smith, 729 F. Supp.
1380, 1383-84 (D.D.C. 1990). Without knowing which
``potential witnesses'' he is alleged to have attempted to
influence, and the precise manner in which he is alleged to
have attempted to obstruct justice, the President cannot
prepare a defense that would address the elements of the
offense with which he has been charged--that he had no intent
to obstruct, that there was no pending proceeding, or that
the person involved was not a potential witness.
It follows that the requisite vote of two-thirds of the
Senate required by the Constitution cannot possibly be
obtained if there are no specific statements whatsoever
alleged to be perjurious, false or misleading in Article I or
no specific acts of obstruction alleged in Article II.
Different Senators might decide that different statements or
different acts were unlawful without any concurrence by two-
thirds of the Senate as to any particular statement or act.
Such a scenario is antithetical to the Constitution's due
process guarantee of notice of specific and definite charges
and it threatens conviction upon vague and uncertain grounds.
As currently framed, neither Article I nor Article II
provides a sufficient basis for the President to prepare a
defense to the unspecified charges upon which the Senate may
vote, or an adequate basis for actual adjudication.
D. The Senate's Judgment Will Be Final and That Judgment Must Speak
Clearly and Intelligibly
An American impeachment trial is not a parliamentary
inquiry into fitness for office. It is not a vote of no
confidence. It is not a mechanism whereby a legislative
majority may oust a President from a rival party on political
grounds. To the contrary, because the President has a limited
term of office and can be turned out in the course of
ordinary electoral processes, a Presidential impeachment
trial is a constitutional measure of last resort designed to
protect the Republic.
This Senate is therefore vested with an extremely grave
Constitutional task: a decision whether to remove the
President for the protection of the people themselves. In the
Senate's hands there rests not only the fate of one man, but
the integrity of our Constitution and our democratic process.
Fidelity to the Constitution and fidelity to the electorate
must converge in the impeachment trial vote. If the Senate is
to give meaning to the Constitution's command, any vote on
removal must be a vote on one or more specifically and
separately identified ``high Crimes and Misdemeanors,'' as
set forth in properly drafted impeachment articles approved
by the House. If the people are to have their twice-elected
President removed by an act of the Senate, that act must be
intelligible. It must be explainable and justifiable to the
people who first chose the President and then chose him
again. The Senate must ensure that it has satisfied the
Constitution's requirement of a genuine two-thirds
concurrence that specific, identified wrongdoing has been
proven. The Senate must also assure the people, through the
sole collective act the Senate is required to take, that its
decision has a readily discernible and unequivocal meaning.
As matters stand, the Senate will vote on two highly
complex Articles of Impeachment. Its vote will not be shaped
by narrowing instructions. Its rules preclude a vote on
divisible parts of the articles. There will be no judicial
review, no correction of error, and no possibility of
retrial. The Senate's decision will be as conclusive as any
known to our law--judicially, politically, historically, and
most literally, irrevocable.
Under such circumstances, the Senate's judgment must speak
clearly and intelligibly. That cannot happen if the Senate
votes for conviction on these articles. Their compound
structure and lack of specificity make genuine agreement as
to specific wrongs impossible, and those factors completely
prevent the electorate from understanding why the Senate as a
whole voted as it did. As formulated, these articles satisfy
neither the plain requirement of the Constitution nor the
rightful expectations of the American people. The articles
cannot support a constitutionally sound vote for conviction.
VII. The Need for Discovery
The Senate need not address the issue of discovery at this
time, but because the issue may arise at a later date, it is
appropriate to remark here on its present status. Senate
Resolution 16 provides that the record for purposes of the
presentation by the House Managers and the President is the
public record established in the House of
Representatives.\136\ Since this record was created by the
House itself and is ostensibly the basis for the House's
impeachment vote, and because this evidence has been publicly
identified and available for scrutiny, comment, and rebuttal,
it is both logical and fair that this be the basis for any
action by the Senate. Moreover, Senate Resolution 16
explicitly prohibits the President and the House Managers
from filing at this time any ``motions to subpoena witnesses
or to present any evidence not in the record.''
---------------------------------------------------------------------------
\136\ S. Res. 16 defined the record for the presentations as
``those publicly available materials that have been submitted
to or produced by the House Judiciary Committee, including
transcripts of public hearings or mark-ups and any materials
printed by the House of Representatives or House Judiciary
Committee pursuant to House Resolutions 525 and 581.''
---------------------------------------------------------------------------
In the event, however, that the Senate should later decide,
pursuant to the provisions of Senate Resolution 16, to allow
the House Managers to expand the record in some way, our
position should be absolutely clear. At such time, the
President would have an urgent need for the discovery of
relevant evidence, because at no point in these proceedings
has he been able to subpoena documents or summon and cross-
examine witnesses. He would need to use the compulsory
process authorized by Senate Impeachment Rules V and VI\137\
to obtain documentary evidence and witness depositions. While
the President has access to some of the grand jury
transcripts and FBI interview memoranda of witnesses called
by the OIC, the President's own lawyers were not entitled to
be present when these witnesses were examined. The grand jury
has historically been the engine of the prosecution, and it
was used in that fashion in this case. The OIC sought
discovery of evidence with the single goal of documenting
facts that it believed were prejudicial to the President. It
did not examine witnesses with a view toward establishing
there was no justification for impeachment; it did not follow
up obvious leads when they might result in evidence helpful
to the President; and it did not seek out and document
exculpatory evidence. It did not undertake to disclose
exculpatory information it might have identified.
---------------------------------------------------------------------------
\137\ Rules of Procedure and Practice in the Senate When
Sitting on Impeachment Trials (Senate Manual 99-2, as revised
by S. Res. 479 (Aug. 16, 1986)). There is ample precedent for
liberal discovery in Senate impeachment trials. For example,
in the trial of Judge Alcee Hastings, the Senate issued
numerous orders addressing a range of pretrial issues over
several months including:
requiring the parties to provide witness lists along
with a description of the general nature of the testimony
that was expected from each witness months in advance of the
scheduled evidentiary hearing;
requiring the House Managers to turn over
exculpatory materials, certain prior statements of witnesses,
and documents and other tangible evidence they intended to
introduce into evidence;
---------------------------------------------------------------------------
requiring the production from the House Managers of
other documents in the interest of allowing the Senate to
develop ``a record that fully illuminates the matters that it
must consider in rendering a judgment;''
setting a briefing schedule for stipulations of
facts and documents;
setting a number of pretrial conferences;
designating a date for final pretrial statements;
and
permitting a number of pre-trial depositions.
Report of the Senate Impeachment Trial Committee on
the Articles of Impeachment Against Judge Alcee L. Hastings,
Hearings Before the Senate Impeachment Trial Committee, 101st
Cong. 1st Sess. at 281, 286-87, 342-43, 606-07, 740.
The need for discovery in this case is in fact greater than
in prior impeachment proceedings. In all other impeachment
trials, there were either substantive investigations by the
House or prior judicial proceedings in which the accused had
a full opportunity to develop the evidentiary record and
cross-examine witnesses. See Id. at 163-64 (pretrial
memorandum of Judge Hastings).
---------------------------------------------------------------------------
Nor did the House of Representatives afford the President
any discovery mechanisms to secure evidence that might be
helpful in his defense. Indeed, the House called no fact
witnesses at all, and at the few depositions it conducted,
counsel for the President were excluded. Moreover, the House
made available only a selected portion of the evidence it
received from the OIC. While it published five volumes of the
OIC materials (two volumes of appendices and three volumes of
supplements), it withheld a great amount of evidence, and it
denied counsel for the President access to this material. It
is unclear what the criterion was for selecting evidence to
include in the published volumes, but there does not appear
to have been an attempt to include all evidence that may have
been relevant to the President's defense. The President has
not had access to a great deal of evidence in the possession
of (for example) the House of Representatives and the OIC
which may be exculpatory or relevant to the credibility of
witnesses on whom the OIC and the House Managers rely.
Should the Senate decide to authorize the House Managers to
call witnesses or expand the record, the President would be
faced with a critical need for the discovery of evidence
useful to his defense--evidence which would routinely be
available to any civil litigant involved in a garden-variety
automobile accident case. The House Managers have had in
their possession or had access at the OIC to significant
amounts of non-public evidence, and they have frequently
stated their intention to make use of such evidence.
Obviously, in order to defend against such tactics, counsel
for the President are entitled to discovery and a fair
opportunity to test the veracity and reliability of this
``evidence,'' using compulsory process as necessary to obtain
testimony and documents. Trial by surprise obviously has no
place in the Senate of the United States where the issues in
the balance is the removal of the one political leader who,
with the Vice-President, is elected by all the citizens of
this country.\138---------------------------------------------------------------------------
\138\ In another context, the Supreme Court has observed that
``the ends of justice will best be served by a system of
liberal discovery which gives both parties the maximum
possible amount of information from which to prepare their
cases and thereby reduces the possibility of surprise at
trial.'' Wardius v. Oregon, 412 U.S. 470, 473 (1973).
---------------------------------------------------------------------------
The need for discovery does not turn on the number of
witnesses the House Managers may be authorized to
depose.\139\ If the House Managers call a single witness,
that will initiate a process that leaves the President
potentially unprepared and unable to defend adequately
without proper discovery. The sequence of discovery is
critical. The President first needs to obtain and review
relevant documentary evidence not now in his possession. He
then needs to be able to depose potentially helpful
witnesses, whose identity may only emerge from the documents
and from the depositions themselves. Obviously, he also needs
to depose potential witnesses identified by the House
Managers. Only at that point will the President be able
intelligently to designate his own trial witnesses. This is
both a logical procedure and one which is the product of long
experience designed to maximize the search for truth and
minimize unfair surprise. There is no conceivable reason it
should not be followed here--if the evidentiary record is
opened.
---------------------------------------------------------------------------
\139\ It is not sufficient that counsel for the President
have the right to depose the witnesses called by the
Managers, essential as that right is. The testimony of a
single witness may have to be refuted indirectly,
circumstantially, or by a number of witnesses; it is often
necessary to depose several witnesses in order to identify
the one or two best.
---------------------------------------------------------------------------
Indeed, it is simply impossible to ascertain how a witness
designated by the House Managers could fairly be rebutted
without a full examination of the available evidence. It is
also the case that many sorts of helpful evidence and
testimony emerge in the discovery process that may at first
blush appear irrelevant or tangential. In any event, the
normal adversarial process is the best guarantor of the
truth. The President needs discovery here not simply to
obtain evidence to present a trial but also in order to make
an informed judgment about what to introduce in response to
the Managers' expanded case. The President's counsel must be
able to make a properly knowledgeable decision about what
evidence may be relevant and helpful to the President's
defense, both in cross-examination and during the President's
own case.
The consequences of an impeachment trial are immeasurably
grave: The removal of a twice-elected President. Particularly
given what is at stake, fundamental fairness dictates that
the President be given at least the same right as an ordinary
litigant to obtain evidence necessary for his defense,
particularly when a great deal of that evidence is presently
in the hands of his accusers, the OIC and the House Managers.
The Senate has wisely elected to proceed on the public record
established by the House of Representatives, and this
provides a wholly adequate basis for Senate decision-making.
In the event the Senate should choose to expand this record,
affording the President adequate discovery is absolutely
essential.
VIII. Conclusion
As the Senate considers these Articles of Impeachment and
listens to the arguments, individual Senators are standing in
the place of the Framers of the Constitution, who prayed that
the power of impeachment and removal of a President would be
invoked only in the gravest of circumstances, when the
stability of our system of government hung in the balance--to
protect the Republic itself from efforts to subvert our
Constitutional system.
The Senate has an obligation to turn away an unwise and
unwarranted misuse of the awesome power of impeachment. If
the Senate removes this President for a wrongful relationship
he hoped to keep private, for what will the House ask the
Senate to remove the next President, and the next? Our
Framers wisely gave us a constitutional system of checks and
balances, with three co-equal branches. Removing this
President on these facts would substantially alter the
delicate constitutional balance, and move us closer to a
quasi-parliamentary system, in which the President is elected
to office by the choice of people, but continues in office
only at the pleasure of Congress.
In weighing the evidence and assessing the facts, we ask
that Senators consider not only the intent of the Framers but
also the will and interests of the people. It is the citizens
of these United States who will be affected by and stand in
judgment of this process. It is not simply the President--but
the vote the American people rendered in schools, church
halls and other civic centers all across the land twenty-six
months ago--that is hanging in the balance.
Respectfully submitted.
David E. Kendall Charles F.C. Ruff
Nicole K. Seligman Gregory B. Craig
Emmet T. Flood Bruce R. Lindsey
Max Stier Cheryl D. Mills
Alicia L. Marti Lanny A. Breuer
Williams & Connolly Office of the White House Counsel
725 12th Street, N.W. The White House
Washington, D.C. 20005 Washington, D.C. 20502
January 13, 1999.
____
[In the Senate of the United States Sitting as a Court of Impeachment]
In re Impeachment of President William Jefferson Clinton
REPLICATION OF THE HOUSE OF REPRESENTATIVES TO THE ANSWER OF PRESIDENT
WILLIAM JEFFERSON CLINTON TO THE ARTICLES OF IMPEACHMENT
The House of Representatives, through its Managers and
counsel, replies to the Answer of President William Jefferson
Clinton to the Articles of Impeachment (``Answer''), as
follows:
Preamble
The House of Representatives denies each and every material
allegation in the Preamble to the Answer, including the
sections entitled ``The Charges in the Articles Do Not
Constitute High Crimes or Misdemeanors'' and ``The President
Did Not Commit Perjury or Obstruct Justice.'' With respect to
the allegations in the Preamble, the House of Representatives
further states that each and every allegation in Articles I
and II is true and that Articles I and II properly state
impeachable offenses, are not subject to a motion to dismiss,
and should be considered and adjudicated by the Senate
sitting as a Court of Impeachment.
Article I
The House of Representatives denies each and every
allegation in the Answer to Article I that denies the acts,
knowledge, intent, or wrongful conduct charged against
President William Jefferson Clinton. With respect to the
allegations in the Answer to Article I, the House of
Representatives further states that each and every allegation
in Article I is true and that Article I properly states an
impeachable offense, is not subject to a motion to dismiss,
and should be considered and adjudicated by the Senate
sitting as a Court of Impeachment.
First Affirmative Defense to Article I
The House of Representatives denies each and every material
allegation in this purported defense. The House of
Representatives further states that Article I properly states
an impeachable offense, is not subject to a motion to
dismiss, and should be considered and adjudicated by the
Senate sitting as a Court of Impeachment. The House of
Representatives further states that the offense stated in
Article I warrants the conviction, removal from office, and
disqualification from holding further office of President
William Jefferson Clinton.
Second Affirmative Defense to Article I
The House of Representatives denies each and every material
allegation in this purported defense. The House of
Representatives further states that Article I properly states
an impeachable offense, is not subject to a motion to
dismiss, and should be considered and adjudicated by the
Senate sitting as a Court of Impeachment. The House of
Representatives further states that Article I is not
unconstitutionally vague, and it provides President William
Jefferson Clinton adequate notice of the offense charged
against him.
Third Affirmative Defense to Article I
The House of Representatives denies each and every material
allegation in this purported defense. The House of
Representatives further states that Article I properly states
an impeachable offense, is not subject to a motion to
dismiss, and should be considered and adjudicated by the
Senate sitting as a Court of Impeachment. The House of
Representatives further states that Article I does not charge
multiple offenses in one article.
Article II
The House of Representatives denies each and every
allegation in the Answer to Article II that denies the acts,
knowledge, intent, or wrongful conduct charged against
President William Jefferson Clinton. With respect to the
allegations in the Answer to Article II, the House of
Representatives further states that each and every allegation
in Article II is true and that Article II properly states an
impeachable offense, is not subject to a motion to dismiss,
and should be considered and adjudicated by the Senate
sitting as a Court of Impeachment.
First Affirmative Defense to Article II
The House of Representatives denies each and every material
allegation in this purported defense. The House of
Representatives further states that Article II properly
states an impeachable offense, is not subject to a motion to
dismiss, and should be considered and adjudicated by the
Senate sitting as a Court of Impeachment. The House of
Representatives further states that the offense stated in
Article II warrants the conviction, removal from office, and
disqualification from holding further office of President
William Jefferson Clinton.
Second Affirmative Defense to Article II
The House of Representatives denies each and every material
allegation in this purported defense. The House of
Representatives further states that Article II properly
states an impeachable offense, is not subject to a motion to
dismiss, and should be considered and adjudicated by the
Senate sitting as a Court of Impeachment. The House of
Representatives further states that Article II is not
unconstitutionally vague, and it provides President William
Jefferson Clinton adequate notice of the offense charged
against him.
Third Affirmative Defense to Article II
The House of Representatives denies each and every material
allegation in this purported defense. The House of
Representatives further states that Article II properly
states an impeachable offense, is not subject to a motion to
dismiss, and should be considered and adjudicated by the
Senate sitting as a Court of Impeachment. The House of
Representatives further states that Article II does not
charge multiple offenses in one article.
Conclusion of the House of Representatives
The House of Representatives further states that it denies
each and every material allegation of the Answer not
specifically admitted in this Replication. By providing this
Replication to the Answer, the House of Representatives
waives none of its rights in this proceeding. Wherefore, the
House of Representatives states that both of the Articles of
Impeachment warrant the conviction, removal from office, and
disqualification from holding further office of President
William Jefferson Clinton. Both of the Articles should be
considered and adjudicated by the Senate.
Respectfully submitted,
The United States House of Representatives.
Henry J. Hyde,
F. James Sensenbrenner, Jr.,
Bill McCollum,
George W. Gekas,
Charles T. Canady,
Stephen E. Buyer,
Ed Bryant,
Steve Chabot,
Bob Barr,
Asa Hutchinson,
Chris Cannon,
James E. Rogan,
Lindsey O. Graham,
Managers on the Part of the House.
Thomas E. Mooney,
General Counsel.
David P. Schippers,
Chief Investigative Counsel.
____
[In the Senate of the United States Sitting as a Court of Impeachment]
In re Impeachment of President William Jefferson Clinton
REPLY OF THE UNITED STATES HOUSE OF REPRESENTATIVES TO THE TRIAL
MEMORANDUM OF PRESIDENT WILLIAM JEFFERSON CLINTON
I. Introduction
The President's Trial Memorandum contains numerous factual
inaccuracies and misstatements of the governing law and the
Senate's precedents. These errors have largely been addressed
in the Trial Memorandum of the House of Representatives filed
with the Senate on January 11, 1999, and given the 24-hour
period to file this reply, the House cannot possibly address
them all here. The House of Representatives will address them
further in its oral presentation to the Senate, and it
reserves the right to address these matters further in the
briefing of any relevant motions. However, President Clinton
has raised some new issues in his Trial Memorandum, and the
House of Representatives hereby replies to those issues.
II. Facts
The President's Trial Memorandum outlines what he claims
are facts showing that he did not commit perjury before the
grand jury and did not obstruct justice. The factual issues
President Clinton raises are addressed in detail in the Trial
Memorandum of the House.
A complete and impartial review of the evidence reveals
that the President did in fact commit perjury before the
grand jury and that he obstructed justice during the Jones
litigation and the grand jury investigation as alleged in the
articles of impeachment passed by the House of
Representatives. The House believes a review of the complete
record, including the full grand jury and deposition
testimony of the key witnesses in this case, will establish
that.
The evidence which President Clinton claims demonstrates
that he did not commit the offenses outlined in the Articles
of Impeachment are cited in Sections IV and V of his
Memorandum. Regarding Article I, President Clinton maintains
that his testimony before the grand jury was entirely
truthful. At the outset of his argument, he states that he
told the truth about the nature and details of his
relationship with Ms. Lewinsky, and he insists that any false
impressions that his deposition testimony might have created
were remedied by his admission of ``improper intimate
contact'' with Ms. Lewinsky. However, his subsequent
testimony demonstrates that this admission is narrowly
tailored to mean that Ms. Lewinsky had ``sexual relations''
with him, but he did not have ``sexual relations'' with her,
as he understood the term to be defined. In other words, he
admitted only what he knew could be conclusively established
through scientific tests. He denied what the testimony of Ms.
Lewinsky, the testimony of a number of her confidantes, and
common sense proves: that while she engaged in sexual
relations with him, he engaged in sexual relations with her,
regardless of how President Clinton attempts to redefine the
term.
Following this pattern, President Clinton discounts
substantial evidence as well as common sense when he
maintains that he testified truthfully in the grand jury
about, among other things, his prior deposition testimony,
his attorney's statements to Judge Wright during his
deposition, and his intent in providing a series of false
statements to his secretary after his deposition. Again, a
complete review of the record and witness testimony reveals
that President Clinton committed perjury numerous times in
his grand jury testimony.
In regard to Article II, President Clinton extracts
numerous items of evidence from the record and analyzes them
in isolation in an effort to provide innocent explanations
for the substantial amount of circumstantial evidence proving
his guilt. Yet when the record is viewed in its entirely,
including the portions of President Clinton's deposition
testimony concerning Ms. Lewinsky and his grant jury
testimony, it demonstrates that President Clinton took a
number of actions designed to prevent Paula Jones's
attorneys, the federal district court, and a federal grand
jury from learning the truth. These actions are described in
detail in the Trial Memorandum of the House.
To the extent that President Clinton's Trial Memorandum
raises issues of credibility, those issues are best resolved
by live testimony subject to cross-examination. The Senate,
weighing the evidence in its entirety, will make an
independent assessment of the facts as they are presented,
and a detailed, point-by-point argument of these matters is
best resolved on the Senate floor. The House is confident
that a thorough factual analysis will not only refute
President Clinton's contentions, but will prove the very
serious charges contained in the articles.
III. The Articles Properly State Removal Offenses
A. The Offenses Alleged Are High Crimes And Misdemeanors
1. The Senate Has Never Exercised Its Power To Dismiss an
Article of Impeachment Except When the Official Impeached
Has Resigned
The House acknowledges that the Senate has the power to
dismiss an article of impeachment on the ground that it does
not state a removable offense. Beyond that, however,
President Clinton completely ignores the Senate's precedents
concerning the use of that power. In the fifteen cases in
which the House has forwarded articles of impeachment to
the Senate, the Senate has never granted a dispositive
motion to preclude a trial on the articles with one
exception. In the 1926 case of Judge George English, the
Senate granted a motion to adjourn after Judge English
resigned from office making a trial moot on the issue of
removal. See Impeachment of George W. English, U.S.
District Judge, Eastern District of Illinois, 68 Cong.
Rec. 347-48 (1926). The Senate also granted a motion to
adjourn in the 1868 trial of President Andrew Johnson, but
only after a full trial and votes to acquit on three
articles. III Cannon's Precedents of the House of
Representatives Sec. 2443.
In addition, the Senate has never granted a motion to
dismiss or strike an article of impeachment. However, in the
1936 case of Judge Halsted Ritter, the House managers
themselves moved to strike two counts of a multi-count
article to simplify the trial, and the motion was granted. 80
Cong. Rec. 4898-99 (April 3, 1936). However, the remainder of
the article was fully considered, and Judge Ritter was
convicted on that article. The House managers in the 1986
Judge Harry Claiborne case made the only motion for summary
judgment in the history of impeachment. Hearings of the
Senate Impeachment Trial Committee (Judge Harry Claiborne),
99th Cong., 2d Sess. 145 (1986). They did so on the basis
that Judge Claiborne had already been convicted of the
charges in a criminal trial. Id. The Senate postponed a
decision on the motion and never ruled on it, but it
ultimately convicted Judge Claiborne. In short, the Senate
precedents firmly establish that the Senate has always
fulfilled its responsibility to give a full and fair hearing
to articles of impeachment voted by the House of
Representatives.
2. The Constitutional Text Sets One Clear Standard for
Removal
a. There is Only One Impeachment Standard
The Constitution sets one clear standard for impeachment,
conviction, and removal from office: the commission of
``Treason, Bribery, or other high Crimes and Misdemeanors.''
U.S. Const. art. II, Sec. 4. The Senate has repeatedly
determined that perjury is a high crime and misdemeanor.
Simple logic dictates that obstruction of justice which has
the same effect as perjury and bribery of witnesses must also
be a high crime and misdemeanor. Endless repetition of the
claim that this standard is a high one does not change the
standard.
President Clinton claims that to remove him on these
articles would permanently disfigure and diminish the
Presidency and mangle the system of checks and balances.
President's Trial Memorandum at 18. Quite the contrary,
however, it is President Clinton's behavior as set forth in
the articles that has had these effects. Essentially,
President Clinton argues that the Presidency and the system
of checks and balances can only be saved if we allow the
President to commit felonies with impunity. To state that
proposition is to refute it. Convicting him and thereby
reaffirming that criminal behavior that strikes at the heart
of the justice system will result in removal will serve to
strengthen the Presidency, not weaken it.
b. Impeachment and Removal Are Appropriate for High Crimes
and Misdemeanors Regardless of Whether They Are
Offenses Against the System of Government
President Clinton argues that impeachment may only be used
to redress wrongful public misconduct. The point is academic.
Perjury and obstruction of justice as set forth in the
articles are, by definition, public misconduct. See generally
House Trial Memorandum at 107-12. Indeed, it is precisely
their public nature that makes them offenses--acts that are
not crimes when committed outside the judicial realm become
crimes when they enter that realm. Lying to one's spouse
about an extramarital affair, although immoral, is not a
crime. Telling the same lie under oath in a judicial
proceeding is a crime. Hiding gifts given to an adulterous
lover to conceal the affair, although immoral, is not a
crime. When those gifts become potential evidence in a
judicial proceeding, the same act becomes a crime. One who
has committed these kinds of crimes that corrupt the judicial
system simply is not fit to serve as the nation's chief law
enforcement officer.
Apart from that, the notion that high crimes and
misdemeanors encompass only public misconduct will not bear
scrutiny. Numerous ``private'' crimes would obviously require
the removal of a President. For example, if he killed his
wife in a domestic dispute or molested a child, no one would
seriously argue that he could not be removed. All of these
acts violate the President's unique responsibility to take
care that the laws be faithfully executed.
3. President Clinton Cites Precedents That Do Not Apply
Rather Than Relying on the Senate's Own Precedents
Clearly Establishing Perjury as a Removable Offense
a. President Clinton Continues To Misrepresent the
Fraudulent Tax Return Allegation Against President
Nixon
In his trial memorandum, President Clinton argues that the
failure in 1974 of the House Judiciary Committee to adopt an
article of impeachment against President Nixon for tax fraud
supports the claim that current charges against President
Clinton do not rise to the level of impeachable and removable
offenses. President's Trial Memorandum at 21. The President's
lawyers acknowledge the charge in the article against
President Nixon of ``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.'' Id. The President's lawyers go on to state that
``[t]he President had signed his returns for those years
under penalty of perjury,'' Id., trying to distinguish
away the Claiborne impeachment and removal precedent from
1986, and by extension all the judicial impeachments from
the 1980s which clearly establish perjury as an
impeachable and removable offense.
President Clinton's argument that a President was not and
should not be impeached for tax fraud because it does not
involve official conduct or abuse of presidential powers
simply is unfounded based on the 1974 impeachment proceedings
against President Nixon. Moreover, the fact that the
President and his lawyers make this argument in defense of
the President is telling. He effectively claims that a large
scale tax cheat could be a viable chief executive.
It is undisputed that the Judiciary Committee rejected the
proposed tax fraud article against President Nixon by a vote
of 26 to 12. A slim minority of Committee members stated the
view that tax fraud would not be an impeachable offense. That
minority view is illustrated by the comments of Rep. Waldie
that in the tax fraud article there was ``not an abuse of
power sufficient to warrant impeachment. . . .'' Debate on
Article of Impeachment 1974: Hearings of the Comm. on the
Judiciary Pursuant H. Res. 803, 93rd Cong., 2nd Sess., at 548
(1974) (Statement of Rep. Waldie). Similar views were
expressed by Rep. Hogan and Rep. Mayne. Rep. Railsback took
the position that there was ``a serious question,'' id. at
524 (Statement of Rep. Railsback), whether misconduct of the
President in connection with his taxes would be impeachable.
Other members who opposed the tax fraud article based their
opposition on somewhat different grounds. Rep. Thornton based
his opposition to the tax fraud article on the ``view that
these charges may be reached in due course in the regular
process of law.'' Id. at 549 (Statement of Rep. Thornton).
Rep. Butler stated his view that the tax fraud article should
be rejected on prudential grounds: ``Sound judgment would
indicate that we not add this article to the trial burden we
already have.'' Id. at 550 (Statement of Rep. Butler).
The record is clear, however, that the overwhelming
majority of those who expressed a view in the debate in
opposition to the tax fraud article based their opposition on
the insufficiency of the evidence, and not on the view that
tax fraud, if proven, would not be an impeachable offense.
The comments of then-Rep. Wayne Owens in the debate in 1974
directly contradict the view that Mr. Owens has expressed in
recent testimony before the House Judiciary Committee.
Although Mr. Owens in 1974 expressed his ``belief'' that
President Nixon was guilty of misconduct in connection with
his taxes, he clearly stated his conclusion that ``on the
evidence available'' Mr. Nixon's offenses were not
impeachable. Id. at 549 (Statement of Rep. Owens). Mr. Owens
spoke of the need for ``hard evidence'' and discussed his
unavailing efforts to obtain additional evidence that would
tie ``the President to the fraudulent deed'' or that would
otherwise ``close the inferential gap that has to be closed
in order to charge the President.'' Id. He concluded his
comments in the 1974 debate by urging the members of the
Committee ``to reject this article . . . based on that lack
of evidence.'' Id.
In addition to Mr. Owens, eleven members of the Committee
stated the view that there was not sufficient evidence of tax
fraud to support the article against President Nixon.
Wiggins: ``fraud . . . is wholly unsupported in the
evidence.'' Id. at 524 (Statement of Rep. Wiggins). McClory:
``no substantial evidence of any tax fraud.'' Id. at 531
(Statement of Rep. McClory). Sandman: ``There was absolutely
no intent to defraud here.'' Id. at 532 (Statement of Rep.
Sandman). Lott: ``mere mistakes or negligence by the
President in filing his tax returns should clearly not be
grounds for impeachment.'' Id. at 533 (Statement of Rep.
Lott). Maraziti: discussing absence of evidence of fraud.
Id. at 534 (Statement of Rep. Maraziti). Dennis: ``no
fraud has been found.'' Id. at 538 (Statement of Rep.
Dennis). Cohen: questioning whether ``in fact there was
criminal fraud involved.'' Id. at 548 (Statement of Rep.
Cohen). Hungate: ``I think there is a case here but in my
judgment I am having trouble deciding if it has as yet
been made.'' Id. at 553 (statement of Rep. Hungate).
Latta: only ``bad judgment and gross negligence.'' Id. at
554 (Statement of Rep. Latta). Fish: ``There is not to be
found before us evidence that the President acted wilfully
to evade his taxes.'' Id. at 556 (Statement of Rep. Fish).
Moorhead: ``there is no
showing that President Nixon in any way engaged in any
fraud.'' Id. at 557 (Statement of Rep. Moorhead).
The group of those who found the evidence insufficient
included moderate Democrats like Rep. Hungate and Rep. Owens,
as well as Republicans like Rep. Fish, Rep. Cohen, and Rep.
McClory, all of whom supported the impeachment of President
Nixon.
In light of all these facts, it is not credible to assert
that the House Judiciary Committee in 1974 determined that
tax fraud by the President would not be an impeachable
offense. The failure of the Committee to adopt the tax fraud
article against President Nixon simply does not support the
claim of President Clinton's lawyers that the offenses
charged against him do not rise to the level of impeachable
offenses.
In the Committee debate in 1974 a compelling case was made
that tax fraud by a President--if proven by sufficient
evidence--would be an impeachable offense. Rep. Brooks, who
later served as chairman of the Committee, said:
``No man in America can be above the law. It is our duty to
establish now that evidence of specific statutory crimes and
constitutional violations by the President of the United
States will subject all Presidents now and in the future to
impeachment.
* * * * *
``No President is exempt under our U.S. Constitution and
the laws of the United States from accountability for
personal misdeeds any more than he is for official misdeeds.
And I think that we on this Committee in our effort to fairly
evaluate the President's activities must show the American
people that all men are treated equally under the law.''
(Debate on Articles of Impeachment, 1974: Hearings of the
Comm. on the Judiciary Pursuant to H. Res. 803, 93rd Cong.,
2nd Sess., at 525, 554.)
Professor Charles Black stated it succinctly: ``A large-
scale tax cheat is not a viable chief magistrate.'' Charles
Black, Impeachment: A Handbook, (Yale University Press, 1974)
at 42. What is true of tax fraud is also true of a persistent
pattern of perjury by the President. An incorrigible perjurer
is not a viable chief magistrate.
b. President Clinton Continues to Misrepresent The
Allegations Against Alexander Hamilton.
President Clinton continues to try to persuade the American
public that the House of Representatives has impeached him
for having an extramarital affair. See Answer of President
William Jefferson Clinton to the Articles of Impeachment at 1
(``The charges in the two Articles of Impeachment do not
permit the conviction and removal from office of a duly
elected President. The President has acknowledged conduct
with Ms. Lewinsky that was improper.'') (emphasis added). In
doing so, the President's lawyers refer to an incident
involving then Secretary of the Treasury Alexander Hamilton
being blackmailed by the husband of a woman named Maria
Reynolds with whom he was having an adulterous affair.
However, the President's lawyers omit the relevant
distinguishing facts even as they cast aspersions upon
Alexander Hamilton: none of Hamilton's ``efforts'' to cover
up his affair involved the violation of any laws, let alone
felonies. Indeed, the fact of the matter is that Hamilton was
the victim of the crime of extortion.
Never did Hamilton raise his right hand to take a sacred
oath and then willfully betray that oath and the rule of law
to commit perjury. Never did Alexander Hamilton obstruct
justice by tampering with witnesses, urging potential
witnesses to sign false affidavits, or attempt to conceal
evidence from a Federal criminal grand jury.
Again, the significance of the distinctions are glaringly
obvious: it is apparent from the Hamilton case that the
Framers did not regard private sexual misconduct as an
impeachable offense. It is also apparent that efforts to
cover up such private behavior outside of a legal setting,
including even paying hush money to induce someone to destroy
documents, did not meet the standard. Neither Hamilton's high
position, nor the fact that his payments to a securities
swindler created an enormous appearance problem, were enough
to implicate the standard. These wrongs were real, and they
were not insubstantial, but to the Framers they were
essentially private and therefore not impeachable. David
Frum, ``Smearing Alexander Hamilton,'' The Weekly Standard
(Oct. 19, 1998) at 14.
But the Alexander Hamilton incident President Clinton cites
actually clarifies the precise point at which personal
misconduct becomes a public offense. Hamilton could keep his
secret only by a betrayal of public responsibilities.
Hamilton came to that point and, at immense personal cost,
refused to cross the line. President Clinton came to that
point and, fully understanding what he was doing, knowingly
charged across the line. President Clinton's public acts of
perjury and obstruction of justice transformed a personal
misconduct into a public offense.
4. The Views of the Prominent Historians and Legal Scholars
the President Cites Do Not Stand Up to Careful Scrutiny.
It speaks volumes that the most distinguished of the 400
historians referred to in President Clinton's trial brief is
Arthur Schlesinger, Jr. Professor Schlesinger had a different
view of impeachment 25 years ago. President Clinton himself
asserts that ``the allegations are so far removed from
official wrongdoing that their assertion here threatens to
weaken significantly the Presidency itself.'' President's
Trial Memorandum at 24. However, Schlesinger has written
that:
``The genius of impeachment lay in the fact that it could
punish the man without the punishing the office. For, in the
Presidency as elsewhere, power was ambiguous: the power to go
good meant also the power to do harm, the power to serve the
republic also the power to demand and defile it.''
(Arthur Schlesinger, Jr., The Imperial Presidency, (Easton
Press edit. 1973) (hereinafter ``Schlesinger'') at 415.)
The statement of the 400 historians cited with approval in
the President's trial memorandum makes the following
statement: ``[t]he Framers explicitly reserved that step for
high crimes and misdemeanors in the exercise of executive
power.'' Statement of Historians in Defense of the
Constitution, The New York Times (Oct. 30, 1998) at A15. The
400 historians then believe that commission of a murder or
rape by the President of the United States in his personal
capacity is not subject to the impeachment power of Article
II, Section 4.
President Clinton in his trial memorandum asserts that this
case does not fit the paradigmatic case for impeachment.
