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Submission By Counsel For President Clinton To The Committee On The Judiciary Of The United States House Of Representatives

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SUBMISSION BY COUNSEL FOR PRESIDENT CLINTON

TO THE COMMITTEE ON THE JUDICIARY OF THE

UNITED STATES HOUSE OF REPRESENTATIVES

PREFACE

In addition to the factual, legal and Constitutional defenses we present in this document, the President has asked us to convey a personal note: What the President did was wrong. As the President himself has said, publicly and painfully, "there is no fancy way to say that I have sinned."

The President has insisted that no legalities be allowed to obscure the simple moral truth that his behavior in this matter was wrong; that he misled his wife, his friends and our Nation about the nature of his relationship with Ms. Lewinsky. He did not want anyone to know about his personal wrongdoing. But he does want everyone -- the Committee, the Congress and the country -- to know that he is profoundly sorry for the wrongs he has committed and for the pain he has caused his family, his friends, and our nation.

But as attorneys representing the President in a legal and Constitutional proceeding, we are duty-bound to draw a distinction between immoral conduct and illegal or impeachable acts. And just as no fancy language can obscure the fact that what the President did was morally wrong, no amount of rhetoric can change the legal reality that the record before this Committee does not justify charges of criminal conduct or impeachable offenses.

The Framers, in their wisdom, left this Body the solemn obligation of determining not what is sinful, but rather what is impeachable. The President has not sugar-coated the reality of his wrongdoing. Neither should the Committee ignore the high standards of the Constitution to overturn a national election and to impeach a President.

TABLE OF CONTENTS

PREFACE - i

I. INTRODUCTION - 1

II. THE FACTUAL BACKGROUND - 5

A. The Whitewater Investigative Dead-End - 5

B. The Paula Jones Litigation - 8

C. The President's Grand Jury Testimony About Ms. Lewinsky - 12

III. THE CONSTITUTION REQUIRES PROOF OF OFFICIAL MISCONDUCT FOR IMPEACHMENT - 13

A. Under the Constitution the Conduct Alleged in the Referral Does Not Reach the Level of "High Crimes and Misdemeanors" - 14

1. Historical Background of "High Crimes and Misdemeanors" - 14

2. The Framers Believed that Impeachment Redresses Wrongful Public Conduct - 18

3. Our Constitution's Structure Does Not Permit Impeachment for Reasons of the Sort Alleged in the Referral - 21

B. American Presidential Impeachment Practice and Contemporary Scholarship Confirm that Impeachment Is Only for Political Offenses Against the State Itself, Not for Private Wrongs - 24

1. Prior Impeachment Proceedings Against American Presidents - 24

2. Contemporary Views Confirm that Impeachment Is Not Appropriate Here - 28

C. Relevant Historical Precedents Demonstrate that No Impeachable Offense Has Been Alleged Here - 31

1. Alexander Hamilton - 31

2. The Failure of the Proposed Article of Impeachment Against President Nixon Alleging Fraudulent Tax Filings - 33

IV. THE CONSTITUTION REQUIRES CLEAR AND CONVINCING EVIDENCE TO APPROVE ARTICLES OF IMPEACHMENT - 38

A. This Committee Should Apply the Same Clear and Convincing Standard Observed by Its Predecessor in the Watergate Proceedings - 38

B. The Clear and Convincing Standard Is Commensurate with the Grave Constitutional Power Vested in the House - 41

V. THE COMMITTEE SHOULD NOT RELY ON THE REFERRAL'S ACCOUNT OF THE EVIDENCE - 43

A. The Information Presented to the Committee in the Referral Has Not Been Subjected to the Most Basic Adversarial Testing - 46

B. The Referral Differs Vastly From the Precedent of the Watergate "Road Map" - 46

C. The Resulting Referral Omitted a Wealth of Directly Relevant Exculpatory Evidence - 47

D. Mr. Starr's Conduct in the Lewinsky Investigation Has Betrayed a Bias that Helps Explain the Lack of Neutrality in the Referral - 51

VI. THE PRESIDENT DID NOT COMMIT PERJURY - 54

A. Elements of Perjury - 54

B. Contradictory Testimony From Two Witnesses Does Not Indicate That One Has Committed Perjury - 57

1. It Must Be Proven that a Witness Had the Specific Intent to Lie - 57

2. A Perjury Case Must Not Be Based Solely Upon the Testimony of a Single Witness - 59

C. "Literal Truth" and Non-Responsive Answers Do Not Constitute Perjury - 61

D. Fundamentally Ambiguous Questions Cannot Produce Perjurious Answers - 65

E. It Is Expected and Proper for a Witness to be Cautious When Under Oath - 69

F. Specific Claims of Perjury - 70

1. Civil Deposition of January 17, 1998 -71

2. Grand Jury Testimony of August 17, 1998 - 86

VII. THE PRESIDENT DID NOT OBSTRUCT JUSTICE - 89

A. The Elements of Obstruction of Justice - 89

B. Specific Claims of Obstruction - 93

1. There Is No Evidence that the President Obstructed Justice in Connection with Gifts Given to Ms. Lewinsky - 93

2. The President Did Not Obstruct Justice in Connection with Ms. Lewinsky's Job Search - 114

3. The President Did Not Have an Agreement or Understanding with Ms. Lewinsky to Lie Under Oath - 137

4. The President Did Not Obstruct Justice by Suggesting Ms. Lewinsky Could File an Affidavit - 141

5. The President Did Not Attempt to Influence Betty Currie's Testimony - 148

6. The President Did Not Attempt to Influence the Testimony of "Potential" Grand Jury Witnesses Through His Denials - 152

VIII. THE PRESIDENT DID NOT ABUSE POWER - 156

A. The President Properly Asserted Executive Privilege to Protect the Confidentiality of Communications with His Staff - 158

1. The White House Made Every Effort at Accommodation and Ultimately Asserted the Privilege as Narrowly as Possible - 160

2. The Court's Ruling Upholding the White House's Assertion of Executive Privilege Squarely Rebuts the OIC's Abuse of Power Claim - 165

B. The President Was Entitled to Assert Attorney-Client Privilege to Protect the Right of Presidents to Request and Receive Confidential and Candid Legal Advice from White House Counsel - 166

1. The Governmental Attorney-Client Privilege Claim Was Grounded in the Law of the D.C. Circuit and the Supreme Court - 167

2. The Courts' Rulings Squarely Rebut the OIC's Claims of Abuse of Power 168

C. The Privilege Litigation Did Not Delay the OIC's Investigation -171

D. Mr. Starr Misrepresents the Record to Claim that the President Deceived the American Public About the Executive Privilege Litigation - 174

E. The President's Decision Not to Testify Before the Grand Jury Voluntarily Was Not an Abuse of Power - 176

F. False Public Denials About an Improper Relationship Do Not Constitute an Abuse of Office - 176

1. Subjecting a President to Impeachment Would Disrupt Our Constitutional Government - 177

2. The President's Denial of an Improper Relationship Is Not Comparable to President Nixon's Denials of Involvement in the Watergate Burglary and Cover-up -179

IX. CONCLUSION - 183

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

I. INTRODUCTION

The President of the United States has not committed impeachable offenses. He repeatedly has acknowledged that what he did was wrong, he has apologized, and he has sought forgiveness. But his apologies, his acceptance of responsibility, and his contrition do not mean either that the President committed criminal acts or that the acts of which he is accused are impeachable offenses. Counsel for President Clinton respectfully submit this memorandum to demonstrate and document this contention.

We offer this memorandum mindful of the fact that this body now confronts one of the most difficult questions our Constitution poses to Congress: whether to invalidate the popular will expressed in the election of the President. "Voting in the presidential election," as Professor Charles Black wrote, "is certainly the political choice most significant to the American people."^1/ Accordingly, "[n]o matter can be of higher political importance than our considering whether, in any given instance, this act of choice is to be undone."^2/ Consideration both wise and deliberate must precede any decision to report articles of impeachment. For "the power of impeachment and removal is drastic one, not to be lightly undertaken . . . and especially sensitive with reference to the President of the United States."^3/

We previously have submitted three memoranda^4/ to this Committee, addressing various issues arising out of the Independent Counsel's September 11, 1998, Referral.^5/ In this submission, we comprehensively set out our response to the Referral based on the evidence now available to us; address certain questions stemming from the testimony of the Committee's sole witness, Independent Counsel Kenneth W. Starr^6/ and correct fundamental misconceptions about this matter arising from deeply unfair or unsupported inferences drawn in the Referral and significant misstatements about the evidence in the press and elsewhere. For example, it is widely alleged among those favoring impeachment that the President "lied under oath" to the grand jury. But a review of the available evidence proves that this allegation often is based not on what the President actually said under oath but rather on what some of his accusers claim he said -- such as that in the grand jury he categorically denied having a sexual relationship with Ms. Lewinsky, or that he denied being alone with her, when in fact he explicitly acknowledged to the grand jury both that he had had an inappropriate intimate relationship with Ms. Lewinsky and that he had been alone with her. There are numerous other examples of allegations, now commonly believed, that are wholly -- not just somewhat -- unsupported even by the evidence presented to the Committee in the OIC referral. It is in part the purpose of this memorandum to separate fact and fiction and demonstrate why the record supports neither the charges made nor impeachment. We ask that readers set aside their preconceptions of what they think the evidence is, based on the biased presentation in the Starr Referral and subsequent inaccurate coverage, and look instead at the evidence itself.

At the outset, let us be clear. Extraordinary as it must seem in a matter of this gravity, the President has not been specifically notified what allegations are at issue here. The Referral itself cites "eleven possible grounds for impeachment" of the President, Ref. at 129, although it does not identify the rationale for including these grounds.^7/ In his presentation to the Committee, Mr. Schippers identified a somewhat different set of "fifteen separate events directly involving [the] President" which "could constitute felonies which, in turn, may constitute grounds to proceed with an impeachment inquiry."^8/ The Chairman apparently has indicated that the Committee may consider only two charges,^9/ while recent newspaper articles variously state that the Committee staff is drafting three charges or four charges.^10/ We have been provided only the most limited and in some instances no access to significant evidence in the Committee's possession, elliptically referred to by Members at the November 19, 1998, testimony of the Independent Counsel.^11/ Without knowing what this evidence is, and being able to analyze and quote it, we cannot fairly or adequately rebut every allegation the Committee may later choose to bring forward from the Referral or elsewhere.

Moreover, the Committee has recently launched new investigative forays in areas not covered by the Referral. It has taken depositions related to Ms. Kathleen Willey, and it has authorized (but now apparently withdrawn) subpoenas for depositions and documents related to fundraising for the 1996 Presidential campaign. Simple fairness entitles us to an adequate opportunity to receive, review, and use the information in the Committee's possession (for example, the transcripts of depositions from which we were excluded), be apprised of the specific charges the Committee is considering, and have a fair chance to discover and present evidence in rebuttal.

The present memorandum is thus necessarily limited in scope, and we will make a further submission to address any new or revised allegations the Committee may decide to pursue.

II. THE FACTUAL BACKGROUND

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

A. The Whitewater Investigative Dead-End

The Lewinsky investigation had its antecedent in the long-running Whitewater investigation. On August 5, 1994, Kenneth W. Starr was appointed Independent Counsel by the Special Division to conduct an investigation centering on two Arkansas entities, Whitewater Development Company, Inc., and Madison Guaranty Savings and Loan Association. The Office of Independent Counsel's ("OIC") investigation dragged on slowly^12/ and inconclusively, without any charges being lodged against either the President or Mrs. Clinton. The Independent Counsel himself announced his resignation in February 1997 to become Dean of the Pepperdine Law School^13/ but, after a firestorm of media criticism,^14/ he backtracked and resumed his duties.^15/

Without any expansion of his jurisdiction, Mr. Starr then began to conduct an investigation into rumors of extramarital affairs involving the President. In the Spring of 1997, Arkansas state troopers who had once been assigned to the Governor's security detail were interviewed, and "[t]he troopers said Starr's investigators asked about 12 to 15 women by name, including Paula Corbin Jones. . . ." Woodward & Schmidt, "Starr Probes Clinton Personal Life," The Washington Post (June 25, 1997) at A1 (emphasis added). "The nature of the questioning marks a sharp departure from previous avenues of inquiry in the three-year old investigation . . . . Until now, . . . what has become a wide-ranging investigation of many aspects of Clinton's governorship has largely steered clear of questions about Clinton's relationships with women . . . ."^16/ One of the most striking aspects of this new phase of the Whitewater investigation was the extent to which it focused on the Paula Jones case. One of the troopers interviewed declared, "`They asked me about Paula Jones, all kinds of questions about Paula Jones, whether I saw Clinton and Paula together and how many times.'"^17/

At his testimony before this Committee on November 19, 1998, Mr. Starr conceded that his agents had conducted these interrogations and acknowledged that he had not sought expansion of his jurisdiction from the Attorney General or the Special Division of the Court of Appeals,^18/ but he contended that these inquiries were somehow relevant to his Whitewater investigation: "we were, in fact, interviewing, as good prosecutors, good investigators do, individuals who would have information that may be relevant to our inquiry about the President's involvement in Whitewater, in Madison Guaranty Savings and Loan and the like."^19/ However, the OIC was obviously engaged in an effort to gather embarrassing information concerning the President. Indeed, a recent article in the New York Times Magazine notes that Deputy Independent Counsel Jackie Bennett was "known among fellow prosecutors as the office expert on the President's sex life long before anyone had heard of Monica Lewinsky."^20/

B. The Paula Jones Litigation

In January 1998, the OIC finally succeeded in transforming its investigation from one focused on long-ago land deals and loans in Arkansas into one involving a different topic (sex) and more recent events in Washington, D.C. The Lewinsky investigation grew out of the pretrial discovery proceedings in the civil suit Ms. Paula Corbin Jones had filed against the President in May 1994, making certain allegations about events three years earlier when the President was Governor of Arkansas. Discovery had been stayed until the Supreme Court's decision on May 27, 1997, denying Presidential immunity.^21/ Shortly thereafter, Ms. Jones selected a new spokesperson, Ms. Susan Carpenter-McMillan, and retained new counsel affiliated with the conservative Rutherford Institute,^22/ who began a public relations offensive against the President. "`I will never deny that when I first heard about this case I said, "Okay, good. We're gonna get that little slimeball,"' said Ms. Carpenter-McMillan, a staunch Republican."^23/ While Ms. Jones' previous attorneys, Messrs. Gilbert Davis and Joseph Cammarata, had largely avoided the media, public personal attacks now became the order of the day as the Jones civil suit became a partisan vehicle to try to savage the President.^24/ Ms. Jones' husband, Steve, even announced his intention to use judicial process to obtain and disseminate pejorative personal information concerning the President:

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

As is now well known, this effort led ultimately to the Jones lawyers being permitted to subpoena various women, to determine their relationship, if any, with the President, allegedly for the purpose of determining whether they had information relevant to the sexual harassment charge. Among these women was Ms. Lewinsky.

By mid-January 1998, Ms. Tripp had brought to the attention of the OIC certain information she believed she had about Ms. Lewinsky's involvement in the Jones case and, as noted above, the OIC investigation then began to reach formally into the Jones case. The OIC met with Ms. Tripp through the week of January 12, and with her cooperation taped Ms. Lewinsky discussing the Jones case and the President. During the week, Ms. Tripp alerted the OIC that she had been taping Ms. Lewinsky in violation of Maryland law, and the OIC promised Ms. Tripp immunity from federal prosecution, and assistance in protecting her from state prosecution, in exchange for her cooperation. The OIC formalized that agreement in writing on Friday, January 16, after it had received jurisdiction to do so from the Attorney General.

The President's deposition in the Jones case was scheduled to take place the next day, on Saturday, January 17. As we now know, the night before that deposition Ms. Tripp had briefed the lawyers for Ms. Jones on her perception of the relationship between Ms. Lewinsky and the President -- doing so based on confidences Ms. Lewinsky had entrusted to her.^26/ (She was permitted to do so even though, having received immunity from the OIC, the OIC could have barred her from talking to any one about Ms. Lewinsky but failed to do so.) At the deposition the next day, the President unexpectedly was asked numerous questions about Ms. Lewinsky, even before he was questioned about Ms. Jones.