President's Trial Memorandum at 24. However, none of his
predecessors ever faced overwhelming evidence of repeatedly
lying under oath before a federal court and grand jury and
otherwise seeking to obstruct justice to benefit himself--
directly contradicting his oath to ``take care that the laws
are faithfully executed.'' But as former Attorney General
Griffin Bell, who served under President Carter, said before
the House Judiciary Committee recently, ``[a] President
cannot faithfully execute the laws if he himself is breaking
them.'' Background and History of Impeachment: Hearings
Before the Subcomm. on the Constitution of the House Comm. on
the Judiciary, 105th Cong., 2d Sess. at 203 (Comm. Print
1998) (Testimony of Judge Griffin B. Bell).
President Clinton goes on to state that to make the
offenses alleged against him impeachable and removable
conduct ``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.'' President's Trial Memorandum at 26.
While President Clinton and his able counsel would like to
define the case this way, what is at issue in the articles of
impeachment before the Senate is clear: perjury and
obstruction of justice committed by the President of the
United States in order to thwart a duly instituted civil
rights sexual harassment lawsuit against him as well as a
subsequent grand jury investigation. While the President may
think such allegations would forever lower the bar in terms
of the conduct we expect from our public officials, we must
square his opinion and that of his lawyers with the fact that
his Justice Department puts people in prison for similar
conduct. While the President's brief again quotes Arthur
Schlesinger, Jr. for the proposition that we must not ``lower
the bar,'' President's Trial Memorandum at 26, Schlesinger
held a different view during the impeachment of President
Nixon:
``If the Nixon White House escaped the legal consequences
of its illegal behavior, why would future Presidents and
their associates not suppose themselves entitled to do what
the Nixon White House had done? Only condign punishment would
restore popular faith in the Presidency and deter future
Presidents from illegal conduct.''
(Schlesinger at 418.)
5. The President and Federal Judges are Impeached, Convicted,
and Removed From Office Under the Same Standard
President Clinton's argument that Presidents are held to a
lower standard of behavior than federal judges completely
misreads the Constitution and the Senate's precedents. See
generally House Trial Brief at 101-06. The Constitution
provides one standard for the impeachment, conviction, and
removal from office of ``[t]the President, the Vice
President, and all civil officers of the United States.''
U.S. Const. art II, Sec. 4. It is the commission of
``Treason, Bribery, or other high Crimes and Misdemeanors.''
Id. The Senate has already determined that perjury is a high
crime and misdemeanor in the cases of Judge Nixon, Judge
Hastings, and Judge Claiborne.
President Clinton argues that the standard differs because
judges have life tenure whereas Presidents are accountable to
the voters at elections. That argument fails on several
grounds. The differing tenures are set forth in the
Constitution, and there is simply no textual support for the
idea that they affect the impeachment standard at all. If
electoral accountability were a sufficient means of remedying
presidential misconduct, the framers would not have
explicitly included the President in the impeachment clause.
Finally, even if this argument were otherwise valid, it does
not apply to President Clinton because he will never face the
voters again. U.S. Const. amend. XXII. Indeed, all of the
conduct charged in the Articles occurred after the 1996
election.
Then President Clinton rejects the Senate's own precedents
showing that perjury is a high crime and misdemeanor in the
three judicial impeachments of the 1980s arguing that all of
the lying involved there concerned the judges' official
duties. That is true with respect to Judge Hastings, but
completely false with respect to Judge Claiborne and Judge
Nixon. Judge Claiborne was
impeached and convicted for lying on his income tax returns,
an entirely personal matter. President Clinton tries to
explain this away by saying: ``Once convicted, [Judge
Claiborne] 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.''
President's Trial Memorandum at 29. The same is true of
President Clinton. He ultimately directs the Department of
Justice which must decide whether people are prosecuted for
lying. If he has committed perjury and obstructed justice,
how can he be the arbiter of other's oaths? As Professor
Jonathan Turley put it:
``As Chief Executive the President stands as the ultimate
authority over the Justice Department and the
Administration's enforcement policies. It is unclear how
prosecutors can legitimately threaten, let alone prosecute,
citizens who have committed perjury or obstruction of justice
under circumstances nearly identical to the President's. Such
inherent conflict will be even greater in the military cases
and the President's role as Commander-in-Chief.''
(Background and History of Impeachment: Hearings Before the
Subcomm. on the Constitution of the House Comm. on the
Judiciary, 105th Cong., 2d Sess. at 274 (Comm. Print 1998)
(Testimony of Professor Jonathan Turley).)
In the same vein, President Clinton claims that Judge Nixon
``employ[ed] the power and prestige of his office to obtain
advantage for a party.'' President's Trial Brief at 29. In
fact, Judge Nixon intervened in a state criminal case in
which he had no official role. His ability to persuade the
prosecutor to drop the case rested on his friendship with the
state prosecutor--not his official position. President
Clinton argues that it was Judge Nixon's intervention in a
judicial proceeding that ties it to his official position.
The same is true of President Clinton. He intervened in two
judicial proceedings and his actions had the same effect as
Judge Nixon's--to defeat a just result.
As the person who ultimately directs the Justice
Department--the federal government's prosecutorial
authority--the President must follow his constitutional duty
to take care that the laws are faithfully executed. U.S.
Const. art II, Sec. 3. His special constitutional duty is at
least as high, if not higher, than the judge's. Indeed,
President Clinton acknowledged as much early in his
Administration when controversy arose about the nomination of
Zoe Baird and the potential nomination of Judge Kimba Wood to
be Attorney General. Questions were raised about whether they
had properly complied with laws relating to their hiring of
household help. At that time, President Clinton said the
Attorney General ``should be held to a higher standard than
other Cabinet members on matters of this kind [i.e. strictly
complying with the law].'' Remarks of President Clinton with
Reporters Prior to a Meeting with Economic Advisers, February
8, 1993, 29 Weekly Compilation of Presidential Documents 160.
If the Attorney General is held to a higher standard of
compliance with the law, then her superior, President
Clinton, must be also.
B. The Individual Consciences of Senators Determines the Burden of
Proof in Impeachment Trials.
The Constitution does not discuss the standard of proof for
impeachment trials. It simply states that ``the Senate shall
have the Power to try all Impeachments.'' U.S. Const., Art I,
Sec. 3, clause 5. Because the Constitution is silent on the
matter, it is appropriate to look at the past practice of the
Senate. Historically, the Senate has never set a standard of
proof for impeachment trials. ``In the final analysis the
question is one which historically has been answered by
individual Senators guided by their own consciences.''
Congressional Research Service Report for Congress, Standard
of Proof in Senate Impeachment Proceedings, Thomas B. Ripy,
Legislative Attorney, American Law Division (January 7,
1999).
President Clinton argues that the impeachment trial is
similar to a criminal trial and that the appropriate standard
should therefore be ``beyond a reasonable doubt.'' That
argument is not new: it has been made in the past, and the
Senate has rejected it, as indeed, President Clinton
acknowledges. He asserts, however, that the impeachment trial
of a President should proceed under special procedures that
do not apply to the trial of other civil officers. His
arguments are unpersuasive.
1. The Senate has Never Adopted the Criminal Standard of
``Beyond a Reasonable Doubt'' or Any Other Standard of
Proof for Impeachment Trials.
The Senate has never adopted the standard of ``beyond a
reasonable doubt'' in any impeachment trial in U.S. history.
In fact, the Senate has chosen not to impose a standard at
all, preferring to leave to the conscience of each senator
the decision of how best to judge the facts presented.
In the impeachment trial of Judge Harry Claiborne, counsel
for the respondent moved to designate ``beyond a reasonable
doubt'' as the standard of proof for conviction. Gray &
Reams, The Congressional Impeachment Process and the
Judiciary: Documents and Materials on the Removal of Federal
District Judge Harry E. Claiborne, Volume 5, Document 41, X
(1987). The Senate overwhelmingly rejected the motion by a
vote of 17-75. In the floor debate on the motion, House
Manager Kastenmeier emphasized that the Senate has
historically allowed each member to exercise his personal
judgment in these cases. 132 Cong. Rec. S15489-S15490
(daily ed. October 7, 1986).
The question of the appropriate standard of proof was also
raised in the trial of Judge Alcee Hastings. In the Senate
Impeachment Trial Committee, Senator Rudman said in response
to a question about the historical practice regarding the
standard of proof that there has been no specific standard,
``you are not going to find it. It is what is in the mind of
every Senator. . . . I think it is what everybody decides for
themselves.'' Report of the Senate Impeachment Trial
Committee on the Articles Against Judge Alcee Hastings:
Hearings before the Senate Impeachment Trial Committee (Part
1) 101st Cong., 1st Sess. 73-75, (discussion involving
Senator Lieberman and Senator Rudman).
2. The Criminal Standard of Proof is Inappropriate for
Impeachment Trials.
President Clinton argues that an impeachment trial is akin
to a criminal trial and that, therefore, the criminal
standard should apply. That assertion is, of course, at
direct odds with his apparent opposition to the presentation
of evidence through witnesses, another normal criminal trial
procedure. The Senate Rules Committee rejected this analogy
in 1974, stating, ``an impeachment trial is not a criminal
trial,'' and advocating a clear and convincing evidence
standard. Executive Session Hearings, U.S. Senate Committee
on Rules and Administration, ``Senate Rules and Precedents
Applicable to Impeachment Trials'' 93rd Cong., 2d Sess.
(August 5-6, 1974). Indeed, it is undisputed that impeachable
offenses need not be criminal offenses. See Submission by
Counsel for President Clinton to the Committee on the
Judiciary of the United States House of Representatives,
105th Cong., 2d Sess. at 14 (Comm. Print Ser. No. 16 1998)
(``Impeachable acts need not be criminal acts.'')
Moreover, the result of conviction in an impeachment trial
is removal from office, not punishment. As the House argued
in the Claiborne trial, the reasonable standard was designed
to protect criminal defendants who risked ``forfeitures of
life, liberty and property'' (quoting Brinegar v. United
States, 338 U.S. 160, 174 (1949)). This standard is
inappropriate here because the Constitution limits the
consequences of a Senate impeachment trial to removal from
office and disqualification from holding office in the
future, explicitly preserving the option for a subsequent
criminal trial in the courts. U.S. Const. art. II, Sec. 3,
cl. 6.
In addition, as the House argued in the Claiborne trial,
the criminal standard is inappropriate because impeachment
is, by its nature, a proceeding where the public interest
weighs more heavily than the interest of the individual
defendant. Gray & Reams, The Congressional Impeachment
Process and the Judiciary: Documents and Materials on the
Removal of Federal District Judge Harry E. Claiborne, Volume
5, Document 41, X (1987). During the course of the floor
debate on this motion in the Claiborne trial, Representative
Kastenmeier argued for the House that the use of the criminal
standard was inappropriate where the public interest in
removing corrupt officials was a significant factor. 132
Cong. Rec. S15489-S15490 (daily ed. October 7, 1986).
3. A President Who Is Impeached Should Not Receive Special
Procedural Benefits That Do Not Apply in the Impeachment
Trials of Other Civil Officers.
President Clinton argues that he should be exempted from
the weight of historical practice and precedent and be given
a special rule on the standard of proof. This argument is
based on fallacious assertions, the first of which is that
different constitutional standards apply to the impeachment
of judges and presidents. See above at 14-16 and House Trial
Memorandum at 101-06.
President Clinton also employs inflammatory rhetoric to
suggest that a presidential impeachment trial ought to be
treated differently, explaining that the criminal standard is
needed because ``the Presidency itself is at stake'' and
because conviction would ``overturn the results of an
election.'' President's Trial Memorandum at 32-33. The
presidency is, of course, not at stake, though the tenure of
its current office holder may be. The 25th Amendment to the
Constitution ensures that impeachment and removal of a
President would not overturn an election because it is the
elected Vice President who would replace the President not
the losing presidential candidate.
Finally, President Clinton argues that the evidence should
be tested by the most stringent standard because ``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.'' President's
Trial Memorandum at 33. While the President might be expected
to argue that he did not act corruptly, he cannot credibly
assert that ``there is no suggestion of corruption,'' because
``corrupt'' conduct is precisely what he is charged with in
the articles of impeachment. Though not persuasive as an
argument, this statement is significant in what it concedes--
that corruption is among the ``conduct that places our system
of government at risk.'' President's Trial Memorandum at 33.
Having acknowledged this, President Clinton cannot be heard
to complain that the House has failed to charge him with
conduct which rises to the level of an impeachable offense.
IV. The Structure of the Articles is Proper and Sufficient
a. the articles are not unconstitutionally vague
President Clinton's trial memorandum argues that the two
articles of impeachment are unfairly complex. To the
contrary, the articles present the misdeeds of President
Clinton and their consequences in as transparent and
understandable a manner as possible.
The first article of impeachment charges that President
Clinton violated his enumerated constitutional
responsibilities by willfully corrupting and manipulating the
judicial process. He did this by providing perjurious, false
and misleading testimony to a grand jury in regard to one or
more of four matters. The deleterious consequences his
actions had for the people of the United States are then
described. The second article charges that President Clinton
violated his enumerated constitutional responsibilities by a
course of conduct that prevented, obstructed, and impeded the
administration of justice. One or more of seven listed acts
constitute the particulars of President Clinton's course of
conduct. As in the first article, the deleterious
consequences his actions had for the people of the United
States are then described.
To do as President Clinton requests would require
separating out into a unique article of impeachment each
possible combination of (a) a particular violation of his
duties, (b) a particular wrongful act, and (c) a particular
consequence of his actions. This would require 48 different
articles in the case of the first article and 84 in the case
of the second. Such a multiplicity of articles is not
required and would assist no one. Of course, if the president
had violated fewer presidential duties, committed fewer
misdeeds, and been responsible for fewer harmful consequences
to the American people, the articles could have been drafted
more simply.
The trial memorandum then makes the contention that the two
articles of impeachment are impermissibly vague and lacking
in specificity in that they do not meet the standards of a
criminal indictment. This contention clearly misses the mark.
Impeachment is a political and not a criminal proceeding,
designed, as recognized by Justice Joseph Story, the
Constitution's greatest nineteenth century interpreter, ``not
. . . to punish an offender'' by threatening deprivation of
his life or liberty, but to ``secure the state'' by
``divest[ing] him of his political capacity''. J. Story,
Commentaries on the Constitution (R. Rotunda & J. Nowak eds.,
1987) Sec. 803. Justice Story thus found the analogy to an
indictment to be invalid:
``The articles . . . need not, and indeed do not, pursue
the strict form and accuracy of an indictment. They are
sometimes quite general in the form of the allegations; but
always contain, or ought to contain, so much certainty, as to
enable the party to put himself upon the proper defense, and
also, in case of an acquittal, to avail himself of it, as a
bar to another impeachment.''
(Id. at Sec. 806).
In explaining the impeachment process to the citizens of
New York in Federalist No. 65, Alexander Hamilton stated in
more general terms that impeachment ``can never be tied down
by such strict rules, either in the delineation of the
offense by the prosecutors or in the construction of it by
the judges, as in common cases serve to limit the discretion
of courts in favor of personal security.'' The Federalist No.
65, at 398 (Clinton Rossiter ed., 1961).
Can the president legitimately argue that he is unable to
put on a proper defense? President Clinton has committed a
great number of impeachable misdeeds. The House Judiciary
Committee's committee report requires 20 pages just to list
the most glaring instances of the president's perjurious,
false, and misleading testimony before a federal grand jury
and it requires 13 pages just to list the most glaring
incidents in the president's course of conduct designed to
prevent, obstruct, and impede the administration of justice.
The House believes that President Clinton's attorneys have
reviewed the committee report. They know exactly what he is
being charged with, as is acknowledged in the president's
trial memorandum. The memorandum states in its introduction
that ``[t]ake away the elaborate trappings of the Articles
and the high-flying rhetoric that accompanied them, and we
see clearly that the House of Representatives asks the Senate
to remove the President from office because he . . .''
President's Trial Memorandum at 2. In addition, in the House
proceedings, the President filed three documents: a
Preliminary Memorandum, an Initial Response, and a Submission
by Counsel. The first two documents were printed together and
ran to 57 pages. Preliminary Memorandum of the President of
the United States Concerning Referral of the Office of the
Independent Counsel and Initial Response of the President of
the United States to Referral of the Office of the
Independent Counsel, 105th Cong., 2d Sess., H. Doc. No. 105-
317 (1998). The third was printed and ran to 404 pages.
Submission by Counsel for President Clinton to the Committee
on the Judiciary of the United States House of
Representatives, 105th Cong., 2d Sess. (Comm. Print Ser. No.
16 1998). He was also given 30 hours to present his case
before the House Committee on the Judiciary, during which he
called numerous witnesses. The Committee repeatedly asked
President Clinton to provide it with any exculpatory
evidence, an offer which he never accepted. Now President
Clinton's Trial Memorandum to the Senate runs to 130 pages.
Clearly, President Clinton has not suffered from any lack of
specificity in the articles of impeachment.
If he had, he would have availed himself of the opportunity
to file a motion for a bill of particulars. He had that
opportunity on January 11, 1999, and he waived it. He should
not now be heard to claim that he does not know what the
charges are.
Unlike the judicial impeachments of the 1980s, President
Clinton has not committed a handful of specific misdeeds that
can easily be listed in separate articles of impeachment.
In order to encompass the whole melange of misdeeds that
caused the House of Representatives to impeach President
Clinton, the Judiciary Committee looked to the only
analogous case--that of President Nixon. In 1974, the
Committee was also faced with drafting articles of
impeachment of a reasonable length against a president who
had committed a long series of improper acts designed to
achieve an illicit end.
The first article of impeachment against President Nixon
charged that in order to cover up an unlawful entry into the
headquarters of the Democratic National Committee and to
delay, impede, and obstruct the consequent investigation (and
for certain other purposes), he engaged in a series of acts
such as ``making or causing to be made false or misleading
statements to lawfully authorized investigative officers'',
``endeavoring to misuse the Central Intelligence Agency'',
and ``endeavoring to cause prospective defendants and
individuals duly tried and convicted, to expect favored
treatment and consideration to return for their silence or
false testimony.'' Impeachment of Richard M. Nixon, President
of the United States, H. Rept. No. 93-1305, 93rd Cong., 2d
Sess. 2 (1974). The article did not list each false or
misleading statement, did not list each misuse of the CIA,
and did not list each prospective defendant and what they
were promised.
In like fashion, the articles of impeachment against
President Clinton charge him with providing perjurious,
false, and misleading testimony concerning four subjects,
such as an his relationship with a subordinate government
employee, and engaging in a course of conduct designed to
prevent, obstruct, and impede the administration of justice,
such course including four generals acts such as an effort to
secure job assistance for that employee. An argument can be
made that the articles of impeachment against President
Clinton were drafted with more specificity than those against
President Nixon. Unless President Clinton is arguing that the
Senate should have dismissed the first article of impeachment
against President Nixon (had the president not resigned), he
has little ground to complain about the articles against
himself. In short, President Clinton knows exactly what the
charges are, and the Senate should now require him to account
for his behavior.
B. The Articles Do Not Improperly Charge Multiple Offenses in One
Article.
President Clinton argues unpersuasively that the articles
of impeachment are ``unconstitutionally flawed'' in two
respects. First, he argues that ``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.'' President's Trial Memorandum at 101.
Second, he argues that the articles do not provide him ``the
most basic notice of the charges against him required by due
process and fundamental fairness.'' Id. Both arguments are
factually deficient, ignore Senate precedent and procedure,
and are constitutionally flawed.
The articles of impeachment allege that the President made
``one or more'' ``perjurious, false and misleading statements
to the grand jury'' and committed ``one or more'' acts in
which he obstructed justice. H. Res. 611, 105th Cong. 2nd
Sess. (1998). The articles of impeachment are modeled after
those adopted by the House Committee on the Judiciary against
President Nixon and were drafted with the rules of the Senate
in mind. Senate Rules specifically contemplate that the House
may draft articles of impeachment in this manner and prior
rulings of the Senate have held that such drafting is not
deficient and will not sustain a motion to dismiss.
In 1986, the United States Senate amended the Rules of
Procedure and Practice in the Senate When Sitting on
Impeachment Trials. S. Res. 479, 99th Cong., 2nd Sess.
(1986). As part of the reform, Rules XXIII, which deals
generally with voting the final question, was amended to
clarify the articles of impeachment are not divisible. Rule
XXIII provides in relevant part that:
``An article of impeachment shall not be divisible for the
purpose of voting thereon at any time during the trial. Once
voting has commenced on an article of impeachment, voting
shall be continued until voting has been completed on all
articles of impeachment unless the Senate adjourns for period
not to exceed one day or adjourns sine die.''
The Senate Committee on Rules and Administration, after
thoroughly reviewing the impeachment rules, prior articles of
impeachments, and prior Senate trials, decided that articles
of impeachment should not be divisible. In drafting the
amendment to Rule XXIII providing that articles of
impeachment not be divided, the Senate was aware that the
House may combine multiple counts
of impeachable conduct in one article of impeachment. The
Committee report explains the Senate's position:
``The portion of the amendment effectively enjoining the
divisions of an article into separate specifications is
proposed to permit the most judicious and efficacious
handling of the final question both as a general manner and,
in particular, with respect to the form of the articles that
proposed the impeachment of President Richard M. Nixon. The
latter did not follow the more familiar pattern of embodying
an impeachable offense in an individual article but, in
respect to the first and second of those articles, set out
broadly based charges alleging constitutional improprieties
followed by a recital of transactions illustrative or
supportive of such charges. The wording of Articles I and II
expressly provided that a conviction could be had thereunder
if supported by ``one or more of the'' enumerated
specifications. The general review of the Committee at that
time was expressed by Senators Byrd and Allen, both of whom
felt that division of the articles in question into
potentially 14 separately voted specifications might ``be
time consuming and confusing, and a matter which could create
great chaos and division, bitterness, and ill will * * *.''
Accordingly, it was agreed to write into the proposed rules
language which would allow each Senator to vote to convict
under either the first or second articles if he were
convinced that the person impeached was ``guilty'' or one or
more of the enumerated specifications.''
Amending the Rules of Procedure and Practice in the Senate
When Sitting on Impeachment Trials, Report of the Comm. on
Rules and Administration, S. Rept. 99-401, 99th Cong., 2nd
Sess., at 8 (1986) (emphasis added). Because the Senate was
aware that multiple specifications of impeachment conduct may
be contained in an article of impeachment, the Senate's rules
implicitly countenance such drafting.
The issue regarding whether articles of impeachment are
divisible is not new to the Senate. In fact, the Senate's
Committee on Rules and Administration reviewed the Senate's
impeachment procedures in 1974 to prepare for a possible
trial of President Richard Nixon. The Committee passed the
exact same language as the Committee did in 1986 prohibiting
the division of an article of impeachment. Because President
Nixon resigned, the full Senate never considered the
amendments.
Senator Jacob K. Javits of New York submitted a statement
to the Committee in 1974 addressing the divisibility issue
and advised that Rule XXIII be amended to prohibit the
division of an article of impeachment. His comments, as
follows, are instructive:
``Rule XXIII provides for the yeas and nays to be taken on
each article separately but does not set any order for a vote
when there are several articles. In the [President] Johnson
trial, this was done by order of the Senate and several votes
were taken on the order. This procedure, setting a vote for
final consideration, should be stated in the rules. Also the
rule is silent about the division of any article. In the
Johnson trial a division was requested and the Chief Justice
attempted to devise one, but could not, and the article as a
whole was submitted for a vote to the Senate. I believe
articles should not be divided because this raises a further
question of whether a two-thirds vote is required on each
part of an article and whether the House action on the
construction of a particular article can be changed without
further action by the House. Thus the rule should provide for
no division of an article by the Senate.''
(Senate Rules and Precedents Applicable to Impeachment
Trials, Executive Session Hearings before the Comm. on
Standing Rules and Administration, 93rd Cong., 2nd Sess. at
116 (August 5th and 6th, 1974) (emphasis added).)
In addition to implicitly recognizing that articles of
impeachment may contain multiple specifications of
impeachable offenses, the Senate has convicted a number of
judges on such ``omnibus'' articles, including Judges
Archbald, Ritter, and Claiborne. In the case of Judge Nixon,
the Senate acquitted on the article, but refused to dismiss
it.
The most recent example, that of Judge Nixon in 1989, is
instructive. Judge Walter L. Nixon filed a motion to dismiss
on the grounds that Article III was duplicative, among other
things. Senator Fowler, the chairman of the committee
appointed to take evidence in the impeachment trial of Judge
Nixon explained the reasons for denying Nixon's motion to
refer the motion to dismiss to the full Senate:
``To the extent that the motion rests on the House's
inclusion of fourteen distinct allegations of false
statements in one article, we believe that Article III states
an intelligible and adequately discrete charge of an
impeachable offense by alleging that Judge Nixon concealed
information concerning several conversations in which he had
engaged by making ``one or more'' false statements to a grand
jury. The House has substantial discretion in determining how
to aggregate related alleged acts of misconduct in framing
Articles of Impeachment and has historically frequently
chosen to aggregate multiple factual allegations in a single
impeachment article. The House's itemization of the fourteen
particular statements whose knowing falsity it is alleging
serves to give Judge Nixon fair notice of the contours of the
charge against him without reducing the intelligibility of
the article's essential accusation that Judge Nixon knowingly
concealed material information from the government's law
enforcement agents. Because the Committee believes that
evidentiary proceedings may fairly be conducted on Article
III as it is presently drafted, Judge Nixon's motion to refer
his motion to dismiss Article III to the Senate at this time
is denied.''
(135 Cong. Rec. 19635-36 (September 6, 1989).)
The full Senate eventually rejected Judge Nixon's motion to
dismiss by a vote of 34 to 63. Mr. Manager Cardin
persuasively summed up the argument against the motion to
dismiss as follows:
``Judge Nixon argues, in his brief, that you must find all
14 statements to be false to vote guilty on article III. But
that is untrue. Read the article closely. The question posed
by article III is, did Judge Nixon conceal information? Did
he conceal information, first by one or more false or
misleading statements in his interview, and then by one or
more false and misleading statements in his grand jury
testimony?
``You need not find all 14 statements to be false. The
House is unanimously convinced that all 14 are complete and
utter lies. We hope you will agree. But after considering the
evidence, perhaps you will conclude that only 12 of the
statements are false. It really does not matter. Just one
intentionally false and misleading statement in the
interview, or one in the grand jury, should be enough.
Because if you conclude that Judge Nixon concealed
information, whether by 1 false statement or 14, he should be
removed from the bench. You should vote guilty on article
III.
``And you need not necessarily agree on which statements
are false, if you reach the conclusion that he concealed
information. If two-thirds of the Senators present believe
Judge Nixon lied, regardless of how each individual Senator
reached that conclusion, he will properly be removed from
office.
* * * * *
``This is by no means unfair to Judge Nixon, for even if
you might differ on which particular statements are lies, the
bottom line is that two-thirds of you will have agreed that
he concealed information, rendering him unfit for office.
That is what the Constitution requires.''
(Id. at 26751.)
Given the clear Senate precedent permitting articles of
impeachment containing multiple specifications of impeachable
offenses, the President's attack on the construction of the
articles is an attack on Senate rules and precedent. The
President's concerns, if assumed to be valid, could be
addressed simply by permitting a division of the question.
Under the standing rules of the Senate, any Senator may have
the same divided if ``the question in debate contains
several propositions.'' Senate Rule XV. A question is
divisible if it contains two or more separate and distinct
propositions. The Senate, however, has made an affirmative
decision to dispense with the regular order which governs
bills, resolutions, and amendments thereto, and instead
adopted a different procedure not permitting the division
of articles of impeachment. The Senate has not acted
unconstitutionally in the past regarding prior
impeachments, and is not on a course to do so in the trial
of President Clinton.
The claim that President Clinton is not on notice regarding
the charges is ludicrous. The Lewinsky matter is arguably the
most reported and scrutinized story of 1998 and possibly of
1999. The facts of the case are contained in numerous
documents, statements, reports, and filings. Specifically,
President Clinton has had the following documents, among
others, containing the facts and specifics of the case: (1)
Referral from Independent Counsel Kenneth W. Starr in
Conformity with the Requirements of Title 28, United States
Code, Section 595(c), H. Doc. 105-310, 105th Cong., 2nd Sess.
(1998); (2) Investigatory Powers of the Comm. on the
Judiciary with Respect to its Impeachment Inquiry, H. Rept.
105-795, 105th Cong., 2nd Sess. (October 7, 1998); (3)
Impeachment of William Jefferson Clinton, President of the
United States, 105th Cong., 2nd Sess., H.R. Rept. 105-830
(Dec. 16, 1998); and (4) Trial Memorandum of the United
States House of Representatives. If all of these reports and
the thousands of pages of documents are not enough, President
Clinton will have the opportunity to review the presentation
of the Managers on the Part of the House for up to twenty-
four hours.
V. President Clinton Completely Misstates the Record as to the
Discovery Procedures That Were Available to Him in the House of
Representatives
President Clinton's trial memorandum claimed to the Senate
that, should it decide ``to allow the House managers to
expand the record in some way . . . the President would have
an urgent need for the discovery of relevant evidence,
because at no point in these proceedings has been able to
subpoena documents or summon or cross-examine witnesses.''
President's Trial Memorandum at 125 (emphasis added). The
President also states that ``the House of Representatives
[did not] afford the President any discovery mechanisms to
secure evidence that might be helpful in his defense.'' Id.
We will not address every discovery issue here since those
issues will be resolved in the coming days; however, the
Senate should know that these claims are absolutely false. In
fact, the President's own brief refutes his claims. ``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. . . .'' White House
Counsel Charles
F.C. Ruff presented argument to the Committee on behalf of
the President. . . .'' Id. at 13.
The House Committee on the Judiciary repeatedly asked the
President's attorneys to supply any exculpatory evidence to
the Committee, both orally and in writing. They never did.
When, at the last minute, the President's counsel requested
witnesses, the Committee invited to testify every witness
they requested. Aside from this, President Clinton nor his
attorneys never asked to ``subpoena documents'' or ``summon
or cross-examine witnesses.'' If President Clinton's argument
is that the Committee did not provide his staff a stack of
blank subpoenas, that is correct. However, neither the House
of Representatives, nor the Senate, has the ability to ``turn
over'' its constitutionally based subpoena power to the
executive branch.
President Clinton's attorneys never asked to do the things
they now claim they never had the ability to do. In fact,
when minority members of the Committee publicly asked that
Judge Starr be called as a witness, Judge Starr was called.
In fact, President Clinton's attorney and minority counsel
questioned Judge Starr for over two hours. Every Member of
the Committee questioned him for at least five minutes each.
Judge Starr was a witness, and he was cross-examined by David
Kendall, President Clinton's private attorney. President
Clinton's claims are just not accurate.
President Clinton's attorneys raise the issue of fairness.
They are entitled to their own opinion about the House's
proceedings, but they are not entitled to rewrite history.
The truth is that the Committee's subpoena power could have
been used to subpoena documents or witnesses on behalf of the
President if they had so requested. They did not. All they
requested, is that lawyers, law professors, and historians
testify before the Committee. In short, President Clinton's
statements about what happened in the House completely
misstate what occurred.
VI. Conclusion
For the reasons stated herein and in the Trial Memorandum
of the United States House of Representatives, the House
respectfully submits that the articles properly state
impeachable offenses, that the Senate should proceed to a
full trial on the articles, and that after trial, the Senate
should vote to convict President William Jefferson Clinton,
remove him from office, and disqualify him from holding
further office.
Respectfully submitted,
The United States
House of Representatives.
Henry J. Hyde,
F. James Sensenbrenner, Jr.,
Bill McCollum,
George W. Gekas,
Charles T. Canady,
Stephen E. Buyer,
Ed Bryant,
Steve Chabot,
Bob Barr,
Asa Hutchinson,
Chris Cannon,
James E. Rogan,
Lindsey O. Graham,
Managers on the Part of the House.
Thomas E. Mooney,
General Counsel.
David P. Schippers,
Chief Investigative Counsel.
Dated: January 14, 1999.
The CHIEF JUSTICE. I would like to inform Members of the Senate and
the parties in this case of my need to stand on occasion to stretch my
back. I have no intention that the proceedings should be in any way
interrupted when I do so.
The Presiding Officer notes the presence in the Senate Chamber of the
managers on the part of the House of Representatives and counsel for
the President of the United States.
Pursuant to the provisions of Senate Resolution 16, the managers for
the House of Representatives have 24 hours to make the presentation of
their case. The Senate will now hear you.
The Presiding Officer recognizes Mr. Manager Hyde to begin the
presentation of the case for the House of Representatives.
Mr. Manager HYDE. Mr. Chief Justice, distinguished counsel for the
President, and Senators.
We are brought together on this solemn and historic occasion to
perform important duties assigned to us by the Constitution.
We want you to know how much we respect you and this institution and
how grateful we are for your guidance and your cooperation.
With your permission, we the managers of the House are here to set
forth the evidence in support of two articles of impeachment against
President William Jefferson Clinton. You are seated in this historic
Chamber not to embark on some great legislative debate, which these
stately walls have so often witnessed, but to listen to the evidence,
as those who must sit in judgment.
To guide you in this grave duty, you have taken an oath of
impartiality. With the simple words ``I do,'' you have pledged to put
aside personal bias and partisan interest and to do ``impartial
justice.'' Your willingness to take up this calling has once again
reminded the world of the unique brilliance of America's constitutional
system of Government. We are here, Mr. Chief Justice and distinguished
Senators, as advocates for the rule of law, for equal justice under the
law and for the sanctity of the oath.
The oath. In many ways the case you will consider in the coming days
is about those two words ``I do,'' pronounced at two Presidential
inaugurations by a person whose spoken words have singular importance
to our Nation and to the great globe itself.
More than 450 years ago, Sir Thomas More, former Lord Chancellor of
England, was imprisoned in the Tower of London because he had, in the
name of conscience, defied the absolute power of the King. As the
playwright Robert Bolt tells it, More was visited by his family, who
tried to persuade him to speak the words of the oath that would save
his life, even while, in his mind and heart, he held firm to his
conviction that the King was in error. More refused. As he told his
daughter, Margaret, ``When a man takes an oath, Meg, he's holding his
own self in his hands. Like water. And if he opens his fingers then--he
needn't hope to find himself again . . .'' Sir Thomas More, the most
brilliant lawyer of his generation, a scholar with an international
reputation, the center of a warm and affectionate family life which he
cherished, went to his death rather than take an oath in vain.
Members of the Senate, what you do over the next few weeks will
forever affect the meaning of those two words ``I do.'' You are now
stewards of the oath. Its significance in public service and our
cherished system of justice will never be the same after this.
Depending on what you decide, it will either be strengthened in its
power to achieve justice or it will go the way of so much of our moral
infrastructure and become a mere convention, full of sound and fury,
signifying nothing.
The House of Representatives has named myself and 12 other Members as
Managers of its case. I have the honor of introducing those
distinguished Members and explaining how we will make our initial
presentation. The gentleman from Wisconsin, Representative Jim
Sensenbrenner, will begin the presentation with an overview of the
case. Representative Sensenbrenner is the ranking Republican member of
the House Judiciary Committee, and has served for 20 years. In 1989,
Representative Sensenbrenner was a House manager in the impeachment
trial of Judge Walter L. Nixon who was convicted on two articles of
impeachment for making false and misleading statements before a federal
grand jury.
Following Representative Sensenbrenner will be a team of managers who
will make a presentation of the relevant facts of this case. From the
very outset of this ordeal, there has been a great deal of speculation
and misinformation about the facts. That has been unfortunate for
everyone involved. We believe that a full presentation of the facts and
the law by the House managers--will be helpful.
Representative Ed Bryant, from Tennessee was a United States Attorney
from the Western District of Tennessee. As a captain in the Army,
Representative Bryant served in the Judge Advocate General Corps and
taught at the United States Military Academy at West Point.
Representative Bryant will explain the background of the events that
led to the illegal actions of the President. Following Representative
Bryant, Representative Asa Hutchinson from Arkansas will give a
presentation of the factual basis for article II, obstruction of
justice. Representative Hutchinson is a former United States Attorney
for the Western District of Arkansas. Next, you will hear from
Representative Jim Rogan of California. Representative Rogan is a
former California State judge and Los Angeles County Deputy District
Attorney. Representative Rogan will give a presentation of the factual
basis for article I, grand jury perjury. This should conclude our
presentation for today.
Tomorrow, Representative Bill McCollum of Florida will tie all of the
facts together and give a factual summation. Representative McCollum is
the Chairman of the Subcommittee on Crime, a former Naval Reserve
Commander and member of the Judge Advocate General Corps.