The Jones case, of course, was not about Ms. Lewinsky. She was a peripheral player and, since her relationship with the President was concededly consensual, an irrelevant one. Shortly after the President's deposition, Chief Judge Wright ruled that evidence pertaining to Ms. Lewinsky would not be admissible at the Jones trial because "it is not essential to the core issues in this case."^27/ The Court also ruled that, given the allegations at issue in the Jones case, the Lewinsky evidence "might be inadmissible as extrinsic evidence" under the Federal Rules of Evidence because it involved merely the "specific instances of conduct" of a witness.^28/

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

On August 17, 1998, the President specifically acknowledged to the grand jury that he had had a relationship with Ms. Lewinsky involving "improper intimate contact." He described how the relationship began, and how it had ended early in 1997 -- long before any public attention or scrutiny. He acknowledged this relationship to the grand jury, and he explained how he had tried to get through the deposition in the Jones case months earlier without admitting what he had had to admit to the grand jury -- an improper relationship with Ms. Lewinsky. He further testified that the "inappropriate encounters" with Ms. Lewinsky had ended, at his insistence, in early 1997, and he stated: "I regret that what began as a friendship came to include this conduct, and I take full responsibility for my actions." Id. at 461. He declined to describe, because of personal privacy and institutional dignity considerations, certain specifics about his conduct with Ms. Lewinsky,^29/ but he indicated his willingness to answer,^30/ and he did answer, the other questions put to him about his relationship with her. No one who watched the videotape of this grand jury testimony had any doubt that the President was admitting to an improper physical relationship with Ms. Lewinsky.

III. THE CONSTITUTION REQUIRES PROOF OF OFFICIAL MISCONDUCT FOR IMPEACHMENT

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

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

The Constitution provides that the President shall be removed from office only upon "Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." U.S. Const. Art. II, § 4. The legal question confronting the Committee is whether the acts of the President alleged in the Starr Referral could conceivably amount to "high Crimes and Misdemeanors."

The answer is that they could not. The syntax of the Constitution's formulation "Treason, Bribery or other high Crimes and Misdemeanors" (emphasis added) strongly suggests that, to be impeachable offenses, high crimes and misdemeanors must be of the seriousness of "Treason" and "Bribery." Yet the Referral alleges nothing remotely similar in gravity to those high crimes.

Moreover, both the historical background of the "high Crimes and Misdemeanors" concept and the Constitution itself make clear that the conduct alleged does not constitute an impeachable offense. To the contrary, cognizant that the impeachment process upsets the electoral will of the people, the Framers made the standard of impeachable offenses an especially high one, requiring a showing of injury to our very system of government.

1. Historical Background of "High Crimes and Misdemeanors"

The English precedents illustrate that impeachment was understood to apply only to fundamental offenses against the system of government. In English practice, the term "high crimes and misdemeanors" had been applied to offenses, the common elements of which were their severity and the fact that the wrongdoing was directed against the state.^31/ The English cases included misappropriation of public funds, interfering in elections, accepting bribes, and various forms of corruption. Ibid. These offenses all affected the discharge of public duties by public officials. In short, under the English practice, "the critical element of injury in an impeachable offense was injury to the state."^32/

The notion that "injury to the state" was the hallmark of the impeachable offense was also shared by the Staff of the Impeachment Inquiry when it researched the issue in connection with the investigation of President Richard Nixon in 1974. In early English impeachments, the Staff concluded, "the thrust of the charge was damage to the state. . . . Characteristically, impeachment was used in individual cases to reach offenses, as perceived by Parliament, against the system of government."^33/

The constitutional and ratification debates confirm that impeachment was limited to only the gravest political wrongs. The Framers plainly intended the impeachment standard to be a high one. They rejected a proposal that the President be impeachable for "maladministration," for, as James Madison pointed out, such a standard would "be equivalent to a tenure during the pleasure of the Senate."^34/ The Framers plainly did not intend to permit Congress to debilitate the Executive by authorizing impeachment for something short of the most serious harm to the state. In George Mason's apt language, impeachment was thought necessary to remedy "great and dangerous offenses" not covered by "Treason" or "Bribery" such as "[a]ttempts to subvert the Constitution."^35/

That is why, at the time of the ratification debates, Alexander Hamilton described impeachment as a "method of NATIONAL INQUEST into the conduct of public men."^36/ No act touches more fundamental questions of constitutional government than does the process of Presidential impeachment. No act more directly affects the public interest. No act presents the potential for greater injustice -- injustice both to the Chief Executive and to the people who elected him -- and the Framers were fully aware of this.

The specific harms the Framers sought to redress by impeachment are far more serious than those alleged in the Starr Referral. During the ratification debates, a number of the Framers addressed the Constitution's impeachment provisions. The following is a list of wrongs they believed the impeachment power was intended to address:

• receipt of emoluments from a foreign power in violation of Article I, section 9;^37/
• summoning the representatives of only a few States to ratify a treaty;^38/
• concealing information from or giving false information to the Senate so as to cause it to take measures it otherwise would not have taken which were injurious to the country;^39/
• general failure to perform the duties of the Executive.^40/

Impeachment provisions in a number of late eighteenth century state constitutions reaffirm that the Framers' generation believed that impeachment's purpose was redress of official wrongdoing. The New Jersey Constitution's impeachment provision for "misbehavior" was interpreted to permit impeachment not for personal wrongdoing but for acts by public officials performed in their public capacity.^41/ Delaware's first Constitution authorized impeachment for "offending against the state by maladministration, corruption, or other means, by which the safety of the commonwealth may be endangered."^42/ And Virginia's Constitution of 1776 provided for impeachment of those public officers who "offend[ ] against the state, either by maladministration, corruption or other means, by which the safety of the State may be endangered."^43/

The history on which they relied, the arguments they made in Convention, the specific ills they regarded as redressable, and the State backgrounds from which they emerged -- all these establish that the Framers believed that impeachment must be reserved for only the most serious forms of wrongdoing. They believed, in short, that impeachment "reached offenses against the government, and especially abuses of constitutional duties."^44/

The Referral alleges no wrongs of that magnitude.

2. The Framers Believed that Impeachment Redresses Wrongful Public Conduct

The remedy of impeachment was designed only for those very grave harms not otherwise politically redressable. As James Wilson wrote, "our President . . . is amenable to [the laws] in his private character as a citizen, and in his public character by impeachment."45^/ That is why Justice Story described the harms to be reached by impeachment as those "offensive acts which do not properly belong to the judicial character in the ordinary administration of justice, and are far removed from the reach of municipal jurisprudence."46^/

For these reasons, impeachment is limited to certain forms of potential wrongdoing only, and it is intended to redress only certain kinds of harms. Again, in Hamilton's words:

the subjects of [the Senate's impeachment] jurisdiction are those offenses which proceed from the misconduct of public men, or in other words from the abuse of violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done to the society itself.47^/

Early commentators on the Constitution are in accord on the question of impeachment's intended purpose. In Justice James Wilson's words, impeachments are "proceedings of a political nature . . . confined to political characters" charging only "political crimes and misdemeanors" and culminating only in "political punishments." 48^/ And as Justice Story put the matter, "the [impeachment] power partakes of a political character, as it respects injuries to the society in its political character."49^/ In short, impeachment was not thought to be a remedy for private wrongs -- or even for most public wrongs. Rather, the Framers "intended that a president be removable from office for the commission of great offenses against the Constitution."50^/ Impeachment therefore addresses public wrongdoing, whether denominated a "political crime[ ] against the state,"51^/ or "an act of malfeasance or abuse of office,"52^/ or a "great offense[ ] against the federal government."53^/ Ordinary civil and criminal wrongs can be addressed through ordinary judicial processes. And ordinary political wrongs can be addressed at the ballot box and by public opinion. Impeachment is reserved for the most serious public misconduct, those aggravated abuses of executive power that, given the President's four-year term, might otherwise go unchecked.

Private misconduct, or even public misconduct short of an offense against the state, is not redressable by impeachment because that solemn process, in Justice Story's words, addresses "offences which are committed by public men in violation of their public trust and duties."54^/ Impeachment is a political act in the sense that its aims are public; it attempts to rein in abuses of the public trust committed by public officeholders in connection with conduct in public office. The availability of the process is commensurate with the gravity of the harm. As one scholar has put it, "[t]he nature of [impeachment] proceedings is dictated by the harms sought to be redressed -- `the misconduct of public men' relating to the conduct of their public office -- and the ultimate issue to be resolved -- whether they have forfeited through that conduct their right to continued public trust."55^/

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

a. Impeachment Requires a Very High Standard Because Ours Is a Presidential and Not a Parliamentary System

Ours is a Constitution of separated powers. In that Constitution, the President does not serve at the will of Congress, but as the directly elected,^56/ solitary head of the Executive Branch. The Constitution reflects a judgment that a strong Executive, executing the law independently of legislative will, is a necessary protection for a free people.

These elementary facts of constitutional structure underscore the need for a very high standard of impeachable offenses. It was emphatically not the intention of the Framers that the President should be subject to the will of the dominant legislative party. Our system of government does not permit Congress to unseat the President merely because it disagrees with his behavior or his policies. The Framers' decisive rejection of parliamentary government is one reason they caused the phrase "Treason, Bribery or other high Crimes and Misdemeanors" to appear in the Constitution itself. They chose to specify those categories of offenses subject to the impeachment power, rather than leave that judgment to the unfettered whim of the legislature.

Any just and proper impeachment process must be reasonably viewed by the public as arising from one of those rare cases when the Legislature is compelled to stand in for all the people and remove a President whose continuation in office threatens grave harm to the Republic. Impeachment for wrongdoing of lesser gravity involves a legislative usurpation of a power belonging only to the people (the power to choose and "depose" Presidents by election) and a Legislative encroachment on the power of the Executive.

The current process appears bent on "mangling the system of checks and balances that is our chief safeguard against abuses of public power."^57/ Impeachment of the President on the grounds alleged in the Referral would ignore this intentionally imposed limit on legislative power and would thereby do incalculable damage to the institution of the Presidency. Whether "successful" or not, the current drive "will leave the Presidency permanently disfigured and diminished, at the mercy as never before of the caprices of any Congress."^58/ The undefined, but broad and lenient, standard under which the Committee is implicitly proceeding converts the impeachment power into something other than the drastic removal power of last resort intended by the Framers. This new impeachment weapon would be a permanent, extra-constitutional power of Congress, a poison arrow aimed permanently at the heart of the Presidency. The inevitable effect of such a threat would be the weakening of that Office and an improper subservience of the President to the Congress, that was wholly unintended by the Framers.

That is not the impeachment power enshrined in the Constitution and defined by two hundred years of experience. The Constitution permits a single justification for impeachment -- a demonstrated need to protect the people themselves.

b. Impeachment Requires a Very High and Very Clear Standard Because It Nullifies the Popular Will

The Framers made the President the sole nationally elected public official, responsible to all the people. He is the only person whose mandate is country-wide, extending to all citizens, all places, and all interests. He is the people's choice.

Therefore, when the Congress raises the issue of impeachment, the House (and ultimately the Senate) confront this inescapable question: is the alleged misconduct so profoundly serious, so malevolent, that it justifies undoing 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 process itself?

The wrongdoing alleged here does not remotely meet that standard.

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

1. Prior Impeachment Proceedings Against American Presidents

Three American Presidents have been the subject of impeachment proceedings. Each was impeached (or threatened with impeachment) for allegedly wrongful official conduct and not for alleged misdeeds unrelated to the exercise of public office.

John Tyler. In 1841, President Tyler succeeded William Henry Harrison after the latter's death in office. He immediately ran into political differences with the Whig majority in Congress. After Tyler vetoed a Whig-sponsored tariff bill, a Whig Congressman offered a resolution of impeachment against President Tyler. The resolution proffered nine impeachment articles, each alleging high crimes and misdemeanors constituting crimes against the government in the performance of official duties. The allegations included withholding assent to laws indispensable to the operation of government and assuming to himself the whole power of taxation, abuse of the appointment and removal power, and abuse of the veto power.^59/

The resolution was rejected. But the fundamental premise of each charge was that the President had committed crimes against the United States in the exercise of official duties.

Andrew Johnson. President Johnson is, of course, the only president actually to have been impeached. President Johnson ran afoul of the Reconstruction Congress after the death of President Lincoln. After President Johnson notified Secretary of War Stanton that he was removed from office, the Congress voted an impeachment resolution in 1868 based on the President's supposed violation of the Tenure of Office Act. Ultimately, eleven articles were adopted against him and approved by the House.^60/

As in the case of President Tyler, all the allegations concerned allegedly wrongful official conduct said to be harmful to the processes of government. The leading House manager in the Senate trial was Rep. Benjamin Butler, who defined impeachable offenses as follows: "We define, therefore, an impeachable high crime and misdemeanor to be one in its nature or consequences subversive of some fundamental or essential principle of government, or highly prejudicial to the public interest . . . ." ^61/

On May 26, 1868, President Johnson was acquitted by a single vote.^62/ Although the vote was overwhelmingly partisan, seven Republican Senators broke with the party and voted for acquittal. Sen. William Pitt Fessenden was one of those seven. He did not vote for impeachment because, as he put it, an impeachable offense must be "of such a character to commend itself at once to the minds of all right thinking men, as beyond all question, an adequate cause for impeachment. It should leave no reasonable ground of suspicion upon the motives of those who inflict the penalty."63^/

Richard Nixon. Five articles of impeachment were proposed against then-President Nixon by this Committee in 1974. Three were approved. Two were not.^64/ As with the charges against Presidents Tyler and Johnson, the approved articles alleged official wrongdoing. Article I charged President Nixon with "using the powers of his high office [to] engage[ ] . . . in a course of conduct or plan designed to delay, impede and obstruct" the Watergate investigation.^65/ Article II described the President as engaging in "repeated and continuing abuse of the powers of the Presidency in disregard of the fundamental principle of the rule of law in our system of government" thereby "us[ing] his power as President to violate the Constitution and the law of the land."^66/ Article III charged the President with refusing to comply with Judiciary Committee subpoenas in frustration of a power necessary to "preserve the integrity of the impeachment process itself and the ability of Congress to act as the ultimate safeguard against improper Presidential conduct."^67/

The precedents speak clearly. The allegation against President Tyler and the articles actually approved against Presidents Johnson and Nixon all charged serious misconduct amounting to misuse of the authority of the Presidential office. As Professor Sunstein expressed it in his testimony before this body's Subcommittee on the Constitution, American presidential impeachment proceedings have targeted "act[s] by the President, that amount[ ] to large-scale abuse of distinctly Presidential authority."^68/ The Referral contains nothing of the kind.

2. Contemporary Views Confirm that Impeachment Is Not Appropriate Here

a. Contemporary Scholarship Confirms that Impeachment Is Appropriate for Offenses Against Our System of Government

Impeachable acts need not be criminal acts. As Professor Black has noted, it would probably be an impeachable act for a President to move to Saudi Arabia so he could have four wives while proposing to conduct the Presidency by mail and wireless from there; or to announce and adhere to a policy of appointing no Roman Catholics to public office; or to announce a policy of granting full pardons, in advance of indictment or trial, to federal agents or police who killed anyone in the line of duty in the District of Columbia.69^/ None of these acts would be crimes, but all would be impeachable. This, because they are all "serious assaults on the integrity of government."70^/ And all of these acts are public acts having public consequences.

Holders of public office should not be impeached for conduct (even criminal conduct) that is essentially private. That is why scholars and other disinterested observers have consistently framed the test of impeachable offenses in terms of some fundamental attack on our system of government, describing impeachment as being reserved for:

• "offenses against the government";71^/
• "political crimes against the state";72^/
• "serious assaults on the integrity of the processes of government";73^/
• "wrongdoing convincingly established [and] so egregious that [the President's] continuation in office is intolerable";74^/
• "malfeasance or abuse of office,"75^/ bearing a "functional relationship" to public office;76^/
• "great offense[s] against the federal government";77^/
• "acts which, like treason and bribery, undermine the integrity of government."78^/

b. Recent Statements by Historians and Constitutional Scholars Confirm that No Impeachable Offense Is Present Here

In a recent statement, 400 historians warned of the threat to our constitutional system posed by these impeachment proceedings. The Framers, they wrote, "explicitly reserved [impeachment] for high crimes and misdemeanors in the exercise of executive power."^79/ Impeachment for anything short of that high standard would have "the most serious implications for our constitutional order."^80/

That view accords with the position expressed by 430 legal scholars and communicated by letter to the House leadership and the leadership of this Committee.⁸¹/ The legal scholars' letter underscores that high crimes and misdemeanors must be of a seriousness comparable to "treason" and "bribery" that are distinguished by a "grossly derelict exercise of official power." That standard, as the law professors note, is simply not met here even on the facts alleged. "If the President committed perjury regarding his sexual conduct, this perjury involved no exercise of Presidential power as such."^82/ In other words, "making false statements about sexual improprieties is not a sufficient basis to justify the trial and removal from office of the President of the United States."^83/ To continue an impeachment inquiry under such circumstances would pose a heavy cost to the Presidency with no return to the American people.

Thus, as Professor Michael Gerhardt summarized the matter in his recent testimony before a subcommittee of this body, there is "widespread recognition [of] a paradigmatic case for impeachment."^84/ In such a case, "there must be a nexus between the misconduct of an impeachable official and the latter's official duties."^85/ The Referral presents no such case.

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

1. Alexander Hamilton

That impeachment was reserved for serious public wrongdoing of a serious political nature was no mere abstraction to the authors of the Constitution. The ink on the Constitution was barely dry when Congress was forced to investigate wrongdoing by one of the Framers. In 1792-93, Congress investigated then-Secretary of the Treasury Alexander Hamilton for alleged financial misdealings with James Reynolds, a convicted securities swindler.^86/ Secretary Hamilton was interviewed by members of Congress, including the House Speaker and James Monroe, the future President. He admitted to making secret payments to Mr. Reynolds, whose release from prison the Treasury Department had authorized. Mr. Hamilton acknowledged that he had made the payments but explained that he had committed adultery with Reynolds' wife; that he had made payments to Mr. Reynolds to cover it up; that he had had Mrs. Reynolds burn incriminating correspondence; and that he had promised to pay the Reynolds' travel costs if they would leave town.87^/

The Members of Congress who heard Secretary Hamilton's confession concluded that the matter was private, not public; that as a result no impeachable offense had occurred; and that the entire matter should remain secret. Although President Washington, Vice-President Adams, Secretary of State Jefferson and House Minority leader James Madison (two of whom had signed the Constitution) all eventually became aware of the affair, they too maintained their silence. And even after the whole matter became public knowledge some years later, Mr. Hamilton was appointed to the second highest position in the United States Army and was speedily confirmed by the Senate.88^/

It is apparent from the Hamilton case that the Framers did not regard private sexual misconduct as creating an impeachable offense. It is also apparent that efforts to cover up such private behavior, including even paying hush money to induce someone to destroy documents, did not meet the standard. Neither Hamilton's very high position, nor the fact that his payments to a securities swindler created an enormous "appearance" problem, were enough to implicate the standard. These wrongs were real, and they were not insubstantial, but to the Framers they were essentially private and therefore not impeachable.

Some have responded to the argument that the conduct at issue in the Referral is private by contending that the President is charged with faithfully executing the laws of the United States and that perjury would be a violation of that duty. That argument, however, proves far too much. Under that theory, any violation of federal law would constitute an impeachable offense, no matter how minor and no matter whether it arose out of the President's private life or his public responsibilities. Lying in a deposition in a private lawsuit would, for constitutional purposes, be the equivalent of lying to Congress about significant conduct of the Executive Branch -- surely a result those advocates do not contemplate. More importantly, as the next section demonstrates, we know from the bipartisan defeat of the tax fraud article against President Nixon that the "faithfully execute" theory has been squarely rejected.

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

As previously indicated, this Committee's investigation of President Nixon in 1973-74 had to confront the question of just what constitutes an "impeachable offense." That investigation resulted in the Committee's approval of three articles of impeachment alleging misuse of the Presidential Office and rejection of two others. Those decisions constitute part of the common law of impeachment, and they stand for the principle that abuse of the Presidential Office is at the core of the notion of impeachable offense.

That conclusion was no happenstance. It resulted from a concordance among Committee majority and minority views as to the standard of impeachable offenses. One of the first tasks assigned to the staff of the Judiciary Committee when it began its investigation of President Nixon was to prepare a legal analysis of the grounds for impeachment of a President. The staff concluded that:

"Impeachment is a constitutional remedy addressed to serious offenses against the system of government. . . . It is not controlling whether treason and bribery are criminal. More important, they are constitutional wrongs that subvert the structure of government, or undermine the integrity of office and even the Constitution itself, and thus are `high' offenses in the sense that word was used in English impeachments. . . . The emphasis has been on the significant effects of the conduct -- undermining the integrity of office, disregard of constitutional duties and oath of office, arrogation of power, abuse of the governmental process, adverse impact on the system of government. . . . Because impeachment of a President is a grave step for the nation, it is to be predicated only upon conduct seriously incompatible with either the constitutional form and principles of our government or the proper performance of constitutional duties of the president office."89^/

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

"It is not a fair summary . . . to say that the Framers were principally concerned with reaching a course of conduct, whether or not criminal, generally inconsistent with the proper and effective exercise of the office of the presidency. They were concerned with preserving the government from being overthrown by the treachery or corruption of one man. . . . [I]t is our judgment, based upon this constitutional history, that the Framers of the United States Constitution intended that the President should be removable by the legislative branch only for serious misconduct dangerous to the system of government established by the Constitution."90^/

Notwithstanding their many differences, the Judiciary Committee investigating President Nixon was in substantial agreement on the question posed here: an impeachable wrong is an offense against our very system, a constitutional evil subversive of the government itself.

Against that backdrop, it is clear that the Committee's vote not to approve a proposed tax-fraud type article was every bit as significant a precedent as the articles it did approve. The proposed article the Committee ultimately declined to approve charged that President Nixon both "knowingly and fraudulently failed to report certain income and claimed deductions [for 1969-72] on his Federal income tax returns which were not authorized by law."^91/ The President had signed his returns for those years under penalty of perjury,^92/ and there was reason to believe that the underlying facts would have supported a criminal prosecution against President Nixon himself.^93/ Yet the article was not approved. And it was not approved because the otherwise conflicting views of the Committee majority and minority were in concord: submission of a false tax return was not so related to exercise of the Presidential Office as to trigger impeachment.

Thus, by a bipartisan vote greater than a 2-1 margin, the Judiciary Committee rejected the tax-evasion article.94^/ Both Democrats and Republicans spoke against the idea that tax evasion constituted an impeachable offense. Congressman Railsback (R-Ill.) opposed the article saying that "there is a serious question as to whether something involving his personal tax liability has anything to do with [the] conduct of the office of the President."95^/ Congressman Owens (D-Utah) stated that, even assuming the charges were true in fact, "on the evidence available, these offenses do not rise, in my opinion, to the level of impeachment."96^/ Congressman Hogan (R-Md.) did not believe tax evasion an impeachable offense because the Constitution's phrase "high crime signified a crime against the system of government, not merely a serious crime."97^/ And Congressman Waldie (D-Cal.) spoke against the article, saying that "there had not been an enormous abuse of power," notwithstanding his finding "the conduct of the President in these instances to have been shabby, to have been unacceptable, and to have been disgraceful even."98^/

These voices, and the overwhelming vote against the tax evasion article, underscore the fact that the 1974 Judiciary Committee's judgment was faithful to its legal conclusions. It would not (and did not) approve an article of impeachment for anything short of a fundamental offense against our very system of government. In the words of the Nixon Impeachment Inquiry Report:

Because impeachment of a President is a grave step for the nation, it is to be predicated only upon conduct seriously incompatible with either the constitutional form and principles of our government or the proper duties of the presidential office.^99/

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

IV. THE CONSTITUTION REQUIRES CLEAR AND CONVINCING EVIDENCE TO APPROVE ARTICLES OF IMPEACHMENT

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

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

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

In the Watergate hearings, the President's counsel, Mr. St. Clair, put the threshold-of-proof question in this way:

I think the American people will expect that this committee would not vote to recommend any articles of impeachment unless this committee is satisfied that the evidence to support it is clear, is clear and convincing. Because anything less than that, in my view, is going to result in recriminations, bitterness, and divisiveness among our people.^100/

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

Mr. St. Clair said to you you must have clear and convincing proof. Of course there must be clear and convincing proof to take the step that I would recommend this committee to take. ^101/

Emphasizing the political nature and consequences of impeachment, Mr. Doar reiterated that "as a practical matter, proof must be clear and convincing."^102/

Minority counsel, Mr. Garrison, told the Committee that "when a member of the committee or a Member of the House votes to impeach, he should do so having made a judgment that the evidence convinces him that the President should be removed from office."^103/ And in their "Standard of Proof for Impeachment by the House" section of the Impeachment Inquiry, the Republican authors of the Minority Views formulated the standard as follows:

On balance, it appears that prosecution [of articles of impeachment by the House] is warranted if the prosecutor believes that the guilt of the accused is demonstrated by clear and convincing evidence. . . .

[W]e therefore take the position that a vote of impeachment is justified if, and only if, the charges embodied in the articles are proved by clear and convincing evidence. Our confidence in this proposition is enhanced by the fact that both the President's Special Counsel and the Special Counsel to the Committee independently reached the same conclusion.^104/

Finally, this Committee expressly found clear and convincing evidence supporting the obstruction-of-justice and abuse-of-power charges against President Nixon.^105/ See, e.g., Impeachment Inquiry at 33 ("[t]his report . . . contains clear and convincing evidence that the President caused action . . . to cover up the Watergate break-in"); id. at 136 ("[t]he Committee finds, based upon of [sic] clear and convincing evidence, that th[e] conduct[ ] detailed in the foregoing pages of this report constitutes `high crimes and misdemeanors'"); id. at 141 ("[t]he Committee finds clear and convincing evidence that a course of conduct was carried out [by President Nixon and his subordinates] to violate the constitutional rights of citizens").^106/

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

As the Watergate precedent indicates, this Committee should not approve an article of impeachment for which the record evidence, taken as a whole, is anything less than clear and convincing. Put differently, each member must have a firm conviction, clearly and convincingly grounded in record evidence, that the President is guilty of the wrongdoing alleged. As former Attorney General Elliott Richardson warned on December 1, "`[a] vote to impeach is a vote to remove. If members of the Committee believe that should be the outcome, they should vote to impeach. If they think that is an excessive sentence, they should not vote to impeach because if they do vote to impeach the matter is out their hands, and if the Senate convicts, out of its hands.'"^107/

This clear-and-convincing standard is not the highest degree of proof known to our law,^108/ but the substantial showing it demands is commensurate with the gravity of impeachment itself. Exercise of the House's accusatory impeachment power is itself an act that weakens the Presidency. Unlike the grand juror's vote to indict, which affects a sole individual, affirmative votes on articles of impeachment jeopardize an entire branch of our national government and threaten the political viability of the single person (except for the Vice President) elected by the entire electorate. The clear-and-convincing requirement ensures that this momentous step is not lightly taken. Lower standards (probable cause or apparent preponderance of the evidence) are simply not demanding enough to justify the fateful step of an impeachment trial. They pose a genuine risk of subjecting the President, the Senate, and most of all the people who elected the President to a trial "on the basis of one-sided or incomplete information or insufficiently persuasive evidence."^109/ Moreover, those lower standards would be particularly inappropriate here, where this Committee has itself neither independently investigated the evidence nor heard from a single witness with first-hand knowledge of such facts. The respected impeachment scholar Michael Gerhardt has declared: "`This idea that all [this Committee] need[s] to have is probable cause is in my mind ahistorical . . . . I do think that members, at least historically, have demanded more in terms of the kind of evidence that has to exist to initiate formal impeachment proceedings against the President and also to trigger a trial.'"^110/

Exercise of the impeachment power by the House is a matter of the utmost seriousness. No member of this Committee or of the House as a whole should approve articles of impeachment unless that member is personally persuaded that a high crime or misdemeanor has been proven to have occurred by clear and convincing evidence.^111/ The precedent created in the Watergate proceedings could not be clearer. To break with that precedent and proceed on something less demanding would properly be viewed as a partisan effort to lower the impeachment bar. The President, the Constitution, and the American people deserve more. Proof by clear and convincing evidence, and nothing less, is necessary to justify each member's affirmative vote for articles of impeachment.

V. THE COMMITTEE SHOULD NOT RELY ON THE REFERRAL'S ACCOUNT OF THE EVIDENCE

The Committee is now in the process of completing its deliberations on this question of the utmost national gravity: whether to approve articles of impeachment against the President of the United States. Voting in favor of such articles would commence the somber process of annulling the electoral choice of the people of this country. Before analyzing, in the next three sections, with as much specificity as possible the charges the Committee apparently is considering, it is appropriate to examine the evidentiary record that serves as the basis for these grave judgments.

The record here is strikingly different from that on which the Committee acted twenty-four years ago in the Watergate proceedings. There, over several months of investigation, the Committee examined numerous fact witnesses and obtained and analyzed documents and other evidence; while it received a transmission of testimony and documents from the Watergate grand jury, it made its own independent evaluation of the evidence it had gathered. See Nixon Report at 9 (Judiciary Committee received statements of information from inquiry staff in which "a deliberate and scrupulous abstention from conclusions, even by implication, was observed").^112/

Here, however, the Committee is almost wholly relying on the work of the Independent Counsel. Neither the Committee, its staff, nor counsel for the President have had the opportunity to confront the witnesses who have appeared before the OIC's grand jury: to cross-examine them, assess their credibility, and elicit further information that might affect the testimony the witnesses gave. Indeed, the very genesis of this impeachment inquiry differs radically from the Watergate proceedings. Twenty-four years ago, this Committee itself made a decision to embark upon an impeachment inquiry.^113/ In the present case, however, this inquiry was generated by the judgment of Mr. Starr that he had identified "substantial and credible information . . . that may constitute grounds for impeachment." 28 U.S.C. § 595(c).

The Referral represents Mr. Starr's effort to support that conclusion. The grand jury never authorized the transmission of or even reviewed the Referral, November 19, 1998 Testimony at 324-25 (Testimony of Mr. Starr) and, while Mr. Starr declined to address the question in his public testimony, we do not believe that the Referral itself was ever presented for substantive approval to Chief Judge Johnson or the Special Division of the Court of Appeals for the Purpose of Appointing Independent Counsels.^114/ Instead, the Referral reflects Mr. Starr's own version of the vast amount of evidence gathered by the grand jury and the conclusions he draws from that evidence.

Unlike the impartial presentation to the Watergate committee from Special Prosecutor Jaworski, the Referral is a document advocating impeachment. It sets forth Mr. Starr's best case for impeachment, not a neutral presentation of the facts. It reflects a careful selection and presentation of the evidence designed to portray the President in the worst possible light. It is being presented as a good faith summary of reliable evidence when it is in fact nothing of the kind. While we will address the specific allegations of perjury, obstruction of justice, and abuse of office (as best we can discern them) in the next sections, it is appropriate here to sketch out the untested nature of the underlying evidence, the material omissions in the Referral, and the indications of bias and overreaching that have characterized the OIC's investigation. To demonstrate this is not to make an irrelevant ad hominem attack on the Independent Counsel but to point out how unreliable is the record before this Committee, and the caution and skepticism with which the narrative and conclusions of the Referral must therefore be viewed.

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

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

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

Instead of transmitting to the Committee the information gathered by the OIC, Mr. Starr chose to give it his own spin. Had he sat across the table from the witnesses, it might have been that he based his judgments on such scrutiny. Since he did not, the grounds on which he credited some evidence and rejected other evidence are unknown. The decision to proceed in this way was a sharp departure from Special Prosecutor Leon Jaworski's submission to Congress of "a simple and straightforward compilation of information gathered by the Grand Jury, and no more." In re Report and Recommendation of June 5, 1972 Grand Jury, 370 F. Supp. 1219, 1226 (D.D.C. 1974).^115/ As drafted, the Referral impedes the search for truth by cherry-picking the evidence and presenting (as we demonstrate in the next sections) a deeply misleading portrait of the record.