Following the presentation of the facts, a team of managers will
present the law of perjury and the law of obstruction of justice and
how it applies to the articles of impeachment before you. While the
Senate has made it clear that a crime is not essential to impeachment
and removal from office, these managers will explain how egregious and
criminal the conduct alleged in the articles of impeachment is. This
team includes Representative George Gekas of Pennsylvania,
Representative Steve Chabot of Ohio, Representative Bob Barr of
Georgia, and Representative Chris Cannon of Utah. Representative Gekas
is the Chairman of the Subcommittee on Commercial and Administrative
Law. And in 1989, Representative Gekas served as a manager of the
impeachment trial of Judge Alcee Hastings who the Senate convicted on
eight articles for making false and misleading statements under oath
and one article of conspiracy to engage in a bribery. Representative
Gekas is a former assistant district attorney. Representative Chabot
serves on the Subcommittee on Crime and has experience as a criminal
defense lawyer. Representative Barr is a former United States Attorney
for the Northern District of Georgia, where he specialized in public
corruption. He also has experience as a criminal defense attorney.
Representative Cannon has had experience as the Deputy Associate
Solicitor General of the Department of the Interior and as a practicing
attorney. That should conclude our presentation for Friday.
On Saturday, three managers will make a presentation on
Constitutional law as it relates to this case. There has been a great
deal of argument about whether the conduct alleged in the articles
rises to the level of removable offenses. This team's analysis of the
precedents of the Senate and application of the facts of this case will
make it clear that the Senate has established the conduct alleged in
the articles to be removable offenses. In this presentation you will
hear from Representative Charles Canady of Florida, Representative
Steve Buyer of Indiana and Representative Lindsey Graham of South
Carolina. Representative Canady is the Chairman of the Subcommittee on
the Constitution and one of the leading voices on constitutional law in
the House. Representative Buyer served in the United States Army as a
member of the Judge Advocate General Corps where he was assigned as
Special Assistant to the United States Attorney in Virginia. He also
served as a deputy to the Indiana Attorney General. Representative
Graham served in the Air Force as a member of the Judge Advocate
General Corps and as a South Carolina Assistant Attorney.
Following the presentation of the facts, the law of perjury and
obstruction of justice and constitutional law, Mr. Rogan and myself
will give you a final summation and closing to our initial
presentation.
Mr. Sensenbrenner.
The CHIEF JUSTICE. Mr. Manager Sensenbrenner is recognized.
Mr. Manager SENSENBRENNER. Mr. Chief Justice, distinguished counsel
to the President, and Senators, in his third annual message to Congress
on December 7, 1903, President Theodore Roosevelt said:
No man is above the law and no man is below it; nor do we
ask any man's permission when we require him to obey it.
Obedience to the law is demanded as a right; not asked as a
favor.
We are here today because President William Jefferson Clinton decided
to put himself above the law, not once, not twice, but repeatedly. He
put himself above the law when he engaged in a multifaceted scheme to
obstruct justice during the Federal civil rights case of Paula Corbin
Jones versus William Jefferson Clinton, et. al. He put himself above
the law when he made perjurious, false and misleading statements under
oath during his grand jury testimony on August 17, 1998. In both
instances, he unlawfully attempted to prevent the judicial branch of
Government--a coequal branch--from performing its constitutional duty
to administer equal justice under law.
The United States House of Representatives has determined that the
President's false and misleading testimony to the grand jury and his
obstruction of justice in the Jones lawsuit are high crimes and
misdemeanors within the meaning of the Constitution. Should the Senate
conduct a fair and impartial trial which allows each side to present
its best case, then the American public can be confident that justice
has been served, regardless of the outcome.
We hear much about how important the rule of law is to our Nation and
to our system of government. Some have commented this expression is
trite. But, whether expressed by these three words, or others, the
primacy of law over the rule of individuals is what distinguishes the
United States from most other countries and why our Constitution is as
alive today as it was 210 years ago.
The Framers of the Constitution devised an elaborate system of checks
and balances to ensure our liberties by making sure that no person,
institution, or branch of Government became so powerful that a tyranny
could ever be established in the United States of America.
We are the trustees of that sacred legacy and whether the rule of law
and faith in our Nation emerges stronger than ever, or are diminished
irreparably, depends upon the collective decision of the message each
Senator chooses to send forth in the days ahead.
The evidence you will hear relates solely to the President's
misconduct, which is contrary to his constitutional public
responsibility to ensure the laws be faithfully executed. It is not
about the President's affair with a subordinate employee, an affair
that was both inappropriate and immoral. Mr. Clinton has recognized
that this relationship was wrong. I give him credit for that. But he
has not owned up to the false testimony, the stonewalling and legal
hairsplitting, and obstructing the courts from finding the truth. In
doing so, he has turned his affair into a public wrong. And for these
actions, he must be held accountable through the only constitutional
means the country has available--the difficult and painful process of
impeachment.
Impeachment is one of the checks the Framers gave to Congress to
protect the American people from a corrupt or tyrannical executive or
judicial branch of Government. Because the procedure is cumbersome and
because a two-thirds vote in the Senate is required to remove an
official following an impeachment trial, safeguards are there to stop
Congress from increasing its powers at the expense-of the other two
branches. The process is long. It is difficult. It is unpleasant. But,
above all, it is necessary to maintain the public's trust in the
conduct of their elected officials--elected officials, such as myself
and yourselves, who through our oaths of office have a duty to follow
the law, fulfill our constitutional responsibilities, and protect our
Republic from public wrongdoing.
The Framers of the Constitution envisioned a separate and distinct
process in the House and in the Senate. They did not expect the House
and Senate to conduct virtually identical proceedings with the only
difference being that conviction in the Senate requires a two-thirds
vote. That is why the Constitution reserves the sole power of
impeachment to the House of Representatives and the sole power to try
all impeachments to the Senate. History demonstrates different
processes were adopted to reflect very different roles.
In the case of President Andrew Johnson, no hearings were held or
witnesses called by the House on the President's decision to remove
Secretary of War Stanton from office. The House first approved a
general article of impeachment that simply stated that President
Johnson was impeached for high crimes and misdemeanors. Five days
later, a special House committee drew up specific articles. Eleven
articles were passed by the House, all but two of which were based upon
President Johnson's alleged violation of the Tenure of Office Act by
his actions in removing Secretary of War Stanton. The trial was then
conducted with witnesses in the Senate.
In the case of President Nixon, the House Judiciary Committee passed
three articles of impeachment based not upon their own investigation,
but upon the evidence gathered by the Ervin Committee, the Patman
Committee, the Joint Tax Committee and
material from the special prosecutor and various court proceedings.
Nine witnesses were called at the end of the impeachment inquiry, five
of them at the request of the White House, and their testimony was not
at the center of the impeachment articles.
In the Judge Walter Nixon impeachment in 1989, a trial with live
witnesses was held even after the Senate rejected by less than a two-
thirds vote a defense motion to dismiss one article of impeachment on
the grounds that it did not constitute an impeachable offense.
The House managers submit witnesses are essential to give heightened
credence to whatever judgment the Senate chooses to make on each of the
articles of impeachment against President Clinton.
The matter of how this proceeding will be conducted remains somewhat
unsettled. Senate impeachment precedent has been to hold a trial. And,
in every impeachment case, the Senate has heard from live witnesses.
Should the President's counsel dispute the facts as laid out by the
House of Representatives, the Senate will need to hear from live
witnesses in order to reach a proper and fair judgment as to the
truthful facts of this case.
The House concluded the President made perjurious, false and
misleading statements before the grand jury, which the House believes
constitutes a high crime and misdemeanor. Our entire legal system is
based upon the courts being able to find the truth. That's why
witnesses must raise their right hand and swear to tell the truth, the
whole truth, and nothing but the truth. That's why there are criminal
penalties for perjury and making false statements under oath. The need
for obtaining truthful testimony in court is so important that the
Federal sentencing guidelines have the same penalties for perjury as
for bribery.
The Constitution specifically names bribery as an impeachable
offense. Perjury is the twin brother of bribery. By making the penalty
for perjury the same as that for bribery, Congress has acknowledged
that both crimes are equally serious. It follows that perjury and
making false statements under oath, which is a form of perjury, be
considered among the ``high crimes and misdemeanors'' the Framers
intended to be grounds for impeachment.
The three judicial impeachments of the 1980's were all about lies
told by a federal judge. Judge Claiborne was removed from office for
lying on his income tax returns. Judge Hastings was removed for lying
under oath during a trial, and Judge Nixon was removed for making false
statements to a grand jury. In each case, the Senate showed no leniency
to judges who lie. Their misconduct was deemed impeachable and more
than 2/3rds of the Senate voted to convict.
If the Senate is convinced that President Clinton lied under oath and
does not remove him from office, the wrong message is given to our
courts, those who have business before them, and to the country as a
whole. That terrible message is that we as a nation have set a lower
standard for lying under oath for Presidents than for judges. Should
not the leader of our country be held to at least as high a standard as
the judges he appoints? Should not the President be obliged to tell the
truth when under oath, just as every citizen must? Should not our laws
be enforced equally? Your decision in this proceeding will answer these
questions and set the standard of conduct of public officials in town
halls and courtrooms everywhere and the Oval Office for generations.
Justice is never served by the placing of any public official above
the law. The framers rejected the British law of, ``The King can do no
wrong'', when they wrote our basic law in 1787. Any law is only as good
as its enforcement, and the enforcement of the law against the
President was left to Congress through the impeachment process.
A Senate conviction of the President in this matter will reaffirm the
irrefutable fact that even the President of the United States has no
license to lie under oath. Deceiving the courts is an offense against
the public. It prevents the courts from administering justice and
citizens from receiving justice. Every American has the right to go to
court for redress of wrongs, as well as the right to a jury trial. The
jury finds the facts. The citizens on the jury cannot correctly find
the facts absent truthful testimony. That's why it's vital that the
Senate protect the sanctity of the oath to obtain truthful testimony,
not just during judicial proceedings but also during legislative
proceedings as well.
Witnesses before Congress, whether presidential nominees seeking
Senate confirmation to high posts in the executive or judicial
branches, federal agency heads testifying during investigative
hearings, or witnesses at legislative hearings giving their opinions on
bills are sworn to tell the truth. Eroding the oath to tell the truth
means that Congress loses some of its ability to base its decisions
upon truthful testimony. Lowering the standard of the truthfulness of
sworn testimony will create a cancer that will keep the legislative
branch from discharging its constitutional functions as well.
Mr. Chief Justice, we are here today because William Jefferson
Clinton decided to use all means possible--both legal and illegal--to
subvert the truth about his conduct relevant to the federal civil
rights suit brought against President Clinton by Mrs. Paula Jones.
Defendants in civil lawsuits cannot pick and choose which laws and
rules of procedure they will follow and which they will not. That's for
the trial judge to decide, whether the defendant be President or
pauper.
In this case, a citizen claimed her civil rights were violated when
she refused then Governor Clinton's advances and was subsequently
harassed at work, denied merit pay raises, and finally forced to quit.
The court ruled she had the right to obtain evidence showing other
women including Miss Lewinsky, got jobs, promotions, and raises after
submitting to Mr. Clinton, and whether other women suffered job
detriments after refusing similar advances.
When someone lies about an affair and tries to hide the fact, they
violate the trust their spouse and family put in them. But when they
lie about it during a legal proceeding and obstruct the parties from
obtaining evidence, they prevent the courts from administering justice.
That is an offense against the public, made even worse when a poor or
powerless person seeks the protections of our civil rights from the
rich or powerful.
When an American citizen claims his or her civil rights have been
violated, we must take those claims seriously. Our civil rights laws
have remade our society for the better. The law gives the same
protections to the child denied entry to a school or college based upon
race as to an employee claiming discrimination at work. Once a hole is
punched in civil rights protections for some, those protections are not
worth as much for all. Many in the Senate have spent their lives
advancing individual rights. Their successful efforts have made America
a better place. In my opinion, this is no time to abandon that
struggle--no matter the public mood or the political consequence.
Some have said that the false testimony given by the President
relating to sex should be excused, since as the argument goes,
``Everyone lies about sex.'' I would ask the Senate to stop to think
about the consequences of adopting that attitude. Our sexual harassment
laws would become unenforceable since every sexual harassment lawsuit
is about sex, and much of domestic violence litigation is at least
partly about sex. If defendants in these types of suits are allowed to
lie about sex, justice cannot be done, and many victims, mostly women,
will be denied justice.
Mr. Chief Justice, the House has adopted two articles of impeachment
against President William Jefferson Clinton. Each meets the standard of
``high crimes and misdemeanors'' and each is amply supported by the
evidence.
Article 1 impeaches the President for ``perjurious, false and
misleading'' testimony during his August 17, 1998, appearance before a
grand jury of the United States in four areas.
First, the nature and details of his relationship with a subordinate
government employee.
Second, prior perjurious, false and misleading testimony he gave in a
federal civil rights action brought against him.
Third, prior false and misleading statements he allowed his attorney
to make to a federal judge in that federal civil rights lawsuit.
Fourth, his corrupt efforts to influence the testimony of witnesses
and to
impede the discovery of evidence in that civil rights action.
The evidence will clearly show that President Clinton's false
testimony to the grand jury was not a single or isolated instance which
could be excused as a mistake, but rather a comprehensive and
calculated plan to prevent the grand jury from getting the accurate
testimony in order to do its job. Furthermore, it is important to
dispel the notion that the President's false testimony before the grand
jury simply relates to details of the relationship between President
Clinton and Miss Lewinsky. These charges only make up a small part of
Article 1. The fact is, the evidence will show that President Clinton
made numerous perjurious, false and misleading statements regarding his
efforts to obstruct justice.
Before describing what the evidence in support of Article 1 shows, it
is also important to clearly demonstrate that the Senate has already
decided that making false statements under oath to a federal grand jury
is an impeachable offense.
The last impeachment decided by the Senate, that of United States
District Judge Walter L. Nixon, Jr., of the United States District
Court for the Southern District of Mississippi, involved the Judge's
making false statements under oath to a federal grand jury, precisely
the same charges contained in Article 1 against President Clinton.
Following an unanimous 417 to 0 vote in the House, the Senate conducted
a full trial and removed Judge Nixon from office on the two articles
charging false statements to a grand jury by votes of 89 to 8 and 78 to
19. The Senate was clear that the specific misconduct, that is, making
false statements to a grand jury, which was the basis for the Judge's
impeachment, warranted his removal from office and the Senate proceeded
to do just that.
These votes, a little more than nine years ago on November 3, 1989,
set a clear standard that lying to a grand jury is grounds for removal
from office. To set a different standard in this trial is to say that
the standard for judicial truthfulness during grand jury testimony is
higher than that of presidential truthfulness.
That result would be absurd. The truth is the truth and a lie is a
lie. There cannot be different levels of the truth for judges than for
presidents.
The President's perjurious, false and misleading statements regarding
his relationship with Ms. Lewinsky began early in his grand jury
testimony. These statements included parts of the prepared statement
the President read at the beginning of his testimony. He referred or
reverted to his statement at least 19 times during the course of his
testimony.
Further, the evidence will show the President made other false
statements to the grand jury regarding the nature and details of his
relationship with Ms. Lewinsky at times when he did not refer to his
prepared statement.
Second, the evidence will show that the President piled perjury upon
perjury when he provided perjurious, false and misleading testimony to
the grand jury concerning prior perjurious, false and misleading
testimony given in Ms. Paula Jones' case.
On two occasions, the President testified to the grand jury that his
deposition testimony was the truth, the whole truth, and nothing but
the truth, and that he was required to give a complete answer to each
question asked of him during the deposition. That means he brought to
the grand jury his untruthful answers to questions at the deposition.
Third, the evidence will show the President provided perjurious,
false and misleading testimony to a Federal grand jury regarding his
attorney's use of an affidavit he knew to be false during the
deposition in Ms. Paula Jones' case before Federal Judge Susan Webber
Wright.
The President denied that he even paid attention to Mr. Bennett's use
of the affidavit. The evidence will show he made this denial because
his failure to stop his attorney from utilizing a false affidavit at a
deposition would constitute obstruction of justice. The evidence will
also show the President did not admit that Mr. Bennett's statement was
false because to do so would be to admit that he had perjured himself
earlier that day during the grand jury testimony, as well as at the
deposition.
Fourth, the evidence will show that the President provided
perjurious, false and misleading testimony to the grand jury concerning
his corrupt efforts to influence the testimony of witnesses and to
impede the discovery of evidence in Ms. Paula Jones' civil rights
action.
The evidence will show that these statements related to at least four
areas:
First, his false statements relating to gifts exchanged between the
President and Ms. Lewinsky. The subpoena served on Ms. Lewinsky in the
Jones case required her to produce each and every gift she had received
from the President. These gifts were not turned over as required by the
subpoena, but ended up under Ms. Betty Currie's bed in a sealed
container. The President denied under oath that he directed Ms. Currie
to get the gifts, but the evidence will show that Ms. Currie did call
Ms. Lewinsky about them and that there was no reason for her doing so
unless directed by the President.
Second, the President made perjurious, false and misleading
statements to the grand jury regarding his knowledge that the Lewinsky
affidavit submitted at the deposition was untrue. The evidence will
show that the President testified falsely on this issue on at least
three separate occasions during his grand jury testimony. He also
provided false testimony on whether he encouraged Ms. Lewinsky to file
a false affidavit.
Third, the President made false and misleading statements to the
grand jury by reciting a false account of the facts regarding his
interactions with Ms. Lewinsky and Ms. Currie, who was a potential
witness against him in Ms. Jones' case.
The record reflects the President tried to coach Ms. Currie to recite
inaccurate answers to possible questions should she be called as a
witness. The evidence will show the President testified to the grand
jury that he was trying to figure out what the facts were, but in
reality the conversation with Ms. Currie consisted of a number of very
false and misleading statements.
Finally, the President made perjurious, false and misleading
statements to aides regarding his relationship with Ms. Lewinsky. In
his grand jury testimony, the President tried to have it both ways on
this issue. He testified that his statements to aides were both true
and misleading--true and misleading.
The evidence will show that he met with four aides who would later be
called to testify before the grand jury. They included Mr. Sidney
Blumenthal, Mr. John Podesta, Mr. Erskine Bowles, and Mr. Harold Ickes.
Each of them related to the grand jury the untruths they had been told
by the President. I have recited this long catalogue of false
statements to show that the President's false statements to the grand
jury were neither few in number nor isolated, but rather pervaded his
entire testimony.
There can be no question that the President's false statements to the
grand jury were material to the subject of the inquiry. Grand juries
are utilized to obtain sworn testimony from witnesses to determine
whether a crime has been committed. The Attorney General and the
Special Division of the United States Court of Appeals for the District
of Columbia Circuit appointed an independent counsel pursuant to law
and added areas of inquiry because they believed there was evidence
that the President may have committed crimes. Grand jury testimony
relevant to the criminal probe is always material to the issue of
whether someone has committed a crime.
Based upon the precedent in the Judge Nixon impeachment, the law, the
facts, and the evidence, if you find the President made perjurious,
false and misleading statements under oath to the grand jury, I
respectfully submit that your duty will be to find William Jefferson
Clinton guilty with respect to article I and to remove him from office.
Article II impeaches William Jefferson Clinton for preventing,
obstructing and impeding the administration of justice in the Jones
case by either directly or through subordinates and agents engaging in
a scheme to delay, impede, cover up, and conceal the existence of
evidence and testimony relating to Ms. Jones' Federal civil rights
action.
As in the case of article I, the President's direct and indirect
actions were not isolated mistakes, but were multifaceted actions
specifically designed to prevent Ms. Paula Jones from having her day in
court.
While the Senate determined in the Judge Nixon trial that the making
of false statements to a Federal grand jury warranted conviction and
removal from office, no impeachment on an obstruction of justice charge
has ever reached the Senate.
Therefore, this article is a matter of first impression. However, the
impeachment inquiry of the House Judiciary Committee into the conduct
of President Richard Nixon, as well as the relevant Federal criminal
statutes, clearly show President Clinton's actions to be within the
definition of ``high crimes and misdemeanors'' contained in the
Constitution.
The first article of impeachment against President Nixon approved by
the Judiciary Committee charged Mr. Nixon with ``engag(ing) personally
and through his subordinates and agents in a course of conduct or plan
designed to delay, impede and obstruct the investigation of such
unlawful entry; to cover up, conceal and protect those responsible and
to conceal the existence and scope of other unlawful activities.''
The article charged that the implementation of the plan included nine
separate areas of misconduct. Included among these were, one, making or
causing to be made false and misleading statements to investigative
officers and employees of the United States; two, withholding relevant
and material evidence from such persons; three, approving, condoning,
acquiescing in and counseling witnesses with respect to the giving of
false and misleading statements to such persons as well as in judicial
and congressional proceedings.
History shows us that President Nixon's resignation was the only act
that prevented the Senate from voting on this article, and that the
President's conviction and removal from office were all but certain.
There are two sections of the Federal Criminal Code placing penalties
on those who obstruct justice. Title 18, United States Code, section
1503, punishes ``(whoever * * * corruptly, or by threats or force * * *
obstructs, or impedes or endeavors to influence, obstruct or impede the
due administration of justice.''
The courts have held that this section relates to pending judicial
process, which can be a civil action. Ms. Jones' case fits that
definition at the time of the President's actions as alleged in article
II, as does the Office of Independent Counsel's investigation.
Title 18, United States Code, section 1512, punishes, ``Whoever * * *
corruptly persuades another person, or attempts to do so, or engages in
misleading conduct toward another person, with intent to * * *
influence, delay or prevent the testimony of any person in an official
proceeding * * * (or) cause or induce any person to * * * withhold
testimony, or withhold a record, document, or other object from an
official proceeding * * *.''
The evidence will show that President Clinton's actions constituted
obstruction of justice in seven specific instances as alleged in
Article II. Paragraph one alleges that on or about December 17, 1997,
the President encouraged Miss Lewinsky, who would be subpoenaed as a
witness in Mrs. Jones' case two days later, to execute a sworn
affidavit that he knew would be perjurious, false, and misleading.
The evidence will show the President's actions violated both federal
criminal obstruction statutes.
Second, Article II alleges that on or about that same day, the
President corruptly encouraged Miss Lewinsky to give perjurious, false,
and misleading testimony if and when called to testify personally in
that proceeding. Miss Lewinsky, on the witness list at that time, could
have been expected to be required to give live testimony in the Jones
case and in fact she was subsequently subpoenaed for a deposition in
that case.
The evidence will show the President's actions violated both federal
criminal obstruction statutes.
Third, Article II alleges on or about December 28, 1997, the
President corruptly engaged in, encouraged, or supported a scheme to
conceal evidence which had been subpoenaed in Mrs. Jones' civil rights
case. He did so by asking Ms. Betty Currie to retrieve evidence from
Miss Lewinsky that had been subpoenaed in the case of Jones v. Clinton.
The evidence will show the President's actions violated the second
federal criminal obstruction statute.
Fourth, Article II alleges that beginning on or about December 7,
1997, and continuing through and including January 14, 1998, the
President intensified and succeeded in an effort to secure job
assistance to Miss Lewinsky in order to corruptly prevent her truthful
testimony in the Jones case at a time when her truthful testimony would
have been harmful to him.
While Miss Lewinsky had sought employment in New York City long
before the dates in question, helping her find a suitable job was
clearly a low priority for the President and his associates until it
became obvious she would become a witness in the Jones case. The
evidence will clearly show an intensification of that effort after her
name appeared on the witness list. This effort was ultimately
successful and the evidence will show that the President's actions
violated both federal obstruction statutes.
Fifth, Article II alleges on January 17, 1998, the President
corruptly allowed his attorney to make false and misleading statements
to Judge Wright characterizing the Lewinsky affidavit in order to
prevent questioning deemed relevant by the judge. The President's
attorney, Robert Bennett, subsequently acknowledged such false and
misleading statements in a communication to Judge Wright.
The evidence will show the President's actions clearly violate the
second federal criminal obstruction statute.
Sixth, Article II alleges that on or about January 18, 20, and 21,
1998, the President related a false and misleading account of events
relevant to Mrs. Jones' civil rights suit to Ms. Betty Currie, a
potential witness in the proceeding, in order to corruptly influence
her testimony.
The evidence will show that President Clinton attempted to influence
the testimony of Ms. Betty Currie, his personal secretary, by coaching
her to recite inaccurate answers to possible questions that might be
asked of her if called to testify in Mrs. Paula Jones' case. The
President did this shortly after he had been deposed in the civil
action.
During the deposition, he frequently referred to Ms. Currie and it
was logical that based upon his testimony, Ms. Currie would be called
as a witness.
The evidence will show that two hours after the completion of the
deposition, the President called Ms. Currie to ask her to come to the
office the next day, which was a Sunday.
When Ms. Currie testified to the grand jury, she acknowledged the
President made a series of leading statements or questions and
concluded that the President wanted her to agree with him.
The evidence will show the President's actions violated both
statutes, but most particularly section 1512.
In United States v. Rodolitz 786 F2d 77 at 82 (2nd Cir 1986) cert.
Den. 479 US 826 (1986), the United States Court of Appeals for the 2nd
Circuit said,
The most obvious example of a sec. 1512 violation may be
the situation where a defendant tells a potential witness a
false story as if the story were true, intending that the
witness believes the story and testify to it before the grand
jury.
If the President's actions do not fit this example, I'm at a loss to
know what actions do.
Seventh, and last, Article II alleges on or about January 21, 23, and
26, 1998, the President made false and misleading statements to
potential witnesses in a federal grand jury proceeding in order to
corruptly influence this testimony of those witnesses. The articles
further alleges these false and misleading statements were repeated by
the witnesses to the grand jury, causing the grand jury to receive
false and misleading information.
The evidence will show that these statements were made to
presidential aides Mr. Sidney Blumenthal, Mr. Erskine Bowles, Mr. John
Podesta and Mr. Harold Ickes. They all testified to the grand jury. By
his own admission seven months later, on August 17, 1998, during his
sworn grand jury testimony, the President said that he told a number of
aides that he did not have an affair with Ms. Lewinsky and did not
have sex with her. He told one aide, Mr. Sidney Blumenthal, that Miss
Monica Lewinsky came on to him and he rebuffed her. President Clinton
also admitted that he knew these aides might be called before the grand
jury as witnesses. The evidence will show they were called; they
related the President's false statements to the grand jury; and that by
the time the President made his admission to the grand jury, the damage
had already been done.
This is a classic violation of 18 U.S.C. Section 1512.
The seven specific, allegations of obstruction of justice contained
in Article II were designed to prevent the judicial branch of
government, a separate and coequal branch, from doing its work in Ms.
Paula Jones' lawsuit. Based upon the allegation of Article 1 against
President Nixon in 1974, as well as repeated and calculated violations
of two key criminal obstruction statutes, William Jefferson Clinton
committed an impeachable offense.
In Article II, the evidence is conclusive that President Clinton put
himself above the law in obstructing justice, not once, not just a few
times, but as a part of a extensive scheme to prevent Ms. Jones from
obtaining the evidence she thought she needed to prove her civil rights
claims.
Complying with the law is the duty of all parties
UNITED STATES SENATE 13:00 - 14:00
THE IMPEACHMENT TRIAL OF PRESIDENT BILL CLINTON RESUMES IN THE
SENATE WITH PRESENTATION FROM THE HOUSE MANAGERS.
FROM THE CONGRESSIONAL REGISTER:
TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of Impeachment.
The Chaplain will offer a prayer.
______
PRAYER
The Chaplain, Dr. Lloyd John Ogilvie, offered the following prayer:
Almighty God, whose providential care has never varied all through
our Nation's history, we ask You for a special measure of wisdom for
the women and men of this Senate as they act as jurors in this
impeachment trial. You have been our Nation's refuge and strength in
triumphs and troubles, prosperity and problems. Now, dear Father, help
us through this difficult time. As You guided the Senators to unity in
matters of procedure, continue to make them one in their search for the
truth and in their expression of justice. Keep them focused in a spirit
of nonpartisan patriotism today and in the crucial days to come. Bless
the distinguished Chief Justice as he presides over this trial. We
commit to You all that is said and done and ultimately decided. In Your
holy Name. Amen.
The CHIEF JUSTICE. The Sergeant at Arms will make the proclamation.
The Sergeant at Arms, James W. Ziglar, made proclamation as follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to
keep silent, on pain of imprisonment, while the Senate of the
United States is sitting for the trial of the articles of
impeachment exhibited by the House of Representatives against
William Jefferson Clinton, President of the United States.
The CHIEF JUSTICE. The Presiding Officer recognizes the majority
leader.
Mr. LOTT. Thank you, Mr. Chief Justice.
Installing Equipment And Furniture in the Senate Chamber
Mr. LOTT. I send a resolution to the desk providing for installing
equipment and furniture in the Senate Chamber and ask that it be agreed
to and the motion to reconsider be laid upon the table.
The CHIEF JUSTICE. The clerk will report the resolution by title.
The legislative clerk read as follows:
A resolution (S. Res. 17), to authorize the installation of
appropriate equipment and furniture in the Senate Chamber for
the impeachment trial.
The CHIEF JUSTICE. Without objection, the resolution is considered
and agreed to.
The resolution (S. Res. 17) was agreed to, as follows:
S. Res. 17
Resolved, That in recognition of the unique requirements
raised by the impeachment trial of a President of the United
States, the Sergeant at Arms shall install appropriate
equipment and furniture in the Senate chamber for use by the
managers from the House of Representatives and counsel to the
President in their presentations to the Senate during all
times that the Senate is sitting for trial with the Chief
Justice of the United States presiding.
Sec. 2. The appropriate equipment and furniture referred to
in the first section is as follows:
(1) A lectern, a witness table and chair if required, and
tables and chairs to accommodate an equal number of managers
from the House of Representatives and counsel for the
President which shall be placed in the well of the Senate.
(2) Such equipment as may be required to permit the display
of video, or audio evidence, including video monitors and
microphones, which may be placed in the chamber for use by
the managers from the House of Representatives or the counsel
to the President.
Sec. 3. All equipment and furniture authorized by this
resolution shall be placed in the chamber in a manner that
provides the least practicable disruption to Senate
proceedings.
Privilege of the Floor
Mr. LOTT. Mr. Chief Justice, I now ask unanimous consent floor
privileges be granted to the individuals listed on the document I send
to the desk, during the closed impeachment proceedings of William
Jefferson Clinton, President of the United States.
The CHIEF JUSTICE. Without objection, it is so ordered.
The document follows.
Floor Privileges During Closed Session
David Hoppe, Administrative Assistant, Majority Leader.
Michael Wallace, Counsel, Majority Leader.
Robert Wilkie, Counsel, Majority Leader.
Bill Corr, Counsel, Democratic Leader.
Robert Bauer, Counsel, Democratic Leader.
Andrea La Rue, Counsel, Democratic Leader.
Peter Arapis, Floor Manager, Democratic Whip.
Kirk Matthew, Chief of Staff, Assistant Majority Leader.
Stewart Verdery, Counsel, Assistant Majority Leader.
Tom Griffith, Senate Legal Counsel.
Morgan Frankel, Deputy Senate Legal Counsel.
Loretta Symms, Deputy Sergeant at Arms.
Bruce Kasold, Chief Counsel, Secretary & Sergeant at Arms.
David Schiappa, Assistant Majority Secretary.
Lula Davis, Assistant Minority Secretary.
Alan Frumin, Assistant Parliamentarian.
Kevin Kayes, Assistant Parliamentarian.
Patrick Keating, Assistant Journal Clerk.
Scott Sanborn, Assistant Journal Clerk.
David Tinsley, Assistant Legislative Clerk.
Ronald Kavulick, Chief Reporter.
Jerald Linnell, Official Reporter.
Raleigh Milton, Official Reporter.
Joel Breitner, Official Reporter.
Mary Jane McCarthy, Official Reporter.
Paul Nelson, Official Reporter.
Katie-Jane Teel, Official Reporter.
Patrick Renzi, Official Reporter.
Lee Brown, Staff Assistant, Official Reporter.
Kathleen Alvarez, Bill Clerk.
Simon Sargent, Staff Assistant to Sen. Cleland.
Unanimous-Consent Agreement--Authority to Print Senate Documents
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that the
Secretary of the Senate be authorized to print as a Senate document all
documents filed by the parties together with other materials for the
convenience of all Senators.
The CHIEF JUSTICE. Without objection, it is so ordered.
Mr. LOTT. Mr. Chief Justice, I am about to submit a series of
unanimous-consent agreements and a resolution for the consideration of
the Senate. In addition to these matters, I would like to state for the
information of all Senators that, pursuant to S. Res. 16, the
evidentiary record on which the parties' presentations over the next
days will be based was filed by the House managers yesterday and was
distributed to all Senators through their offices. These materials are
now being printed at the Government Printing Office as Senate
documents. The initial documents of the record have been printed and
are now at each Senator's desk. As the printing of the rest of the
volumes of the record is completed over the next few days, they will
also be placed on the Senators desks for their convenience.
THE JOURNAL
The CHIEF JUSTICE. Without objection, the Journal of the proceedings
of the trial are approved to date.
The Presiding Officer submits to the Senate for printing in the
Senate Journal the following documents:
The precept, issued on January 8, 1999;
The writ of summons, issued on January 8, 1999; and the receipt of
summons, dated January 8, 1999.
The Presiding Officer submits to the Senate for printing in the
Senate Journal the following documents, which were received by the
Secretary of the Senate pursuant to Senate Resolution 16, 106th
Congress, first session:
The answer of William Jefferson Clinton, President of the United
States, to the articles of impeachment exhibited by the House of
Representatives against him on January 7, 1999, received by the
Secretary of the Senate on January 11, 1999;
The trial brief filed by the House of Representatives, received by
the Secretary of the Senate on January 11, 1999;
The trial brief filed by the President, received by the Secretary of
the Senate on January 13, 1999;
The replication of the House of Representatives, received by the
Secretary of the Senate on January 13, 1999; and
The rebuttal brief filed by the House of Representatives, received by
the Secretary of the Senate on January 14, 1999.
Without objection, the foregoing documents will be printed in the
Congressional Record.
The documents follow:
The United States of America, ss:
The Senate of the United States to James W. Ziglar, Sergeant
at Arms, United States Senate, greeting:
You are hereby commanded to deliver to and leave with
William Jefferson Clinton, if conveniently to be found, or if
not, to leave at his usual place of abode, a true and
attested copy of the within writ of summons, together with a
like copy of this precept; and in whichsoever way you perform
the service, let it be done at least 2 days before the answer
day mentioned in the said writ of summons.
Fail not, and make return of this writ of summons and
precept, with your proceedings thereon indorsed, on or before
the day for answering mentioned in the said writ of summons.
Witness Strom Thurmond, President pro tempore of the
Senate, at Washington, D.C., this 8th day of January, 1999,
the two hundred and twenty-third year of the Independence of
the United States.
Attest:
Gary Sisco,
Secretary of the Senate.
____
The United States of America, ss:
The Senate of the United States to William Jefferson Clinton,
greeting:
Whereas the House of Representatives of the United States
of America did, on the 7th day of January, 1999, exhibit to
the Senate articles of impeachment against you, the said
William Jefferson Clinton, in the words following:
``Articles of impeachment exhibited by the House of
Representatives of the United States of America in the name
of itself and of the people of the United States of America,
against William Jefferson Clinton, President of the United
States of America, in maintenance and support of its
impeachment against him for high crimes and misdemeanors.
Article I
``In his conduct while President of the United States,
William Jefferson Clinton, in violation of his constitutional
oath faithfully to execute the office of President of the
United States and, to the best of his ability, preserve,
protect, and defend the Constitution of the United States,
and in violation of his constitutional duty to take care that
the laws be faithfully executed, has willfully corrupted and
manipulated the judicial process of the United States for his
personal gain and exoneration, impeding the administration of
justice, in that:
``On August 17, 1998, William Jefferson Clinton swore to
tell the truth, the whole truth, and nothing but the truth
before a Federal grand jury of the United States. Contrary to
that oath, William Jefferson Clinton 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.
``In doing this, William Jefferson Clinton has undermined
the integrity of his office, has brought disrepute on the
Presidency, has betrayed his trust as President, and has
acted in a manner subversive of the rule of law and justice,
to the manifest injury of the people of the United States.
``Wherefore, William Jefferson Clinton, by such conduct,
warrants impeachment and trial, and removal from office and
disqualification to hold and enjoy any office of honor,
trust, or profit under the United States.
Article II
``In his conduct while President of the United States,
William Jefferson Clinton, in violation of his constitutional
oath faithfully to execute the office of President of the
United States and, to the best of his ability, preserve,
protect, and defend the Constitution of the United States,
and in violation of his constitutional duty to take care that
the laws be faithfully executed, 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 related to a Federal civil rights action brought
against him in a duly instituted judicial proceeding.
``The means used to implement this course of conduct or
scheme included one or more of the following acts:
``(1) On or about December 17, 1997, William Jefferson
Clinton corruptly encouraged a witness in a Federal civil
rights action brought against him to execute a sworn
affidavit in that proceeding that he knew to be perjurious,
false and misleading.