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

The Referral repeatedly and demonstrably omitted or mischaracterized directly relevant evidence that exonerates the President of the very allegations leveled by the OIC. For example:

The concealment-of-gifts-accusation. The Referral claims that the President and Ms. Lewinsky "discussed" concealing gifts at their December 28 visit, and that the President therefore orchestrated the pick-up of those gifts. The Referral ignores evidence to the contrary, such as:

· Asked if President Clinton discussed concealment with her, Ms. Lewinsky said, "[H]e really didn't -- he didn't really discuss it."

App. at 1122 (8/20/98 grand jury testimony of Ms. Lewinsky). As to who first conceived of the idea of involving Ms. Currie, the Referral omitted the key passage:

· "A JUROR: Now, did you bring up Betty's name or did the President bring up Betty's name?

[MS. LEWINSKY]: I think I brought it up. The President wouldn't have brought up Betty's name because he really didn't -- he didn't really discuss it."

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

Q. . . . Just tell us from moment one how this issue first arose and what you did about it and what Ms. Lewinsky told you.

A. The best I remember it first arose with a conversation. I don't know if it was over the telephone or in person. I don't know. She asked me if I would pick up a box. She said Isikoff had been inquiring about gifts.

Supp. at 582 (5/6/98 grand jury testimony of Ms. Currie) (emphasis added).

The jobs-for-silence-accusation. The allegation that the President obstructed justice by procuring a job for Ms. Lewinsky in exchange for silence or false testimony rests on the Referral's account of Ms. Lewinsky's job search that simply excluded the contradictory evidence. Both Ms. Lewinsky and Mr. Jordan flatly denied that the job assistance had anything at all to do with Ms. Lewinsky's testimony:

"I was never promised a job for my silence." App. at 1161 (8/20/98 grand jury testimony of Ms. Lewinsky).

"As far as I was concerned, [the job and the affidavit] were two very separate matters." Supp. at 1737 (3/5/98 grand jury testimony of Vernon Jordan).

Q. Did [Ms. Lewinsky] ever directly indicate to you that she wanted her job in New York before she could finish [her affidavit] up with Mr. Carter?

A. Unequivocally, no.

Q. . . . Is there anything about the way she acted when speaking with you . . . that, as you sit here now, makes you think that perhaps she was attempting not to finalize whatever she was doing with Mr. Carter until she had a job in New York?

A. Unequivocally, indubitably, no.

Supp. at 1827 (5/5/98 grand jury testimony of Vernon Jordan). And as to the circumstantial evidence, we demonstrate in Part VI.B.2 that the Referral omitted a host of probative and exculpatory facts that negate the existence of any improper quid pro quo.

The influencing-Betty-Currie-accusation. The Referral asserts that the President's January 18 conversation was an attempt to influence Ms. Currie's testimony. But the Referral omitted Ms. Currie's clear testimony that this discussion did no such thing:

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: Did you feel any pressure to agree with your boss?

A: None.

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

Q: You testified with respect to the statements as the President made them, and, in particular, the four statements that we've already discussed. You felt at the time that they were technically accurate? Is that a fair assessment of your testimony?

A: That's a fair assessment.

Q: But you suggested that at the time. Have you changed your opinion about it in retrospect?

A: I have not changed my opinion, no.

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

The false-affidavit-accusation. The OIC accused the President of obstructing justice by suggesting that Ms. Lewinsky file an affidavit that he knew would be false. Ref. at 173. However, the OIC inexplicably never once quoted Ms. Lewinsky's repeated, express denials that anyone had told or encouraged her to lie:

"Neither the Pres[ident] nor Mr. Jordan (or anyone on their behalf) asked or encouraged Ms. L[ewinsky] to lie." App. at 718 (2/1/98 Proffer).

"I think I told [Tripp] that -- you know, at various times the President and Mr. Jordan had told me I had to lie. That wasn't true." App. at 942 (8/6/98 grand jury testimony of Ms. Lewinsky).

"I think because of the public nature of how this investigation has been and what the charges aired, that I would just like to say that no one ever asked me to lie and I was never promised a job for my silence." App. at 1161 (8/20/98 grand jury testimony of Ms. Lewinsky).

"Neither the President nor Jordan ever told Lewinsky that she had to lie." App. at 1398 (7/27/98 FBI Form 302 Interview of Ms. Lewinsky).

"Neither the President nor anyone ever directed Lewinsky to say anything or to lie ..." App. at 1400 (7/27/98 FBI Form 302 Interview of Ms. Lewinsky).

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

To achieve the desired effect, the Referral first misstates the actual question posed. This is the actual exchange:

Q: Mr. President, we haven't yet had the opportunity to ask you about your decision to invoke executive privilege, sir. Why shouldn't the American people see that as an effort to hide something from them?

The President: Look, that's a question that's being answered back home by the people who are responsible to do that. I don't believe I should be discussing that here.

Q. Could you at least tell us why you think the first lady might covered by that privilege, why her conversation might fall under that?

The President All I know is - I saw an article about it in the paper today. I haven't discussed it with the lawyers. I don't know. You should ask someone who does.^116/

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

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

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

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

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

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

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

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

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

The OIC leaked grand jury information hurtful to the President.

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

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

NBC Nightly News (Feb. 4, 1998) (emphasis added). The Referral barely mentions the "Talking Points" and makes no allegation that the President in fact had anything to do with this document.^117/

The flaws in the Referral and the evidentiary record before the Committee are not academic. They reveal in concrete terms the weaknesses of the charges of perjury, obstruction of justice, and abuse of office that have been presented to the Committee. These charges are addressed in detail in the sections that follow.

VI. THE PRESIDENT DID NOT COMMIT PERJURY

Will Rogers is reported to have said of a contemporary: "It's not what he doesn't know that bothers me, it's what he knows for sure that just ain't so." Defending what the President actually said under oath is much easier than defending phantom allegations based on what some claim the President said. In analyzing the allegation of perjury, we urge the Committee and the Congress to focus only on what is actually in the record, not on popular mythology, conventional (but incorrect) wisdom, or political spin.

For example, it has variously been asserted that in the grand jury the President denied that he had a "sexual relationship" with Ms. Lewinsky and that he broadly reaffirmed his earlier deposition testimony. In fact, in the grand jury, the President admitted to an "inappropriate intimate relationship" with Ms. Lewinsky that was physical in nature. In other words, any consideration of charges of perjury requires a focused look at the actual statements at issue. Again, we ask the Committee: Please, do not assume the conventional wisdom. Look, instead, at the actual record.

A. Elements of Perjury

Given the difficulties of testifying under oath with precision, proof of perjury requires meeting a very high standard. A vast range of testimony that is imprecise, unresponsive, vague, and literally truthful, even if it is not completely forthcoming, simply is not perjury. The law is aware of human foibles and shortcomings of memory. Dissatisfaction with the President's answers because they may be narrow, "hair splitting," or formalistic does not constitute grounds for alleging perjury.

Perjury requires proof that a defendant, while under oath, knowingly made a false statement as to material facts.118^/ See, e.g., United States v. Dunnigan, 507 U.S. 87, 94 (1993). The "knowingly" requirement is a high burden: the government must prove the defendant had a subjective awareness of the falsity of his statement at the time he made it. See, e.g., United States v. Dowdy, 479 F.2d 213, 230 (4th Cir. 1973); United States v. Markiewicz, 978 F.2d 786, 811 (2d Cir. 1992). Moreover, it is (of course) clear that a statement must be false in order to constitute perjury. It is equally beyond debate that certain types of answers are not capable of being false and are therefore by definition non-perjurious, no matter how frustrating they may be to the proceeding in which they are given: literally truthful answers that imply facts that are not true, see, e.g., United States v. Bronston, 409 U.S. 352, 358 (1973); truthful answers to questions that are not asked, see, e.g., United States v. Corr, 543 F.2d 1042, 1049 (2d Cir. 1976); and answers that fail to correct misleading impressions, see, e.g., United States v. Earp, 812 F.2d 917, 919 (4th Cir. 1987). The Supreme Court has made abundantly clear that it is not relevant for perjury purposes whether the witness intends his answer to mislead, or indeed intends a "pattern" of answers to mislead, if the answers are truthful or literally truthful.

In explaining the law of perjury, the Supreme Court and numerous lower federal courts have set forth four clear standards. These core principles, discussed below in some detail, must inform the Committee's analysis here. First, the mere fact that recollections differ does not mean one party is committing perjury. Few civil cases arise where testimony about events is not in conflict -- even as to core matters at the heart of a case. When one party wins a case, the other is not routinely indicted for perjury. Common sense and the stringent requirements of perjury law make clear that much more is needed. Second, a perjury conviction under 18 U.S.C. § 1621 cannot rest solely on the testimony of a single witness and, at the very least as a matter of practice, no reasonable prosecutor would bring any kind of perjury case based on the testimony of one witness without independent corroboration -- especially if the witness is immunized, or is of questionable credibility. As the Supreme Court has made clear, a perjury case "ought not to rest entirely upon `an oath against an oath.'" United States v. Weiler, 323 U.S. 606, 608-09 (1945). Third, answers to questions under oath that are literally true but unresponsive to the questions asked do not, as a matter of law, fall under the scope of the federal perjury statute. That is so even if the witness intends to mislead his questioner by his answer and even if the answer is false by "negative implication." And fourth, answers to questions that are fundamentally ambiguous cannot, as a matter of law, be perjurious.

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

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

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

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

MR. STARR: I think her perception was incorrect.

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

MR. STARR: ... we talked at a high level of generality, as I understand it, not in a person-specific way, with respect to what a cooperating witness would do.

REP. DELAHUNT: You realize that Ms. Lewinsky's testimony contradicts you.

MR. STARR: I am aware that there may be other perceptions, but that is what we, in fact, asked.

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

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

In a perjury prosecution under 18 U.S.C. § 1621, the falsity of a statement alleged to be perjurious cannot be established by the testimony of just one witness. This ancient common law rule, referred to as the "two-witness rule," has survived repeated challenges to its legitimacy and has been judicially recognized as the standard of proof for perjury prosecutions brought under § 1621. See, e.g., Weiler v. United States, 323 U.S. 606, 608-610 (1945) (discussing the history and policy rationales of the two-witness rule); United States v. Chaplin, 25 F.3d 1373, 1377-78 (7th Cir. 1994) (two-witness rule applies to perjury prosecutions). The Department of Justice recognizes the applicability of the two-witness rule to perjury prosecutions brought under § 1621. See Department of Justice Manual, 1997 Supplement, at 9-69.265.

The crux of the two-witness rule is that "the falsity of a statement alleged to be perjurious must be established either by the testimony of two independent witnesses, or by one witness and independent corroborating evidence which is inconsistent with the innocence of the accused." Department of Justice Manual, 1997 Supplement, at 9-69.265 (emphasis in original). The second witness must give testimony independent of the first which, if believed, would "prove that what the accused said under oath was false." Id.; United States v. Maultasch, 596 F.2d 19, 25 (2d Cir. 1979). Alternatively, the independent corroborating evidence must be inconsistent with the innocence of the accused and "of a quality to assure that a guilty verdict is solidly founded." Department of Justice Manual, 1997 Supplement, at 9-69.265; United States v. Forrest, 639 F.2d 1224, 1226 (5th Cir. 1981). It is therefore clear that a perjury conviction under § 1621 cannot lie where there is no independent second witness who corroborates the first, or where there is no independent evidence that convincingly contradicts the testimony of the accused.

Section 1623 does not literally incorporate the "two-witness rule," but it is nonetheless clear from the case law that perjury prosecutions under this statute require a high degree of proof, and that prosecutors should not, as a matter of reason and practicality, even try to bring perjury prosecutions based solely on the testimony of a single witness. In Weiler v. United States, 323 U.S. 606, 608-09 (1945), the Supreme Court observed that "[t]he special rule which bars conviction for perjury solely upon the evidence of a single witness is deeply rooted in past centuries." The Court further observed that "equally honest witnesses may well have differing recollections of the same event," and hence "a conviction for perjury ought not to rest entirely upon `an oath against an oath.'" Id. at 609 (emphasis added). Indeed, the common law courts in seventeenth-century England required the testimony of two witnesses as a precondition to a perjury conviction, when the testimony of a single witness was in almost all other cases sufficient. See Chaplin, 25 F.3d at 1377 (citing Wigmore on Evidence § 2040(a) at 359-60 (Chadbourne rev. 1978)). The common law courts actually adopted the two-witness rule from the Court of Star Chamber, which had followed the practice of the ecclesiastical courts of requiring two witnesses in perjury cases. Id. The English rationale for the rule is as resonant today as it was in the seventeenth century: "[I]n all other criminal cases the accused could not testify, and thus one oath for the prosecution was in any case something as against nothing; but on a charge of perjury the accused's oath was always in effect evidence and thus, if but one witness was offered, there would be merely . . . an oath against an oath." Id. And, as noted above, no perjury case should rest merely upon "an oath against an oath." As a practical matter, the less reliable the single witness, the more critically the independent corroboration is required.

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

A third guiding principle is that literal truth, no matter how frustrating it may be, is not perjury. In United States v. Bronston, 409 U.S. 352 (1973), the leading case on the law of perjury, the Supreme Court addressed "whether a witness may be convicted of perjury for an answer, under oath, that is literally true but not responsive to the question asked and arguably misleading by negative implication." Id. at 352. The Court directly answered the question "no." It made absolutely clear that a literally truthful answer cannot constitute perjury, no matter how much the witness may have intended by his answer to mislead.

Bronston involved testimony taken under oath at a bankruptcy hearing. At the hearing, the sole owner of a bankrupt corporation was asked questions about the existence and location of both his personal assets and the assets of his corporation. The owner testified as follows:

Q: Do you have any bank accounts in Swiss banks, Mr. Bronston?

A: No, sir.

Q: Have you ever?

A: The company had an account there for about six months in Zurich.

Q: Have you any nominees who have bank accounts in Swiss banks?

A: No, sir.

Q: Have you ever?

A: No, sir.

Id. at 354. The government later proved that Bronston did in fact have a personal Swiss bank account that was terminated prior to his testimony. The government prosecuted Bronston "on the theory that in order to mislead his questioner, [Bronston] answered the second question with literal truthfulness but unresponsively addressed his answer to the company's assets and not to his own --thereby implying that he had no personal Swiss bank account at the relevant time." Id. at 355.

The Supreme Court unanimously rejected this theory of perjury. It assumed for purposes of its holding that the questions referred to Bronston's personal bank accounts and not his company's assets. Moreover, the Court stated, Bronston's "answer to the crucial question was not responsive," and indeed "an implication in the second answer to the second question [is] that there was never a personal bank account." Id. at 358. The Court went so far as to note that Bronston's answers "were not guileless but were shrewdly calculated to evade." Id. at 361. However, the Court emphatically held that implications alone do not rise to the level of perjury, and that Bronston therefore could not have committed perjury. "[W]e are not dealing with casual conversation and the statute does not make it a criminal act for a witness to willfully state any material matter that implies any material matter that he does not believe to be true." Id. at 357-58. The Court took pains to point out the irrelevance of the witness's intent: "A jury should not be permitted to engage in conjecture whether an unresponsive answer, true and complete on its face, was intended to mislead or divert the examiner." Id. at 359.

The Supreme Court in Bronston provided several rationales for its holding that literally true, non-responsive answers are by definition non-perjurious, regardless of their implications. First, the Court noted that the burden always rests squarely on the interrogator to ask precise questions, and that a witness is under no obligation to assist the interrogator in that task. The Court "perceive[d] no reason why Congress would intend the drastic sanction of a perjury prosecution to cure a testimonial mishap that could readily have been reached with a single additional question by counsel alert -- as every counsel ought to be--to the incongruity of petitioner's unresponsive answer." Id. at 359. Moreover, the Court noted that because of the adversarial process, perjury is an extraordinary and unusual sanction, since "a prosecution for perjury is not the sole, or even the primary safeguard against errant testimony." Id. at 360. The perjury statute cannot be invoked "simply because a wily witness succeeds in derailing the questioner -- so long as the witness speaks the literal truth." Id.