``(2) On or about December 17, 1997, William Jefferson
Clinton corruptly encouraged a witness in a Federal civil
rights action brought against him to give perjurious, false
and misleading testimony if and when called to testify
personally in that proceeding.
``(3) On or about December 28, 1997, William Jefferson
Clinton corruptly engaged in, encouraged, or supported a
scheme to conceal evidence that had been subpoenaed in a
Federal civil rights action brought against him.
``(4) Beginning on or about December 7, 1997, and
continuing through and including January 14, 1998, William
Jefferson Clinton intensified and succeeded in an effort to
secure job assistance to a witness in a Federal civil rights
action brought against him in order to corruptly prevent the
truthful testimony of that witness in that proceeding at a
time when the truthful testimony of that witness would have
been harmful to him.
``(5) On January 17, 1998, at his deposition in a Federal
civil rights action brought against him, William Jefferson
Clinton corruptly allowed his attorney to make false and
misleading statements to a Federal judge characterizing an
affidavit, in order to prevent questioning deemed relevant by
the judge. Such false and misleading statements were
subsequently acknowledged by his attorney in a communication
to that judge.
``(6) On or about January 18 and January 20-21, 1998,
William Jefferson Clinton related a false and misleading
account of events relevant to a Federal civil rights brought
against him to a potential witness in that proceeding, in
order to corruptly influence the testimony of that witness.
``(7) On or about January 21, 23, and 26, 1998, William
Jefferson Clinton made false and misleading statements to
potential witnesses in a Federal grand jury proceeding in
order to corruptly influence the testimony of those
witnesses. The false and misleading statements made by
William Jefferson Clinton were repeated by the witnesses to
the grand jury, causing the grand jury to receive false and
misleading information.
``In all of this, William Jefferson Clinton has undermined
the integrity of his office, has brought disrepute on the
Presidency, has betrayed his trust as President, and has
acted in a manner subversive to the rule of law and justice,
to the manifest injury of the people of the United States.
``Wherefore, William Jefferson Clinton, by such conduct,
warrants impeachment and trial, and removal from office and
disqualification to hold and enjoy any office of honor,
trust, or profit under the United States.''
And demand that you, the said William Jefferson Clinton,
should be put to answer the accusations as set forth in said
articles, and that such proceedings, examinations, trials,
and judgments might be thereupon had as are agreeable to law
and justice.
You, the said William Jefferson Clinton, are therefore
hereby summoned to file with the Secretary of the United
States Senate, S-220 The Capitol, Washington, D.C., 20510, an
answer to the said articles of impeachment no later than noon
on the 11th day of January, 1999, and therefore to abide by,
obey, and perform such orders, directions, and judgments as
the Senate of the United States shall make in the premises
according to the Constitution and laws of the United States.
Hereof you are not to fail.
Witness Strom Thurmond, President pro tempore of the
Senate, at Washington, D.C., this 8th day of January, 1999,
the two hundred and twenty-third year of the Independence of
the United States.
Attest:
Gary Sisco,
Secretary of the Senate.
____
The foregoing writ of summons, addressed to William
Jefferson Clinton, President of the United States, and the
foregoing precept, addressed to me, were duly served upon the
said William Jefferson Clinton, by my delivering true and
attested copies of the same to Charles Ruff, at the White
House, on the 8th day of January, 1999, at 5:27 p.m.
Attest:
James W. Ziglar,
Sergeant at Arms.
Loretta Symms,
Deputy Sergeant at Arms.
Dated: January 8, 1999.
Witnesseth:
Gary Sisco, Secretary,
United States Senate.
____
[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
ANSWER OF PRESIDENT WILLIAM JEFFERSON CLINTON TO THE ARTICLES OF
IMPEACHMENT
The Honorable William Jefferson Clinton, President of the
United States, in response to the summons of the Senate of
the United States, answers the accusations made by the House
of Representatives of the United States in the two Articles
of Impeachment it has exhibited to the Senate as follows:
Preamble
The Charges in the Articles Do Not Constitute High Crimes or
Misdemeanors
The charges in the two Articles of Impeachment do not
permit the conviction and removal from office of a duly
elected President. The President has acknowledged conduct
with Ms. Lewinsky that was improper. But Article II, Section
4 of 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.'' The charges in the articles do not rise to
the level of ``high Crimes and Misdemeanors'' as contemplated
by the Founding Fathers, and they do not satisfy the rigorous
constitutional standard applied throughout our Nation's
history. Accordingly, the Articles of Impeachment should be
dismissed.
The President Did Not Commit Perjury or Obstruct Justice
The President denies each and every material allegation of
the two Articles of Impeachment not specifically admitted in
this answer.
Article I
President Clinton denies that he made perjurious, false and
misleading statements before the federal grand jury on August
17, 1998.
Factual Responses to Article I
Without waiving his affirmative defenses, President Clinton
offers the following factual responses to the allegations in
Article I:
(1) The President denies that he made perjurious, false and
misleading statements to the grand jury about ``the
nature and details of his relationship'' with Monica
Lewinsky
There is a myth about President Clinton's testimony before
the grand jury. The myth is that the President failed to
admit his improper intimate relationship with Ms. Monica
Lewinsky. The myth is perpetuated by Article I, which accuses
the President of lying about ``the nature and details of his
relationship'' with Ms. Lewinsky.
The fact is that the President specifically acknowledged to
the grand jury that he had an improper intimate relationship
with Ms. Lewinsky. He said so, plainly and clearly: ``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 involve inappropriate
intimate contact.'' The President described to the grand jury
how the relationship began and how it ended at his insistence
early in 1997--long before any public attention or scrutiny.
He also described to the grand jury how he had attempted to
testify in the deposition in the Jones case months earlier
without having to acknowledge to the Jones lawyers what he
ultimately admitted to the grand jury--that he had an
improper intimate relationship with Ms. Lewinsky.
The President read a prepared statement to the grand jury
acknowledging his relationship with Ms. Lewinsky. The
statement was offered at the beginning of his testimony to
focus the questioning in a manner that would allow the Office
of Independent Counsel to obtain necessary information
without unduly dwelling on the salacious details of the
relationship. The President's statement was followed by
almost four hours of questioning. If it is charged that his
statement was in any respect perjurious, false and
misleading, the President denies it. The President also
denies that the statement was in any way an attempt to thwart
the investigation.
The President states, as he did during his grand jury
testimony, that he engaged in improper physical contact with
Ms. Lewinsky. The President was truthful when he testified
before the grand jury that he did not engage in sexual
relations with Ms. Lewinsky as he understood that term to be
defined by the Jones lawyers during their questioning of him
in that deposition. The President further denies that his
other statements to the grand jury about the nature and
details of his relationship with Ms. Lewinsky were
perjurious, false, and misleading.
(2) The President denies that he made perjurious, false and
misleading statements to the grand jury when he testified
about statements he had made in the Jones deposition
There is a second myth about the President's testimony
before the grand jury. The myth is that the President adopted
his entire Jones deposition testimony in the grand jury. The
President was not asked to and did not broadly restate or
reaffirm his Jones deposition testimony. Instead, in the
grand jury he discussed the bases for certain answers he
gave. The President testified truthfully in the grand jury
about statements he made in the Jones deposition. The
President stated to the grand jury that he did not attempt to
be helpful to or assist the lawyers in the Jones deposition
in their quest for information about his relationship with
Ms. Lewinsky. He truthfully explained to the grand jury his
efforts to answer the questions in the Jones deposition
without disclosing his relationship with Ms. Lewinsky.
Accordingly, the full, underlying Jones deposition is not
before the Senate.
Indeed, the House specifically considered and rejected an
article of impeachment based on the President's deposition in
the Jones case. The House managers should not be allowed to
prosecute before the Senate an article of impeachment which
the full House has rejected.
(3) The President denies that he made perjurious, false and
misleading statements to the grand jury about
``statements he allowed his attorney to make'' during the
Jones deposition
The President denies that he made perjurious, false and
misleading statements to the grand jury about the statements
his attorney made during the Jones deposition. The President
was truthful when he explained to the grand jury his
understanding of certain statements made by his lawyer,
Robert Bennett, during the Jones deposition. The President
also was truthful when he testified that he was not focusing
on the prolonged and complicated exchange between the
attorneys and Judge Wright.
(4) The President denies that he made perjurious, false and
misleading statements to the grand jury concerning
alleged efforts ``to influence the testimony of witnesses
and to impede the discovery of evidence'' in the Jones
case
For the reasons discussed more fully in response to Article
II, the President denies that he attempted to influence the
testimony of any witness or to impede the discovery
of evidence in the Jones case. Thus, the President denies
that he made perjurious, false and misleading statements
before the grand jury when he testified about these
matters.
First Affirmative Defense: Article I Does Not Meet the Constitutional
Standard for Conviction and Removal
For the same reasons set forth in the preamble of this
answer, Article I does not meet the rigorous constitutional
standard for conviction and removal from office of a duly
elected President and should be dismissed.
Second Affirmative Defense: Article I Is Too Vague To Permit Conviction
and Removal
Article I is unconstitutionally vague. No reasonable person
could know what specific charges are being leveled against
the President. It alleges that the President provided the
grand jury with ``perjurious, false, and misleading
testimony'' concerning ``one or more'' of four subject areas.
But it fails to identify any specific statement by the
President that is alleged to be perjurious, false and
misleading. The House has left the Senate and the President
to guess at what it had in mind.
One of the fundamental principles of our law and the
Constitution is that a person has a right to know what
specific charges he or she is facing. Without such fair
warning, no one can prepare the defense to which every person
is entitled. The law and the Constitution also mandate
adequate notice to jurors so they may know the basis for the
vote they must make. Without a definite and specific
identification of false statements, a trial becomes a moving
target for the accused. In addition, the American people
deserve to know upon what specific statements the President
is being judged, given the gravity and effect of these
proceedings, namely nullifying the results of a national
election.
Article I sweeps broadly and fails to provide the required
definite and specific identification. Were it an indictment,
it would be dismissed. As an article of impeachment, it is
constitutionally defective and should fail.
Third Affirmative Defense: Article I Charges Multiple Offense in One
Article
Article I is fatally flawed because it charges multiple
instances of alleged perjurious, false and misleading
statements in one article. The Constitution provides that
``no person shall be convicted without the Concurrence of two
thirds of the Members present,'' and Senate Rule XXIII
provides that ``an article of impeachment shall not be
divisible for the purpose of voting thereon at any time
during the trial.'' 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 ``one
or more'' of four topic areas. This creates the very real
possibility that conviction could occur even though Senators
were in wide disagreement as to the alleged wrong committed.
Put simply, the structure of Article I presents the
possibility that the President could be convicted even though
he would have been acquitted if separate votes were taken on
each allegedly perjurious statement. For example, it would be
possible for the President to be convicted and removed from
office with as few as 17 Senators agreeing that any single
statement was perjurious, because 17 votes for each of the
four categories in Article I would yield 68 votes, one more
than necessary to convict and remove.
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. Accordingly,
Article I should fail.
Factual Responses to Article II
Without waiving his affirmative defenses, President Clinton
offers the following factual responses to the 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''
The President denies that he encouraged Monica Lewinsky to
execute a false affidavit in the Jones case. Ms. Lewinsky,
the only witness cited in support of this allegation, denies
this allegation as well. Her testimony and proffered
statements are clear and unmistakable:
``[N]o one even asked me to lie and I was never
promised a job for my silence.''
``Neither the President nor anyone ever directed
Lewinsky to say anything or to lie . . .''
``Neither the Pres[ident] nor Mr. Jordan (or
anyone on their behalf) asked or encouraged Ms. L[ewinsky] to
lie.''
The President states that, sometime in December 1997, Ms.
Lewinsky asked him whether she might be able to avoid
testifying the Jones case because she knew nothing about Ms.
Jones or the case. The President further states that he told
her he believed other witnesses had executed affidavits, and
there was a chance they would not have to testify. The
President denies that he ever asked, encouraged or suggested
that Ms. Lewinsky file a false affidavit or lie. The
President states that he believed that Ms. Lewinsky could
have filed a limited but truthful affidavit that might have
enabled her to avoid having to testify in the Jones case.
(2) The President denies that on or about December 17, 1997,
he ``corruptly encouraged'' Monica Lewinsky ``to give
perjurious, false and misleading testimony of and when
called to testify personally'' in the Jones litigation
Again, the President denies that he encouraged Ms. Lewinsky
to lie if and when called to testify personally in the Jones
case. The testimony and proffered statements of Monica
Lewinsky, the only witness cited in support of this
allegation, are clear and unmistakable:
[N]o one ever asked me to lie and I was never
promised a job for my silence.''
``Neither the President nor anyone ever directed
Lewinsky to say anything or to lie . . .''
``Neither the Pres[ident] nor Mr. Jordan (or
anyone on their behalf) asked or encouraged Ms. L[ewinsky] to
lie.''
The President states that, prior to Ms. Lewinsky's
involvement in the Jones case, he and Ms. Lewinsky might have
talked about what to do to conceal their relationship from
others. Ms. Lewinsky was not a witness in any legal
proceeding at that time. Ms. Lewinsky's own testimony and
statements support the President's recollection. Ms. Lewinsky
testified that she ``pretty much can'' exclude the
possibility that she and the President ever had discussions
about denying the relationship after she learned she was a
witness in the Jones case. Ms. Lewinsky also stated that
``they did not discuss the issue [of what to say about their
relationship] is specific relation to the Jones matter,'' and
that ``she does not believe they discussed the content of any
deposition that [she] might be involved in at a later date.''
(3) The President denies that on or about December 28, 1997,
he ``corruptly engaged in, encouraged, or supported a
scheme to conceal evidence'' in the Jones case
The President denies that he engaged in, encouraged, or
supported any scheme to conceal evidence from discovery in
the Jones case, including any gifts he had given to Ms.
Lewinsky. The President states that he gave numerous gifts to
Ms. Lewinsky prior to December 28, 1997. The President states
that, sometime in December, Ms. Lewinsky inquired as to what
to do if she were asked in the Jones case about the gifts he
had given her, to which the President responded that she
would have to turn over whatever she had. The President
states that he was unconcerned about having given her gifts
and, in fact, that he gave Ms. Lewinsky additional gifts on
December 28, 1997. The President denies that he ever asked
his secretary, Ms. Betty Currie, to retrieve gifts he had
given Ms. Lewinsky, or that he ever asked, encouraged, or
suggested that Ms. Lewinsky conceal the gifts. Ms. Currie
told prosecutors as early as January 1998 and repeatedly
thereafter that it was Ms. Lewinsky who had contacted her
about retrieving gifts.
(4) The President denies that he obstructed justice in
connection with Monica Lewinsky's efforts to obtain a job
in New York to ``corruptly prevent'' her ``truthful
testimony'' in the Jones case
The President denies that he obstructed justice in
connection with Ms. Lewinsky's job search in New York or
sought to prevent her truthful testimony in the Jones case.
The President states that he discussed with Ms. Lewinsky her
desire to obtain a job in New York months before she was
listed as a potential witness in the Jones case. Indeed, Ms.
Lewinsky was offered a job in New York at the United Nations
more than a month before she was identified as a possible
witness. The President also states that he believes that Ms.
Lewinsky raised with him, again before she was ever listed as
a possible witness in the Jones case, the prospect of having
Mr. Vernon Jordan assist in her job search. Ms. Lewinsky
corroborates his recollection that it was her idea to ask for
Mr. Jordan's help. The President also states that he was
aware that Mr. Jordan was assisting Ms. Lewinsky to obtain
employment in New York. The President denies that any of
these efforts had any connection whatsoever to Ms. Lewinsky's
status as a possible or actual witness in the Jones case. Ms.
Lewinsky forcefully confirmed the President's denial when she
testified, ``I was never promised a job for my silence.''
(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
The President denies that he corruptly allowed his attorney
to make false and misleading statements concerning Ms.
Lewinsky's affidavit to a Federal judge during the Jones
deposition. The President denies that he was focusing his
attention on the prolonged and complicated exchange between
his attorney and Judge Wright.
(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''
The President denies that he obstructed justice or
endeavored in any way to influence any potential testimony of
Ms. Betty Currie. The President states that he spoke with Ms.
Currie on January 18, 1998. The President testified that, in
that conversation, he was trying to find out what the facts
were, what Ms. Currie's perception was, and whether his own
recollection was correct about certain aspects of his
relationship with Ms. Lewinsky. Ms. Currie testified that she
felt no pressure ``whatsoever'' from the President's
statements and no pressure ``to agree with [her] boss.'' The
President denies knowing or believing that Ms. Currie would
be a witness in any proceeding at the time of this
conversation. Ms. Currie had not been on any of the witness
lists proffered by the Jones lawyers. President Clinton
states that, after the Independent Counsel investigation
became public, when Ms. Currie was scheduled to testify, he
told Ms. Currie to ``tell the truth.''
(7) The President denies that he obstructed justice when he
relayed allegedly ``false and misleading statements'' to
his aides
The President denies that he obstructed justice when he
misled his aides about the
nature of his relationship with Ms. Lewinsky in the days
immediately following the public revelation of the Lewinsky
investigation. The President acknowledges that, in the days
following the January 21, 1998, Washington Post article, he
misled his family, his friends and staff, and the Nation to
conceal the nature of his relationship with Ms. Lewinsky. He
sought to avoid disclosing his personal wrongdoing to protect
his family and himself from hurt and public embarrassment.
The President profoundly regrets his actions, and he has
apologized to his family, his friends and staff, and the
Nation. The President denies that he had any corrupt purpose
or any intent to influence the ongoing grand jury
proceedings.
First Affirmative Defense: Article II Does Not Meet the Constitutional
Standard for Conviction and Removal
For the reasons set forth in the preamble of this answer,
Article II does not meet the constitutional standard for
convicting and removing a duly elected President from office
and should be dismissed.
Second Affirmative Defense: Article II Is Too Vague To Permit
Conviction and Removal
Article II is unconstitutionally vague. No reasonable
person could know what specific charges are being leveled
against the President. Article II alleges that the President
``obstructed and impeded the administration of justice'' in
both the Jones case and the grand jury investigation. But it
provides little or no concrete information about the specific
acts in which the President is alleged to have engaged, or
with whom, or when, that allegedly obstructed or otherwise
impeded the administration of justice.
As we set forth in the Second Affirmative Defense to
Article I, one of the fundamental principles of our law and
the Constitution is that a person has the right to know what
specific charges he or she is facing. Without such fair
warning, no one can mount the defense to which every person
is entitled. Fundamental to due process is the right of the
President to be adequately informed of the charges so that he
is able to confront those charges and defend himself.
Article II sweeps too broadly and provides too little
definite and specific identification. Were it an indictment,
it would be dismissed. As an article of impeachment, it is
constitutionally defective and should fail.
Third Affirmative Defense: Article II Charges Multiple Offenses in One
Article
For the reasons set forth in the Third Affirmative Defense
to Article I, Article II is constitutionally defective
because it charges multiple instances of alleged acts of
obstruction in one article, which makes it impossible for the
Senate to comply with the Constitutional mandates that any
conviction be by the concurrence of the two-thirds of the
members. Accordingly, Article II should fail.
Respectfully submitted,
David E. Kendall,
Nicole K. Seligman,
Emmet T. Flood,
Max Stier,
Glen Donath,
Alicia Marti,
Williams & Connolly,
725 12th Street, N.W.,
Washington, D.C. 20005.
Charles F. C. Ruff,
Gregory B. Craig,
Bruce R. Lindsey,
Cheryl D. Mills,
Lanny A. Breuer,
Office of the White House Counsel,
The White House,
Washington, D.C. 20502.
Submitted: January 11, 1999.
____
[In the Senate of the United States Sitting as a Court of Impeachment]
In re Impeachment of President William Jefferson Clinton
TRIAL MEMORANDUM OF THE UNITED STATES HOUSE OF REPRESENTATIVES
Now comes the United States House of Representatives, by
and through its duly authorized Managers, and respectfully
submits to the United States Senate its Brief in connection
with the Impeachment Trial of William Jefferson Clinton,
President of the United States.
Summary
The President is charged in two Articles with: (1) Perjury
and false and misleading testimony and statements under oath
before a federal grand jury (Article I), and (2) engaging in
a course of conduct or scheme to delay and obstruct justice
(Article II).
The evidence contained in the record, when viewed as a
unified whole, overwhelmingly supports both charges.
Perjury and False Statements Under Oath
President Clinton deliberately and willfully testified
falsely under oath when he appeared before a federal grand
jury on August 17, 1998. Although what follows is not
exhaustive, some of the more overt examples will serve to
illustrate.
At the very outset, the President read a prepared
statement, which itself contained totally false assertions
and other clearly misleading information.
The President relied on his statement nineteen
times in his testimony when questioned about his relationship
with Ms. Lewinsky.
President Clinton falsely testified that he was
not paying attention when his lawyer employed Ms. Lewinsky's
false affidavit at the Jones deposition.
He falsely claimed that his actions with Ms.
Lewinsky did not fall within the definition of ``sexual
relations'' that was given at his deposition.
He falsely testified that he answered questions
truthfully at his deposition concerning, among other
subjects, whether he had been alone with Ms. Lewinsky.
He falsely testified that he instructed Ms.
Lewinsky to turn over the gifts if she were subpoenaed.
He falsely denied trying to influence Ms. Currie
after his deposition.
He falsely testified that he was truthful to his
aides when he gave accounts of his relationship, which
accounts were subsequently disseminated to the media and the
grand jury.
Obstruction of Justice
The President engaged in an ongoing scheme to obstruct both
the Jones civil case and the grand jury. Further, he
undertook a continuing and concerted plan to tamper with
witnesses and prospective witnesses for the purpose of
causing those witnesses to provide false and misleading
testimony. Examples abound:
The President and Ms. Lewinsky concocted a cover
story to conceal their relationship, and the President
suggested that she employ that story if subpoenaed in the
Jones case.
The President suggested that Ms. Lewinsky provide
an affidavit to avoid testifying in the Jones case, when he
knew that the affidavit would need to be false to accomplish
its purpose.
The President knowingly and willfully allowed his
attorney to file Ms. Lewinsky's false affidavit and to use it
for the purpose of obstructing justice in the Jones case.
The President suggested to Ms. Lewinsky that she
provide a false account of how she received her job at the
Pentagon.
The President attempted to influence the expected
testimony of his secretary, Ms. Currie, by providing her with
a false account of his meetings with Ms. Lewinsky.
The President provided several of his top aides
with elaborate lies about his relationship with Ms. Lewinsky,
so that those aides would convey the false information to the
public and to the grand jury. When he did this, he knew that
those aides would likely be called to testify, while he was
declining several invitations to testify. By this action, he
obstructed and delayed the operation of the grand jury.
The President conspired with Ms. Lewinsky and Ms.
Currie to conceal evidence that he had been subpoenaed in the
Jones case, and thereby delayed and obstructed justice.
The President and his representatives orchestrated
a campaign to discredit Ms. Lewinsky in order to affect
adversely her credibility as a witness, and thereby attempted
to obstruct justice both in the Jones case and the grand
jury.
The President lied repeatedly under oath in his
disposition in the Jones case, and thereby obstructed justice
in that case.
The President's lies and misleading statements
under oath at the grand jury were calculated to, and did
obstruct, delay and prevent the due administration of justice
by that body.
The President employed the power of his office to
procure a job for Ms. Lewinsky after she signed the false
affidavit by causing his friend to exert extraordinary
efforts for that purpose.
The foregoing are merely accusations of an ongoing pattern
of obstruction of justice, and witness tampering extending
over a period of several months, and having the effect of
seriously compromising the integrity of the entire judicial
system.
The effect of the President's misconduct has been
devastating in several respects.
(1) He violated repeatedly his oath to ``preserve, protect
and defend the Constitution of the United States.''
(2) He ignored his constitutional duty as chief law
enforcement officer to ``take care that the laws be
faithfully executed.''
(3) He deliberately and unlawfully obstructed Paula Jones's
rights as a citizen to due process and the equal protection
of the laws, though he had sworn to protect those rights.
(4) By his pattern of lies under oath, misleading
statements and deceit, he has seriously undermined the
integrity and credibility of the Office of President and
thereby the honor and integrity of the United States.
(5) His pattern of perjuries, obstruction of justice, and
witness tampering has affected the truth seeking process
which is the foundation of our legal system.
(6) By mounting an assault in the truth seeking process, he
has attacked the entire Judicial Branch of government.
The Articles of Impeachment that the House has preferred
state offenses that warrant, if proved, the conviction and
removal from office of President William Jefferson Clinton.
The Articles charge that the President has committed perjury
before a federal grand jury and that he obstructed justice in
a federal civil rights action. The Senate's own precedents
establish beyond doubt that perjury warrants conviction and
removal. During the 1980s, the Senate convicted and removed
three federal judges for committing perjury. Obstruction of
justice under mines the judicial system in the same fashion
that
perjury does, and it also warrants conviction and removal.
Under our Constitution, judges are impeached under the same
standard as Presidents--treason, bribery, or other high
crimes and misdemeanors. Thus, these judicial impeachments
for perjury set the standard here. Finally, the Senate's own
precedents further establish that the President's crimes need
not arise directly out of his official duties. Two of the
three judges removed in the 1980s were removed for perjury
that had nothing to do with their official duties.
Introduction
This Brief is intended solely to advise the Senate
generally of the evidence that the Managers intend to
product, if permitted, and of the applicable legal
principles. It is not intended to discuss exhaustively all of
the evidence, nor does it necessarily include each and every
witness and document that the Managers would produce in the
course of the trial. This Brief, then, is merely an outline
for the use of the Senate in reviewing and assessing the
evidence as it is set forth at trial--it is not, and is not
intended to be a substitute for a trial at which all of the
relevant facts will be developed.
H. Res. 611, 105th Cong. 2nd Sess. (1998)
The House Impeachment Resolution charges the President with
high crimes and misdemeanors in two Articles. Article One
alleges that President Clinton ``willfully corrupted and
manipulated the judicial process of the United States for his
personal gain and exoneration, impeding the administration of
justice'' in that he willfully provided perjurious, false and
misleading testimony to a federal grand jury on August 17,
1998. Article Two asserts that the President ``has prevented,
obstructed, and impeded the administration of justice and
engaged in a course of conduct or scheme designed to delay,
impede, cover up, and conceal the existence of evidence and
testimony related to a federal civil rights action brought
against him.'' Both Articles are now before the Senate of the
United States for trial as provided by the Constitution of
the United States.
The Office of President represents to the American people
and to the world, the strength, the philosophy and most of
all, the honor and integrity that makes us a great nation and
an example for the world. Because all eyes are focused upon
that high office, the character and credibility of any
temporary occupant of the Oval Office is vital to the
domestic and foreign welfare of the citizens. Consequently,
serious breaches of integrity and duty of necessity adversely
influence the reputation of the United States.
This case is not about sex or private conduct. It is about
multiple obstructions of justice, perjury, false and
misleading statements, and witness tampering--all committed
or orchestrated by the President of the United States.
Before addressing the President's lies and obstruction, it
is important to place the events in the proper context. If
this were only about private sex we would not now be before
the Senate. But the manner in which the Lewinsky relationship
arose and continued is important because it is illustrative
of the character of the President and the decisions he made.
Background
Monica Lewinsky, a 22 year old intern, (ML 8/6/98 GJ, p. 8;
H.Doc. 105-311, p. 728) was working at the White House during
the government shutdown in 1995. (ML 8/6/98 GJ, p. 10; H.Doc.
105-311, p. 730) Prior to their first intimate encounter, she
had never even spoken with the President. Sometime on
November 15, 1995, Ms. Lewinsky and President Clinton flirted
with each other. (Id.) The President of the United States of
America then invited this unknown young intern into a private
area off the Oval Office where he kissed her. He then invited
her back later and when she returned, the two engaged in the
first of many acts of inappropriate contact. (ML 8/6/98 GJ,
p. 12; H.Doc. 105-311, p. 732)
Thereafter, the two concocted a cover story. If Ms.
Lewinsky were seen, she was bringing papers to the President.
That story was totally false. (ML 8/6/98 GJ, p. 54; H.Doc.
105-311, p. 774; 8/26/98 Dep., p. 34; H.Doc. 105-311, p.
1314) The only papers she brought were personal messages
having nothing to do with her duties or those of the
President. (ML 8/6/98 GJ, pgs. 54-55; H.Doc. 105-311, pp.
774-775) After Ms. Lewinsky moved from the White House to the
Pentagon, her frequent visits to the President were disguised
as visits to Betty Currie. (Id.) Those cover stories are
important, because they play a vital role in the later
perjuries and obstructions.
Encounters
Over the term of their relationship the following
significant matters occurred:
1. Monica Lewinsky and the President were alone on at least
twenty-one occasions;
2. They had at least eleven personal sexual encounters,
excluding phone sex: Three in 1995, Five in 1996 and Three in
1997;
3. They had at least 55 telephone conversations, at least
seventeen of which involved phone sex;
4. The President gave Ms. Lewinsky twenty presents; and,
5. Ms. Lewinsky gave the President forty presents (O.I.C.
Referral, App., Tab E; H.Doc. 105-311, pgs. 104-111)
These are the essential facts which form the backdrop for
all of the events that followed.
The sexual details of the President's encounters with Ms.
Lewinsky, though relevant, need not be detailed either in
this document or through witness testimony. It is necessary,
though, briefly to outline that evidence, because it will
demonstrate that the President repeatedly lied about that
sexual relationship in his deposition, before the grand jury,
and in his responses to the Judiciary Committee's questions.
He has consistently maintained that Ms. Lewinsky merely
performed acts on him, while he never touched her in a sexual
manner. This characterization not only directly contradicts
Ms. Lewinsky's testimony, but it also contradicts the sworn
grand jury testimony of three of her friends and the
statements by two professional counselors with whom she
contemporaneously shared the details of her relationship.
(O.I.C. Referral, H. Doc. 105-310, pgs. 138-140)
While his treatment of Ms. Lewinsky was offensive, it is
much more offensive for the President to expect the Senate to
believe that in 1995, 1996, and 1997, his intimate contact
with Ms. Lewinsky was so limited that it did not fall within
his narrow interpretation of a definition of ``sexual
relations''. As later demonstrated, he did not even conceive
his interpretation until 1998, while preparing for his grand
jury appearance.
How To View the Evidence
We respectfully submit that the evidence and testimony must
be viewed as a whole; it cannot be compartmentalized. It is
essential to avoid considering each event in isolation, and
then treating it separately. Events and words that may seem
innocent or even exculpatory in a vacuum may well take on a
sinister, or even criminal connotation when observed in the
context of the whole plot. For example, everyone agrees that
Monica Lewinsky testified ``No one ever told me to lie;
nobody ever promised me a job.'' (ML 8/20/98 GJ, p. 105; H.
Doc. 105-311, p. 1161)
When considered alone this would seem exculpatory. However,
in the context of the other evidence, another picture
emerges. Of course no one said. ``Now, Monica, you go in
there and lie.'' They didn't have to. Ms. Lewinsky knew what
was expected of her. Similarly, nobody promised her a job,
but once she signed the false affidavit, she got one.
The Issue
The ultimate issue is whether the President's course of
conduct is such as to affect adversely the Office of the
President and also upon the administration of justice, and
whether he has acted in a manner contrary to his trust as
President and subversive to the Rule of Law and
Constitutional government.
The Beginning
The events that form the basis of these charges actually
began in late 1995. They reached a critical stage in the
winter of 1997 and the first month of 1998. The event
culminated when the President of the United States appeared
before a federal grand jury, raised his right hand to God and
swore to tell the truth, the whole truth, and nothing but the
truth.
december 5-6, 1997
On Friday, December 5, 1997, Monica Lewinsky asked Betty
Currie if the President could see her the next day, Saturday,
but Ms. Currie said that the President was scheduled to meet
with his lawyers all day. (ML 8/6/98 GJ, pgs. 107-108; H.
Doc. 105-311, pgs. 827-828) Later that Friday, Ms. Lewinsky
spoke briefly to the President at a Christmas party. (ML 7/
31/98 Int., p. 1; H. Doc. 105-311, p. 1451; ML 8/6/98 GJ, p.
108; H. Doc. 105-311, p. 828)
The Witness List Is Received
That evening, Paula Jones's attorneys faxed a list of
potential witnesses to the President's attorneys. (849-DC-
00000128; 849-DC-00000121-37; Referral, H. Doc. 105-311, p.
88) The list included Monica Lewinsky. However, Ms. Lewinsky
did not find out that her name was on the list until the
President told her ten days later, on December 17. (ML 8/6/98
GJ, pgs. 121-123; H. Doc. 105-311, pgs. 841-843) That delay
is significant.
Ms. Lewinsky's First Visit
After her conversation with Ms. Currie and seeing the
President at the Christmas party, Ms. Lewinsky drafted a
letter to the President terminating their relationship. (ML-
55-DC-0177); ML 7/31/98 Int., p. 2; H. Doc. 105-311, p. 1452)
The next morning, Saturday, December 6, Ms. Lewinsky went to
the White House to deliver the letter and some gifts for the
President to Ms. Currie. (ML 8/6/98 GJ, pgs. 108-109; H. Doc.
105-311, pgs. 828-829) When she arrived at the White House,
Ms. Lewinsky spoke to several Secret Service officers, and
one of them told her that the President was not with his
lawyers, as she thought, but rather, he was meeting with
Eleanor Mondale. (ML 8/6/98 GJ, p. 111; H. Doc. 105-311, p.
831; Mondale 7/16/98 Int., p. 1; H. Doc. 105-316, pgs. 2907-
2908; H. Doc. 105-311, p. 2654) Ms. Lewinsky called Ms.
Currie from a pay phone, angrily exchanged words with her,
and went home. (ML 8/6/98 GJ, pgs. 112-13; H. Doc. 105-311,
pgs. 832-833; Currie 1/27/98 GJ, p. 27; H. Doc. 105-316, p.
553) After that phone call, Ms. Currie told the Secret
Service watch commander that the President was so upset about
the disclosure of his meeting with Ms. Mondale that he wanted
somebody fired. (Purdie 7/23/98 GJ, pgs. 13, 18-19; H. Doc.
105-316, pgs. 3356-3357).
The Telephone Conversations
At 12:05 p.m., records demonstrate that Ms. Currie paged
Bruce Lindsey with the message: ``Call Betty ASAP.'' (964-DC-
00000862;
H. Doc. 105-311, p. 2722) Around that same time, according to
Ms. Lewinsky, while she was back at her apartment, Ms.
Lewinsky and the President spoke by phone. The President was
very angry; he told Ms. Lewinsky that no one had every
treated him as poorly as she had. (ML 8/6/98 GJ, pgs. 113-14;
H. Doc. 105-311, pgs. 833-834) The President acknowledged to
the grand jury that he was upset about Ms. Lewinsky's
behavior and considered it inappropriate. (WJC 8/17/98 GJ,
p. 85; H.Doc. 105-311, p. 537). Nevertheless, in a sudden
change of mood, he invited her to visit him at the White
House that afternoon. (ML 8/6/98 GJ, p. 114; H.Doc. 105-
311, p. 834)
Ms. Lewinsky's Second Visit
Monica Lewinsky arrived at the White House for the second
time that day and was cleared to enter at 12:52 p.m. (WAVES:
827-DC-00000018) Although, in Ms. Lewinsky's words, the
President was ``very angry'' with her during their recent
telephone conversation, he was ``sweet'' and ``very
affectionate'' during this visit. (ML 8/6/98 GJ, pgs. 113-15;
H.Doc. 105-311, pgs. 833-835). He also told her that he would
talk to Vernon Jordan about her job situation. (ML 8/6/98 GJ,
pgs. 115-16; H.Doc. 105-311, pgs. 835-836)
The Discussions With the Secret Service
The President also suddenly changed his attitude toward the
Secret Service. Ms. Currie informed some officers that if
they kept quiet about the Lewinsky incident, there would be
no disciplinary action. (Williams 7/23/98 GJ, pgs. 25, 27-28;
H.Doc. 105-316, p. 4539; Chinery 7/23/98 GJ, p. 22-23; H.Doc.
105-316, p. 456). According to the Secret Service watch
commander, Captain Jeffrey Purdie, the President personally
told him, ``I hope you use your discretion'' or ``I hope I
can count on your discretion.'' (Purdie 7/23/98 GJ, p. 32;
H.Doc. 105-316, p. 3360; Purdie 7/17/98 GJ, p. 3; H.Doc. 105-
316, p. 3353) Deputy Chief Charles O'Malley, Captain Purdie's
supervisor, testified that he knew of no other time in his
fourteen years of service at the White House where the
President raised a performance issue with a member of the
Secret Service uniformed division. (O'Malley 9/8/98 Dep.,
pgs. 40-41; H.Doc. 105-316, pgs. 3168-3171) After his
conversation with the President, Captain Purdie told a number
of officers that they should not discuss the Lewinsky
incident. (Porter 8/13/98 GJ, p. 12; H.Doc. 105-316, p. 3343;
Niedzwiecki 7/30/98 GJ, pgs. 30-31, H.Doc. 105-316, p. 3114)
When the President was before the grand jury and questioned
about his statements to the Secret Service regarding this
incident, the President testified, ``I don't remember what I
said and I don't remember to whom I said it.'' (WJC 8/17/98
GJ, p. 86; H.Doc. 105-311, p. 534) When confronted with
Captain Purdie's testimony, the President testified, ``I
don't remember anything I said to him in that regard. I have
no recollection of that whatever.'' (WJC 8/17/98 GJ, p. 91;
H.Doc. 105-311, p. 543)
The President's Knowledge of the Witness List
President Clinton testified before the grand jury that he
learned that Ms. Lewinsky was on the Jones witness list that
evening, Saturday, December 6, during a meeting with his
lawyers. (WJC 8/17/98 GJ, p. 83-84; H.Doc. 105-311, p. 535-
536) He stood by this answer in response to Request Number 16
submitted by the Judiciary Committee. (Exhibit 18). The
meeting occurred around 5 p.m., after Ms. Lewinsky had left
the White House. (WAVES: 1407-DC-00000005; Lindsey 3/12/98
GJ, pgs. 64-66; H.Doc. 105-316, pgs. 2418-19) According to
Bruce Lindsey, at the meeting, Bob Bennett had a copy of the
Jones witness list faxed to Mr. Bennett the previous night.
(Lindsey 3/12/98 GJ, pgs. 65-67; H.Doc. 105-316, p. 2419)
(Exhibit 15)
However, during his deposition, the President testified
that he had heard about the witness list before he saw it.
(WJC 1/17/98 Dep., p. 70) In other words, if the President
testified truthfully in his deposition, then he knew about
the witness list before the 5 p.m. meeting. It is valid to
infer that hearing Ms. Lewinsky's name on a witness list
prompted the President's sudden and otherwise unexplained
change from ``very angry'' to ``very affectionate'' that
Saturday afternoon. It is also reasonable to infer that it
prompted him to give the unique instruction to a Secret
Service watch commander to use ``discretion'' regarding Ms.
Lewinsky's visit to the White House, which the watch
commander interpreted as an instruction to refrain from
discussing the incident. (Purdie 7/17/98 GJ, pgs. 20-21;
H.Doc. 105-316, pgs. 3351-3352; Purdie 7/23/98 GJ, pgs. 32-
33; H.Doc. 105-315, pgs. 3360-3361)
The Job Search for Ms. Lewinsky
Monica Lewinsky had been looking for a good paying and high
profile job in New York since the previous July. She was not
having much success despite the President's promise to help.
In early November, Betty Currie arranged a meeting with
Vernon Jordan who was supposed to help. (BC 5/6/98 GJ, p.
176; H.Doc. 105-316, p. 592)
On November 5, Ms. Lewinsky met for twenty minutes with Mr.
Jordan (ML 8/6/98 GJ, pg. 104; H.Doc. 105-311, p. 824) No
action followed; no job interviews were arranged and there
were no further contacts with Mr. Jordan. It was obvious that
he made no effort to find a job for Ms. Lewinsky. Indeed, it
was so unimportant to him that he ``had no recollection of an
early November meeting'' (VJ 3/3/98 GJ, pg. 50; H.Doc. 105-
316, p. 1799) and that finding a job for Ms. Lewinsky was not
a priority (VJ 5/5/98 GJ, p. 76; H.Doc. 105-316, p. 1804)
(Chart R) Nothing happened throughout the month of November,
because Mr. Jordan was either gone or would not return
Monica's calls. (ML 8/6/98 GJ, p. 105-106; H.Doc. 105-311,
pgs. 825-826)
During the December 6 meeting with the President, she
mentioned that she had not been able to get in touch with Mr.
Jordan and that it did not seem he had done anything to help
her. The President responded by stating, ``Oh, I'll talk to
him. I'll get on it,'' or something to that effect. (ML 8/6/
98 GJ, pgs. 115-116; H.Doc. 105-311, p. 836) There was
obviously still no urgency to help Ms. Lewinsky. Mr. Jordan
met the President the next day, December 7, but the meeting
was unrelated to Ms. Lewinsky. (VJ 5/5/98 GJ. pgs. 83, 116;
H.Doc. 105-316, pgs. 1805, 1810)
The December 11, 1997 Activity
The first activity calculated to help Ms. Lewinsky actually
procure employment took place on December 11. Mr. Jordan met
with Ms. Lewinsky and gave her a list of contact names. The
two also discussed the President. (ML 8/6/98 GJ, pgs. 119,
120; H.Doc. 105-311, pgs. 839-840) That meeting Mr. Jordan
remembered. (VJ 3/5/98 GJ, p. 41; H.Doc. 105-316, p. 1798)
Vernon Jordan immediately placed calls to two prospective
employers. (VJ 3/3/98 GJ, pgs. 54, 62-63; H.Doc. 105-316,
pgs. 1800-1802) Later in the afternoon, he even called the
President to give him a report on his job search efforts. (VJ
3/3/98 GJ, pgs. 64-66; H.Doc. 105-316, p. 1802) Clearly, Mr.
Jordan and the President were now very interested in helping
Monica find a good job in New York. (VJ 5/5/98 GJ, p. 95;
H.Doc. 105-316, p. 1807)
Significance of December 11, 1997
This sudden interest was inspired by a court order entered
on December 11, 1997. On that date, Judge Susan Webber Wright
ordered that Paula Jones was entitled to information
regarding any state or federal employee with whom the
President had sexual relations, proposed sexual relations, or
sought to have sexual relations.
The President knew that it would be politically and legally
expedient to maintain an amicable relationship with Monica
Lewinsky. And the President knew that that relationship would
be fostered by finding Ms. Lewinsky a job. This was
accomplished through enlisting the help of Vernon Jordan.
December 17, 1997, Ms. Lewinsky Learns of Witness List
On December 17, 1997, between 2:00 and 2:30 in the morning,
Monica Lewinsky's phone rang unexpectedly. It was the
President of the United States. The President said that he
wanted to tell Ms. Lewinsky two things: one was that Betty
Currie's brother had been killed in a car accident; secondly,
the President said that he ``had some more bad news,'' that
he had seen the witness list for the Paula Jones case and her
name was on it. (ML 8/6/98 GJ, p. 123; H.Doc. 105-311, p.
843) The President told Ms. Lewinsky that seeing her name on
the list ``broke his heart.'' He then told her that ``if
[she] were to be subpoenaed, [she] should contact Betty and
let Betty know that [she] had received the subpoena.'' (Id.)
Ms. Lewinsky asked what she should do if subpoenaed. The
President responded: ``Well, maybe you can sign an
affidavit.'' (Id.) Both parties knew that the Affidavit would
need to be false and misleading to accomplish the desired
result.
The President's ``Suggestion''
Then, the President had a very pointed suggestion for
Monica Lewinsky, a suggestion that left little room for
compromise. He did not specifically tell her to lie. What he
did say is ``you know, you can always say you were coming to
see Betty or that you were bringing me letters.'' (ML 8/6/98
GJ, p. 123; H.Doc. 105-311, p. 843)
In order to understand the significance of this statement,
it is necessary to recall the ``cover stories'' that the
President and Ms. Lewinsky had previously structured in order
to deceive those who protected and worked with the President.
Ms. Lewinsky said she would carry papers when she visited
the President. When she saw him, she would say: ``Oh, gee,
`here are your letters,' wink, wink, wink and he would
answer, `Okay that's good.' '' (ML 8/6/98 GJ, p. 54; H.Doc.
105-311, p. 774) After Ms. Lewinsky left White House
employment, she would return to the Oval Office under the
guise of visiting Betty Currie, not the President. (ML 8/6/98
GJ, p. 55; H.Doc. 105-311, p. 775)
Moreover, Ms. Lewinsky promised the President that she
would always deny the sexual relationship and always protect
him. The President would respond ``that's good'' or similar
language of encouragement. (ML 8/20/98 GJ, p. 22; H.Doc. 105-
311, p. 1078)
So, when the President called Ms. Lewinsky at 2:00 a.m. on
December 17 to tell her she was on the witness list, he made
sure to remind her of those prior ``cover stories.'' Ms.
Lewinsky testified that when the President brought up the
misleading stories, she understood that the two would
continue their pre-existing pattern of deception.
The President's Intention
It became clear that the President had no intention of
making his sexual relationship with Monica Lewinsky a public
affair. And he would use lies, deceit, and deception to
ensure that the truth would not be known.
It is interesting to note that when the grand jury asked
the President whether he remembered calling Monica Lewinsky
at 2:00 a.m., he responded: ``No sir, I don't. But it would .
. . it is quite possible that that happened. . . .'' (WJC 8/
17/98 GJ, p. 115; H.Doc. 105-311, p. 567)
And when he was asked whether he encouraged Monica Lewinsky
to continue the cover stories of ``coming to see Betty'' or
``bringing the letters,'' he answered: ``I don't remember
exactly what I told her that night.'' (WJC 8/17/98 GJ, p.
117; H.Doc. 105-311, p. 565)
Six days earlier, he had become aware that Paula Jones'
lawyers were now able to inquire about other women. Ms.
Lewinsky could file a false affidavit, but it might not work.
It was absolutely essential that both parties told the same
story. He knew that he would lie if asked about Ms. Lewinsky,
and he wanted to make certain that she would lie also. That
is why the President of the United States called a twenty-
four year old woman at 2:00 in the morning.
The Evidence Mounts
But the President had an additional problem. It was not
enough that he (and Ms. Lewinsky) simply deny the
relationship. The evidence was beginning to accumulate.
Because of the emerging evidence, the President found it
necessary to reevaluate his defense. By this time, the
evidence was establishing, through records and eyewitness
accounts, that the President and Monica Lewinsky were
spending a significant amount of time together in the Oval
Office complex. It was no longer expedient simply to refer to
Ms. Lewinsky as a ``groupie'', ``stalker'', ``clutch'', or
``home wrecker'' as the White House first attempted to do.
The unassailable facts were forcing the President to
acknowledge some type of relationship. But at this point, he
still had the opportunity to establish a non-sexual
explanation for their meetings, since his DNA had not yet
been identified on Monica Lewinsky's blue dress.
Need for the Cover Story
Therefore, the President needed Monica Lewinsky to go along
with the cover story in order to provide an innocent,
intimate-free explanation for their frequent meetings. And
that innocent explanation came in the form of ``document
deliveries'' and ``friendly chats with Betty Currie.''
Significantly, when the President was deposed on January
17, 1998, he used the exact same cover stories that had been
utilized by Ms. Lewinsky. In doing so, he stayed consistent
with any future Lewinsky testimony while still maintaining
his defense in the Jones lawsuit.
In the President's deposition, he was asked whether he was
ever alone with Monica Lewinsky. He responded: ``I don't
recall . . . She--it seems to me she brought things to me
once or twice on the weekends. In that case, whatever time
she would be in there, drop it off, exchange a few words and
go, she was there.'' (WJC 1/17/98 Dep., p. 52-53)
Additionally, when questions were posed regarding Ms.
Lewinsky's frequent visits to the Oval Office, the President
did not hesitate to mention Betty Currie in his answers, for
example:
And my recollection is that on a couple of occasions after
[the pizza party meeting], she was there [in the oval office]
but my secretary, Betty Currie, was there with her. (WJC 1/
17/98 Dep., p. 58)
Q. When was the last time you spoke with Monica Lewinsky?
A. I'm trying to remember. Probably sometime before
Christmas. She came by to see Betty sometime before
Christmas. And she was there talking to her, and I stuck my
head out, said hello to her. (WJC 1/17/98 Dep., p. 68)
December 19, 1997, Ms. Lewinsky Is Subpoenaed
On December 19, 1997, Ms. Lewinsky was subpoenaed to
testify in a deposition scheduled for January 23, 1998 in the
Jones case. (ML 8/6/98 GJ, p. 128; H.Doc. 105-311, p. 848)
(Charts F and G) Extremely distraught, she immediately called
the President's closest friend, Vernon Jordan. As noted Ms.
Lewinsky testified that the President previously told her to
call Betty Currie if she was subpoenaed. She called Mr.
Jordan instead because Ms. Currie's brother recently died and
she did not want to bother her. (ML 8/6/98 GJ, pgs. 128-129;
H.Doc. 105-311, pgs. 848, 849)
Vernon Jordan's Role
Mr. Jordan invited Ms. Lewinsky to his office and she
arrived shortly before 5 p.m., still extremely distraught.
Around this time, Mr. Jordan called the President and told
him Ms. Lewinsky had been subpoenaed. (VJ 5/5/98 GJ, p. 145;
H.Doc. 105-316, p. 1815) (Exhibit 1) During the meeting with
Ms. Lewinsky, which Mr. Jordan characterized as
``disturbing'' (VJ 3/3/98 GJ, p. 100; H.Doc. 105-316, p.
1716), she talked about her infatuation with the President.
(VJ 3/3/98 GJ, p. 150; H.Doc. 105-316, p. 1724) Mr. Jordan
decided that he would call a lawyer for her. (VJ 3/3/98 GJ,
p. 161; H.Doc. 105-316, p. 1726)
Mr. Jordan Informs the President
That evening, Mr. Jordan met with the President and relayed
his conversation with Ms. Lewinsky. The details are extremely
important because the President, in his deposition, did not
recall that meeting. Mr. Jordan told the President again that
Ms. Lewinsky had been subpoenaed, that he was concerned about
her fascination with the President, and that Ms. Lewinsky had
asked Mr. Jordan if he thought the President would leave the
First Lady. He also asked the President if he had sexual
relations with Ms. Lewinsky. (VJ 3/3/98 GJ, p. 169; H.Doc
105-3316, p. 1727) The President was asked at his deposition:
Q. Did anyone other than your attorneys ever tell you that
Monica Lewinsky had been served with a subpoena in this case?
A. I don't think so.
Q. Did you ever talk with Monica Lewinsky about the
possibility that she might be asked to testify in this case?
A. Bruce Lindsey, I think Bruce Lindsey told me that she
was, I think maybe that's the first person told me she was. I
want to be as accurate as I can.
(WJC 1/17/98 Dep., pgs. 68-69)
In the grand jury, the President first repeated his denial
that Mr. Jordan told him Ms. Lewinsky had been subpoenaed.
(WJC 8/17/98 GJ, p. 39; H.Doc. 105-311, p. 491) Then, when
given more specific facts, he admitted that he ``knows now''
that he spoke with Mr. Jordan about the subpoena on the night
of December 19, but his ``memory is not clear. . . .'' (WJC
8/17/98 GJ, pgs. 41-42; H.Doc. 105-311, p. 493-494) In an
attempt to explain away his false deposition testimony,
the President testified in the grand jury that he was
trying to remember who told him first. (WJC 8/17/98 GJ, p.
41; H.Doc. 105-311, pgs. 492-493) But that was not the
question. So his answer was false and misleading. When one
considers the nature of the conversation between the
President and Mr. Jordan, the suggestion that it would be
forgotten defies common sense.
December 28, 1997
December 28, 1997 is a crucial date, because the evidence
shows that the President made false and misleading statements
to the federal court, the federal grand jury and the Congress
of the United States about the events on that date. (Chart J)
It is also a date on which he obstructed justice.
The President's Account
The President testified that it was ``possible'' that he
invited Ms. Lewinsky to the White House for this visit. (WJC
8/17/98 GJ, p. 33; H.Doc. 105-311, p. 485) He admitted that
he ``probably'' gave Ms. Lewinsky the most gifts he had ever
given her on that date, (WJC 8/17/98 GJ, p. 35; H.Doc. 105-
311, p. 487) and that he had given her gifts on other
occasions. (WJC 8/6/98 GJ, p. 35) (Chart D) Among the many
gifts the President gave Ms. Lewinsky on December 28 was a
bear that he said was a symbol of strength. (ML 8/6/98 GJ, p.
176; H.Doc. 105-311, p. 896) Yet only two-and-a-half weeks
later, the President forgot that he had given any gifts to
Ms. Lewinsky.
As an attorney, the President knew that the law will not
tolerate someone who says, ``I don't recall'' when that
answer is unreasonable under the circumstances. He also knew
that, under those circumstances, his answer in the deposition
could not be believed. When asked in the grand jury why he
was unable to remember, even though he had given Ms. Lewinsky
so many gifts only two-and-a-half weeks before the
deposition, the President put forth an obviously contrived
explanation.
``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.''
(WJC 8/17/98 GJ, p. 51; H.Doc. 105-311, p. 503)
Response to Committee Requests
The President adopted that same answer in Response No. 42
to the House Judiciary Committee's Requests For Admission.
(Exhibit 18) He was not asked in the deposition to identify
the gifts. He was simply asked, ``Have you ever'' given gifts
to Ms. Lewinsky. The law does not allow a witness to insert
unstated premises or mental reservations into the question to
make his answer technically true, if factually false. The
essence of lying is in deception, not in words.
The President's answer was false. The evidence also proves
that his explanation to the grand jury and to the Committee
is also false. The President would have us believe that he
was able to analyze questions as they were being asked, and
pick up such things as verb tense in an attempt to make his
statements at least literally true. But when he was asked a
simple, straightforward question, he did not understand it.
Neither his answer in the deposition nor his attempted
explanation is reasonable or true.
Testimony Concerning Gifts
The President was asked in the deposition if Monica
Lewinsky ever gave him gifts. He responded, ``once or
twice.'' (WJC 1/17/98 Dep., p. 77) This is also false
testimony calculated to obstruct justice. He answered this
question in his Response to the House Judiciary Committee by
saying that he receives numerous gifts, and he did not focus
on the precise number. (Exhibit 18) The law again does not
support the President's position. An answer that baldly
understates a numerical fact in response to a specific
quantitative inquiry can be deemed technically true but
actually false. For example, a witness is testifying
falsely if he says he went to the store five times when in
fact he had gone fifty, even though technically he had
also gone five times. So too, when the President answered
once or twice in the face of evidence that Ms. Lewinsky
was frequently bringing gifts, he was lying. (Chart C)
Concealment of Gifts
On December 28, one of the most blatant efforts to obstruct
justice and conceal evidence occurred. Ms. Lewinsky testified
that she discussed with the President the fact that she had
been subpoenaed and that the subpoena called for her to
produce gifts. She recalled telling the President that the
subpoena requested a hat pin, and that caused her concern.
(ML 8/6/98 GJ, pgs. 151-152; H.Doc. 105-311, pgs. 871-872)
The President
told her that it ``bothered'' him, too. (ML 8/20/98 GJ, p.
66; H.Doc. 105-311, p. 1122) Ms. Lewinsky then suggested that
she take the gifts somewhere, or give them to someone, maybe
to Betty. The President answered: ``I don't know'' or ``Let
me think about that.'' (ML 8/6/98 GJ, pgs. 152-153; H.Doc.
105-311, pgs. 872-873) (Chart L) Later that day, Ms. Lewinsky
got a call from Ms. Currie, who said: ``I understand you have
something to give me'' or ``the President said you have
something to give me.'' (ML 8/6/98 GJ, pgs. 154-155; H.Doc.
105-311, pgs. 874-875) Ms. Currie has a fuzzy memory about
this incident, but says that ``the best she can remember,''
Ms. Lewinsky called her. (Currie 5/6/98 GJ, p. 105; H.Doc.
105-316, p. 581)
The Cell Phone Record
There is key evidence that Ms. Currie's fuzzy recollection
is wrong. Ms. Lewinsky said that she thought Ms. Currie
called from her cell phone. (ML 8/6/98 GJ, pgs. 154-155)
(Chart K, Exhibit 2) Ms. Currie's cell phone record
corroborates Ms. Lewinsky and proves conclusively that Ms.
Currie called Monica from her cell phone several hours after
she had left the White House. Moreover, Ms. Currie herself
later testified that Ms. Lewinsky's memory may be better than
hers on this point. (BC 5/6/98 GJ, p. 126; H.Doc. 105-316, p.
584) The facts prove that the President directed Ms. Currie
to pick up the gifts.
Ms. Currie's Later Actions
That conclusion is buttressed by Ms. Currie's actions. If
Ms. Lewinsky had placed the call requesting a gift exchange,
Ms. Currie would logically ask the reason for such a
transfer. Ms. Lewinsky was giving her a box of gifts from the
President yet she did not tell the President of this strange
request. She simply took the gifts and placed them under her
bed without asking a single question. (BC 1/27/98 GJ, pgs.
57-58; H.Doc. 105-316, p. 557; BC 5/6/98 GJ, pgs. 105-108,
114; H.Doc. 105-316, pgs. 581-582)
The President stated in his Response to questions No. 24
and 25 from the House Committee that he was not concerned
about the gifts. (Exhibit 18) In fact, he said that he
recalled telling Monica that if the Jones lawyers request
gifts, she should turn them over. The President testified
that he is ``not sure'' if he knew the subpoena asked for
gifts. (WJC 8/17/98 GJ, pgs. 42-43; H.Doc. 105-311, pgs. 494-
495) Would Monica Lewinsky and the President discuss turning
over gifts to the Jones lawyers if Ms. Lewinsky had not told
him that the subpoena asked for gifts? On the other hand, if
he knew the subpoena requested gifts, why would he give Ms.
Lewinsky more gifts on December 28? Ms. Lewinsky's testimony
reveals the answer. She said that she never questioned ``that
we were ever going to do anything but keep this private'' and
that meant to take ``whatever appropriate steps needed to be
taken'' to keep it quiet. (ML 8/6/98 GJ, pgs. 166; H.Doc.
105-311, p. 886) The only logical inference is that the
gifts--including the bear symbolizing strength--were a tacit
reminder to Ms. Lewinsky that they would deny the
relationship--even in the face of a federal subpoena.
The President's Deposition Testimony
Furthermore, the President, at various times in his
deposition, seriously misrepresented the nature of his
meeting with Ms. Lewinsky on December 28 in order to obstruct
the administration of justice. First, he was asked: ``Did she
tell you she had been served with a subpoena in this case?''
The President answered flatly: ``No. I don't know if she had
been.'' (WJC 1/17/98 Dep., p. 68)
He was also asked if he ``ever talked to Monica Lewinsky
about the possibility of her testifying.'' ``I'm not sure . .
.,'' he said. he then added that he may have joked to her
that the Jones lawyers might subpoena every woman he has ever
spoken to, and that ``I don't think we ever had more of a
conversation than that about it. . . .'' (WJC 1/17/98 Dep.,
p. 70) Not only does Monica Lewinsky directly contradict this
testimony, but the President also directly contradicted
himself before the grand jury. Speaking of his December 28,
1997 meeting, he said that he ``knew by then, of course, that
she had gotten a subpoena'' and that they had a
``conversation about the possibility of her testifying.''
(WJC 8/17/98 Dep., pgs. 35-36) Remember, he had this
conversation about her testimony only two-and-a-half weeks
before his deposition. Again, his version is not reasonable.
January 5-9, 1998, Ms. Lewinsky Signs the Affidavit and Gets a Job
The President knew that Monica Lewinsky was going to
execute a false Affidavit. He was so certain of the content
that when she asked if he wanted to see it, he told her no,
that he had seen fifteen of them. (ML 8/2/98 Int., p. 3;
H.Doc. 105-311, p. 1489) He got his information from
discussions with Ms. Lewinsky and Vernon Jordan generally
about the content of the Affidavit. Moreover, the President
had suggested the Affidavit himself and he trusted Mr. Jordan
to be certain the mission was accomplished.
Additional Presidential Advice
In the afternoon of January 5, 1998, Ms. Lewinsky met with
her lawyer, Mr. Carter, to discuss the Affidavit. (ML 8/6/98
GJ, p. 192; H.Doc. 105-311, p. 912) Her lawyer asked her some
hard questions about how she got her job. (ML 8/6/98 GJ, p.
195; H.Doc. 105-311, p. 915) After the meeting, she called
Betty Currie and said that she wanted to speak to the
President before she signed anything. (ML 8/6/98 GJ, p. 195;
H.Doc. 105-311, p. 915) Ms. Lewinsky and the President
discussed the issue of how she would answer under oath if
asked about how she got her job at the Pentagon. (ML 8/6/98
GJ, p. 197; H.Doc. 105-311, p. 917) The President told her:
``Well, you could always say that the people in Legislative
Affairs got it for you or helped you get it.'' (ML 8/6/98 GJ,
p. 197; H.Doc. 105-311, p. 917) That, too, is false and
misleading.
Vernon Jordan's New Role
The President was also kept advised as to the contents of
the Affidavit by Vernon Jordan. (VJ 5/5/98 GJ, p. 224; H.Doc.
105-316, p. 1828) On January 6, 1998, Ms. Lewinsky picked up
a draft of the Affidavit from Mr. Carter's office. (ML 8/6/98
GJ, p. 199; H.Doc. 105-311, p. 919) She delivered a copy to
Mr. Jordan's office. (ML 8/6/98 GJ, p. 200; H.Doc. 105-311,
p. 920) because she wanted Mr. Jordan to look at the
Affidavit in the belief that if Vernon Jordan gave his
imprimatur, the President would also approve. (ML 8/6/98 GJ,
pgs. 194-195; H.Doc. 105-311, pgs. 914, 915) (Chart M) Ms.
Lewinsky and Mr. Jordan conferred about the contents and
agreed to delete a paragraph inserted by Mr. Carter which
might open a line of questions concerning whether she had
been alone with the President. (ML 8/6/98 GJ, p. 200; H.Doc.
105-311, p. 920) (Exhibit 3) Mr. Jordan maintained that he
had nothing to do with the details of the Affidavit. (VJ 3/5/
98 GJ, p. 12; H.Doc. 105-316, p. 1735) He admits, though,
that he spoke with the President after conferring with Ms.
Lewinsky about the changes made to her Affidavit. (VJ 5/5/
98 GJ, p. 218; H.Doc. 105-316, p. 1827)
Ms. Lewinsky Signs the False Affidavit
The next day, January 7, Monica Lewinsky signed the false
Affidavit. (ML 8/6/98 GJ, pgs. 204-205; H.Doc. 105-311, pgs.
924-925) (Chart N; Exhibit 12) She showed the executed copy
to Mr. Jordan that same day. (VJ 5/5/98 GJ, p. 222; H.Doc.
105-316, p. 1828) (Exhibit 4) Mr. Jordan, in turn, notified
the President that she signed an affidavit denying a sexual
relationship. (VJ 3/5/98 GJ, p. 26; H.Doc. 105-316, p. 1739)
Ms. Lewinsky Gets the Job
On January 8, 1998, Mr. Jordan arranged an interview for
Ms. Lewinsky with MacAndrews and Forbes in New York. (ML 8/6/
98 GJ, p. 206; H.Doc. 105-311, p. 926) The interview went
poorly, so Ms. Lewinsky called Mr. Jordan and informed him.
(ML 8/6/98 GJ, p. 206; H.Doc. 105-311, p. 926) Mr. Jordan,
who had done nothing to assist Ms. Lewinsky's job search from
early November to mid December, then called MacAndrews and
Forbes CEO, Ron Perelman, to ``make things happen, if they
could happen.'' (VJ 5/5/98 GJ, p. 231; H.Doc. 105-316, p.
1829) Mr. Jordan called Ms. Lewinsky back and told her not to
worry. (ML 8/6/98 GJ, pgs. 208-209; H.Doc. 105-311, pgs. 928-
929) That evening, Ms. Lewinsky was called by MacAndrews and
Forbes and told that she would be given more interviews the
next morning. (ML 8/6/98 GJ, p. 209; H.Doc. 105-311, p. 929)
After a series of interviews with MacAndrews and Forbes
personnel, she was informally offered a job. (ML 8/6/98 GJ,
p. 210; H.Doc. 105-311, p. 930) When Ms. Lewinsky called Mr.
Jordan to tell him, he passed the good news on to Betty
Currie stating, ``Mission Accomplished.'' (VJ 5/28/98 GJ, p.
39; H.Doc. 105-316, p. 1898). Later, Mr. Jordan called the
President and told him personally. (VJ 5/28/98 GJ, p. 41;
H.Doc. 105-316, p. 1899) (Chart P)
The Reason for Mr. Jordan's Unique Behavior
After Ms. Lewinsky had spent months looking for a job--
since July according to the President's lawyers--Vernon
Jordan made the critical call to a CEO the day after the
false Affidavit was signed. Mr. Perelman testified that Mr.
Jordan had never called him before about a job
recommendation. (Perelman 4/23/98 Dep., p. 11; H.Doc. 105-
316, p. 3281) Mr. Jordan, on the other hand, said that he
called Mr. Perelman to recommend for hiring: (1) former Mayor
Dinkins of New York; (2) a very talented attorney from Akin
Gump; (3) a Harvard business school graduate; and (4) Monica
Lewinsky. (VJ 3/5/98 GJ, p. 58-59; H.Doc. 105-316, p. 1747)
Even if Mr. Perelman's testimony is mistaken, Ms. Lewinsky's
qualifications do not compare to those of the individuals
previously recommended by Mr. Jordan.
Vernon Jordan was well aware that people with whom Ms.
Lewinsky worked at the White House did not like her (VJ 3/3/
98 GJ, pgs. 43, 59) and that she did not like her Pentagon
job. (VJ 3/3/98 GJ, pgs. 43-44; H.Doc. 105-316, pgs. 1706,
1707) Mr. Jordan was asked if at ``any point during this
process you wondered about her qualifications for
employment?'' He answered: ``No, because that was not my
judgment to make.'' (VJ 3/3/98 GJ, p. 44; H.Doc. 105-316, p.
1707) Yet, when he called Mr. Perelman the day after she
signed the Affidavit, he referred to Ms. Lewinsky as a bright
young girl who is ``terrific.'' (Perelman 4/23/98 Dep., p.
10; H.Doc. 105-316, p. 3281) Mr. Jordan testified that she
had been pressing him for a job and voicing unrealistic
expectations concerning positions and salary. (VJ 3/5/98 GJ,
pgs. 37-38; H.Doc. 105-316, p. 1742) Moreover, she narrated a
disturbing story about the President leaving the First Lady,
and how the President was not spending enough time with her.
Yet, none of that gave Mr. Jordan pause in making
the recommendation, especially after Monica was
subpoenaed. (VJ 3/3/98 GJ, pgs. 156-157; H.Doc. 105-316,
p. 1725)
The Importance of the False Affidavit
Monica Lewinsky's false Affidavit enabled the President,
through his attorneys, to assert at his January 17, 1998
deposition ``. . . there is absolutely no sex of any kind in
any manner, shape of form with President Clinton. . . .''
(WJC, 1/17/98 Dep., p. 54) When questioned by his own
attorney in the deposition, the President stated specifically
that paragraph 8 of Ms. Lewinsky's Affidavit was ``absolutely
true.'' (WJC, 1/17/98 Dep., p. 204) The President later
affirmed the truth of that statement when testifying before
the grand jury. (WJC, 8/17/98 GJ, p. 20-21; H.Doc. 105-311,
pg. 473) Paragraph 8 of Ms. Lewinsky's Affidavit states:
``I have never had a sexual relationship with the
President, he did not propose that we have a sexual
relationship, he did not offer me employment or other
benefits in exchange for a sexual relationship, he did not
deny me employment or other benefits for rejecting a sexual
relationship.''
Significantly, Ms. Lewinsky reviewed the draft Affidavit on
January 6, and signed it on January 7 after deleting a
reference to being alone with the President. She showed a
copy of the signed Affidavit to Vernon Jordan, who called the
President and told him that she had signed it. (VJ, 3/5/98
GJ, pgs. 24-26; H.Doc. 105-316, pgs. 1728, 1739; VJ, 5/5/98
GJ, p. 222; H.Doc. 105-316, p. 1828)
The Rush To File the Affidavit
For the affidavit to work for the President in precluding
questions by the Jones attorneys concerning Ms. Lewinsky, it
had to be filed with the Court and provided to the
President's attorneys in time for his deposition on January
17. On January 14, the President's lawyers called Ms.
Lewinsky's lawyer and left a message, presumably to find out
if he had filed the Affidavit with the Court. (Carrier 6/18/
98 GJ, p. 123; H.Doc. 105-316, p. 423) (Chart O) On January
15, the President's attorneys called her attorney twice. When
they finally reached him, they requested a copy of the
Affidavit and asked him, ``Are we still on time?'' (Carter 6/
18/98 GJ, p. 123; H.Doc. 105-216, p. 423) Ms. Lewinsky's
lawyer faxed a copy on the 15th. (Carter 6/18/98 GJ, p. 123,
H.Doc. 105-316, p. 423) The President's counsel was aware of
its contents and used it powerfully in the deposition.
Ms. Lewinsky's lawyer called the court in Arkansas twice on
January 15 to ensure that the Affidavit could be filed on
Saturday, January 17. (Carter 6/18/98 GJ, pgs. 124-125;
H.Doc. 105-316, pgs. 423-424) (Exhibit 5) He finished the
Motion to Quash Ms. Lewinsky's deposition in the early
morning hours of January 16 and mailed it to the Court
with the false Affidavit attached, for Saturday delivery.
(Carter 6/18/98 GJ, p. 134; H.Doc. 105-316, p. 426) The
President's lawyers left him another message on January
16, saying, ``You'll know what it's about.'' (Carter 6/18/
98 GJ, p. 135; H.Doc. 105-316, p. 426) Obviously, the
President needed that Affidavit to be filed with the Court
to support his plans to mislead Ms. Jones' attorneys in
the deposition, and thereby obstruct justice.
The Newsweek Inquiry
On January 15, Michael Isikoff of Newsweek called Betty
Currie and asked her about Ms. Lewinsky sending gifts to her
by courier. (BC 5/6/98 GJ, p. 123; H.Doc. 105-316, p. 584; ML
8/6/98 GJ, p. 228; H.Doc. 105-311, p. 948) Ms. Currie than
called Ms. Lewinsky and told her about it. (ML 8/6/98 GJ, p.
228-229; H.Doc. 105-311, pgs. 948-949) The President was out
of town, so later, Betty Currie called Ms. Lewinsky back, and
asked for a ride to Mr. Jordan's office. (ML 8/6/98 GJ, p.
229; H.Doc. 105-311, p. 949; Currie 5/6/98 GJ, p. 130-131;
H.Doc. 105-316, p. 585) Mr. Jordan advised her to speak with
Bruce Lindsey and Mike McCurry. (VJ 3/5/98 GJ, p. 71) Ms.
Currie testified that she spoke immediately to Mr. Lindsey
about Isikoff's call. (BC 5/6/98 GJ, p. 127; H.Doc. 105-316,
p. 584)
January 17, 1998, Deposition Aftermath
By the time the President concluded his deposition on
January 17, he knew that someone was talking about his
relationship with Ms. Lewinsky. He also knew that the only
person who had personal knowledge was Ms. Lewinsky herself.
The cover stories that he and Ms. Lewinsky created, and that
he used himself during the deposition, were now in jeopardy.
It became imperative that he not only contact Ms. Lewinsky,
but that he obtain corroboration of his account of the
relationship from his trusted secretary, Ms. Currie. At
around 7 p.m. on the night of the deposition, the President
called Ms. Currie and asked that she come in the following
day, Sunday. (BC 7/22/98 GJ, p. 154-155; H.Doc. 105-316, p.
701 (Exhibit 6) Ms. Currie could not recall the President
ever before calling her that late at home on a Saturday
night. (BC 1/27/98 GJ, p. 69; H.Doc. 105-316, p. 559) (Chart
S) Sometime in the early morning hours of January 18, 1998,
the President learned of a news report concerning Ms.
Lewinsky released earlier that day. (WJC 8/17/98 GJ, p. 142-
143; H.Doc. 105-311, pgs. 594-595) (Exhibit 14)
The Tampering With the Witness, Betty Currie
As the charts indicate, between 11:49 a.m. and 2:55 p.m.,
there were three phone calls between Mr. Jordan and the
President. (Exhibit 7) At about 5 p.m., Ms. Currie met with
the President. (BC 1/27/98 GJ, p. 67; H.Doc. 105-316, p. 558)
He told her that he had just been deposed and that the
attorneys asked several questions about Monica Lewinsky. (BC
1/27/98 GJ, p. 69-70; H.Doc. 105-316, p. 559) He then made a
series of statements to Ms. Currie: (Chart T)
(1) I was never really alone with Monica, right?
(2) You were always there when Monica was there, right?