Bronston is just one of scores of cases across the federal circuits that make clear that the definition of perjury must be carefully limited because perjury prosecutions are dangerous to the public interest since they "discourage witnesses from appearing or testifying." Id. at 359.119^/ For instance, in United States v. Earp, 812 F.2d 917 (4th Cir. 1987), the defendant, a member of the Ku Klux Klan, had stood guard during the attempted burning of a cross on the lawn of an interracial couple, and further evidence demonstrated that he had personally engaged in other attempts to burn crosses. During questioning before a grand jury, however, he denied ever having burned crosses on anyone's lawn. He was convicted of perjury, but the United States Court of Appeals for the Fourth Circuit reversed his conviction, because "like the witness in Bronston, [the defendant's] answers were literally true although his second answer was unresponsive." Id. at 919. That is, the defendant had not actually succeeded in his cross-burning attempts, so it was literally true that he had never burned crosses on anyone's lawn. The court noted that "while he no doubt knew full well that he had on that occasion tried to burn a cross, he was not specifically asked either about any attempted cross burnings." Id. Every federal court of appeals in the nation concurs in this reading of Bronston.120^/

D. Fundamentally Ambiguous Questions Cannot Produce Perjurious Answers

A fourth guiding principle is that ambiguous questions cannot produce perjurious answers. When a question or a line of questioning is "fundamentally ambiguous," the answers to the questions posed are insufficient as a matter of law to support a perjury conviction." See, e.g., United States v. Finucan, 708 F.2d 838, 848 (1st Cir. 1983); United States v. Lighte, 782 F.2d 367, 375 (2d Cir. 1986); United States v. Tonelli, 577 F.2d 194, 199 (3d Cir. 1978); United States v. Bell, 623 F.2d 1132, 1337 (5th Cir. 1980); United States v. Wall, 371 F.2d 398, 400 (6th Cir. 1967); United States v. Williams, 552 F.2d 226, 229 (8th Cir. 1977). In other words, when there is more than one way of understanding the meaning of a question, and the witness has answered truthfully as to his understanding, he cannot commit perjury. Many courts have emphasized that "defendants may not be assumed into the penitentiary" by "sustain[ing] a perjury charge based on [an] ambiguous line of questioning." Tonelli, 577 F.2d at 199.

United States v. Lattimore, 127 F. Supp. 405 (D.D.C. 1955), is the key case dealing with ambiguous questions in the perjury context. In Lattimore, a witness was questioned before the Senate Internal Security Subcommittee about his ties to the Communist party. He was asked whether he was a "follower of the Communist line," and whether he had been a "promoter of Communist interests." He answered "no" to both questions, and was subsequently indicted for committing perjury. The United States District Court for the District of Columbia found that the witness could not be indicted on "charges so formless and obscure as those before the Court." Id. at 413. The court held that "`follower of the Communist line' is not a phrase with a meaning about which men of ordinary intellect could agree, nor one which could be used with mutual understanding by a questioner and answerer unless it were defined at the time it were sought and offered as testimony." Id. at 110. As the court explained further:

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

Id. at 109.

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

Similarly, in United States v. Tonelli, 577 F.2d 194 (3d Cir. 1978), the defendant answered negatively a question whether he had "handled any pension fund checks." The government then proved that the defendant had actually handled the transmission of pension fund checks by arranging for others to send, mail, or deliver the checks. The government charged the defendant with perjury. The court held that perjury could not result from the government's ambiguous question. The court explained:

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

Id. at 199-200.

United States v. Bell, 623 F.2d 1132, 1137 (5th Cir. 1980), is yet another example of this doctrine. In Bell, a witness was asked before a grand jury, "Whether personal or business do you have records that are asked for in the subpoena," and the witness answered, "No, sir, I do not." It was later established that the witness's files clearly contained relevant records. Nonetheless, the court held that the question was ambiguous, and therefore incapable of yielding a perjurious answer. The witness interpreted the question to ask whether he had brought the records with him that day, and not whether he had any records anywhere else in the world.121^/

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

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

F. Specific Claims of Perjury

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

1. Civil Deposition of January 17, 1998

a. Nature of Relationship

The primary allegation of perjury arising from President Clinton's deposition testimony of January 17, 1998, appears to be that he lied under oath about the nature of his relationship with Ms. Lewinsky when he denied in that civil case that he had a "sexual affair," a "sexual relationship," or "sexual relations" with Ms. Lewinsky. See Ref. at 131; Schippers Presentation at 25. In the deposition, President Clinton asserted: (1) that he did not have a "sexual affair" with Ms. Lewinsky within the undefined meaning of that term, Dep. at 78; (2) that Ms. Lewinsky was correct in her statement that she did not have a "sexual relationship" with the President within the undefined meaning of that term, id. at 204; and (3) that he did not have "sexual relations" with Ms. Lewinsky as that term was defined by the Jones lawyers and limited by Judge Wright, ibid. The allegation that President Clinton perjured himself with respect to any of these deposition statements is without merit.

First, it is by now more than clear that the undefined terms "sexual affair," "sexual relations" and "sexual relationship" are at best ambiguous, meaning different things to different people, and that President Clinton's belief that the terms refer to sexual intercourse is supported by courts, commentators, and numerous dictionaries -- a point ignored in the Referral and Mr. Schippers' presentation to the Committee despite the obvious problem with premising a perjury claim on such ambiguous terms. As one court has stated, "[i]n common parlance the terms `sexual intercourse' and `sexual relations' are often used interchangeably." J.Y. v. D.A., 381 N.E.2d 1270, 1273 (Ind. App. 1978). Dictionary definitions make the same point. For example,

Webster's Third New International Dictionary (1^st ed. 1981) at 2082, defines "sexual relations" as "coitus;"

Random House Webster's College Dictionary (1^st ed. 1996) at 1229, defines "sexual relations" as "sexual intercourse; coitus;"

Merriam-Webster's Collegiate Dictionary (10^th ed. 1997) at 1074, defines "sexual relations" as "coitus;"

Black's Law Dictionary (Abridged 6^th ed. 1991) at 560, defines "intercourse" as "sexual relations;" and

Random House Compact Unabridged Dictionary (2d ed. 1996) at 1755, defines "sexual relations" as "sexual intercourse; coitus."

The President's understanding of these terms, which is shared even by several common dictionaries, could not possibly support a prosecution for perjury. How would a prosecutor prove these dictionaries "wrong?"^123/

Irrespective of the view that "sexual relations" means intercourse, the evidence is indisputable that this is indeed what President Clinton believed. Perjury requires more than that a third party believes President Clinton was wrong about the meaning of these terms (a point on which the allegation plainly founders); it also requires proof that President Clinton knew he was wrong and intentionally lied about it. But the evidence demonstrates that the President honestly held that belief well before the Jones deposition. The genuineness of President Clinton's beliefs on this subject is even supported by the OIC's account of Ms. Lewinsky's testimony during an interview with the FBI:

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

App. at 1558 (8/19/98 FBI 302 Form Interview of Ms. Lewinsky).

And finally, Ms. Lewinsky herself took the position that her contact with the President did not constitute "sex" and reaffirmed that position even after she had received immunity and began cooperating with the OIC. For example, in one of the conversations surreptitiously taped by Ms. Tripp, Ms. Lewinsky explained to Ms. Tripp that she "didn't have sex" with the President because "[h]aving sex is having intercourse." Supp. at 2664; see also Supp. at 1066 (grand jury testimony of Neysa Erbland stating that Ms. Lewinsky had said that the President and she "didn't have sex"). Ms. Lewinsky reaffirmed this position even after receiving immunity, stating in an FBI interview that "her use of the term `having sex' means having intercourse. . . ." App. at 1558 (8/19/98 FBI 302 Form Interview of Ms. Lewinsky). Likewise, in her original proffer to the OIC, she wrote, "Ms. L[ewinsky] was comfortable signing the affidavit with regard to the `sexual relationship' because she could justify to herself that she and the Pres[ident] did not have sexual intercourse." App. at 718 (2/1/98 Proffer). In short, the evidence supports only the conclusion that the President's responses with respect to these undefined terms were truthful and at worst good faith responses to indisputably ambiguous questions.^124/ The Referral and the Committee have adduced no evidence to the contrary.

Second, the President's statement in his deposition that he had not had "sexual relations" with Ms. Lewinsky as that term was defined by the Jones lawyers and substantially narrowed by Judge Wright also is correct. Neither the OIC in its Referral nor Mr. Schippers in his presentation to the Committee laid out the sequence of events that led to the limited definition of "sexual relations" which was ultimately presented to President Clinton and which he was required to follow. At the deposition, the Jones attorneys presented a broad, three-part definition of the term "sexual relations" to be used by them in the questioning. Judge Wright ruled that two parts of the definition were "too broad" and eliminated them. Dep. at 22. The President, therefore, was presented with the following definition (as he understood it to have been amended by the Court):^125/

Definition of Sexual Relations

For the purposes of this deposition, a person engages in "sexual relations" when the person knowingly engages in or causes -

(1) contact with the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to arouse or gratify the sexual desire of any person;

(2) contact between any part of the person's body or an object and the genitals and anus of another person; or

(3) contact between the genitals or anus of the person and any part of another person's body.

"Contact" means intentional touching, either directly or through clothing.

This definition substantially narrowed the meaning of the term as it was used by the Jones lawyers. It rendered an overly broad definition bizarrely narrow and contorted. But despite that narrowing, and the resulting peculiarity of what was and was not covered, the Jones lawyers chose to stick with it rather than ask direct questions, see Dep. at 23, as they were invited to do by the President's counsel. Dep. at 25. When they asked the President about "sexual relations" with Ms. Lewinsky in the deposition, they did so with explicit reference to this definition. See Dep. at 78 ("And so the record is completely clear, have you ever had sexual relations with Monica Lewinsky, as that term is defined in Deposition Exhibit 1, as modified by the Court?") (emphasis added).

It is plain that this narrow definition did not include certain physical acts -- an interpretation shared by many commentators, journalists, and others. See, e.g., Perjury Hearing of December 1, 1998 (Statement of Professor Stephen A. Saltzburg at 2) ("That definition defined certain forms of sexual contact as sexual relations but, for reasons known only to the Jones lawyers, limited the definition to contact with any person for the purpose of gratification."); MSNBC Internight, August 12, 1998 (Cynthia Alksne) ("[W]hen the definition finally was put before the president, it did not include the receipt of oral sex"); "DeLay Urges a Wait For Starr's Report," The Washington Times (August 31, 1998) ("The definition of sexual relations, used by lawyers for Paula Jones when they questioned the president, was loosely worded and may not have included oral sex"); "Legally Accurate," The National Law Journal (August 31, 1998) ("Given the narrowness of the court-approved definition in [the Jones] case, Mr. Clinton indeed may not have perjured himself back then if, say, he received oral sex but did not reciprocate sexually"). This interpretation may be confusing to some. It may be counter-intuitive. It may lead to bizarre answers. But it certainly was not objectively wrong. And it was not the President's doing.

Moreover, the Jones lawyers had the opportunity to ask questions which would have elicited details about the President's relationship with Ms. Lewinsky but chose not to develop the issue. As an alternative to relying on the definition provided by the Jones lawyers, the President's counsel invited the Jones lawyers to "ask the President what he did, [and] what he didn't do ...." Dep. at 21. The Jones lawyers ignored the invitation and stuck with their definition even as it was limited. As the Supreme Court has explained, "[i]f a witness evades, it is the lawyer's responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination." Bronston v. United States, 409 U.S. 352, 358-59 (1973).^126/

b. Being Alone with Ms. Lewinsky

President Clinton's deposition testimony regarding whether he was alone with Ms. Lewinsky at various times and places does not constitute perjury. The fundamental flaw in the charge is that it is based on a mischaracterization of the President's testimony -- the President did not testify that he was never alone with Ms. Lewinsky.

Both the Starr Referral and Mr. Schippers' presentation to the Committee start from the incorrect premise that the President testified that he was never alone with Ms. Lewinsky. See Ref. at 154 ("[T]he President lied when he said `I don't recall' in response to the question whether he had ever been alone with Ms. Lewinsky.");^127/ Schippers Presentation at 29 ("[T]he President may have given false testimony under oath ... regarding his statement that he could not recall being alone with Monica Lewinsky."). In fact, the President did not deny that he had been alone with Ms. Lewinsky. For example, the President answered "yes" to the question "your testimony is that it was possible, then, that you were alone with her...?". Dep. at 53.^128/

Whatever confusion or incompleteness there may have been in the President's testimony about when and where he was alone with Ms. Lewinsky cannot be charged against the President. The Jones lawyers failed to follow up on incomplete or unresponsive answers. They were free to ask specific follow-up questions about the frequency or locale of any physical contact, but they did not do so. This failure cannot be used to support a charge of perjury. Bronston, 409 U.S. at 360.

c. "Minimizing" Gifts that Were Exchanged

A separate perjury charge is based on the assertion that in his deposition the President "minimized" the number of gifts he exchanged with Ms. Lewinsky. Ref. at 151; Schippers Presentation at 29. Again, the evidence simply does not support this allegation. To start with, even the charge of "minimizing" the number of gifts concedes the only potentially material issue -- the President acknowledged that he did exchange gifts with Ms. Lewinsky. There is not much that is safe from a perjury prosecution if mere "minimization" qualifies for the offense.

As weak as the "minimization" charge is, it is also wrong. A fair reading of the President's deposition testimony makes clear that, when asked about particular gifts, the President honestly stated his recollection of the particular item. See Dep. at 75 ("Q. Do you remember giving her an item that had been purchased from The Black Dog store at Martha's Vineyard? A. I do remember that ...."). Moreover, when the President could not recall the precise items that he had exchanged, he asked the Jones lawyers to tell him so that he could confirm or deny as the facts required.^129/ See ibid.

In essence, this allegation is yet another complaint that President Clinton was not more forthcoming (or that he did not have a more precise memory on these issues), which is plainly not a ground for alleging perjury.

d. Conversations with Ms. Lewinsky About Her Involvement in the Jones Case

Both the Referral and Mr. Schippers' presentation allege perjury in the Jones deposition with respect to President Clinton's conversations with Ms. Lewinsky about her involvement in the Jones case. See Ref. at 160; Schippers Presentation at 32. Specifically, it is alleged that the President committed perjury in his deposition when he failed to (1) acknowledge that he knew that Ms. Lewinsky had been subpoenaed at the time he had last seen and spoken to her; and (2) acknowledge that he had spoken to Ms. Lewinsky about the possibility that she would testify in the Jones case. Ibid. Once again, the charge of false testimony is based on a wholly inaccurate reading of the President's deposition. The President acknowledged that he knew that Ms. Lewinsky had been subpoenaed, that he was not sure when was the last time he had seen and spoken with her (but that it was sometime around Christmas), and that he had discussed with her the possibility that she would have to testify.

(1) The allegation that the President denied knowing that Ms. Lewinsky had been subpoenaed the last time he spoke to her illustrates the problem of taking selected pieces of testimony out of context. Messrs. Starr and Schippers isolate the following exchange in the deposition:

Q. Did she tell you she had been served with a subpoena in this case?

A. No. I don't know if she had been.

Dep. at 68. From this incomplete excerpt, they claim that the President perjured himself by denying that he knew that Ms. Lewinsky had been subpoenaed the last time he had spoken with her. See Ref. at 163.

The charge is unsupported by the evidence. First, the testimony immediately following this exchange demonstrates both that the President was not hiding that he knew Ms. Lewinsky had been subpoenaed by the time of the deposition and that the Jones lawyers were well aware that this was the President's position:

Q. Did anyone other than your attorneys ever tell you that Monica Lewinsky had been served with a subpoena in this case?

A. I don't think so.

...

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

...

Q. Did you talk to Mr. Lindsey about what action, if any, should be taken as a result of her being served with a subpoena?