(3) Monica came on to me, and I never touched her, right?
(4) You could see and hear everything, right?
(5) She wanted to have sex with me, and I cannot do that.
(BC 1/27/98 GJ, pgs. 70-75; H.Doc. 105-316, pgs. 559-560; BC
7/22/98 GJ, pgs. 6-7; H.Doc. 105-316, p. 664)
During Betty Currie's grand jury testimony, she was asked
whether she believed that the President wished her to agree
with the statements:
Q. Would it be fair to say, then--based on the way he
stated [these five points] and the demeanor that he was using
at the time that he stated it to you--that he wished you to
agree with that statement?
A. I can't speak for him, but----
Q. How did you take it? Because you told us at these
[previous] meetings in the last several days that that is how
you took it.
A. [Nodding.]
Q. And you're nodding you head, ``yes,'' is that correct?
A. That's correct.
Q. Okay, with regard to the statement that the President
made to you, ``You remember I was never really alone with
Monica, right?'' Was that also a statement that, as far as
you took, that he wished you to agree with that?
A. Correct.
(BC 1/27/98 GJ, p. 74; H.Doc. 105-316, 559)
Though Ms. Currie would later intimate that she did not
necessarily feel pressured by the President, she did state
that she felt the President was seeking her agreement (or
disagreement) with those statements. (BC 7/22/98 GJ, p. 27;
H.Doc. 105-316, p. 669)
Was This Obstruction of Justice?
The President essentially admitted to making these
statements when he knew they were not true. Consequently, he
had painted himself into a legal corner. Understanding the
seriousness of the President ``coaching'' Ms. Currie, the
argument has been made that those statements to her could not
constitute obstruction because she had not been subpoenaed,
and the President did not know that she was a potential
witness at the time. This argument is refuted by both the law
and the facts.
The United States Court of Appeals rejected this argument,
and stated, ``[A] person may be convicted of obstructing
justice if he urges or persuades a prospective witness to
give false testimony. Neither must the target be scheduled to
testify at the time of the offense, nor must he or she
actually give testimony at a later time.'' United States v.
Shannon, 836 F.2d 1125, 1128 (8th Cir. 1988) (citing, e.g.,
United States v. Friedland, 660 F.2d 919, 931 (3rd Cir.
1981)).
Of course Ms. Currie was a prospective witness, and the
President clearly wanted her to be deposed to corroborate
him, as his testimony demonstrates. The President claims that
he called Ms. Currie into work on a Sunday night only to find
out what she knew. But the President knew the truth about his
relationship with Ms. Lewinsky, and if he had told the truth
during his deposition the day before, then he would have no
reason to worry about what Ms. Currie knew. More importantly,
the President's demeanor, Ms. Currie's reaction to his
demeanor, and the blatant lies that he suggested clearly
prove that the President was not merely interviewing Ms.
Currie. Rather, he was looking for corroboration for his
false cover-up, and that is why he coached her.
January 18, the Search for Ms. Lewinsky
Very soon after his Sunday meeting with Ms. Currie, at 5:12
p.m., the flurry of telephone calls in search of Monica
Lewinsky began. (Chart S) between 5:12 p.m. and 8:28 p.m.,
Ms. Currie paged Ms. Lewinsky four times. ``Kay'' is a
reference to a code name Ms. Lewinsky and Ms. Currie agreed
to when contacting one another. (ML 8/6/98 GJ, p. 216; H.Doc.
105-311, pg. 936) At 11:02 p.m., the President called Ms.
Currie at home to ask if she had reached Lewinsky. (BC 7/22/
98 GJ, p. 160; H. Doc. 105-316, p. 702)
January 19, the Search Continues
The following morning, January 19, Ms. Currie continued to
work diligently on behalf of the President. Between 7:02 a.m.
and 8:41 a.m., she paged Ms. Lewinsky another five times.
(Chart S) (Exhibit 8) After the 8:41 page, Ms. Currie called
the President at 8:43 a.m. and said that she was unable to
reach Ms. Lewinsky. (BC 7/22/98 GJ, pgs. 161-162; H.Doc. 105-
316, p. 703) One minute later, at 8:44 a.m., she again paged
Ms. Lewinsky. This time Ms. Currie's page stated ``Family
Emergency,'' apparently in an attempt to alarm Ms. Lewinsky
into calling back. That may have been the President's idea,
since Ms. Currie had just spoken with him. The President was
obviously quite concerned because he called Betty Currie only
six minutes later, at 8:50 a.m. Immediately thereafter, at
8:51 a.m., Ms. Currie tried a different tact, sending the
message: ``Good news.'' Again, perhaps at the President's
suggestion. If bad news does not get her to call, try good
news. Ms. Currie said that she was trying to encourage Ms.
Lewinsky to call, but there was no sense of ``urgency.'' (BC
7/22/98 GJ, p. 165; H.Doc. 105-316, p. 704) Ms. Currie's
recollection of why she was calling was again fuzzy. She said
at one point that
she believes the President asked her to call Ms. Lewinsky,
and she thought she was calling just to tell her that her
name came up in the deposition. (BC 7/22/98 GJ, p. 162;
H.Doc. 105-316, p. 703) Monica Lewinsky had been subpoenaed;
of course her name came up in the deposition. There was
obviously another and more important reason the President
needed to get in touch with her.
Mr. Jordan and Ms. Lewinsky's Lawyers Join the Search
At 8:56 a.m., the President telephoned Vernon Jordan, who
then joined in the activity. Over a course of twenty-four
minutes, from 10:29 to 10:53 a.m., Mr. Jordan called the
White House three times, paged Ms. Lewinsky, and called Ms.
Lewinsky's attorney, Frank Carter. Between 10:53 a.m. and
4:54 p.m., there are continued calls between Mr. Jordan, Ms.
Lewinsky's attorney and individuals at the White House.
Ms. Lewinsky Replaces Her Lawyer
Later that afternoon, at 4:54 p.m., Mr. Jordan called Mr.
Carter. Mr. Carter relayed that he had been told he no longer
represented Ms. Lewinsky. (VJ 3/5/98 GJ, p. 141; H.Doc. 105-
316, p. 1771) Mr. Jordan then made feverish attempts to reach
the President or someone at the White House to tell them the
bad news, as represented by the six calls between 4:58 p.m.
and 5:22 p.m. Vernon Jordan said that he tried to relay this
information to the White House because ``[t]he President
asked me to get Monica Lewinsky a job,'' and he thought it
was ``information that they ought to have.'' (VJ 6/9/98 GJ,
pgs. 45-46; H.Doc. 105-316, p. 1968) (Chart Q) Mr. Jordan
then called Mr. Carter back at 5:14 p.m. to go over what they
had already talked about. (VJ 3/5/98 GJ, p. 146; H.Doc. 104-
316, p. 1772) Mr. Jordan finally reached the President at
5:56 p.m. and told him that Mr. Carter had been fired. (VJ 6/
9/98 GJ, p. 54; H.Doc. 105-316, p. 1970)
The Reason for the Urgent Search
This activity shows how important it was for the President
of the United States to find Monica Lewinsky to learn to whom
she was talking. Betty Currie was in charge of contacting Ms.
Lewinsky. The President had just completed a deposition in
which he provided false and misleading testimony about his
relationship with Ms. Lewinsky. She was a co-conspirator in
hiding this relationship from the Jones attorneys, and he was
losing control over her. The President never got complete
control over her again.
Article I.--False and Misleading Statements to the Grand Jury
Article I addresses the President's perjurious, false, and
misleading testimony to the grand jury. Four categories of
false grand jury testimony are listed in the Article. Some
salient examples of false statements are described below.
When judging the statements made and the answers given, it is
vital to recall that the President spent literally days
preparing his testimony with his lawyer. He and his attorney
were fully aware that the testimony would center around his
relationship with Ms. Lewinsky and his deposition testimony
in the Jones case.
Grand Jury Testimony
On August 17, after six invitations, the President of the
United States appeared before a grand jury of his fellow
citizens and took an oath to tell the complete truth. The
President proceeded to equivocate and engage in legalistic
fencing; he also lied. The entire testimony was calculated to
mislead and deceive the grand jury and to obstruct its
process, and eventually to deceive the American people. He
set the tone at the very beginning. In the grand jury a
witness can tell the truth, lie or assert his privileges
against self incrimination. (Chart Y) President Clinton was
given a fourth choice. The President was permitted to read a
statement. (Chart Z; WJC 8/17/98 GJ, pgs. 8-9)
The President's Prepared Statement
That statement itself is demonstrably false in
many particulars. President Clinton claims that he engaged
in inappropriate conduct with Ms. Lewinsky ``on certain
occasions in early 1996 and once in 1997.'' Notice he did
not mention 1995. There was a reason. On three
``occasions'' in 1995, Ms. Lewinsky said she engaged in
sexual contact with the President. Ms. Lewinsky was a
twenty-one year old intern at the time.
The President unlawfully attempted to conceal his three
visits alone with Ms. Lewinsky in 1995 during which they
engaged in sexual conduct. (ML 8/6/98 GJ, pgs. 27-28; H.Doc.
105-311, pgs. 747-748; ML 8/6/98 GJ, Ex. 7; H.Doc. 105-311,
p. 1251; Chart A) Under Judge Wright's ruling, this evidence
was relevant and material to Paula Jones' sexual harassment
claims. (Order, Judge Susan Webber Wright, December 11, 1997,
p. 3)
The President specifically and unequivocally states, ``[The
encounters] did not constitute sexual relations as I
understood that term to be defined at my January 17, 1998
deposition.'' That assertion is patently false. It is
directly contradicted by the corroborated testimony of Monica
Lewinsky. (See eg: ML 8/20/98 GJ, pgs. 31-32; H.Doc. 311, p.
1174; ML 8/26/98 Dep., p. 25, 30; H.Doc. 311, pgs. 1357,
1358)
Evidence indicates that the President and Ms. Lewinsky
engaged in ``sexual relations'' as the President understood
the term to be defined at his deposition and as any
reasonable person would have understood the term to have been
defined.
Contrary to his statement under oath, the President's
conduct during the 1995 visits and numerous additional visits
did constitute ``sexual relations'' as he understood the term
to be defined at his deposition. Before the grand jury, the
President admitted that directly touching or kissing another
person's breast, or directly touching another person's
genitalia with the intent to arouse, would be ``sexual
relations'' as the term was defined. (WJC 8/17/98 GJ, pgs.
94-95; H.Doc 105-311, pgs. 546-547) However, the President
maintained that he did not engage in such conduct. (Id.)
These statements are contradicted by Ms. Lewinsky's testimony
and the testimony of numerous individuals with whom she
contemporaneously shared the details of her encounters with
the President. Moreover, the theory that Ms. Lewinsky
repeated and unilaterally performed acts on the President
while he tailored his conduct to fit a contorted definition
of ``sexual relations'' which he had not contemplated at the
time of the acts, defies common sense.
Moreover, the President had not even formed the contorted
interpretation of ``sexual relations'' which he asserted in
the grand jury until after his deposition had concluded. This
is demonstrated by the substantial evidence revealing the
President's state of mind during his deposition testimony.
First, the President continuously denied at his deposition
any fact that would cause the Jones lawyers to believe that
he and Ms. Lewinsky had any type of improper relationship,
including a denial that they had a sexual affair, (WJC 1/17/
98 Dep., p. 78) not recalling if they were ever alone, (WJC
1/17/98 Dep., pgs. 52-53, 59) and not recalling whether Ms.
Lewinsky had ever given him gifts. (WJC 1/17/98 Dep., pg. 75)
Second, the President testified that Ms. Lewinsky's affidavit
denying a sexual relationship was ``absolutely true'' when,
even by his current reading of the definition, it is
absolutely false. (WJC 1/17/98 Dep., p. 204) Third, the White
House produced a document entitled ``January 24, 1998 Talking
Points,'' stating flatly that the President's definition of
``sexual relations'' included oral sex. (Chart W) Fourth, the
President made statements to staff members soon after the
deposition, saying that he did not have sexual relations,
including oral sex, with Ms. Lewinsky, (Podesta 6/16/98 GJ,
pg. 92; H.Doc. 105-316, p. 3311) and that she threatened to
tell people she and the President had an affair when he
rebuffed her sexual advances. (Blumenthal 6/4/98 GJ, p. 59;
H.Doc. 105-316, p. 185) Fifth, President Clinton's Answer
filed in Federal District Court in response to Paula Jones'
First Amended Complaint states unequivocally that ``President
Clinton denies that he engaged in any improper conduct with
respect to plaintiff or any other woman.'' (Answer of
Defendant William Jefferson Clinton, December 17, 1997, p. 8,
para. 39) Sixth, in President Clinton's sworn Answers to
Interrogatories Numbers 10 and 11, as amended, he flatly
denied that he had sexual relations with any federal
employee. The President filed this Answer prior to his
deposition. Finally, as described below, the President sat
silently while his attorney, referring to Ms. Lewinsky's
affidavit, represented to the court that there was no sex of
any kind or in any manner between the President and Ms.
Lewinsky. (WJC 1/17/98 Dep., pg. 54)
This circumstantial evidence reveals the President's state
of mind at the time of the deposition: his concern was not in
technically or legally accurate answers, but in categorically
denying anything improper. His grand jury testimony about his
state of mind during the deposition is false.
Reasons for the False Testimony
The President did not lie to the grand jury to protect
himself from embarrassment, as he could no longer deny the
affair. Before his grand jury testimony, the President's
semen had been identified by laboratory tests on Ms.
Lewinsky's dress, and during his testimony, he admitted an
``inappropriate intimate relationship'' with Ms. Lewinsky,
In fact, when he testified before the grand jury, he was
only hours away from admitting the affair on national
television. Embarrassment was inevitable. But, if he
truthfully admitted the details of his encounters with Ms.
Lewinsky to the grand jury, he would be acknowledging that
he lied under oath during his deposition when he claimed
that he did not engage in sexual relations with Ms.
Lewinsky. (WJC 1/17/98 Dep., pgs. 78, 109, 204) Instead,
he chose to lie, not to protect his family or the dignity
of his office, but to protect himself from criminal
liability for his perjury in the Jones case.
Additional Falsity in the Prepared Statement
The President's statement continued, ``I regret that what
began as a friendship came to include this conduct [.]'' (WJC
8/17/98 GJ, p. 9; H.Doc. 105-311, p. 461) The truth is much
more troubling. As Ms. Lewinsky testified, her relationship
with the President began with flirting, including Ms.
Lewinsky showing the President her underwear. (ML 7/30/98
Int., p. 5; H.Doc. 105-311, p. 1431) As Ms. Lewinsky candidly
admitted, she was surprised that the President remembered her
name after their first two sexual encounters. (ML 8/26/98
Dep., p. 25; H.Doc. 105-311, p. 1295)
Reason for the Falsity
The President's prepared statement, fraught with untruths,
was not an answer the President delivered extemporaneously to
a particular question. It was carefully drafted testimony
which the President read and relied upon throughout his
deposition. The President attempted to use the statement to
foreclose questioning on an incriminating topic on nineteen
separate occasions. Yet,
this prepared testimony, which along with other testimony
provides the basis for Article I, Item 1, actually
contradicts his sworn deposition testimony.
Contrary Deposition Testimony
In this statement, the President admits that he and Ms.
Lewinsky were alone on a number of occasions. He refused to
make this admission in his deposition in the Jones case.
During the deposition, the following exchange occurred:
Q. Mr. President, before the break, we were talking about
Monica Lewinsky. At any time were you and Monica Lewinsky
together alone in the Oval Office?
A. I don't recall, but as I said, when she worked in the
legislative affairs office, they always had somebody there on
the weekends. I typically work some on the weekends.
Sometimes they'd bring me things on the weekends. She--it
seems to me she brought things to me once or twice on the
weekends. In that case, whatever time she would be in there,
drop if off, exchange a few words and go, she was there. I
don't have any specific recollections of what the issues
were, what was going on, but when the Congress is there,
we're working all the time, and typically I would do some
work on One of the days of the weekends in the afternoon.
Q. So I understand, your testimony is that it was possible,
then, that you were alone with her, but you have no specific
recollection of that ever happening?
A. Yes, that's correct. It's possible that she, in, while
she was working there, brought something to me and that at
the time she brought it to me, she was the only person there.
That's possible.
(WJC 1/17/98 Dep., pgs. 52-53)
After telling this verbose lie under oath, the President
was given an opportunity to correct himself. This exchange
followed:
Q. At any time have you and Monica Lewinsky ever been alone
together in any room in the White House?
A. I think I testified to that earlier. I think that there
is a, it is--I have no specific recollection, but it seems to
me that she was on duty on a couple of occasions working for
the legislative affairs office and brought me some things to
sign, something on the weekend. That's--I have a general
memory of that.
Q. Do you remember anything that was said in any of those
meetings?
A. No. You know, we just had conversation, I don't
remember.
(WJC 1/17/98 Dep., pgs. 52-53)
Before the grand jury, the President maintained that he
testified truthfully at his deposition, a lie which provides,
in part, the basis for Article I, Item 2. He stated, ``My
goal in this deposition was to be truthful, but not
particularly helpful . . . I was determined to walk through
the mind field of this deposition without violating the law,
and I believe I did.'' (WJC 8/17/98 GJ, p. 80; H.Doc. 105-
311, p. 532) But contrary to his deposition testimony, he
certainly was along with Ms. Lewinsky when she was not
delivering papers, as the President conceded in his prepared
grand jury statement.
In other words, the President's assertion before the grand
jury that he was alone with Ms. Lewinsky, but that he
testified truthfully in his deposition, in inconsistent. Yet,
to this day, both the President and his attorneys have
insisted that he did not lie at his deposition and that he
did not lie when he swore under oath that he did not lie at
his deposition.
In addition to his lie about not recalling being alone with
Ms. Lewinsky, the President told numerous other lies at his
deposition. All of those lies are incorporated in Article I,
Item 2.
Testimony Concerning the False Affidavit
Article I, Item 3 charges the President with providing
perjurious, false and misleading testimony before a federal
grand jury concerning false and misleading statements his
attorney Robert Bennett made to Judge Wright at the
President's deposition. In one statement, while objecting to
questions regarding Ms. Lewinsky, Mr. Bennett misled the
Court, perhaps knowingly, stating, ``Counsel [for Ms. Jones]
is fully aware that Ms. Lewinsky has filed, has an affidavit
which they are in possession of saying that there is
absolutely no sex of any kind in any manner, shape or form,
with President Clinton[.]'' (WJC 1/17/98 Dep., pgs. 53-54)
When Judge Wright interrupted Mr. Bennett and expressed her
concern that he might be coaching the President, Mr. Bennett
responded, ``In preparation of the witness for this
deposition, the witness is fully aware of Ms. Lewinsky's
affidavit, so I have not told him a single thing he doesn't
know[.]'' (WJC 1/17/98 Dep., p. 54) (Emphasis added)
When asked before the grand jury about his statement to
Judge Wright, the President testified, ``I'm not even sure I
paid attention to what he was saying,'' (WJC 8/17/98 GJ, p.
24; H.Doc. 105-3131, p. 476) He added, ``I didn't pay much
attention to this conversation, which is why, when you
started asking me about this, I asked to see the
deposition.'' (WJC 8/17/98 GJ, p. 24; H.Doc. 105-311, p. 477)
Finally, ``I don't believe I ever even focused on what Mr.
Bennett said in the exact words he did until I started
reading this transcript carefully for this hearing. That
moment, the whole argument just passed me by.'' (WJC 8/17/98
GJ, p. 29; H. Doc. 105-311, p. 481)
This grand jury testimony defies common sense. During his
deposition testimony, the President admittedly misled Ms.
Jones' attorneys about his affair with Ms. Lewinsky, which
continued while Ms. Jones' lawsuit was pending, because he
did not want the truth to be known. Of course, when Ms.
Lewinsky's name is mentioned during the deposition,
particularly in connection with sex, the President is going
to listen. Any doubts as to whether he listened to Mr.
Bennett's representations are eliminated by watching the
videotape of the President's deposition. The videotape shows
the President looking directly at Mr. Bennett, paying close
attention to his argument to Judge Wright.
False Testimony Concerning Obstruction of Justice
Article I, Item 4 concerns the President's grand jury
perjury regarding his efforts to influence the testimony of
witnesses and his efforts to impede discovery in the Jones
v. Clinton lawsuit. These lies are perhaps the most
troubling, as the President used them in an attempt to
conceal his criminal actions and the abuse of his office.
For example, the President 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. (WJC 8/17/98 GJ,
p. 43; H.Doc. 105-311, p. 495) He stated, ``And I told her
that if they asked her for gifts, she'd have to give them
whatever she had, that that's what the law was.'' (Id.) This
testimony is false, as demonstrated by both Ms. Lewinsky's
testimony and common sense.
Ms. Lewinsky testified that on December 28, 1997, she
discussed with the President the subpoena's request for her
to produce gifts, including a hat pin. She told the President
that it concerned her, (ML 8/6/98 GJ, p. 151; H.Doc. 105-311,
p. 871) and he said that it ``bothered'' him too. (ML 8/20/98
GJ, p. 66; H.Doc. 105-311, p. 1122) Ms. Lewinsky then
suggested that she give the gifts to someone, maybe to Betty.
But rather than instructing her to turn the gifts over to Ms.
Jones' attorneys, the President replied, ``I don't know'' or
``Let me think about that.'' (ML 8/6/98 GJ, p. 152; H.Doc.
105-311, p. 872) Several hours later, Ms. Currie called Ms.
Lewinsky on her cellular phone and said, ``I understand you
have something to give me'' or ``the President said you have
something to give me.'' (ML 8/6/98 GJ, pgs. 154-155; H.Doc.
105-311, pgs. 874-875)
Although Ms. Currie agrees that she picked up the gifts
from Ms. Lewinsky, Ms. Currie testified that ``the best'' she
remembers is that Ms. Lewinsky called her. (BC 5/6/98 GJ, p.
105; H.Doc. 105-316, p. 581) She later conceded that Ms.
Lewinsky's memory may be better than hers on this point. (BC
5/6/98 GJ, p. 126; H.Doc. 105-316, p. 584) A telephone record
corroborates Ms. Lewinsky, revealing that Ms. Currie did call
her from her cellular phone several hours after Ms.
Lewinsky's meeting with the President. The only logical
reason Ms. Currie called Ms. Lewinsky to retrieve gifts from
the President is that the President told her to do so. He
would not have given this instruction if he wished the gifts
to be given to Ms. Jones' attorneys.
Testimony Concerning Ms. Currie
The President again testified falsely when he told the
grand jury that he was simply trying to ``refresh'' his
recollection when he made a series of statements to Ms.
Currie the day after his deposition. (WJC 8/17/98 GJ, p. 131;
H.Doc. 105-311, p. 583) Ms. Currie testified that she met
with the President at about 5:00 P.M. on January 18, 1998,
and he proceeded to make these statements to her:
(1) I was never really alone with Monica, right?
(2) You were always there when Monica was there, right?
(3) Monica came on to me, and I never touched her, right?
(4) You could see and hear everything, right?
(5) She wanted to have sex with me, and I cannot do that.
(BC 1/27/98 GJ, pgs. 70-75; H.Doc. 105-316, pgs. 559-560; BC
7/22/98 GJ, pgs. 6-7; H.Doc. 105-316, p. 664)
Ms. Currie testified that these were more like statements
than questions, and that, as far as she understood, the
President wanted her to agree with the statements. (BC 1/27/
98 GJ, p. 74; H.Doc. 105-316, p. 559)
The President was asked specifically about these statements
before the grand jury. He did not deny them, but said that he
was ``trying to refresh [his] memory about what the facts
were.'' (WJC 8/17/98 GJ, p. 131; H.Doc. 105-311, p. 583) He
added that he wanted to ``know what Betty's memory was about
what she heard,'' (WJC 8/17/98 GJ, p. 54; H.Doc. 105-316, p.
506) and that he was ``trying to get as much information as
quickly as [he] could.'' (WJC 8/17/98 GJ, p. 56; H.Doc. 105-
311, p. 508) Logic demonstrates that the President's
explanation is contrived and false.
A person does not refresh his recollection by firing
declarative sentences dressed up as leading questions to his
secretary. If the President was seeking information, he would
have asked Ms. Currie what she recalled. Additionally, a
person does not refresh his recollection by asking questions
concerning factual scenarios of which the listener was
unaware, or worse, of which the declarant and the listener
knew were false. How would Ms. Currie know if she was always
there when Ms. Lewinsky was there? Ms. Currie, in fact,
acknowledged during her grand jury testimony that Ms.
Lewinsky could have visited the President at the White House
when Ms. Currie was not there. (BC 7/22/98 GJ, pgs.
65-66; H.Doc. 105-316, p. 679) Ms. Currie also testified that
there were several occasions when the President and Ms.
Lewinsky were in the Oval Office or study area without anyone
else present. (BC 1/27/98 GJ, pgs. 32-33, 36-38; H.Doc. 105-
316, pgs. 552-553)
More importantly, the President admitted in his statement
to the grand jury that he was alone with Ms. Lewinsky on
several occasions. (WJC 8/17/98 GJ, pgs. 9-10; H.Doc. 105-
311, pgs. 460-461) Thus, by his own admission, his statement
to Ms. Currie about never being alone with Ms. Lewinsky was
false. And if they were alone together, Ms. Currie certainly
could not say whether the President touched Ms. Lewinsky or
not.
The statement about whether Ms. Currie could see and hear
everything is also refuted by the President's own grand jury
testimony. During his ``intimate'' encounters with Ms.
Lewinsky, he ensured everyone, including Ms. Currie, was
excluded. (WJC 8/17/98 GJ, p. 53; H.Doc. 105-311, p. 505) Why
would someone refresh his recollection by making a false
statement of fact to a subordinate? The answer is obvious--he
would not.
Lastly, the President stated in the grand jury that he was
``downloading'' information in a ``hurry,'' apparently
explaining that he made these statements because he did not
have time to listen to answers to open-ended questions. (WJC
8/17/98 GJ, p. 56; H.Doc. 105-311, p. 508) But, if he was in
such a hurry, why did the President not ask Ms. Currie to
refresh his recollection when he spoke with her on the
telephone the previous evening? He also has no adequate
explanation as to why he could not spend an extra five or 10
minutes with Ms. Currie on January 18 to get her version of
the events. In fact, Ms. Currie testified that she first met
the President on January 18 while he was on the White House
putting green, and he told her to go into the office and he
would be in in a few minutes. (BC 1/27/98 GJ, pgs. 67-70;
H.Doc. 105-316, pgs. 558-559) And if he was in such a hurry,
why did he repeat these statements to Ms. Currie a few days
later? (BC 1/27/98 GJ, pgs. 80-81; H.Doc. 105-316, pgs. 560-
561) The reason for these statements had nothing to do with
time constraints or refreshing recollection; he had just
finished lying during the Jones deposition about these
issues, and he needed corroboration from his secretary.
Testimony About Influencing Aides
Not only did the President lie about his attempts to
influence Ms. Currie's testimony, but he lied about his
attempts to influence the testimony of some of his top aides.
Among the President's lies to his aides, described in detail
later in this brief, were that Ms. Lewinsky did not perform
oral sex on him, and that Ms. Lewinsky stalked him while he
rejected her sexual demands. These lies were then
disseminated to the media and attributed to White House
sources. They were also disseminated to the grand jury.
When the president was asked about these lies before the
grand jury, he testified:
``And so I said to them things that were true about this
relationship. That I used--in the language I used, I said,
there's nothing going on between us. That was true. I said, I
have not had sex with her as I defined it. That was true. And
did I hope that I never would have to be here on this day
giving this testimony? Of course.
``But I also didn't want to do anything to complicate this
matter further. So I said things that were true. They may
have been misleading, and if they were I have to take
responsibility for it, and I'm sorry.''
(WJC 8/17/98 GJ, p. 106; H.Doc. 105-311, p. 558)
To accept this grand jury testimony as truth, one must
believe that many of the President's top aides engaged in a
concerted effort to lie to the grand jury in order to
incriminate him at the risk of subjecting themselves to a
perjury indictment. We suggest that it is illustrative of the
President's character that he never felt any compunction in
exposing others to false testimony charges, so long as he
could conceal his own perjuries. Simply put, such a
conspiracy did not exist.
The above are merely highlights of the President's grand
jury perjury, and there are numerous additional examples. In
order to keep these lies in perspective, three facts must be
remembered. First, before the grand jury, the President was
not lying to cover up an affair and protect himself from
embarrassment, as concealing the affair was now impossible.
Second, the President could no longer argue that the facts
surrounding his relationship with Ms. Lewinsky were somehow
irrelevant or immaterial, as the Office of Independent
Counsel and the grand jury had mandates to explore them.
Third, he cannot claim to have been surprised or unprepared
for questions about Ms. Lewinsky before the grand jury, as he
spent days with his lawyer, preparing responses to such
questions.
The President's Method
Again, the President carefully crafted his statements to
give the appearance of being candid, when actually his intent
was the opposite. In addition, throughout the testimony,
whenever the President was asked a specific question that
could not be answered directly without either admitting the
truth or giving an easily provable false answer, he said, ``I
rely on my statement.'' 19 times he relied on this false and
misleading statement; nineteen times, then, he repeated those
lies in ``answering'' questions propounded to him. (See eg.
WJC 8/17/98 GJ, pg. 139; H.Doc. 105-311, p. 591)
The House Committee's Request
In an effort to avoid unnecessary work and to bring its
inquiry to an expeditious end, the Judiciary Committee of the
House of Representatives submitted to the President 81
requests to admit or deny specific facts relevant to this
investigation. (Exhibit 18) Although, for the most part, the
questions could have been answered with a simple ``admit'' or
``deny,'' the President elected to follow the pattern of
selective memory, reference to other testimony, blatant
untruths, artful distortions, outright lies, and half truths.
When he did answer, he engaged in legalistic hair-splitting
in an obvious attempt to skirt the whole truth and to deceive
and obstruct the due proceedings of the Committee.
The President Repeats His Falsities
Thus, on at least 23 questions, the President professed a
lack of memory. This from a man who is renowned for his
remarkable memory, for his amazing ability to recall details.
In at least 15 answers, the President merely referred to
``White House Records.'' He also referred to his own prior
testimony and that of others. He answered several of the
requests by merely restating the same deceptive answers that
he gave to the grand jury. We will point out several false
statements in this Brief.
In addition, the half-truths, legalistic parsings, evasive
and misleading answers were obviously calculated to obstruct
the efforts of the House Committee. They had the effect of
seriously hampering its ability to inquire and to ascertain
the truth. The President has, therefore, added obstruction of
an inquiry and an investigation before the Legislative Branch
to his obstructions of justice before the Judicial Branch of
our constitutional system of government.
The Early Attack on Ms. Lewinsky
After his deposition, the power and prestige of the Office
of President was marshaled to destroy the character and
reputation of Monica Lewinsky, a young woman that had been
ill-used by the President. As soon as her name surfaced, the
campaign began to muzzle any possible testimony, and to
attack the credibility of witnesses, in a concerted effort to
obstruct the due administration of justice in a lawsuit filed
by one female citizen of Arkansas. It almost worked.
When the President testified at his deposition that he had
no sexual relations, sexual affair or the like with
Monica Lewinsky, he felt secure. Monica Lewinksy, the only
other witness was on board. She had furnished a false
affidavit also denying everything. Later, when he realized
from the January 18, 1998, Drudge Report that there were
taped conversations between Ms. Lewinsky and Linda Tripp,
he had to develop a new story, and he did. In addition, he
recounted that story to White House aides who passed it on
to the grand jury in an effort to obstruct that tribunal
too.
On Wednesday, January 21, 1998, The Washington Post
published a story entitled ``Clinton Accused of Urging Aide
to Lie; Starr Probes Whether President Told Woman to Deny
Alleged Affair to Jones' Lawyers.'' The White House learned
the substance of the Post story on the evening of January 20,
1998.
Mr. Bennett's Remark
After the President learned of the existence of the story,
he made a series of telephone calls.
At 12:08 a.m. he called his attorney, Mr. Bennett, and they
had a conversation. The next morning, Mr. Bennett was quoted
in the Washington Post stating:
``The President adamantly denies he ever had a relationship
with Ms. Lewinsky and she has confirmed the truth of that.''
He added, ``This story seems ridiculous and I frankly smell a
rat.''
Additional Calls
After that conversation, the President had a half hour
conversation with White House counsel, Bruce Lindsey.
At 1:16 a.m., the President called Betty Currie and spoke
to her for 20 minutes.
He then called Bruce Lindsey again.
At 6:30 a.m. the President called Vernon Jordan.
After that, the President again conversed with Bruce
Lindsey.
This flurry of activity was a prelude to the stories which
the President would soon inflict upon top White House aides
and advisors.
The President's Statements to Staff
ERSKINE BOWLES
On the morning of January 21, 1998, the President met with
Whie House Chief of Staff, Erskine Bowles, and his two
deputies, John Podesta and Sylvia Matthews.
Erskine Bowles recalled entering the President's office at
9:00 a.m. that morning. He then recounts the President's
immediate words as he and two others entered the Oval Office:
And he looked up at us and he said the same thing he said
to the American people.
He said, ``I want you to know I did not have sexual
relationships with this woman, Monica Lewinsky. I did not ask
anybody to lie. And when the facts come out, you'll
understand.''
(Bowles, 4/2/98 GJ, p. 84; H.Doc. 105-316, p. 239) After the
President made that blanket denial, Mr. Bowles responded:
I said, ``Mr. President, I don't know what the facts are. I
don't know if they're good, bad, or indifferent. But whatever
they are, you ought to get them out. And you ought to get
them out rignt now.''
(Bowles, 4/2/98 GJ, p. 84; H.Doc. 105-316, p. 239)
When counsel asked whether the President responded to
Bowles' suggestion that he tell the truth, Bowles responded:
I don't think he made any response, but he didn't disagree
with me.
(Bowles, 4/2/98 GJ, p. 84; H.Doc. 105-316, p. 239)
John Podesta
January 21, 1998
Deputy Chief John Podesta also recalled a meeting with the
President on the morning of January 21, 1998.
He testified before the grand jury as to what occurred in
the Oval Office that morning:
A. And we started off meeting--we didn't-- I don't think we
said anything. And I think the President directed this
specifically to Mr. Bowles. He said, ``Erskine, I want you
to know that this story is not true.''
Q. What else did he say?
A. He said that--that he had not had a sexual relationship
with her, and that he never asked anybody to lie.
(Podesta, 6/16/98 GJ, p. 85; H.Doc. 105-316, p. 3310)
January 23, 1998
Two days later, on January 23, 1998, Mr. Podesta had
another discussion with the President:
``I asked him how he was doing, and he said he was working
on this draft and he said to me that he never had sex with
her, and that--and that he never asked--you know, he repeated
the denial, but he was extremely explicit in saying he never
had sex with her.''
Then Podesta testified as follows:
Q. Okay. Not explicit, in the sense that he got more
specific than sex, than the word ``sex.''
A. Yes, he was more specific than that.
Q. Okay, share that with us.
A. Well, I think he said--he said that--there was some
spate. Of, you know, what sex acts were counted, and he said
that he had never had sex with her in any way whatsoever----
Q. Okay.
A. That they had not had oral sex.
(Podesta, 6/16/98 GJ, p. 92; H.Doc. 105-316, p. 3311)
(Exhibit V)
sidney blumenthal
Later in the day on January 21, 1998, the President called
Sidney Blumenthal to his office. It is interesting to note
how the President's lies become more elaborate and pronounced
when he has time to concoct this newest line of defense. When
the President spoke to Mr. Bowles and Mr. Podesta, he simply
denied the story. But, by the time he spoke to Mr.
Blumenthal, the President has added three new angles to his
defense strategy: (1) he now portrays Monica Lewinsky as the
aggressor; (2) he launches an attack on her reputation by
portraying her as a ``stalker''; and (3) he presents himself
as the innocent victim being attacked by the forces of evil.
Note well this recollection by Mr. Blumenthal in his June
4, 1998 testimony: (Chart U)
And it was at this point that he gave his account of what
had happened to me and he said that Monica--and it came very
fast. He said, ``Monica Lewinsky came at me and made a sexual
demand on me.'' He rebuffed her. He said, ``I've gone down
that road before, I've caused pain for a lot of people and
I'm not going to do that again.'' She threatened him. She
said that she would tell people they'd had an affair, that
she was known as the stalker among her peers, and that she
hated it and if she had an affair or said she had an affair
then she wouldn't be the stalker anymore.
(Blumenthal, 6/4/98 GJ, p. 49; H.Doc. 105-316, p. 185)
And then consider what the President told Mr. Blumenthal
moments later:
And he said, ``I feel like a character in a novel. I feel
like somebody who is surrounded by an oppressive force that
is creating a lie about me and I can't get the truth out. I
feel like the character in the novel Darkness at Noon.