A. No.

Dep. at 68-70. It is evident from the complete exchange on this subject that the President was not generally denying that he knew that Ms. Lewinsky had been subpoenaed in the Jones case.^130/ The questions that the Jones lawyers were asking the President also make clear that this is what they understood the President's testimony to be.

Second, the President's testimony cannot fairly be read as an express denial of knowledge that Ms. Lewinsky had been subpoenaed the last time he had spoken to her before the deposition. Most importantly, the President was not asked whether he knew that Ms. Lewinsky had been subpoenaed on December 28^th, which was the last time he had seen her. When the President answered the question, "Did she tell you she had been served with a subpoena in this case?", he plainly was not thinking about December 28^th. To the contrary, the President's testimony indicates that he was totally confused about the dates of his last meetings with Ms. Lewinsky, and he made that abundantly clear to the Jones lawyers:

Q. When was the last time you spoke with Monica Lewinsky?

A. I'm trying to remember. Probably sometime before Christmas. She came by to see Betty sometime before Christmas. And she was there talking to her, and I stuck my head out, said hello to her.

Q. Stuck your head out of the Oval Office?

A. Uh-huh, Betty said she was coming by and talked to her, and I said hello to her.

Q. Was that shortly before Christmas or -

A. I'm sorry, I don't remember. Been sometime in December, I think, and I believe -- that may not be the last time. I think she came to one of the, one of the Christmas parties.

Dep. at 68 (emphasis added). His statement that he did not know whether she had been subpoenaed directly followed this confused exchange and was not tied to any particular meeting with her. By that time it is totally unclear what date the answer is addressing.

The Referral ignores this confusion by selectively quoting the President as testifying "that the last time he had spoken to Ms. Lewinsky was in December 1997 ... `probably sometime before Christmas.'" Ref. at 163 (quoting Dep. at 68).^131/ Given his confusion, which the Jones lawyers made no attempt to resolve, it is difficult to know what was being said, much less to label it false and perjurious.

(2) The claim that President Clinton did not acknowledge speaking with Ms. Lewinsky about whether she might have to testify similarly is not a fair or accurate reading of the deposition. In response to the question, "Have you ever talked to Ms. Lewinsky about the possibility that she might have to testify in this lawsuit?", the President's answer did not end with the statement "I'm not sure." Instead, the President continued with the statement "and let me tell you why I'm not sure," at which point he described his recollection of having spoken with Ms. Lewinsky about how Ms. Jones' lawyers and the Rutherford Institute were going to call every woman to whom he had ever talked. Ibid. It is evident the President's answer referred to the time period before Ms. Lewinsky was on a witness list -- i.e., when her participation was still a "possibility" only. Indeed, Ms. Lewinsky confirmed the accuracy of the President's recollection of this conversation in her testimony, a fact that also is missing from the Referral. See App. at 1566 (8/24/98 FBI 302 Form Interview of Ms. Lewinsky) ("LEWINSKY advised CLINTON may have said during this conversation that every woman he had ever spoken to was going to be on the witness list.").

Thus, the President did in fact accurately describe a conversation with Ms. Lewinsky about potential testimony. That the Jones lawyers failed to follow-up with questions that would elicit whether that was the only conversation, or whether there were additional conversations once Ms. Lewinsky was on the witness list and her testimony was no longer a mere possibility, is not perjury. It is simply a confused deposition record that could have been clarified contemporaneously.

e. Conversations with Mr. Jordan About Ms. Lewinsky

The pattern of mischaracterizing the President's deposition testimony to construct a perjury charge is repeated in a final perjury allegation regarding the President's deposition answers to questions about conversations with Mr. Jordan about Ms. Lewinsky. The Referral alleges that the President was "asked during his civil deposition whether he had talked to Mr. Jordan about Ms. Lewinsky's involvement in the Jones case" and that he "stated that he knew Mr. Jordan had talked to Ms. Lewinsky about her move to New York, but stated that he did not recall whether Mr. Jordan had talked to Ms. Lewinsky about her involvement in the Jones case." Ref. at 186; see also Schippers Presentation at 40. The problem with this allegation is that President Clinton was never asked "whether he had talked to Mr. Jordan about Ms. Lewinsky's involvement in the Jones case," and he did not deny doing so.

In support of the charge, the Referral quotes the following exchange from the President's deposition about who told the President that Ms. Lewinsky had been subpoenaed:

Q. Did anyone other than your attorneys ever tell you that Monica Lewinsky had been served with a subpoena in this case?

A. I don't think so.

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

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

Plainly, the President was not testifying that no one other than his attorneys had told him that Ms. Lewinsky had been subpoenaed. The Jones lawyers did not pursue this by asking logical follow-up questions, such as whether, if Mr. Lindsey was the first person were there others, or whether Mr. Jordan had subsequently shared that information with him. The bottom line is that President Clinton did not deny, in the quoted passage or elsewhere, knowing that Mr. Jordan had spoken to Ms. Lewinsky about the Jones matter.

Nor do the other two cited passages of the President's deposition testimony help the OIC's case. In response to a question about whether in the two weeks before January 17 anyone had reported to him that they had had a conversation with Ms. Lewinsky about the Jones case, the President replied "I don't believe so." Dep. at 72. The President was not questioned specifically about whether he had ever spoken to Mr. Jordan or anyone else about Ms. Lewinsky's involvement in the Jones case. The President's response, accordingly, did not rule out all conversations with Mr. Jordan about Ms. Lewinsky's involvement in the case, as the Referral suggests, but only in the two-week period prior to the deposition and only conversations relaying accounts of conversations with Ms. Lewinsky. Even conversations with Mr. Jordan about her involvement in the case would not have been covered. The Referral does not identify any reports to the President about any conversation that Mr. Jordan had with Ms. Lewinsky in that time period -- instead, it recounts only that, ten days before the deposition, Mr. Jordan may have told the President that the affidavit was signed. See Ref. at 187.

Finally, the President's answer to the question whether it had been reported to him that Mr. Jordan had "met with Monica Lewinsky and talked about [the Jones] case," Dep. at 72 (emphasis added), obviously cannot be read to support this charge of perjury. In response to this question, the President acknowledged that he knew that Mr. Jordan and Ms. Lewinsky had met. The President's further response -- that he believed Mr. Jordan met with Ms. Lewinsky to give her advice about her move to New York was fully accurate. Again, the President was not asked whether he was aware that Mr. Jordan had talked to Ms. Lewinsky about her involvement in the Jones case. Since he was not asked the question, it is implausible to suggest that he lied in the answer.

2. Grand Jury Testimony of August 17, 1998

Proponents of impeachment repeatedly contend in the most general terms that President Clinton committed perjury in the grand jury on August 17, 1998. When this allegation is framed in specific terms, it is often based on the false belief that President Clinton denied in the grand jury having had any sexual contact with Ms. Lewinsky. For example, in the Committee's perjury hearing held last week, Chairman Hyde discounted the Referral's charge that President Clinton had lied to the grand jury about the commencement date of his relationship with Ms. Lewinsky and then stated, "I don't rank that up with lying to the grand jury, saying he didn't have a sexual relationship." Remarks of Chairman Hyde at Perjury Hearing of December 1, 1998; see also Statement of Judge Charles Wiggins at 2 ("the President was called as a witness before the grand jury and he repeated his story that he did not have a sexual relationship with Monica Lewinsky. Subsequently the President acknowledged that his story was false or misleading and that he in fact had such a relationship with Ms. Lewinsky.")

These accounts of President Clinton's grand jury testimony are not accurate. In his August 17, 1998 grand jury testimony, President Clinton acknowledged that he had engaged in "inappropriate intimate contact" with Ms. Lewinsky. Section II.C, supra. He also acknowledged that his conduct was "wrong." Ibid. What the President denied in the grand jury was having "sexual relations" with Ms. Lewinsky only as that term was defined by the Jones lawyers and substantially restricted by Judge Wright. He did not go into the details of those encounters because of privacy considerations, although he did testify that they did not involve either sexual intercourse or "sexual relations" as defined at the Jones deposition after Judge Wright struck two-thirds of it. Ms. Lewinsky, on the other hand, was forced by the OIC to describe in graphic detail her recollection of these encounters. See Schippers Presentation at 27.^132/

This simply is not a case of perjury. In addition to the inconsequential subject matter of the allegation -- the precise nature of the admitted physical contact between the President and Ms. Lewinsky -- the factual record would not support a prosecution for perjury. That record is one essentially of "oath against oath," a formula that centuries of common law jurisprudence has rejected as the basis for perjury. As the Supreme Court has stated, "equally honest witnesses may well have differing recollections of the same event," and hence "a conviction for perjury ought not to rest entirely upon `an oath against an oath.'" United States v. Weiler, 323 U.S. 606, 609 (1945); see also Griswold v. Hazard, 141 U.S. 260, 280 (1891) (Harlan, J.) ("The difference in recollection of gentlemen ... often happens, without any reason to suspect that any of them would intentionally deviate from the line of absolute truth."). Mr. Starr admitted in his testimony before the Judiciary Committee on November 19, 1998, that the OIC credited Ms. Lewinsky's testimony only where there was corroboration. Transcript of November 19, 1998 Hearing at 235-36. On the narrow point at issue here, however, there can be no independent corroboration.^133/

In sum, the facts do not support a perjury count based on the President's grand jury testimony. It is hard to imagine how what is at most a difference of recollection over the precise details of the admitted physical contact between President Clinton and Ms. Lewinsky could be considered grounds for a perjury charge, much less grounds for impeachment.

VII. THE PRESIDENT DID NOT OBSTRUCT JUSTICE

A. The Elements of Obstruction of Justice

The term "obstruction of justice" usually refers to violations of 18 U.S.C. § 1503, the "Omnibus Obstruction Provision," which prohibits the intimidation of and retaliation against grand and petit jurors and judicial officers and contains a catch-all clause making it unlawful to "influence, obstruct, or impede the due administration of justice." It may also refer to 18 U.S.C. § 1512, which proscribes intimidating, threatening, or corruptly persuading, through deceptive conduct, a person in connection with an official proceeding.

For a conviction under § 1503, the government must prove that there was a pending judicial proceeding, that the defendant knew of the proceeding, and that the defendant acted "corruptly" with the specific intent to obstruct or interfere with the proceeding or due administration of justice. See, e.g., United States v. Bucey, 876 F.2d 1297, 1314 (7th Cir. 1989); United States v. Smith, 729 F. Supp. 1380, 1383-84 (D.D.C. 1990). Thus, if a defendant is unaware of a pending grand jury proceeding, he cannot be said to have obstructed it in violation of § 1503. See, e.g., United States v. Brown, 688 F.2d 1391, 1400 (9th Cir. 1992). Perhaps more significant is the "acting corruptly" element of the offense. Some courts have defined this term as acting with "evil and wicked purposes," see United States v. Banks, 942 F.2d 1576, 1578 (11th Cir. 1991), but at the very least to "act corruptly" under the statute, a defendant must have acted with the specific intent to obstruct justice. See United States v. Moon, 718 F.2d 1219, 1236 (2d Cir. 1983); United States v. Bashaw, 982 F.2d 168, 170 (6th Cir. 1992); United States v. Anderson, 798 F.2d 919, 928 (7th Cir, 1986); United States v. Rasheed, 663 F.2d 843, 847 (9th Cir. 1981). That is, it is not enough to prove that the defendant knew that a result of his actions might be to impede the administration of justice, if that was not his intent.

It is critical to note which actions cannot fall under the ambit of § 1503. First, false statements or testimony alone cannot sustain a conviction under § 1503. See United States v. Thomas, 916, F.2d 647, 652 (11th Cir. 1990); United States v. Rankin, 870 F.2d 109, 111 (3d Cir. 1989).134^/ Moreover, § 1503 does not apply to a party's concealing or withholding discoverable documents in civil litigation.135^/ Most cases that have found § 1503 applicable to civil cases do not involve the production or withholding of documents. See United States v. London, 714 F.2d 1558 (11th Cir. 1983) (attorney forged court order and attempted to enforce it), cited in Richmark, 730 F. Supp. at 1532; Sneed v. United States, 298 F. 911 (5th Cir. 1924) (influencing juror in civil case); cited in Richmark, 730 F. Supp at 1532. While § 1503 can apply to concealment of subpoenaed documents in a grand jury investigation, the defendant must have knowledge of the pending grand jury investigation, must know that the particular documents are covered by a subpoena, and must willfully conceal or endeavor to conceal them from the grand jury with the specific intent to interfere with its investigation. See United States v. McComb, 744 F.2d 555 (7th Cir. 1984).

Section 1512 specifically applies to "witness tampering." To obtain a conviction under § 1512, the government must prove that a defendant knowingly engaged in intimidation, physical force, threats, misleading conduct, or corrupt persuasion with intent to influence, delay, or prevent testimony or cause any person to withhold objects or documents from an official proceeding. It is clear that a defendant must also be aware of the possibility of a proceeding and his efforts must be aimed specifically at obstructing that proceeding, whether pending or not; § 1512 does not apply to defendants' innocent remarks or other acts unintended to affect a proceeding. See United States v. Wilson, 565 F. Supp. 1416, 1431 (S.D.N.Y. 1983).

Moreover, it is important to define the terms "corruptly persuade" and "misleading conduct," as used in § 1512. The statute itself explains that "corruptly persuades" does not include "conduct which would be misleading conduct but for a lack of a state of mind." 18 U.S.C. § 1515(a)(6). It is also clear from the case law that "misleading conduct" does not cover scenarios where the defendant urged a witness to give false testimony without resorting to coercive or deceptive conduct. See, e.g., United States v. Kulczyk, 931 F.2d 542, 547 (9th Cir. 1991) (no attempt to mislead; witnesses knew defendant was asking them to lie); United States v. King, 762 F.2d 232, 237 (2d Cir. 1985) (defendant who attempts to persuade witness to lie but not to mislead trier of fact does not violate § 1512).

Subornation of perjury is addressed in 18 U.S.C. § 1622. The elements of subornation are that the defendant must have persuaded another to perjure himself, and the witness must have actually committed perjury. See, e.g. United States v. Hairston, 46 F.3d 361, 376 (4th Cir. 1959), rev'd on other grounds, 361 U.S. 529 (1960). If actual perjury does not occur, there is simply no subornation. See id. at 376 (reversing conviction for subornation because of conclusion that, in applying Bronston, witness did not commit perjury due to his literally truthful testimony). Moreover, § 1622 requires that the defendant know that the testimony of witness will be perjurious -- i.e., knowing and willful procurement of false testimony is a key element of subornation of perjury. See Rosen v. NLRB, 735 F.2d 564, 575 n.19 (D.C. Cir. 1984) ("a necessary predicate of the charge of subornation of perjury is the suborner's belief that the testimony sought is in fact false").

B. Specific Claims of Obstruction

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

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

"The President and Ms. Lewinsky met and discussed what should be done with the gifts subpoenaed from Ms. Lewinsky."

Independent Counsel Kenneth Starr 11/19/98 Statement Before the Committee on the Judiciary U.S. House of Representatives at 15.

"[H]e really didn't -- he really didn't discuss it."

Monica Lewinsky's 8/20/98 grand jury testimony. App. at 1122.

The Referral claims that President Clinton endeavored to obstruct justice by engaging in a pattern of activity to conceal evidence, particularly gifts, regarding his relationship with Monica Lewinsky. Ref. at 165. See also Schippers Presentation at 34-35.

The Appendices and Supplements contain a wealth of information contradicting this claim. Upon review, it is clear that the full record simply does not support an obstruction-by-gift-concealment charge at all.

First, among Ms. Lewinsky's ten different accounts of the meeting at which she and the President allegedly "discussed" concealing gifts, the Referral selectively and prejudicially chooses to cite the version most hurtful to the President (without disclosing the existence of other, exculpatory accounts of the same events). Second, the Referral omits other relevant statements by Ms. Lewinsky that would place the OIC's account in a sharply different light. Third, the Referral suppresses uncontested statements made by the President and by Ms. Betty Currie that contradict the OIC's concealment theory. Fourth, the Referral appropriates for itself the role of factfinder and -- by misleading characterizations of testimony -- attempts to deceive the Committee into adopting Ms. Lewinsky's version of events where it appears to conflict with Ms. Currie's version. Finally, the Referral suppresses the OIC's doubts about its own theory -- doubts manifest in grand jury questioning but not acknowledged in the Referral itself.

Two events form the core of the OIC's allegation that the President orchestrated the concealment of gifts he had given Ms. Lewinsky. The first is Ms. Lewinsky's December 28, 1997, early morning meeting with the President. The second is Ms. Currie's receipt of a box of gifts from Ms. Lewinsky, supposedly on the afternoon of that day.

The Referral presents these events in a manner that is grossly one-sided and deeply prejudicial to the President.

a. Ms. Lewinsky's December 28 Meeting with the President

On December 28, 1997, Ms. Lewinsky came to the White House and met with the President to pick up her holiday gifts. According to Ms. Lewinsky, that was the only occasion on which an issue of the gifts' relation to her subpoena was raised. See App. at 1130 (8/20/98 grand jury testimony of Ms. Lewinsky); see also App. at 1338 (8/26/98 deposition of Ms. Lewinsky).

Ms. Lewinsky was asked several times by the OIC about her December 28, 1997, meeting with the President, and in particular about discussions she may have had with the President about gifts she had received from him. In response, Ms. Lewinsky made at least ten distinct statements^136/ during the course of her original proffer, interviews, grand jury testimony and deposition. Although the OIC claims that there was a discussion between Ms. Lewinsky and the President on this subject,^137/ the actual testimony does not support the OIC's contention.

Ms. Lewinsky's statements are set forth below, listed in the order in which they were given, from earliest to latest in time:

1. Proffer (2/1/98): "Ms. L then asked if she should put away (outside her home) the gifts he had given her, or maybe, give them to someone else." App. at 715.

2. Lewinsky 7/27/98 Interview Statement: "LEWINSKY expressed her concern about the gifts that the President had given LEWINSKY and specifically the hat pin that had been subpoenaed by PAULA JONES. The President seemed to know what the JONES subpoena called for in advance and did not seem surprised about the hat pin. The President asked LEWINSKY if she had told anyone about the hat pin and LEWINSKY denied that she had, but may have said that she gave some of the gifts to FRANK CARTER. . . . LEWINSKY asked the President if she should give the gifts to someone and the President replied `I don't know.'" App. at 1395.

3. Lewinsky 8/1/98 Interview Statement: "LEWINSKY said that she was concerned about the gifts that the President had given her and suggested to the President that BETTY CURRIE hold the gifts. The President said something like, `I don't know,' or `I'll think about it.' The President did not tell LEWINSKY what to do with the gifts at that time." App. at 1481.

4. Lewinsky 8/6/98 Grand Jury Testimony: "[A]t some point I said to him, `Well, you know, should I -- maybe I should put the gifts away outside my house somewhere or give them to someone, maybe Betty.' And he sort of said -- I think he responded, `I don't know' or `Let me think about that.' And left that topic." App. at 872.

5. Lewinsky 8/13/97 Interview Statement: "During their December 28, 1997 meeting, CLINTON did not specifically mention which gifts to get rid of." App. at 1549.

6. Lewinsky 8/20/98 Grand Jury Testimony: "It was December 28th and I was there to get my Christmas gifts from him. . . . And we spent maybe about five minutes or so, not very long, talking about the case. And I said to him, `Well do you think' . . . And at one point, I said, `Well, do you think I should -- ` I don't think I said `get rid of,' I said, `But do you think I should put away or maybe give to Betty or give to someone the gifts?' And he -- I don't remember his response. I think it was something like, `I don't know,' or `Hmm,' or -- there really was no response." App. at 1121-22.

7. Lewinsky 8/20/98 Grand Jury Testimony: "A JUROR: Now, did you bring up Betty's name [at the December 28 meeting during which gifts were supposedly discussed] or did the President bring up Betty's name? THE WITNESS: I think I brought it up. The President wouldn't have brought up Betty's name because he really didn't -- he really didn't discuss it . . ." App. at 1122.

8. Lewinsky 8/20/98 Grand Jury Testimony: "A JUROR: You had said that the President had called you initially to come get your Christmas gift, you had gone there, you had a talk, et cetera, and there was no -- you expressed concern, the President really didn't say anything." App. at 1126.

9. Lewinsky 8/24/98 Interview Statement: "LEWINSKY advised that CLINTON was sitting in the rocking chair in the Study. LEWINSKY asked CLINTON what she should do with the gifts CLINTON had given her and he either did not respond or responded `I don't know.' LEWINSKY is not sure exactly what was said, but she is certain that whatever CLINTON said, she did not have a clear image in her mind of what to do next." App. at 1566.

10. Lewinsky 9/3/98 Interview Statement: "On December 28, 1997, in a conversation between LEWINSKY and the President, the hat pin given to LEWINSKY by the President was specifically discussed. They also discussed the general subject of the gifts the President had given Lewinsky. However, they did not discuss other specific gifts called for by the PAULA JONES subpoena. LEWINSKY got the impression that the President knew what was on the subpoena." App. at 1590.

These statements contain certain striking inconsistencies with the version of events presented by the OIC -- that the President and Ms. Lewinsky "met and discussed what should be done with the gifts subpoenaed from Ms. Lewinsky":

In none of the statements did the President initiate a discussion relating to concealment of gifts.

In none of the statements did the President tell Ms. Lewinsky to conceal gifts.

In none of the statements did the President suggest to Ms. Lewinsky that she conceal gifts.

In none of the statements is the President alleged to have mentioned any gift other than a hat pin.

The statements also display numerous internal inconsistencies and anomalies that are significant in light of the charge and that caution against selecting any particular one:

In seven of the ten statements (numbers 1, 5, 6, 7, 8, 9 and 10) the President either did not respond at all to Ms. Lewinsky's concealment concerns or was described by Ms. Lewinsky as having given "no response" or "didn't really say anything" about what to do with the subpoenaed gifts.

In two statements (numbers 6 and 9), Ms. Lewinsky described the President as both responding to her concealment comments ("saying something like `I don't know' or `Hmm,'" 6; "responded `I don't know,'" 9) and as not responding (there really was no response," 6; "he . . . did not respond," 9).

In five of the ten statements (numbers 2, 3, 4 and 6 and 9) the President responded "I don't know" to a Lewinsky suggestion that she give someone the gifts.

In two of the ten statements (numbers 3 and 4), the President was made to appear to contemplate further thought by saying in response to a suggestion of possible action that he will "think about it" or "Let me think about that."

In one statement (number 6), Ms. Lewinsky said that "I don't remember his response" to her suggestion that she conceal gifts.

In Ms. Lewinsky's first statement (the 2/1/98 Proffer), she did not describe the President as having made any response to her suggestion of possible action or as having mentioned Ms. Currie.

In Ms. Lewinsky's final statement (her 9/3/98 interview), she described no statement by the President whatsoever pertaining to any possible action with respect to the gifts.

With all these statements to draw on, the Starr Referral relied on number 4 above as if it were Ms. Lewinsky's only statement on the matter and thus characterized this pivotal conversation as follows:

According to Ms. Lewinsky, she and the President discussed the possibility^138/ of moving some of the gifts out of her possession:

[A]t some point I said to him, "Well, you know, should I -- maybe I should put the gifts away outside my house somewhere or give them to someone, maybe Betty." And he sort of said -- I think he responded "I don't know" or "Let me think about that." And [we] left that topic.

Ref. at 166 (quoting App. at 872 (8/6/98 grand jury testimony of Ms. Lewinsky)). In making the above statement the centerpiece of the President's supposed assent to engage in concealment, the OIC selected one^139/ of only two (of Ms. Lewinsky's ten) accounts in which the President's alleged comments might support the inference that he was even contemplating further thought (though not action) in response to Ms. Lewinsky's suggestion.

In so doing, the Referral failed to inform Congress that, in more than two-thirds of the different accounts given by Ms. Lewinsky, Ms. Lewinsky either described no response by the President at all or described his comment as "no response" or "didn't really say anything."^140/ In other words, to the best of Ms. Lewinsky's recollection he evidenced no intent to give the subject any thought. The OIC also failed to acknowledge that in one of her accounts, Ms. Lewinsky stated that she did not really remember the President's response. The OIC did not tell Congress that in several accounts, Ms. Lewinsky reported that the President both did and did not respond to her suggestion. The OIC did not tell Congress that the only person ever to link Betty Currie's name with the idea of concealment (and that in only three of her ten accounts) in the December 28 conversation was Ms. Lewinsky herself. The OIC did not tell Congress that in none -- not one -- of Ms. Lewinsky's accounts did the President initiate discussion relating to concealment of gifts. The OIC did not tell Congress that in none of Ms. Lewinsky's accounts did the President ask or tell Ms. Lewinsky to conceal gifts. The OIC did not tell Congress that in none of Ms. Lewinsky's accounts does the President suggest to Ms. Lewinsky that she conceal gifts. The OIC did not tell Congress that in only two of Ms. Lewinsky's ten accounts was there even the suggestion that the President wanted even to "think about it." And finally, the OIC did not tell Congress that in Ms. Lewinsky's earliest and latest accounts of the December 28, 1997 meeting, she never mentioned any statement by the President suggesting any concealment of gifts from the Jones subpoena. Instead the OIC simply picked the one account it liked best, misrepresented it, and presented it as though it were the whole truth.

Those omissions and the resulting account of this "concealment" meeting result in a skewed version of events that professional prosecutors would notcondone. Yet the Starr Referral not only presents a distorted picture of the evidence, it recommends that this Committee vote to impeach the President of the United States on this demonstrably thin record.

b. Betty Currie's Supposed Involvement in Concealing Gifts

The other incident said to support the obstruction-by-concealment theory was Ms. Currie's receipt of a box of gifts from Ms. Lewinsky. Again, to support its position the Starr Referral presents a highly selective and deceptively one-sided account of the evidence. That account is distinguished by: (1) minimization of evidence favorable to the President concerning the origin of the idea of picking up gifts; (2) an outright falsehood as to the date of the gift pickup -- a falsehood obviously intended to suggest deep Presidential involvement in the events; and (3) a deceptive attempt to elevate the Referral's theory through misleading and improper bolstering of one witness's credibility.

1) Whether Gifts Were Picked Up at the Suggestion of Ms. Lewinsky or the President

Mr. Starr takes the position that the President told or suggested to Ms. Currie that she contact Ms. Lewinsky and pick up the gifts. Ref. at 167. But the President twice denied ever telling Ms. Currie to contact Ms. Lewinsky about the gifts. App. at 502 (President's 8/17/98 grand jury testimony); App. at 565-66 (same). Ms. Currie herself has repeatedly said that it was Ms. Lewinsky (not the President) who asked her to pick up the gifts. Supp. at 581 (5/6/98 grand jury testimony of Betty Currie); Supp. at 582 (same); Supp. at 706 (7/22/98 grand jury testimony of Betty Currie); Supp. at 531 (1/24/98 FBI Form 302 Interview of Betty Currie). In short, the only two parties who could possibly have direct knowledge of such an instruction by the President have denied it.

Ms. Lewinsky stated that Ms. Currie told her that the President had told her to contact Ms. Lewinsky. See App. at 715 (2/1/98 Proffer): "Ms. Currie called Ms. L later that afternoon and said that the Pres. had told her Ms. L wanted her to hold onto something for her."^141/ But this statement was contradicted by Ms. Currie's repeated statements that Ms. Lewinsky called her and asked her to pick up the gifts because people were asking "questions about stuff she had gotten." Supp. at 557 (1/27/98 grand jury testimony of Ms. Currie). The Referral does acknowledge one occasion on which Ms. Currie contradicted Ms. Lewinsky on this point, see Ref. at 167 (citing Supp. at 557 (1/27/98 grand jury testimony of Ms. Currie)):

Q. Did Ms Lewinsky tell you why she wanted to give you this box of items?

A. I think she was just getting concerned. I think people were asking questions about stuff she had gotten.

But the Referral fails to quote Ms. Currie's repeated contradicting of Ms. Lewinsky on this point. First, in her January 24 interview Ms. Currie said that:

"LEWINSKY called CURRIE and advised she had to return all the gifts CLINTON had given LEWINSKY as there was talk going around about the gifts." Supp. at 531 (1/24/98 FBI 302 Form Interview of Ms. Currie). Then, before the grand jury:

Q. What exactly did Monica say when-

A. The best I remember she said that she wanted me to hold these gifts -- hold this -- she may have said gifts, I'm sure she said gifts, box of gifts -- I don't remember -- because people were asking questions. And I said, "Fine."

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

Q. . . . Just tell us from moment one how this issue first arose and what you did about it and what Ms. Lewinsky told you.

A. The best I remember it first arose with a conversation. I don't know if it was over the telephone or in person. I don't know. She asked me if I would pick up a box. She said Isikoff had been inquiring about gifts.

Supp. at 582 (5/6/98 grand jury testimony of Ms. Currie). This fact -- that Ms. Currie early on and then thereafter repeatedly insisted that Ms. Lewinsky raised the issue of the gifts -- is not to be found in the Referral.

The Referral also omits Ms. Lewinsky's own testimony that it was she, and not the President, who first raised the prospect of Ms. Currie's involvement.

A JUROR: Now, did you bring up Betty's name or did the President bring up Betty's name?

[MS. LEWINSKY]: I think I brought it up. The President wouldn't have brought up Betty's name because he really didn't -- he didn't really discuss it. . . .

App. at 1122 (8/20/98 grand jury testimony of Ms. Lewinsky); see also App. at 1481 (8/1/98 FBI Form 302 Interview of Ms. Lewinsky) ("LEWINSKY . . . suggested to the President that Betty Currie hold the gifts.") This fundamental and important fact -- that Ms. Lewinsky herself testified that the idea of Ms. Currie's involvement originated with Ms. Lewinsky (and not with the President) -- is nowhere to be found in the Referral's obstruction discussion.

Finally, as to whether Ms. Currie ever spoke of gifts to the President after she had picked up the gifts, the President denied ever speaking with Ms. Currie and as to Ms. Currie, she recalled only one circumstance relevant to this issue. In the course of questioning Ms. Currie about a January 21, 1998 telephone call she received from the President, a juror (not the OIC) put the following question to Ms. Currie:

A JUROR: During this conversation with the President, did you discuss the fact that you had a box of Monica's belongings under your bed?

THE WITNESS: I'm sure not.

BY [THE OIC]: Why didn't you tell him that.

A. I didn't see any reason to. . . .

Supp. at 705 (7/22/98 grand jury testimony of Ms. Currie). This exchange, and the fact that Ms. Currie stated her recollection with palpable certainty, are also entirely missing from the Referral.

In view of the foregoing distortions and omissions, no fair-minded factfinder could conclude from the evidence that the President instructed Ms. Currie to retrieve gifts from Ms. Lewinsky.^142/

2) Whether Gifts Were Picked Up on December 28

The Referral implies that the President told Ms. Currie to retrieve the gifts on Sunday, December 28, 1997, Ref. at 166 (and that she in fact retrieved the gifts on December 28), the same day he supposedly discussed the gifts issue at a morning meeting with Ms. Lewinsky. Ref. at 167. The plain purpose of this allegation is to suggest prompt action by the President to effectuate a concealment plan supposedly hatched with Ms. Lewinsky at that morning's visit.

In support of that theory, the Referral makes the following assertion:

According to both Ms. Currie and Ms. Lewinsky, Ms. Currie drove to Ms. Lewinsky's home [to pick up the box of gifts] later on December 28 . . . .

Ref. at 167 & n.237. This assertion -- that "[a]ccording to . . . Ms. Currie" she picked up gifts on December 28 -- is not true. The Referral's (only) authority is page 108 of Ms. Currie's May 6, 1998 grand jury testimony. That page of transcript reads as follows:

A. . . . [108] I drove to her -- outside of her residence and picked up the box.

Q. How many times had you been to her residence before?

A. Twice. I took her home one day after work, but never inside her residence. I just dropped her off in front of the Watergate. And then when I picked up the box. So twice, that I remember, just twice.