And I said to him, ``When this happened with Monica
Lewinsky, were you alone?'' He said, ``Well, I was within
eyesight or earshot of someone.''
(Blumenthal, 6/4/98 GJ, p. 50; H.Doc. 105-316, p. 185)
At one point, Mr. Blumenthal was asked by the grand jury to
describe the President's manner and demeanor during the
exchange.
Q. In response to my question how you responded to the
President's story about a threat or discussion about a threat
from Ms. Lewinsky, you mentioned you didn't
recall specifically. Do you recall generally the nature of
your response to the President?
A. It was generally sympathetic to the President. And I
certainly believed his story. It was a very heartfelt story,
he was pouring out his heart, and I believed him.
(Blumenthal, 6/25/98 GJ, pgs. 16-17; H.Doc. 105-316, pgs.
192-193)
BETTY CURRIE
When Betty Currie testified before the grand jury, she
could not recall whether she had another one-on-one
discussion with the President on Tuesday, January 20, or
Wednesday, January 21. But she did state that on one of those
days, the President summoned her back to his office. At that
time, the President recapped their now-infamous Sunday
afternoon post-deposition discussion in the Oval Office. It
was at that meeting that the President made a series of
statements to Ms. Currie, to some of which she could not
possibly have known the answers. (e.g. ``Monica came on to me
and I never touched her, right?'') (BC 1/27/98 GJ, pgs. 70-
75; H.Doc. 105-316, pgs. 559-560; BC 7/22/98 GJ, pgs. 6-7;
H.Doc. 105-316, p. 664)
When he spoke to her on January 20 or 21, he spoke in the
same tone and demeanor that he used in his January 18 Sunday
session.
Ms. Currie stated that the President may have mentioned
that she might be asked about Monica Lewinsky. (BC, 1/24/98
Int., p. 8; H.Doc. 105-316, p. 536)
Motive for Lies to Staff
It is abundantly clear that the President's assertions to
staff were designed for dissemination to the American people.
But it is more important to understand that the President
intended his aides to relate that false story to
investigators and grand jurors alike. We know that this is
true for the following reasons: the Special Division had
recently appointed the Office of Independent Counsel to
investigate the Monica Lewinsky matter; the President
realized that Jones' attorneys and investigators were
investigating this matter; the Washington Post journalists
and investigators were exposing the details of the Lewinsky
affair; and, an investigation relating to perjury charges
based on Presidential activities in the Oval Office would
certainly lead to interviews with West Wing employees and
high level staffers. Because the President would not appear
before the grand jury, his version of events would be
supplied by those staffers to whom he had lied. The President
actually acknowledged that he knew his aides might be called
before the grand jury. (WJC 8/17/98 GJ, pgs. 105-109; H.Doc.
105-311, pgs. 557-557)
In addition, Mr. Podesta testified that he knew that he was
likely to be a witness in the ongoing grand jury criminal
investigation. He said that he was ``sensitive about not
exchanging information because I knew I was a potential
witness.'' (Podesta 6/23/98 GJ, p. 79; H.Doc. 105-316, p.
3332) He also recalled that the President volunteered to
provide information about Ms. Lewinsky to him even though Mr.
Podesta had not asked for these details. (Podesta 6/23/98 GJ,
p. 79; H.Doc. 105-316, p. 3332)
In other words, the President's lies and deceptions to his
White House aides, coupled with his steadfast refusal to
testify had the effect of presenting a false account of
events to investigators and grand jurors. The President's
aides believed the President when he told them his contrived
account. The aides' eventual testimony provided the
President's calculated falsehoods to the grand jury which, in
turn, gave the jurors an inaccurate and misleading set of
facts upon which to base any decisions.
Win, Win, Win
President Clinton also implemented a win-at-all-
costs strategy calculated to obstruct the administration
of justice in the Jones case and in the grand jury. This
is demonstrated in testimony presented by Richard ``Dick''
Morris to the federal grand jury.
Mr. Morris, a former presidential advisor, testified that
on January 21, 1998, he met President Clinton and they
discussed the turbulent events of the day. The President
again denied the accusations against him. After further
discussions, they decided to have an overnight poll taken to
determine if the American people would forgive the President
for adultery, perjury, and obstruction of justice. When Mr.
Morris received the results, he called the President:
``And I said, `They're just too shocked by this. It's just
too new, it's too raw.' And I said, `And the problem is
they're willing to forgive you for adultery, but not for
perjury or obstruction of justice or the various other
things.' ''
(Morris 8/18/98 GJ. p. 28; H.Doc. 105-316, p. 2929)
Morris recalls the following exchange:
Morris: And I said, ``They're just not ready for it.''
meaning the voters.
WJC: Well, we just have to win, then.
(Morris 8/18/98 GJ, p. 30; H.Doc. 105-216, p. 2930)
The President, of course, cannot recall this statement,
(Presidential Responses to Questions, Numbers 69, 70, and 71)
The Plot to Discredit Monica Lewinsky
In order to ``win,'' it was necessary to convince the
public, and hopefully the grand jurors who read the
newspapers, that Monica Lewinsky was unworthy of belief. If
the account given by Ms. Lewinsky to Linda Tripp was
believed, then there would emerge a tawdry affair in and near
the Oval Office. Moreover, the President's own perjury and
that of Monica Lewinsky would surface. To do this, the
President employed the full power and credibility of the
White House and its press corps to destroy the witness. Thus
on January 29, 1998:
Inside the White House, the debate goes on about the best
way to destroy That Woman, as President Bill Clinton called
Monica Lewinsky. Should they paint her as a friendly
fantasist or a malicious stalker? (The Plain Dealer)
Again:
``That poor child has serious emotional problems,'' Rep.
Charles Rangel, Democrat of New York, said Tuesday night
before the State of the Union. ``She's fantasizing. And I
haven't heard that she played with a full deck in her other
experiences.'' (The Plain Dealer)
From Gene Lyons, an Arkansas columnist on January 30:
``But it's also very easy to take a mirror's eye view of
this thing, look at this thing from a completely different
direction and take the same evidence and posit a totally
innocent relationship in which the president was, in a sense,
the victim of someone rather like the woman who followed
David Letterman around.'' (NBC News)
From another ``source'' on February 1:
``Monica had become known at the White House, says one
source, as `the stalker.' ''
And on February 4:
``The media have reported that sources describe Lewinsky as
`infatuated' with the president, `star struck' and even `a
stalker'.'' (Buffalo News)
Finally, on January 31:
``One White House aide called reporters to offer
information about Monica Lewinsky's past, her weight problems
and what the aide said was her nickname--`The Stalker.' ''
``Junior staff members, speaking on the condition that they
not be identified, said she was known as a flirt, wore her
skirts too short, and was `A little bit weird.' ''
``Little by little, ever since allegations of an affair
between U.S. President Bill Clinton and Lewinsky surfaced 10
days ago, White House sources have waged a behind-the-scenes
campaign to portray her as an untrustworthy climber obsessed
with the President.''
``Just hours after the story broke, one White House source
made unsolicited calls offering that Lewinsky was the
`troubled' product of divorced parents and may have been
following the footsteps of her mother, who wrote a tell-all
book about the private lives of three famous opera
singers.''
``One story had Lewinsky following former Clinton aide
George Stephanopoulos to Starbucks. After observing what kind
of coffee he ordered, she showed up the next day at his
secretary's desk with a cup of the same coffee to `surprise
him.' '' (Toronto Sun)
This sounds familiar because it is the exact tactic used to
destroy the reputation and credibility of Paula Jones. The
difference is that these false rumors were emanating from the
White House, the bastion of the free world, to protect one
man from being forced to answer for his deportment in the
highest office in the land.
On August 17, 1998, the President testified before the
grand jury. He then was specifically asked whether he knew
that his aides (Blumenthal, Bowles, Podesta and Currie) were
likely to be called before the grand jury.
Q. It may have been misleading, sir, and you knew though,
after January 21st when the Post article broke and said that
Judge Starr was looking into this, you knew that they might
be witnesses. You knew that they might be called into a grand
jury, didn't you?
WJC. That's right. I think I was quite careful what I said
after that. I may have said something to all these people to
that effect, 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 would
get you in trouble. I just wouldn't talk. I, by and large,
didn't talk to people about it.
Q. If all of these people--let's leave Mrs. Currie for a
minute. Vernon Jordan, Sid Blumenthal, John Podesta, Harold
Ickes, Erskine Bowles, Harry Thomasson, after the story
broke, after Judge Starr's involvement was known on January
21st, have said that you denied a sexual relationship with
them. Are you denying that?
WJC. No.
Q. And you've told us that you----
WJC. I'm just telling you what I meant by it. I told you
what I meant by it when they started this deposition.
Q. You've told us now that you were being careful, but that
it might have been misleading. Is that correct?
WJC. It must have been * * * So, what I was trying to do
was to give them something they could--that would be true,
even if misleading in the context of this deposition, and
keep them out of trouble, and let's deal--and deal with what
I thought was the almost ludicrous suggestion that I had
urged someone to lie or tried to suborn perjury, in other
words.
(WJC 8/17/97 GJ, pgs. 106-108; H. Doc. 105-311, pgs. 558-560)
As the President testified before the grand jury, he
maintained that he was being truthful with his aides.
(Exhibit 20) He stated that when he spoke to them, he was
very careful with his wording. The President stated that he
wanted his statement regarding ``sexual relations'' to be
literally true because he was only referring to intercourse.
However, recall that John Podesta said that the President
denied sex ``in any way whatsoever'' ``including oral sex.''
The President told Mr. Podesta, Mr. Bowles, Ms. Williams, and
Harold Ickes that he did not have a ``sexual relationship''
with that woman.
Importantly, seven days after the President's grand jury
appearance, the White House issued a document entitled,
``Talking Points January 24, 1998.'' (Chart W; Exhibit 16)
This ``Talking Points'' document outlines proposed questions
that the President may be asked. It also outlines suggested
answers to those questions. The ``Talking Points'' purport to
state the President's view of sexual relations and his view
of the relationship with Monica Lewinsky. (Exhibit 17)
The ``Talking Points'' state as follows:
Q. What acts does the President believe constitute a sexual
relationship?
A. I can't believe we're on national television discussing
this. I am not about to engage in an ``act-by-act''
discussion of what constitutes a sexual relationship.
Q. Well, for example, Ms. Lewinsky is on tape indicating
that the President does not believe oral sex is adultery.
Would oral sex, to the President, constitute a sexual
relationship?
A. Of course it would.
The President's own talking points refute the President's
``literal truth'' argument.
Effect of the President's Conduct
Some ``experts'' have questioned whether the President's
deportment affects his office, the government of the United
States or the dignity and honor of the country.
Our founders decided in the Constitutional Convention that
one of the duties imposed upon the President is to ``take
care that the laws be faithfully executed.'' Furthermore, he
is required to take an oath to ``Preserve, protect and defend
the Constitution of the United States.'' Twice this President
stood on the steps of the Capitol, raised his right hand to
God and repeated that oath.
The Fifth Amendment to the Constitution of the United
States provides that no person shall ``be deprived of life,
liberty or property without due process of law.``
The Seventh Amendment insures that in civil suits ``the
right of trial by jury shall be preserved.''
Finally, the Fourteenth Amendment guarantees due process of
law and the equal protection of the laws.
The Effect on Ms. Jones' Rights
Paula Jones is an American citizen, just a single citizen
who felt that she had suffered a legal wrong. More important,
that legal wrong was based upon the Constitution of the
United States. She claimed essentially that she was subjected
to sexual harassment, which, in turn, constitutes
discrimination on the basis of gender. The case was not
brought against just any citizen, but against the President
of the United States, who was under a legal and moral
obligation to preserve and protect Ms. Jones' rights. It is
relatively simple to mouth high-minded platitudes and to
prosecute vigorously right violations by someone else. It is,
however, a test of courage, honor and integrity to enforce
those rights against yourself. The President failed that
test. As a citizen, Ms. Jones enjoyed an absolute
constitutional right to petition the Judicial Branch of
government to redress that wrong by filing a lawsuit in the
United States District Court, which she did. At this point
she became entitled to a trial by jury if she chose, due
process of law and the equal protection of the laws no matter
who the defendant was in her suit. Due process contemplates
that right to a full and fair trial, which, in turn, means
the right to call and question witnesses, to cross-examine
adverse witnesses and to have her case decided by an unbiased
and fully informed jury. What did she actually get? None of
the above.
On May 27, 1997, the United States Supreme Court ruled in a
nine to zero decision that, ``like every other citizen,''
Paula Jones ``has a right to an orderly disposition of her
claims.`` In accordance with the Supreme Court's decision,
United States District Judge Susan Webber Wright ruled on
December 11, 1997, that Ms. Jones was entitled to information
regarding state or federal employees with whom the President
had sexual relations from May, 1986 to the present. Judge
Wright had determined that the information was reasonably
calculated to lead to the discovery of admissible evidence.
Six days after this ruling, the President filed an answer to
Ms. Jones' Amended Complaint. The President's Answer stated:
``President Clinton denies that he engaged in any improper
conduct with respect to plaintiff or any other woman.''
Ms. Jones' right to call and depose witnesses was thwarted
by perjurious and misleading affidavits and motions; her
right to elicit testimony from adverse witnesses was
compromised by perjury and false and misleading statements
under oath. As a result, had a jury tried the case, it would
have been deprived of critical information.
That result is bad enough, but it reaches constitutional
proportions when denial of the civil rights is directed by
the President of the United States who twice took an oath to
preserve, protect and defend those rights. But we now know
what the ``sanctity of an oath'' means to the President.
The Effect on the Office of President
Moreover, the President is the spokesman for the government
and the people of the United States concerning both domestic
and foreign matters. His honesty and integrity, therefore,
directly influence the credibility of this country. When, as
here, that spokesman is guilty of a continuing pattern of
lies, misleading statements, and deceits over a long period
of time, the believability of any of his pronouncements is
seriously called into question. Indeed, how can anyone in or
out of our country any longer believe anything he says? And
what does that do to confidence in the honor and integrity of
the United States?
Make no mistake, the conduct of the President is
inextricably bound to the welfare of the people of the United
States. Not only does it affect economic and national
defense, but even more directly, it affects the moral and
law-abiding fibre of the commonwealth,
without which no nation can survive. When, as here, that
conduct involves a pattern of abuses of power, of perjury, of
deceit, of obstruction of justice and of the Congress, and of
other illegal activities, the resulting damage to the honor
and respect due to the United States is, of necessity,
devastating.
The Effect on the System
Again: there is no such thing as non-serious lying under
oath. Every time a witness lies, that witness chips a stone
from the foundation of our entire legal system. Likewise,
every act of obstruction of justice, of witness tampering or
of perjury adversely affects the judicial branch of
government like a pebble tossed into a lake. You may not
notice the effect at once, but you can be certain that the
tranquility of that lake has been disturbed. And if enough
pebbles are thrown into the water, the lake itself may
disappear. So too with the truth-seeking process of the
courts. Every unanswered and unpunished assault upon it has
its lasting effect and given enough of them, the system
itself will implode.
That is why two women who testified before the Committee
had been indicted, convicted and punished severely for false
statements under oath in civil cases. And that is why only
recently a federal grand jury in Chicago indicted four former
college football players because they gave false testimony
under oath to a grand jury. Nobody suggested that they should
not be charged because their motives may have been to protect
their careers and family. And nobody has suggested that the
perjury was non-serious because it involved only lies about
sports; i.e., betting on college football games.
Disregard of the Rule of Law
Apart from all else, the President's illegal actions
constitute an attack upon and utter disregard for the truth,
and for the rule of law. Much worse, they manifest an
arrogant disdain not only for the rights of his fellow
citizens, but also for the functions and the integrity of the
other two co-equal branches of our constitutional system. One
of the witnesses that appeared earlier likened the government
of the United States to a three-legged stool. The analysis is
apt, because the entire structure of our country rests upon
three equal supports: the Legislative, the Judicial, and the
Executive. Remove one of those supports, and the State will
totter. Remove two and the structure will collapse
altogether.
Effect on the Judicial Branch
The President mounted a direct assault upon the truth-
seeking process which is the very essence and foundation of
the Judicial Branch. Not content with that, though, Mr.
Clinton renewed his lies, half-truths and obstruction to this
Congress when he filed his answers to simple requests to
admit or deny. In so doing, he also demonstrated his lack of
respect for the constitutional functions of the Legislative
Branch.
Actions do not lose their public character merely because
they may not directly affect the domestic and foreign
functioning of the Executive Branch. Their significance must
be examined for their effect on the functioning of the entire
system of government. Viewed in that manner, the President's
actions were both public and extremely destructive.
The Conduct Charged Warrants Conviction and Removal
The Articles state offenses that warrant the President's
conviction and removal from office. The Senate's own
precedents establish that perjury and obstruction warrant
conviction and removal from office. Those same precedents
establish that the perjury and obstruction need not have any
direct connection to the officer's official duties.
Precedents
In the 1980s, the Senate convicted and removed from office
three federal judges for making perjurious statements.
Background and History of Impeachment Hearings before the
Subcomm. On the Constitution of the House Comm. on the
Judiciary, 105th Cong., 2nd Sess. at 190-193 (Comm. Print
1998), (Testimony of Charles Cooper) (``Cooper Testimony'')
Although able counsel represented each judge, none of them
argued that perjury or making false statements are not
impeachable offenses. Nor did a single Congressman or
Senator, in any of the three impeachment proceedings, suggest
that perjury does not constitute a high crime and
misdemeanor. Finally, in the cases of Judge Claiborne and
Judge Nixon, it was undisputed that the perjury was not
committed in connection with the exercise of the judges'
judicial powers.
Judge Nixon
In 1989, Judge Walter L. Nixon, Jr., was impeached,
convicted, and removed from office for committing perjury.
Judge Nixon's offense stemmed from his grand jury testimony
and statements to federal officers concerning his
intervention in the state drug prosecution of Drew Fairchild,
the son of Wiley Fairchild, a business partner of Judge
Nixon's.
Although Judge Nixon had no official role or function in
Drew Fairchild's case (which was assigned to a state court
judge), Wiley Fairchild had asked Judge Nixon to help out by
speaking to the prosecutor. Judge Nixon did so, and the
prosecutor, a long-time friend of Judge Nixon's, dropped the
case. When the FBI and the Department of Justice interviewed
Judge Nixon, he denied any involvement whatsoever.
Subsequently, a federal grand jury was empaneled and Judge
Nixon again denied his involvement before that grand jury.
After a lengthy criminal prosecution, Judge Nixon was
convicted on two counts of perjury before the grand jury and
sentenced to five years in prison on each count. Not long
thereafter, the House impeached Judge Nixon by a vote of 417
to 0. The first article of impeachment charged him with
making the false or misleading statement to the grand jury
that he could not ``recall'' discussing the Fairchild case
with the prosecutor. The second article charged Nixon with
making affirmative false or misleading statements to the
grand jury that he had ``nothing whatsoever officially or
unofficially to do with the Drew Fairchild case.'' The third
article alleged that Judge Nixon made numerous false
statements (not under oath) to federal investigators prior
to his grand jury testimony. See 135 Cong. Rec. H1802-03.
The House unanimously impeached Judge Nixon, and the House
Managers' Report expressed no doubt that perjury is an
impeachable offense:
``It is difficult to imagine an act more subversive to the
legal process than lying from the witness stand. A judge who
violates his testimonial oath and misleads a grand jury is
clearly unfit to remain on the bench. If a judge's
truthfulness cannot be guaranteed, if he sets less than the
highest standard for candor, how can ordinary citizens who
appear in court be expected to abide by their testimonial
oath?''
House of Representatives' Brief in Support of the Articles of
Impeachment at 59 (1989). House Manager Sensenbrenner
addressed the question even more directly:
``There are basically two questions before you in
connection with this impeachment. First, does the conduct
alleged in the three articles of impeachment state an
impeachable offense? There is really no debate on this point.
The articles allege misconduct that is criminal and wholly
inconsistent with judicial integrity and the judicial oath.
Everyone agrees that a judge who lies under oath, or who
deceives Federal investigators by lying in an interview, is
not fit to remain on the bench.''
135 Cong. Rec. S14,497 (Statement of Rep. Sensenbrenner)
The Senate agreed, overwhelmingly voting to convict Judge
Nixon of perjury on the first two articles (89-8 and 78-19,
respectively). As Senator Carl Levin explained:
``The record amply supports the finding in the criminal
trial that Judge Nixon's statements to the grand jury were
false and misleading and constituted perjury. Those are the
statements cited in articles I and II and it is on those
articles that I vote to convict Judge Nixon and remove him
from office.''
135 Cong. Rec. S14,637 (Statement of Sen. Levin).
Judge Hastings
Also in 1989, the House impeached Judge Alcee L. Hastings
for, among other things, committing numerous acts of perjury.
The Senate convicted him, and he was removed from office.
Initially, Judge Hastings had been indicted by a federal
grand jury for conspiracy stemming from his alleged bribery
conspiracy with his friend Mr. William Borders to ``fix''
cases before Judge Hastings in exchange for cash payments
from defendants. Mr. Borders was convicted, but, at his own
trial, Judge Hastings took the stand and unequivocally denied
any participation in a conspiracy with Mr. Borders. The jury
acquitted Judge Hastings on all counts. Nevertheless, the
House impeached Judge Hastings, approving seventeen articles
of impeachment, fourteen of which were for lying under oath
at his trial.
The House voted 413 to 3 to impeach. The House Managers'
Report left no doubt that perjury alone is impeachable:
``It is important to realize that each instance of false
testimony charged in the false statement articles is more
than enough reason to convict Judge Hastings and remove him
from office. Even if the evidence were insufficient to prove
that Judge Hastings was part of the conspiracy with William
Borders, which the House in no way concedes, the fact that he
lied under oath to assure his acquittal is conduct that
cannot be tolerated of a United States District Judge. To
bolster one's defense by lying to a jury is separate,
independent corrupt conduct. For this reason alone, Judge
Hastings should be removed from public office.''
The House of Representatives' Brief in Support of the
Articles of Impeachment at 127-28 (1989). Representative John
Conyers (D-Mich.) also argued for the impeachment of Judge
Hastings:
``[W]e can no more close our eyes to acts that constitute
high crimes and misdemeanors when practiced by judges whose
views we approve than we could against judges whose views we
detested. It would be disloyal . . . to my oath of office at
this late state of my career to attempt to set up a double
standard for those who share my philosophy and for those who
may oppose it. In order to be true to our principles, we must
demand that all persons live up to the same high standards
that we demand of everyone else.''
134 Cong. Rec. H6184 (1988) (Statement of Rep. Conyers).
Judge Claiborne
In 1986, Judge Harry E. Claiborne was impeached, convicted,
and removed from office for making false statements under
penalties
of perjury. In particular, Judge Claiborne had filed false
income tax returns in 1979 and 1980, grossly understating his
income. As a result, he was convicted by a jury of two
counts of willfully making a false statement on a federal
tax return in violation of 26 U.S.C. Sec. 7206 (a).
Subsequently, the House unanimously (406-0) approved four
articles of impeachment. The proposition that Claiborne's
perjurious personal income tax filings were not
impeachable was never even seriously considered. As the
House Managers explained:
``[T]he constitutional issues raised by the first two
Articles of Impeachment [concerning the filing of false tax
returns] are readily resolved. The Constitution provides that
Judge Claiborne may be impeached and convicted for ``High
Crimes and Misdemeanors.'' Article II, Section 4. The willful
making or subscribing of a false statement on a tax return is
a felony offense under the laws of the United States. The
commission of such a felony is a proper basis for Judge
Clairborne's impeachment and conviction in the Senate.''
Proceedngs of the United States Senate Impeachment Trial of
Judge Harry E. Clairborne, S. Doc. No. 99-48, at 40 (1986)
(Claiborne Proceedings'') (emphases added).
House Manager Rodino, in his oral argument to the Senate,
emphatically made the same point:
``Honor in the eyes of the American people lies in public
officials who respect the law, not in those who violate the
trust that has been given to them when they are trusted with
public office. Judge Harry E. Claiborne has, sad to say,
undermined the integrity of the judicial branch of
Government. To restore that integrity and to maintain public
confidence in the administration of justice, Judge Claiborne
must be convicted on the fourth Article of Impeachment [that
of reducing confidence in the integrity of the judiciary].''
132 Cong. Rec. S15,481 (1986) (Statement of Rep. Rodino).
The Senate agreed. Telling are the words of then-Senator
Albert Gore, Jr. In voting to convict Judge Claiborne and
remove him from office:
``The conclusion is inescapable that Clairborne filed false
income tax returns and that he did so willfully rather than
negligently. . . . Given the circumstances, it is incumbent
upon the Senate to fulfill its constitutional responsibility
and strip this man of his title. An individual who has
knowingly falsified tax returns has no business receiving a
salary derived from the tax dollars of honest citizens. More
importantly, an individual quality of such reprehensible
conduct ought not be permitted to exercise the awesome powers
which the Constitution entrusts to the Federal Judiciary.''
Claiborne Proceedings, S. Doc. No. 99-48, at 372 (1986).
Application to the President
To avoid the conclusive force of these recent precedents--
and in particular the exact precedent supporting impeachment
for, conviction, and removal for perjury--the only recourse
for the President's defenders is to argue that a high crime
or misdemeanor for a judge is not necessarily a high crime or
misdemeanor for the President. The arguments advanced in
support of this dubious proposition do not withstand serious
scrutiny. See generally Cooper Testimony, at 193.
The Constitution provides that Article III judges ``shall
hold their Offices during good Behavior, U.S. Const. Art.
III, 1. Thus, these arguments suggest that judges are
impeachable for ``misbehavior'' while other federal officials
are only impeachable for treason, bribery, and other high
crimes and misdemeanors.
The staff of the House Judiciary Committee in the 1970s and
the National Commission on Judicial Discipline and Removal in
the 1990s both issued reports rejecting these arguments. In
1974, the staff of the Judiciary Committee's Impeachment
Inquiry issued a report which included the following
conclusion:
``Does Article III, Section 1 of the Constitution, which
states that judges `shall hold their Offices during good
Behaviour,' limit the relevance of the ten impeachments of
judges with respect to presidential impeachment standards as
has been argued by some? It does not. The argument is that
`good behavior' implies an additional ground for impeachment
of judges not applicable to other civil officers. However,
the only impeachment provision discussed in the Convention
and included in the Constitution is Article II, Section 4,
which by its expressed terms, applies to all civil officers,
including judges, and defines impeachment offenses as
`Treason, Bribery, and other high Crimes and Misdemeanors.'
''
Staff of House Comm. on the Judiciary, 93rd Cong. 2d Sess.,
Constitutional Grounds for Presidential Impeachment (Comm.
Print 1974) (``1974 Staff Report'') at 17.
The National Commission on Judicial Discipline and Removal
came to the same conclusion. The Commission concluded that
``the most plausible reading of the phrase `during good
Behavior' is that it means tenure for life, subject to the
impeachment power. . . . The ratification debates about the
federal judiciary seem to have proceeded on the assumption
that good-behavior tenure meant removal only through
impeachment and conviction.'' National Commission on Judicial
Discipline and Removal, Report of the National Commission on
Judicial Discipline and Removal 17-18 (1993) (footnote
omitted).
The record of the 1986 impeachment of Judge Claiborne also
argues against different impeachment standards for federal
judges and presidents. Judge Claiborne filed a motion asking
the Senate to dismiss the articles of impeachment against him
for failure to state impeachable offenses. One of the
motion's arguments was that ``[t]he standard for impeachment
of a judge is different than that for other officers'' and
that the Constitution limited ``removal of the judiciary to
acts involving misconduct related to discharge of office.''
Memorandum in Support of Motion to Dismiss the Articles of
Impeachment on the Grounds They Do Not State Impeachable
Offenses 4 (hereinafter cited as ``Claiborne Motion''),
reprinted in Hearings Before the Senate Impeachment Trial
Committee, 99th Cong., 2d Sess. 245 (1986) (hereinafter cited
as ``Senate Claiborne Hearings'').
Representative Kastenmeier responded that ``reliance on the
term `good behavior' as stating a sanction for judges is
totally misplaced and virtually all commentators agree that
that is directed to affirming the life tenure of judges
during good behavior. It is not to set them down,
differently, as judicial officers from civil officers.'' Id.
at 81-82. He further stated that ``[n]or . . . is there any
support for the notion that . . . Federal judges are not
civil officers of the United States, subject to the
impeachment clause of article II of the Constitution.'' Id.
at 81.
The Senate never voted on Claiborne's motion. However, the
Senate was clearly not swayed by the arguments contained
therein because it later voted to convict Judge Claiborne.
132 Cong. Rec. S15,760-62 (daily ed. Oct. 9, 1986). The
Senate thus rejected the claim that the standard of
impeachable offenses was different for judges than for
presidents.
Moreover, even assuming that presidential high crimes and
misdemeanors could be different from judicial ones, surely
the President ought not be held to a lower standard of
impeachability than judges. In the course of the 1980s
judicial impeachments, Congress emphasized unequivocally that
the removal from office of federal judges guilty of crimes
indistinguishable from those currently charged against the
President was essential to the preservation of the rule of
law. If the perjury of just one judge so undermines the rule
of law as to make it intolerable that he remain in office,
then how much more so does perjury committed by the President
of the United States, who alone is charged with the duty ``to
take Care that the Laws be faithfully executed.'' See
generally, Cooper Testimony at 194)
It is just as devastating to our system of government when
a President commits perjury. As the House Judiciary Committee
stated in justifying an article of impeachment against
President Nixon, the President not only has ``the obligation
that every citizen has to live under the law,'' but in
addition has the duty ``not merely to live by the law but to
see that law faithfully applied.'' Impeachment of Richard M.
Nixon, President of the United States, H. Rept. No. 93-1305,
93rd Cong., 2d Sess. at 180 (1974). The Constitution provides
that he ``shall take Care that the Laws be faithfully
executed.'' U.S. Const. Art. II, Sec. 3. When a President, as
chief law enforcement officer of the United States, commits
perjury, he violates this constitutional oath unique to his
office and casts doubt on the notion that we are a nation
ruled by laws and not men.
Perjury and Obstruction Are as Serious as Bribery
Further evidence that perjury and obstruction warrant
conviction and removal comes directly from the text of the
Constitution. Because the Constitution specifically mentions
bribery, no one can dispute that it is an impeachable
offense. U.S. Const., art. II, Sec. 4. Because the
constitutional language does not limit the term, we must take
it to mean all forms of bribery. Our statutes specifically
criminalize bribery of witnesses with the intent to influence
their testimony in judicial proceedings. 18 U.S.C.
Sec. 201(b)(3) & (4), (c)(2) & (3). See also 18 U.S.C.
Sec. Sec. 1503 (general obstruction of justice statute), 1512
(witness tampering statute). Indeed, in a criminal case, the
efforts to provide Ms. Lewinsky with job assistance in return
for submitting a false affidavit charged in the Articles
might easily have been charged under these statutes. No one
could reasonably argue that the President's bribing a witness
to provide false testimony--even in a private lawsuit--does
not rise to the level of an impeachable offense. The plain
language of the Constitution indicates that it is.
Having established that point, the rest is easy. Bribing a
witness is illegal because it leads to false testimony that
in turn undermines the ability of the judicial system to
reach just results. Thus, among other things, the Framers
clearly intended impeachment to protect the judicial
system from these kinds of attacks. Perjury and
obstruction of justice are illegal for exactly the same
reason, and they accomplish exactly the same ends through
slightly different means. Simple logic establishes that
perjury and obstruction of justice--even in a private
lawsuit--are exactly the types of other high crimes and
misdemeanors that are of the same magnitude as bribery.
High Crimes and Misdemeanors
Although Congress has never adopted a fixed definition of
``high crimes and misdemeanors,'' much of the background and
history of the impeachment process contradicts the
President's claim that these offenses are private and
therefore do not warrant conviction and removal. Two reports
prepared in 1974 on the background and history of impeachment
are particularly helpful in evaluating the President's
defense. Both reports support the conclusion that the facts
in this case compel the conviction and removal of President
Clinton.
Many have commented on the report on ``Constitutional
Grounds for Presidential Impeachment'' prepared in February
1974 by the staff of the Nixon impeachment inquiry. The
general principles concerning grounds for impeachment set
forth in that report indicate that perjury and obstruction of
justice are impeachable offenses. Consider this key language
from the staff report describing the type of conduct which
gives rise to impeachment:
``The emphasis has been on the significant effects of the
conduct--undermining the integrity of office, disregard of
constitutional duties and oath of office, arrogation of
power, abuse of the governmental process, adverse impact on
the system of government.''
1974 Staff Report at 26 (emphasis added).
Perjury and obstruction of justice clearly ``undermine the
integrity of office.'' They unavoidably erode respect for the
office of the President. Such offenses obviously involve
``disregard of [the President's] constitutional duties and
oath of office.'' Moreover, these offenses have a direct and
serious ``adverse impact on the system of government.''
Obstruction of justice is by definition an assault on the due
administration of justice--a core function of our system of
government.
The thoughtful report on ``The Law of Presidential
Impeachment'' prepared by the Association of the Bar of the
City of New York in January of 1974 also places a great deal
of emphasis on the corrosive impact of presidential
misconduct on the integrity of office:
It is our conclusion, in summary, that the grounds for
``impeachment are not limited to or synonymous with crimes .
. . Rather, we believe that acts which undermine the
integrity of government are appropriate grounds whether or
not they happen to constitute offenses under the general
criminal law. In our view, the essential nexus to damaging
the integrity of government may be found in acts which
constitute corruption in, or flagrant abuse of the powers of,
official position. It may also be found in acts which,
without directly affecting governmental processes, undermine
that degree of public confidence in the probity of executive
and judicial officers that is essential to the effectiveness
of government in a free society.''
Association of the Bar of the City of New York, The Law of
Presidential Impeachment, (1974) at 161 (emphasis added). The
commission of perjury and obstruction of justice by a
President are acts that without doubt ``undermine that degree
of public confidence in the probity of the [the President]
that is essential to the effectiveness of government in a
free society.'' Such acts inevitably subvert the respect for
law which is essential to the well-being of our
constitutional system.
That the President's perjury and obstruction do not
directly involve his official conduct does not diminish their
significance. The record is clear that federal officials have
been impeached for reasons other than official misconduct. As
set forth above, two recent impeachments of federal judges
are compelling examples. In 1989, Judge Walter Nixon was
impeached, convicted, and removed from office for committing
perjury before a federal grand jury. Judge Nixon's perjury
involved his efforts to fix a state case for the son of a
business partner--a matter in which he had no official
role. In 1986, Judge Harry E. Claiborne was impeached,
convicted, and removed from office for making false
statements under penalty of perjury on his income tax
returns. That misconduct had nothing to do with his
official responsibilities.
Nothing in the text, structure, or history of the
Constitution suggests that officials are subject to
impeachment only for official misconduct. Perjury and
obstruction of justice--even regarding a private matter--are
offenses that substantially affect the President's official
duties because they are grossly incompatible with his
preeminent duty to ``take care that the laws be faithfully
executed.'' Regardless of their genesis, perjury and
obstruction of justice are acts of public misconduct--they
cannot be dismissed as understandable or trivial. Perjury and
obstruction of justice are not private matters; they are
crimes against the system of justice, for which impeachment,
conviction, and removal are appropriate.
The record of Judge Claiborne's impeachment proceedings
affirms that conclusion. Representative Hamilton Fish, the
ranking member of the Judiciary Committee and one of the
House managers in the Senate trial, stated that
``[i]mpeachable conduct does not have to occur in the course
of the performance of an officer's official duties. Evidence
of misconduct, misbehavior, high crimes, and misdemeanors can
be justified upon one's private dealings as well as one's
exercise of public office. That, of course, is the situation
in this case.'' 132 Cong. Rec. H4713 (daily ed. July 22,
1986).
Judge Claiborne's unsuccessful motion that the Senate
dismiss the articles of impeachment for failure to state
impeachable offenses provides additional evidence that
personal misconduct can justify impeachment. One of the
arguments his attorney made for the motion was that ``there
is no allegation . . . that the behavior of Judge Claiborne
in any way was related to misbehavior in his official
function as a judge; it was private misbehavior.'' (Senate
Claiborne Hearings, at 77, Statement of Judge Claiborne's
counsel, Oscar Goodman). (See also Claiborne Motion, at 3)
Representative Kastenmeier responded by stating that ``it
would be absurd to conclude that a judge who had committed
murder, mayhem, rape, or perhaps espionage in his private
life, could not be removed from office by the U.S. Senate.''
(Senate Claiborne Hearings, at 81) Kastenmeier's response was
repeated by the House of Representatives in its pleading
opposing Claiborne's motion to dismiss. (Opposition to
Claiborne Motion at 2)
The Senate did not vote on Judge Claiborne's motion, but it
later voted to convict him. 132 Cong. Rec. S15,760-62 (daily
ed. Oct. 9, 1986). The Senate thus agreed with the House that
private improprieties could be, and were in this instance,
impeachable offenses.
The Claiborne case makes clear that perjury, even if it
relates to a matter wholly separated from a federal officer's
official duties--a judge's personal tax returns--is an
impeachable offense. Judge Nixon's false statements were also
in regard to a matter distinct from his official duties. In
short, the Senate's own precedents establish that misconduct
need not be in one's official capacity to warrant removal.
Conclusion
This is a defining moment for the Presidency as an
institution, because if the President is not convicted as a
consequence of the conduct that has been portrayed, then no
House of Representatives will ever be able to impeach again
and no Senate will ever convict. The bar will be so high that
only a convicted felon or a traitor will need to be
concerned.
Experts pointed to the fact that the House refused to
impeach President Nixon for lying on an income tax return.
Can you imagine a future President, faced with possible
impeachment, pointing to the perjuries, lies, obstructions,
and tampering with witnesses by the current occupant of the
office as not rising to the level of high crimes and
misdemeanors? If this is not enough, what is? How far can the
standard be lowered without completely compromising the
credibility of the office for all time?
Dated: January 11, 1999.
____
APPENDIX
[In the Senate of the United States Sitting as a Court of Impeachment]
In re Impeachment of President William Jefferson Clinton
Appendix to Trial Memorandum of the Managers Appointed by the U.S.
House of Representatives
The United States
House of Representatives
Henry J. Hyde,
F. James Sensenbrenner, Jr.,
Bill McCollum,
George W. Gekas,
Charles T. Canady,
Stephen E. Buyer,
Ed Bryant,
Steve Chabot,
Bob Barr,
Asa Hutchinson,
Chris Cannon,
James E. Rogan,
Lindsey O. Graham.
Managers on the Part of the House
____
Table of Contents
charts
A. The President's Contacts Alone With Lewinsky
B. The President's Telephone Contacts With Lewinsky
C. Lewinsky's Gifts to The President
D. The President's Gifts to Lewinsky
E. 12/5/97 Facsimile Transmission of Witness List in Jones
v. Clinton
F. The December 19, 1997 Subpoena to Lewinsky in Jones v.
Clinton
G. December 19, 1997 Activities Following Lewinsky's
Receipt of Subpoena
H. The President's December 23, 1997 Response to
Interrogatory No. 10 in Jones v. Clinton
I. The President's December 23, 1997 Response to
Interrogatory No. 11 in Jones v. Clinton
J. December 28, 1997, The President's Final Meeting With
Lewinsky and Concealment of Gifts
K. Currie's Cell Phone Records for 12/28/97
L. The President's Statements About Concealing Gifts
M. Lewinsky's Draft Affidavit
N. Lewinsky Final Affidavit dated January 7, 1998 Paragraph
8, Jones v. Clinton
O. Filing Lewinsky's Affidavit and Motion to Quash (1/14/
98-1/17/98)
P. Mission Accomplished: Lewinsky Signs Her Affidavit and
Is Hired By Revlon in New York (1/5/98-1/9/98)
Q. The President's Involvement With Lewinsky's Job Search
R. Jordan's Testimony About His Pre-Witness List Job Search
Efforts
S. Activity Following The President's Deposition (1/17/98-
1/1998)
T. The President's Statements to Currie 1/18/98
U. The President's Denial of Sexual Relations
V. The President's 1/21/98 Denial of Sexual Relations to
Blumenthal, Podesta and Morris
W. The White House 1/24/98 ``Talking Points''
X. The President's Claims That He Was Truthful With Aides
Y. The Three Options of a Grand Jury Witness
Z. The President's Grand Jury ``Statement''
____
[Chart A]
THE PRESIDENT'S CONTACTS ALONE WITH LEWINSKY
Lewinsky White House Employee (7/95-4/96)
1995
11/15/95 (Wed): The President meets alone twice with Lewinsky
in Oval Office study and hallway outside the Oval
Office. (Sexual Encounter)
11/17/95 (Fri): The President meets alone twice with Lewinsky
in The President's private bathroom outside the Oval
Office study. (Sexual Encounter)
12/5/95 (Tues): The President meets alone with Lewinsky in
the Oval Office and study. (No Sexual Encounter)
12/31/95 (Sun): The President meets alone with Lewinsky in
the Oval Office and Oval Office study. (Sexual
Encounter)
1996
1/7/96 (Sun): The President meets alone with Lewinsky in the
bathroom outside the Oval Office study. (Sexual
Encounter)
1/21/96 (Sun): The President meets alone with Lewinsky in the
hallway outside the Oval Office study. (Sexual
Encounter)
2/4/96 (Sun): The President meets alone with Lewinsky in the
Oval Office study and in the adjacent hallway. (Sexual
Encounter)
2/19/96 (Mon): The President meets alone with Lewinsky in the
Oval Office. (No Sexual Encounter)
3/31/96 (Sun): The President meets alone with Lewinsky in
hallway outside the Oval Office. (Sexual Encounter)
4/7/96 (Sun): The President meets alone with Lewinsky in the
hallway outside the Oval Office study and in the Oval
Office study. (Sexual Encounter)
1997
2/28/97 (Fri): The President meets alone with Lewinsky in the
Oval Office private bathroom. (Sexual Encounter)
3/29/97 (Sat): The President meets alone with Lewinsky in the
Oval Office study. (Sexual Encounter)
5/24/97 (Sat): The President meets alone with Lewinsky in the
Oval Office dining room, study and hallway. (No Sexual
Encounter)
7/4/97 (Fri): The President meets alone with Lewinsky in the
Oval Office study and hallway. (No Sexual Encounter)
7/14/97 (Mon): The President meets alone with Lewinsky in
Heinreich's office. (No Sexual Encounter)
7/24/97 (Sat): The President meets alone with Lewinsky in the
Oval Office study. (No Sexual Encounter)
8/16/97 (Sat): The President meets alone with Lewinsky in the
Oval Office study. (Sexual Encounter)
10/11/97 (Sat): The President meets alone with Lewinsky in
the Oval Office study. (No Sexual Encounter)
11/13/97 (Thurs): The President meets alone with Lewinsky in
the Oval Office study. (No Sexual Encounter)
12/6/97 (Sat): The President meets alone with Lewinsky in the
Oval Office study. (No Sexual Encounter)
12/28/97 (Sun): The President meets alone with Lewinsky in
the Oval Office study. (No Sexual Encounter)
____
[Chart B]
THE PRESIDENT'S TELEPHONE CONTACTS WITH LEWINSKY
1/7/96 (Sun): Conversation--first call to ML's home.
1/7/96 (Sun): Conversation--ML at office.
1/15 or 1/16/96 (Mon or Tue): Conversation, approx. 12:30
a.m.--ML at home.*
Approx. 1/28/96 (Sun): Caller ID on ML's office phone
indicated POTUS call.
1/30/96 (Tues): Conversation--during middle of workday at
ML's office.
2/4/96 (Sun): Conversations--ML at office--multiple calls.
2/7 or 2/8/96 (Wed or Thur): Conversation--ML at home.
2/8 or 2/9/96 (Thur or Fri): Conversation--ML at home.*
2/19/96 (Mon): Conversation--ML at home.
Approx. 2/28 2/28 or 3/5/96: Conversation--approx. 20 min.--
after chance meeting in hallway--ML at home.
3/26/96 (Tues): Conversation--approx. 11 a.m.--ML at office.
3/29/96: Conversation--ML at office--approx. 8 p.m.--
invitation to movie.
3/31/96: Conversation--ML at office--approx. 1 p.m.--Pres.
ill.
4/7/96 (Easter Sunday): Conversation----ML at home.
4/7/96 (Easter Sunday): Conversation--ML at home--why ML
left.
4/12/96 (Fri): Conversation--ML at home--daytime.
4/12 or 4/13/96 (Fri or Sat): Conversation--ML at home--after
midnight.
4/22/96 (Mon): Conversations--job talk--ML at home.
4/29 or 4/30/96 (Mon or Tues): Message--after 6:30 a.m.
5/2/96 (Thur): Conversation--ML at home.*
5/6/96 (Mon): Possible phone call.
5/16/96 (Thur): Conversation--ML at home.
5/21/96 (Tues): Conversation--ML at home.*
5/31/96 (Fri): Message.
6/5/96 (Wed): Conversation--ML at home--early evening.
6/23/96 (Sun): Conversation--ML at home.*
7/5 or 7/6/96 (Fri or Sat): Conversation--ML at home.*
7/19/96 (Fri): Conversation--6:30 a.m.--ML at home.*
7/28/96 (Sun): Conversation--ML at home.
8/4/96 (Sun): Conversation--ML at home.*
8/24/96 (Sat): Conversation--ML at home.*
9/5/96 (Thur): Conversation--Pres. In Fla--ML at home.*
9/10/96 (Tues): Message.
9/30/96 (Mon): Conversation.*
10/22/96 (Tues): Conversation--ML at home.*
10/23 or 10/24/96 (early am): Conversation--ML at home.
12/2/96 (Mon): Conversation--approx. 10-15 min.--ML at home.
12/2/96 (Mon): Conversation--later that evening--ML at home--
approx. 10:30 p.m.--Pres fell asleep.*
12/18/96 (Wed): Conversation--approx. 5 min.--10:30 p.m.--ML
at home.
12/30/96 (Mon): Message.
1/12/97 (Sun): Conversation--job talk--ML at home.*
2/8/97 (Sat): Conversation--ML at home--mid-day--11:30-12:00.
2/8/97 (Sat): Conversation--job talk--1:30 or 2:00 p.m.--ML
at home.*
3/12/97 (Wed): Conversation--three minutes--ML at work.
4/26/97 (Sat): Conversation--late afternoon--20 min.--ML at
home.
5/17/97 (Sat): Conversations--multiple calls.
5/18/97 (Sun): Conversations--multiple calls.
7/15/97 (Tues): Conversation--ML at home.
8/1/97 (Fri): Conversation.
9/30/97 (Tues): Conversation.*
10/9 or 10/10/97 (Thur or Fri): Conversation--long, from 2 or
2:30 a.m. until 3:30 or 4:00 a.m.--job talk--argument--
ML at home.
10/23/97 (Thur): Conversation--ML at home--end b/c HRC.
10/30/97 (Thur): Conversation--ML at home--interview prep.
11/12/97 (Wed): Conversation--discuss re: ML visit.*
12/6/97 (Sat): Conversation--approx. 30 min--ML at home.
12/17/ or 12/18/97 (Wed or Thur): Conversation--b/t 2:00 a.m.
and 3:00 a.m.--ML at home--witness list.
1/5/98 (Mon): Conversation.
*Conversation that involved and may have involved phone sex.
[Chart C]
LEWINSKY GIFTS TO THE PRESIDENT
10/24/95: Lewinsky (before the sexual relationship began)
gives her first gift to The President of a matted poem
given by her and other White House interns to
commemorate ``National Boss' Day''. It is the only gift
the President sent to the archives instead of keeping.
11/20/95: Lewinsky gives The President a Zegna necktie.
3/31/96: Lewinsky gives The President a Hugo Boss Tie.
Christmas 1996: Lewinsky gives The President a Sherlock Homes
game and a glow in the dark frog.
Before 8/16/96: Lewinsky gives The President a Zegna necktie
and a t-shirt from Bosnia.
Early 1997: Lewinsky gives The President Oy Ve, a small golf
book, golf balls, golf tees, and a plastic pocket frog.
3/97: Lewinsky gives The President a care package after he
injured his leg including a metal magnet with The
Presidential seal for his crutches, a license plate
with ``Bill'' for his wheelchair, and knee pads with
The Presidential seal.
3/29/97: Lewinsky gives The President her personal copy of
Vox, a book about phone sex, a penny medallion with the
heart cut out, a framed Valentine's Day ad, and a
replacement for the Hugo Boss tie that had the bottom
cut off.
5/24/97: Lewinsky gives The President a Banana Republic
casual shirt and a puzzle on gold mysteries.
7/14/97: Lewinsky gives The President a wooden B, with a frog
in it from Budapest.
Before 8/16/97: Lewinsky gives The President The Notebook.
8/16/97: Lewinsky gives The President an antique book on
Peter the Great, the card game ``Royalty'', and a book,
Disease and Misrepresentation.
10/21/97 or 10/22/97: Lewinsky gives The President a Calvin
Klein tie, and pair of sunglasses.
10/97: Lewinsky gives The President a package Before filled
with Halloween-related items, such as a Halloween
pumpkin lapel pin, a wooden letter opener with a frog
on the handle, and a plastic pumpkin filled with candy.
11/13/97: Lewinsky gives The President an antique paperweight
that depicted the White House.
12/6/97: Lewinsky gives The President Our Patriotic
President: His Life in Pictures, Anecdotes, Sayings,
Principles and Biography; an antique standing cigar
holder; a Starbucks Santa Monica mug; a Hugs and Kisses
box; and a tie from London.
12/28/97: Lewinsky gives The President a hand-painted Easter
Egg and ``gummy boobs'' from Urban Outfitters.
1/4/98: Lewinsky gives Currie a package with her final gift
to The President containing a book entitled The
Presidents of the United States and a love note
inspired by the movie Titanic.
____
[Chart D]
THE PRESIDENT'S GIFTS TO LEWINSKY
12/5/95: The President gives Lewinsky an autographed photo of
himself wearing the Zenga necktie she gave him.*
2/4/96: The President gives Lewinsky a signed ``State of the
Union'' Address.*
3/31/96: The President gives Lewinsky cigars.
2/28/97: The President gives Lewinsky a hat pin*,
``Davidoff'' cigars, and the book the Leaves of Grass
by Walt Whitman as belated Christmas gifts.
The President gives Lewinsky a gold brooch.*
The President gives Lewinsky an Annie Lennox
compact disk.
The President gives Lewinsky a cigar.
7/24/97: The President gives Lewinsky an antique flower pin
in a wooden box, a porcelain object d'art, and a signed
photograph of the President and Lewinsky.*
Early 9/97: The President brings Lewinsky several Black Dog
items, including a baseball cap*, 2 T-shirts*, a hat
and a dress.*
12/28/97: The President gives Lewinsky the largest number of
gifts including:
1. a large Rockettes blanket,*
2. a pin of the New York skyline,*
3. a marblelike bear's head from Vancouver,*
4. a pair of sunglasses,*
5. a small box of cherry chocolates,
6. a canvas bag from the Black Dog,*
7. a stuffed animal wearing a T-shirt from the
Black Dog.*
(*Denotes those items Lewinsky produced to the OIC on 7/29/
98).
____
[GRAPHIC] [TIFF OMITTED] TS14JA99.000
[Chart F]
LEWINSKY SUBPOENA
Jones v. Clinton
December 19, 1997
The Jones v. Clinton subpoena to Lewinsky called for:
(1) Her testimony on January 23, 1998 at 9:30 a.m.;
(2) Production of ``each and every gift including but not
limited to, any and all dresses, accessories, and
jewelry, and/or hat pins given to you by, or on behalf
of, Defendant Clinton;'' and
(3) ``Every document constituting or containing
communications between you and Defendant Clinton,
including letters, cards, notes, memoranda and all
telephone records.''
____
[Chart G]
DECEMBER 19, 1997
(Friday)
Lewinsky is Served with a Subpoena in Jones v. Clinton
1:47-1:48 p.m.: Lewinsky telephones Jordan's office.
3:00-4:00 p.m.: Lewinsky is served with a subpoena in Jones
v. Clinton.
--: Lewinsky telephones Jordan immediately about subpoena.
3:51-3:52 p.m.: Jordan telephones The President and talks to
Debra Schiff.
4:17-4:20 p.m.: Jordan telephones White House Social Office.
4:47 p.m.: Lewinsky meets Jordan and requests that Jordan
notify The President about her subpoena.
5:01-5:05 p.m.: The President telephones Jordan; Jordan
notifies The President about Lewinsky's subpoena.
5:06 p.m.: Jordan telephones attorney Carter to represent
Lewinsky.
Later that Evening: The President meets alone with Jordan at
the White House.
____
[Chart H]
DECEMBER 23, 1997
Jones v. Clinton Interrogatory No. 10
Interrogatory No. 10: Please state the name, address, and
telephone number of each and every individual (other than
Hillary Rodham Clinton) whom you had sexual relations when
you held any of the following positions:
a. Attorney General of the State of Arkansas;
b. Governor of the State of Arkansas;
c. President of the United States.
(Court modifies scope to incidents from May 8, 1986 to the
present involving state or federal employees.)
Supplemental Response to Interrogatory No. 10 (as modified
by direction of the Court): None.
____
[Chart I]
DECEMBER 23, 1997
Jones v. Clinton Interrogatory No. 11
Interrogratory No. 11: Please state the name, address, and
telephone number of each and every individual (other than
Hillary Rodham Clinton) with whom you sought to have sexual
relations, when you held any of the following positions:
a. Attorney General of the State of Arkansas;
b. Governor of the State of Arkansas;
c. President of the United States.
(Court modifies scope to incidents from May 8, 1986 to the
present involving state or federal employees.)
Supplemental Response to Interrogatory No. 11 (as modified
by direction of the Court): None.
____
[Chart J]
DECEMBER 28, 1997
(Sunday)
The President's Final Meeting with Lewinsky and The Concealment of the
Gifts to Lewinsky
8:16 a.m.: Lewinsky meets The President at the White House at
Currie's direction.
The President gives Lewinsky numerous gifts.
The President and Lewinsky discuss the
subpoena, calling for, among other things, the hat
pin. The President acknowledges ``that sort of
bothered [him] too.''
Lewinsky states to The President: ``Maybe I
should put the gifts away outside my house somewhere
or give them to someone, maybe Betty [Currie].''
3:32 p.m.: Currie telephones Lewinsky at home from Currie's
cell phone.
``I understand you have something to give me.'' or
``The President said you have something to give me.''
Later that Day: Currie picks up gifts from Lewinsky.
____
[GRAPHIC] [TIFF OMITTED] TS14JA99.001
[Chart L]
THE PRESIDENT'S STATEMENTS ABOUT CONCEALING GIFTS
12/28/97
``[Lewinsky]: And then at some point I said to him [The
President], `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.''--(Lewinsky Grand Jury 8/6/98 Tr. 152)
____
[Chart M]
AFFIDAVIT OF JANE DOE #
1. My name is Jane Doe # . I am 24 years old and I
currently reside at 700 New Hampshire Avenue, NW.,
Washington, DC 20037.
2. On December 19, 1997, I was served with a subpoena from
the plaintiff to give a deposition and to produce documents
in the lawsuit filed by Paula Corbin Jones against President
William Jefferson Clinton and Danny Ferguson.
3. I can not fathom any reason that the plaintiff would
seek information from me for her case.
4. I have never met Ms. Jones, nor do I have any
information regarding the events she alleges occurred at the
Excelsior Hotel on May 8, 1991 or any other information
concerning any of the allegations in her case.
5. I worked at the White House in the summer of 1995 as a
White House intern. Beginning in December, 1995, I worked in
the Office of Legislative Affairs as a staff assistant for
correspondence. In April, 1996, I accepted a job as assistant
to the Assistant Secretary for Public Affairs at the U.S.
Department of Defense. I maintained that job until December
26, 1997. I am currently unemployed but seeking a new job.
6. In the course of my employment at the White House, I met
President Clinton on several occasions. I do not recall ever
being alone with the President, although it is possible that
while working in the White House Office of Legislative
Affairs I may have presented him with a letter for his
signature while no one else was present. This would have
lasted only a matter of minutes.
7. I have the utmost respect for the President who has
always behaved appropriately in my presence.
8. I have never had a sexual relationship with the
President, he did not propose that we have a sexual
relationship, he did not offer me employment or other
benefits in exchange for a sexual relationship, he did not
deny me employment or other benefits for rejecting a sexual
relationship. I do not know of any other person who had a
sexual relationship with the President, was offered
employment or other benefits in exchange for a sexual
relationship, or was denied employment or other benefits for
rejecting a sexual relationship. The occasions that I saw the
President, with crowds of other people, after I left my
employment at the White House in April, 1996 related to
official receptions, formal functions or events related to
the U.S. Department of Defense, where I was working at the
time. There were other people present on all of these
occasions.
9. Since I do not possess any information that could
possibly be relevant to the allegations made by Paula Jones
or lead to admissible evidence in this case, I asked my
attorney to provide this affidavit to plaintiff's counsel.
Requiring my deposition in this matter would cause
unwarranted attorney's fees and costs, disruption of my life,
especially since I am looking for employment, and constitute
an invasion of my right to privacy.
I declare under the penalty of perjury that the foregoing
is true and correct.
Monica S. Lewinsky.
DISTRICT OF COLUMBIA, ss:
Monica S. Lewinsky, being first duly sworn on oath
according to law, deposes and says that she has read the
foregoing Affidavit of Jane Doe # by her subscribed, that the
matters stated herein are true to the best of her
information, knowledge and belief.
Monica S. Lewinsky.
Subscribed and sworn to before me this ______ day of
__________, 1998.
__________________________
Notary Public, D.C.
My Commission expires: ________
____
[Chart N]
FINAL AFFIDAVIT OF JANE DOE #6 [LEWINSKY]
1/7/98
8. I have never had a sexual relationship with the President,
he did not propose that we have a sexual relationship,
he did not offer me employment or other benefits in
exchange for a sexual relationship, he did not deny me
employment or other benefits for rejecting a sexual
relationship. I do not know of any other person who had
a sexual relationship with the President, was offered
employment or other benefits in exchange for a sexual
relationship, or was denied employment or other
benefits for rejecting a sexual relationship. The
occasions that I saw the President after I left my
employment at the White House in April, 1996, were
official receptions, formal functions or events related
to the U.S. Department of Defense, where I was working
at the time. There were other people present on those
occasions.
____
[Chart O]
LEWINSKY'S AFFIDAVIT GETS FILED
(1/14/98-1/17/98)
January 14, 1998 (Wednesday)
7:45 p.m.: Bennett's firm (Sexton) leaves Carter telephone
message.
--: Carter faxes signed affidavit to Bennett's firm.
January 15, 1998 (Thursday)
9:17 a.m.: Sexton leaves Carter telephone message.
12:59 p.m.: Sexton leaves Carter telephone message.
--: Currie called by Newsweek.
--: Lewinsky drives Currie to meet Jordan.
--: Sexton telephones Carter: ``STILL ON TIME?''
--: Carter telephones Court Clerk for Saturday (1/17/98)
Filing of Affidavit and motion to quash.
January 16, 1998 (Friday)
2 a.m. (Approx.): Carter completes motion to quash Lewinsky's
deposition.
Carter sends by overnight mail motion to quash and
affidavit to Bennett's firm and to the Court.
11:30 a.m.: Sexton message to Carter: ``Please call.''
January 17, 1998 (Saturday)
--: Lewinsky Affidavit is submitted to the Court.
--: The President is deposed.
____
[Chart P]
MISSION ACCOMPLISHED: LEWINSKY SIGNS AFFIDAVIT AND GETS A NEW YORK JOB
(1/5/98-1/9/98)
January 5, 1998
Lewinsky meets with attorney Carter for an hour; Carter
drafts an Affidavit for Lewinsky in an attempt to avert
her deposition testimony in Jones v. Clinton scheduled
for January 23, 1998.
Lewinsky telephones Currie stating that she needs to speak to
the President about an important matter; specifically
that she was anxious about something she needed to
sign--an Affidavit.
The President returns Lewinsky's call; Lewinsky mentions the
Affidavit she'd be signing; Lewinsky offers to show the
Affidavit to The President who states that he doesn't
need to see it because he has already seen about
fifteen others.
january 6, 1998
11:32 a.m.: Carter pages Lewinsky: ``Please call Frank
Carter.'' Lewinsky meets Carter and receives draft
Affidavit.
2:08-2:10 p.m.: Jordan calls Lewinsky. Lewinsky delivers
draft Affidavit to Jordan.
3:14 p.m.: Carter again pages Lewinsky: ``Frank Carter at
[telephone number] will see you tomorrow morning at
10:00 in my office.''
3:26-3:32 p.m.: Jordan telephones Carter.
3:38 p.m.: Jordan telephones Nancy Hernreich, Deputy
Assistant to The President.
3:48 p.m.: Jordan telephones Lewinsky.
3:49 p.m.: Jordan telephones Lewinsky to discuss draft
Affidavit. Both agree to delete implication that she
had been alone with The President.
4:19-4:32 p.m.: The President telephones Jordan.
4:32 p.m.: Jordan telephones Carter.
4:34-4:37 p.m.: Jordan again telephones Carter.
5:15-5:19 p.m.: Jordan telephones White House.
9:26-9:29 a.m.: Jordan telephones Carter.
10:00 a.m.: Lewinsky signs false Affidavit at Carter's
Office.
--: Lewinsky delivers signed Affidavit to Jordan.
11:58 a.m.-12:09 p.m.: Jordan telephones the White House.
5:46-5:56 p.m.: Jordan telephones the White House
(Hernreich's Office).
6:50-6:54 p.m.: Jordan telephones the White House and tells
The President that Lewinsky signed an Affidavit.
january 8, 1998
9:21 a.m.: Jordan telephones the White House Counsel's
Office.
9:21 a.m.: Jordan telephones the White House.
--: Lewinsky interviews in New York at MacAndrews & Forbes
Holdings, Inc. (MFH)
11:50-11:51 a.m.: Lewinsky telephones Jordan.
3:09-3:10 p.m.: Lewinsky telephones Jordan.
4:48-4:53 p.m.: Lewinsky telephones Jordan and advises that
the New York MFH Interview went ``Very Poorly.''
4:54 p.m.: Jordan telephones Ronald Perelman in New York, CEO
of Revlon (subsidiary of MFH) ``to make things happen .
. . if they could happen.''
4:56 p.m.: Jordan telephones Lewinsky stating, ``I'm doing
the best I can to help you out.''
6:39 p.m.: Jordan telephones White House Counsel's Office
(Cheryl Mills), possibly about Lewinsky.
Evening: Revlon in New York telephones Lewinsky to set up a
follow-up interview.
9:02-9:03 p.m.: Lewinsky telephones Jordan about Revlon
interview in New York.
january 9, 1998
--: Lewinsky interviews in New York with Senior V.P. Seidman
of MacAndrews & Forbes and two Revlon individuals.
Lewinsky offered Revlon job in New York and
accepts.
1:29 p.m.: Lewinsky telephones Jordan.
4:14 p.m.: Lewinsky telephones Jordan to say that Revlon
offered her a job in New York.
Jordan notifies Currie: ``Mission Accomplished''
and requests she tell The President.
Jordan notifies The President of Lewinsky's New
York job offer. The President replies ``Thank you
very much.''
4:37 p.m.: Lewinsky telephones Carter.
5:04 p.m.: Lewinsky telephones Jordan.
5:05 p.m.: Lewinsky telephones Currie.
5:08 p.m.: The President telephones Currie.
5:09-5:11 p.m.: Lewinsky telephones Jordan.
5:12 p.m.: Currie telephones The President.
5:18-5:20 p.m.: Jordan telephones Lewinsky.
5:21-5:26 p.m.: Lewinsky telephones Currie.
____
[Chart Q]
THE PRESIDENT'S INVOLVEMENT WITH LEWINSKY JOB SEARCH
``Q Why are you trying to tell someone at the White House
that this has happened [Carter had been fired]?
[Jordan]: Thought they had a right to know.
Q Why?
[Jordan]: The President asked me to get Monica Lewinsky a
job. I got her a lawyer. The Drudge Report is out and
she has new counsel. I thought that was information
that they ought to have . . . .'' (Jordan Grand Jury 6/
9/98 Tr. 45-46)
``Q Why did you think the President needed to know that Frank
Carter had been replaced?
[Jordan]: Information. He knew that I had gotten her a job,
he knew that I had gotten her a lawyer. Information. He
was interested in this matter. He is the source of it
coming to my attention in the first place . . . .''
(Jordan Grand Jury 6/9/98 Tr. 58-59)
____
[Chart R]
JORDAN'S PRE-WITNESS LIST JOB SEARCH EFFORTS
``[Jordan]: I have no recollection of an early November
meeting with Ms. Monica Lewinsky. I have absolutely no
recollection of it and I have no record of it.''
(Jordan Grand Jury 3/3/98 Tr. 50)
* * * * *
``Q Is it fair to say that back in November getting Monica
Lewinsky a job on any fast pace was not any priority of
yours?
[Jordan]: I think that's fair to say.'' (Jordan Grand Jury 5/
5/98 Tr. 76)
* * * * *
``[Lewinsky]: [Referring to 12/6/97 meeting with the
President]. I think I said that . . . I was supposed to
get in touch with Mr. Jordan the previous week and that
things did not work out and that nothing had really
happened yet [on the job front].
Q Did the President say what he was going to do?
[Lewinsky]: I think he said he would--you know, this was not
sort of typical of him, to sort of say, `Oh, I'll talk
to him. I'll get on it.' '' (Lewinsky Grand Jury 8/6/98
Tr. 115-116)
* * * * *
``Q But what is also clear is that as of this date, December
11th, you are clear that at that point you had made a
decision that you would try to make some calls to help
get her a job.
[Jordan]: There is no question about that.'' (Jordan Grand
Jury 5/5/98 Tr. 95)
[Chart S]
January 17, 1998
Saturday
4:00 p.m. (approx): THE PRESIDENT finishes
testifying under oath in Jones v. Clinton, et al.
5:19 p.m.: Jordan telephones White House.
5:38 p.m.: THE PRESIDENT telephones Jordan at home.
7:02 p.m.: THE PRESIDENT telephones Currie at home
but does not speak with her.
702: p.m.: THE PRESIDENT places a call to Jordan's
office.
7:13 p.m.: THE PRESIDENT telephones Currie at home
and asks her to meet with him on Sunday.
January 18, 1998
Sunday
6:11 a.m.: Drudge Report Released.
--: The President learns of the Drudge Report and
[Tripp] tapes.
11:49 a.m.: Jordan telephones the White House.
12:30 p.m.: Jordan has lunch with Bruce Lindsey.
Lindsey informs Jordan about the Drudge Report and
[Tripp] tapes.
12:50 p.m.: THE PRESIDENT telephones Jordan at home.
1:11 p.m.: THE PRESIDENT telephones Currie at home.
2:15 p.m.: Jordan telephones the White House.
2:55 p.m.: Jordan telephones THE PRESIDENT.
5:00 p.m.: THE PRESIDENT meets with Currie,
concerning his contacts with Lewinsky.
5:12 p.m.: Currie pages Lewinsky: ``Please call Kay
at home.''
6:22 p.m.: Currie pages Lewinsky: ``Please call Kay
at home.''
7:06 p.m.: Currie pages Lewinsky: ``Please call Kay
at home.''
7:19 p.m.: Jordan telephones Cheryl Mills, White
House Counsel's Office.
8:28 p.m.: Currie pages Lewinsky: ``Call Kay.''
10:09 p.m.: Lewinsky telephones Currie at home.
11:02 p.m.: THE PRESIDENT telephones Currie at home
and asks if she reached Lewinsky.
January 19, 1998
Monday--Martin Luther King Day
7:02 a.m.: Currie pages Lewinsky: ``Please call Kay
at home at 8:00 this morning.''
8:08 a.m.: Currie pages Lewinsky: ``Please call Kay
.''
8:33 a.m.: Currie pages Lewinsky: ``Please call Kay
at home.''
8:37 a.m.: Currie pages Lewinsky: ``Please call Kay
at home. It's a social call. Thank you.''
8:41 a.m.: Currie pages Lewinsky: ``Kay is at home.
Please call.''
8:43 a.m.: Currie telephones The President from home
to say she has been unable to reach Lewinsky.
8:44 a.m.: Currie pages Lewinsky: ``Please call Kate
re: family emergency.''
8:50 a.m. THE PRESIDENT telephones Currie at home.
8:51 a.m.: Currie pages Lewinsky: ``Msg. From Kay.
Please call, have good news.''
8:56 a.m.: THE PRESIDENT telephones Jordan at home.
10:29 a.m.: Jordan telephones the White House from
his office.
10:35 a.m.: Jordan telephones Nancy Hernreich at the
White House.
10:36 a.m.: Jordan pages Lewinsky: ``Please call Mr.
Jordan at [number redacted].''
10:44 a.m.: Jordan telephones Erskine Bowles at the
White House.
10:53 a.m.: Jordan telephones Carter.
10:58 a.m.: THE PRESIDENT telephones Jordan at his
office.
11:04 a.m.: Jordan telephones Bruce Lindsey at the
White House.
11:16 a.m.: Jordan pages Lewinsky: ``Please call Mr.
Jordan at [number redacted].''
11:17 a.m.: Jordan telephones Lindsey at the White
House.
12:31 p.m.: Jordan telephones the White House from a
cellular phone.
--:Jordan lunches with Carter.
1:45 p.m.: THE PRESIDENT telephones Currie at home.
2:29 p.m.: Jordan telephones the White House from a
celluar phone.
2:44 p.m.: Jordan enters the White House and over
the course of an hour meets with THE PRESIDENT, Erskine
Bowles, Bruce Lindsay, Cheryl Mills, Charles Ruff, Rahm
Emanuel and others.
2:46 p.m.: Carter pages Lewinsky: ``Please call
Frank Carter at [number redacted].''
4:51 p.m.: Jordan telephones Currie at home.
4:53 p.m.: Jordan telephones Carter at home.
4:54 p.m.: Jordan telephones Carter at his office.
Carter informs Jordan that Lewinsky has replaced Carter
with a new attorney.
4:58 p.m.: Jordan telephones Lindsey, White House
Counsel's Office.
4:59 p.m.: Jordan telephones Mills, White House
Counsel's Office.
5:00 p.m.: Jordan telephones Lindsey, White House
Counsel's Office.
5:00 p.m.: Jordan telephones Ruff, White House
Counsel's Office.
5:05 p.m.: Jordan telephones Lindsey, White House
Counsel's Office.
5:05 p.m.: Jordan again telephones Lindsey, White
House Counsel's Office.
5:05 p.m.: Jordan telephones the White House.
5:09 p.m.: Jordan telephones Mills, White House
Counsel's Office.
5:14 p.m.: Jordan telephones Carter concerning his
termination as Lewinsky's attorney.
5:22 p.m.: Jordan telephones Lindsey, White House
Counsel's Office.
5:22 p.m.: Jordan telephones Mills, White House
Counsel's Office.
5:55 p.m.: Jordan telephones Currie at home.
5:56 p.m.: THE PRESIDENT telephones Jordan at his
office; Jordan informs The President that Carter was
fired.
6:04 p.m.: Jordan telephones Currie at home.
6:26 p.m.: Jordan telephones Stephen Goodin, an aide
to THE PRESIDENT.
____
[Chart T]
THE PRESIDENT'S POST-DEPOSITION STATEMENTS TO CURRIE
1/18/98
``I was never really alone with Monica, right?''
``You were always there when Monica was there,
right?''
``Monica came on to me, and I never touched her,
right?''
``You could see and hear everything, right?''
``She wanted to have sex with me, and I cannot do
that.''--(Currie Grand Jury 7/22/98 Tr. 6-7; Currie Grand
Jury 1/27/98 Tr. 70-75)
____
[Chart U]
THE PRESIDENT'S DENIALS
1/21/98
``And it was at that point that he gave his account of what
had happened to me [sic]
and he said that Monica--and it came very fast. He said,
`Monica Lewinsky came at me and made a sexual demand on me.'
He rebuffed her. He said, `I've gone down that road before,
I've caused pain for a lot of people and I'm not going to do
that again.'
She threatened him. She said that she would tell people
they'd had an affair, that she was known as the stalker among
her peers, and that she hated it and if she had an affair or
said she had an affair then she wouldn't be the stalker any
more.''--(Blumenthal Grand Jury 6/4/98 Tr. 49)
``And he said, `I feel like a character in a novel. I feel
like somebody who is surrounded by an oppressive force that
is creating a lie about me and I can't get the truth out. I
feel like the character in the novel Darkness at Noon.'
And I said to him, I said, `When this happened with Monica
Lewinsky, were you alone? He said, `Well, I was within
eyesight or earshot of someone.'''--(Blumenthal Grand Jury 6/
4/98 Tr. 50)
____
[Chart V]
``Q. Okay. Share that with us.
A. Well, I think he said--he said that--there was some
spate of, you know, what sex acts were counted, and he said
that he had never had s