Q. Did you go with anyone to pick up the box?

A. It was after work and I was by myself.

Q. So it would be fair to say it was pretty important to pick it up.

A. I wouldn't say that.

Q. And it was the only other time you'd ever been to her apartment.

A. I could have picked it up probably any time, but I was -- she called me and asked me to come by on my way home and pick it up.

Q. And then what did you do with it?

A. Put it under my bed?

Q. What was the occasion when you took Monica home?

A. What was the occasion?

Q. Yes.

A. After one of her meetings. The best I remember, if she was leaving and I was leaving at the same time, I'd offer [109] to give her a ride home.

Supp. at 581 (5/6/98 grand jury testimony of Ms. Currie). Nowhere on that page or anywhere else does Ms. Currie say that she picked up the gifts on December 28.

This was no mere typographical error. For in Ms. Currie's first interview with the OIC, she recalled that Ms. Lewinsky called her to pick up the gifts sometime in December. Supp. at 531 (1/24/98 FBI Form 302 Interview of Ms. Currie). And just a few pages earlier in her grand jury testimony, Ms. Currie told the grand jury that her best estimate was that she had retrieved the gifts "a couple weeks" after Ms. Lewinsky's December 28 visit to the President. Supp. at 581 (5/6/98 grand jury testimony of Ms. Currie). Additionally, in her first (late-January 1998) appearance before the grand jury, Ms. Currie's best recollection was that the gifts were picked up sometime within the previous six months. Supp. at 556-57 (1/27/98 grand jury testimony of Ms. Currie). Finally, Ms. Currie told the grand jury that she picked up the gifts on a workday, Supp. at 582, and December 28 was a Sunday. Although Ms. Currie never pinpointed a date, the record is clear that -- contrary to the Referral's false assertion -- she never placed the date of the gift pickup on December 28.

The Referral's deceptive attempts to bind Ms. Currie to its version of events -- effected by misstatement and omission -- are significant. They are explainable only by a willful attempt to bend the facts to fit the Referral's theory. Other than Ms. Lewinsky's own (as shown below, uncertain) accounts, the notion that the gifts were picked up on December 28 has no foundation in the record.

3) The Referral's Deceptive Attempt to Bolster the Credibility of One Witness to the Detriment of Others Is Improper

The Referral usurps the role of the fact-finder and substitutes its judgment for Congress' by resolving evidentiary conflicts in favor of Ms. Lewinsky's recollection and against Ms. Currie's where that resolution hurts the President. The Referral states that Ms. Currie's memory of the crucial conversation "generally has been hazy and uncertain," Ref. at 170, while Ms. Lewinsky's testimony "is consistent and unequivocal." Ref. at 169. The statement that Ms. Lewinsky's testimony was consistent and unequivocal is just not true. Indeed, Ms. Lewinsky actually told the grand jurors at one point that she could not remember Ms. Currie saying that the President told her to call about the gifts:

A JUROR: At the top of page 7 [of the 2/1/98 Proffer, App. 715], where you say in your proffer that when Ms. Currie called later that afternoon she said, at least I think you mean that she said that the President had told her Ms. L wanted her to hold on to something for her. Do you remember Betty Currie saying that the President had told her to call?

THE WITNESS: Right now. I don't. I don't remember . . . .

App. at 1141 (8/20/98 grand jury testimony of Ms. Lewinsky) (emphasis added). The Referral's assertion to the contrary -- that "Ms. Lewinsky's testimony on the issue is consistent and unequivocal" -- is utterly untrue. Ms. Lewinsky simply did not have the unwavering conviction the Referral attributes to her.

Indeed Ms. Lewinsky's testimony concerning her February 1, 1998 proffer (which was not, as the OIC characterizes it, "testimony," Ref. at 169) was fraught with uncertainty. As Ms. Lewinsky herself told the grand jury:

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

App. at 1141 (8/20/98 grand jury testimony of Ms. Lewinsky) (emphasis added). Yet neither the Referral, nor any of its supporting materials, reflect any effort by the OIC to have Ms. Lewinsky clarify the "things that can be misinterpreted" in her proffer. Nor did the Referral inform the House of Ms. Lewinsky's own doubts about the February 1 proffer.

The Referral then aggravates its own deceptions and omissions still further by twice quoting a statement of Ms. Currie to the effect that "[Ms. Lewinsky] may remember better than I. I don't remember." Ref. at 167, 170. That quotation is thoroughly misleading in view of the foregoing statements by Ms. Lewinsky (omitted from the Referral) which made clear that her memory was certainly no better than Ms. Currie's.

Finally, the OIC's account of the differences in Ms. Currie's and Ms. Lewinsky's recollections is aggravated by another, very curious fact. As the Referral once mentions, and as Ms Currie repeatedly stated, Ms. Lewinsky had said that she "was uncomfortable retaining the gifts" not because the President asked her to conceal them from Paula Jones' lawyers, but "because people were asking questions about the stuff she had gotten." Ref. at 167 and citations in Part VI.B.1.b.1, above. That statement presents a rather different explanation then the one offered up in the Referral. Yet neither the Referral, nor 3183 pages of Appendices, nor 4610 pages of Supplement contain any evidence that Ms. Lewinsky has ever contradicted Ms. Currie's account of that statement. The absence of contradictory evidence is itself a significant piece of evidence supportive of the view that Ms. Currie's recollection is the correct one.

But the importance of this runs much deeper. Notwithstanding that she testified twice before the grand jury, was deposed once, and was interviewed by the OIC at least 18 different times,^143/ Ms. Lewinsky was apparently never asked whether she ever stated to Ms. Currie that people were asking questions about the President's gifts. Indeed, in all the time following Ms. Currie's January 27 testimony, the OIC apparently never asked Ms. Lewinsky to reconcile the basic tensions in the conflicting accounts. Rather than attempting to determine the truth of this important issue, the OIC preferred to leave this crucial difference unexplored and then argue the relative credibility of the witnesses to Congress and conclude without reason that Ms. Lewinsky's recollection "makes more sense." In view of the OIC's statutory duty to provide any "substantial and credible information" pertaining to impeachment, the insidious refusal to elicit direct evidence on this sensitive point is extraordinary -- and wholly unfair.

c. The Referral Suppresses Other Evidence Casting Doubt on Its Concealment-of-Gifts Obstruction Theory

The Referral says, and it is not disputed, that the President gave Ms. Lewinsky a number of gifts during their December 28, 1997 meeting. Ref. at 166. This fact alone obviously undermines the Referral's theory that he sought to conceal gifts to her on that same day. The Referral goes on to say that Ms. Lewinsky was "asked why the President gave her more gifts on December 28 when he understood she was under an obligation to produce gifts in response to the subpoena." Ibid. But the actual question posed was this: "What do you think the President was thinking when he is giving you gifts when there's a subpoena covering the gifts? I mean, does he think in any way, shape or form that you're going to be turning these gifts over?" App. at 886 (8/6/98 grand jury testimony of Ms. Lewinsky).

In response, the Starr Referral inserted Ms. Lewinsky's speculation about why the President may have given her the gifts, quoting from her August 6 testimony, and adding a certain emphasis:

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

Ref. at 166 (quoting App. at 886-87 (8/6/98 grand jury testimony of Ms. Lewinsky) (emphasis added by OIC)).

This explanation of the December 28 gift-giving is severely unfair. First, the addition of the emphasis suggests that the President had explained to Ms. Lewinsky that gifts, including gifts given on December 28, were going to be concealed. There is no support for this, and as we have established above, all the evidence is to the contrary.

Second, the OIC's account relies on Ms. Lewinsky's speculation when the President's own testimony was available. In that testimony, given before the grand jury on August 17, the President -- responding to questions about the December 28 meeting -- stated that "this gift business . . didn't bother me," App. at 496, and that "I wasn't troubled by this gift issue," App. at 497. The President went on to say that he "fe[lt] comfortable giving [Ms. Lewinsky] gifts in the middle of discovery in the Paula Jones case" because "there was no existing improper relationship at that time" and that he "wasn't worried about it [and] thought it was an all right thing to do." App. at 498. The Referral obscures these direct statements in favor of Ms. Lewinsky's speculation.

Strikingly absent from the Referral is any discussion of the fact that, under its own misleading theory, the President was both giving gifts and taking them back on the very same day. The Referral makes no effort to explain this dramatic anomaly and does not convey to Congress any sense of the fact that such behavior is -- and must seem -- very odd under the Referral's theory.

That omission is all the more conspicuous in view of the OIC's questions and comments on this issue during the President's and Ms. Lewinsky's grand jury testimony. Sensing the difficulty for its own theory, the OIC asked: "Mr. President, if your intent was, as you earlier testified, that you didn't want anybody to know about this relationship you had with Ms. Lewinsky, why would you feel comfortable giving her gifts in the middle of discovery in the Paula Jones case?" App. at 498. The President answered that he was not troubled by the gifts because at the time he gave them there was no improper relationship. App. at 498. No mention of this exchange appears in the Referral.

Again, during Ms. Lewinsky's first grand jury appearance the OIC prosecutor remarks: "Although, Ms. Lewinsky, I think what is sort of -- it seems a little odd and, I guess really the grand jurors wanted your impression of it, was on the same day that you're discussing basically getting the gifts to Betty to conceal them, he's giving you a new set of gifts." App. at 887-88 (emphasis added).^144/ And again, no mention is made in the Referral of the fact that the OIC and the grand jurors regarded it as "odd" that there was gift-giving on the same day the President allegedly caused his gifts to be recovered. A fair prosecutor would have acknowledged this "oddity" and reported the President's answers to this "oddity," answers which resolve the apparent "oddity," and undermine the prosecutor's theory. The OIC did neither.

The Referral concludes that "[g]iven his desire to conceal the relationship, it makes no sense that the President would have given Ms. Lewinsky more gifts on the 28^th unless he and Ms. Lewinsky understood that she would not produce all of her gifts in response to her subpoena." Ref. at 171. This statement is directly contrary to the only available evidence touching on this issue -- namely the President's own testimony that he simply was not troubled by the gifts. App. at 494-98. The OIC has suppressed relevant direct evidence and then asked Congress to draw negative inferences from circumstantial theorizing.

Ultimately, the Referral's failure to include or even refer to the President's directly material testimony in the "impeachable acts" discussion of supposed "concealment" of gifts has no legitimate explanation. The obstruction-by-gift-concealment charge rests on an unjustifiable six-prong strategy unworthy of any fair prosecutor. The Referral first presents a highly argumentative and one-sided account of disputed facts. Second, it flatly misrepresents certain key dates and events in an effort to heighten that prejudicial effect. Third, it suppresses numerous facts contradicting the Referral's concealment theory. Fourth, the Referral artificially engineers the impression that one witness is more credible than the other -- in stark defiance of record facts and in the apparent hope that its sophistries would go unnoticed by the factfinder. Fifth, the Referral suggests a false clarity about important evidentiary issues which are in fact fundamentally ambiguous. The Referral's authors clearly chose to leave these ambiguities unexplored where honest investigation would have resolved them. Finally, the Referral suppresses record evidence reflecting its authors' own doubts about the theory advanced.

Impeachment on such distorted "evidence" of obstruction as the Referral presents would be a travesty.

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

a. The Direct Evidence Contradicts the Referral's Jobs -- Obstruction Theory and the Referral Presents a Misleading Picture Based on Carefully Selected Circumstantial Evidence

The OIC alleges that the President "endeavored to obstruct justice by helping [Ms.] Lewinsky obtain a job in New York at a time when she would have been a witness against him were she to tell the truth during the Jones case." Ref. at 181. To support this claim, the OIC has created a wholly misleading chronology of events that omits crucial facts, presents only partial accounts of others, and places artificial weight on selected events occurring in late December 1997 and early January 1998. The OIC's account relies almost exclusively on the testimony of one witness yet conceals that witness' contradictory statements. The effect is to try to create a sense that Ms. Lewinsky's interest in a New York job arose in reaction to her involvement in the Jones suit and that the President's efforts to help her were excessive and performed with intent somehow to buy her silence, when the actual evidence is to the contrary.

There is no direct evidence that the President or Mr. Jordan assisted Ms. Lewinsky with her job search in exchange for silence or false testimony. Indeed, all the direct evidence is to the contrary. As Ms Lewinsky unequivocally stated: "[N]o one ever asked me to lie and I was never promised a job for my silence." App. at 1161 (8/20/98 grand jury testimony of Ms. Lewinsky). Mr. Jordan's testimony was also clear and unequivocal:^145/ "As far as I was concerned, [the job and the affidavit] were two very separate matters." Supp. at 1737 (3/5/98 grand jury testimony of Vernon Jordan).^146/ The Referral must therefore resort to selective citation to circumstantial evidence to try to make its case. But, as we establish in detail below, the circumstantial "evidence" does not support the notion that a job was procured for Ms. Lewinsky in an effort to obstruct justice in the Jones litigation. It supports the direct evidence to the contrary.

The Referral poses the job-search issue as "whether the President's efforts in obtaining a job for Ms. Lewinsky were to influence her testimony or simply to help an ex-intimate without concern for her testimony." Ref. at 185. Mr. Starr acknowledges that there is no direct evidence that the President assisted Ms. Lewinsky in obtaining a job in exchange for her lying or remaining silent. Ref. at 185 n.361. The OIC also acknowledges that the "case" is entirely circumstantial; rests on an interpretation of selected circumstances it describes as "key events." Ref. at 181. The centerpiece of the charge is the notion that the President employed Mr. Vernon Jordan to place Ms. Lewinsky in an out-of-town job so as to induce Ms. Lewinsky either to leave town, to file a false affidavit, or to remain silent in such a way as to obstruct justice in the Jones case.^147/

Here is the Referral's key passage, a chronology manifestly constructed to create a false impression of obstruction:

On January 5, 1998, Ms. Lewinsky declined the United Nations job. On January 7, 1998, Ms. Lewinsky signed the affidavit denying the relationship with President Clinton (she had talked on the phone to the President on January 5 about it). Mr. Jordan informed the President of her action.

The next day, on January 8, 1998, Ms. Lewinsky interviewed with MacAndrews & Forbes, a company recommended by Vernon Jordan. The interview went poorly. Mr. Jordan then called Ronald Perelman, the Chairman of the Board of MacAndrews & Forbes. Mr. Perelman said Ms. Lewinsky should not worry, and that someone would call her back for another interview. Mr. Jordan relayed this message to Ms. Lewinsky, and someone called back that day.

Ms. Lewinsky interviewed again the next morning, and a few hours later received an informal offer for a position. She told Mr. Jordan of the offer, and Mr. Jordan then notified President Clinton with the news: "Mission accomplished."

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

Indeed, closer inspection of the evidence contained in the appendices and supplements gives the lie to the Referral's theory and makes the following facts absolutely clear:

· Ms. Lewinsky's desire to leave Washington arose long before her involvement in the Jones case;

· the President provided Ms. Lewinsky with only modest assistance;

· the job assistance provided by friends and associates of the President was in no way unusual;

· no pressure was applied to obtain Ms. Lewinsky a job;

· there was no timetable for Ms. Lewinsky's job search, let alone any timetable linked to her involvement in the Jones case; and

· none of Ms. Lewinsky's job-searching and job-obtaining measures were in any way linked to her involvement in the Jones case.

When the events leading up to Ms. Lewinsky's job offer are reconstructed in fuller detail,^148/ when the one-sidedness of the Referral's account is recognized, and when its crucial omissions are exposed, it becomes plain that there was no impropriety and no obstruction of justice in connection with her job search. The case for obstruction simply evaporates.

b. A More Complete Narrative of Events

Ms. Lewinsky worked in the White House from late 1995 until early April 1996. In early April, she was advised by Mr. Tim Keating that she was being transferred from the White House to the Pentagon; Mr. Keating told her that she might be able to return to the White House after the November 1996 election. App. at 1503-04 (8/3/98 FBI Form 302 Interview of Ms. Lewinsky). Following the 1996 election, Ms. Lewinsky tried for months throughout 1997 to get a job in the White House or in the Old Executive Office Building. During that period, the President told her that Mr. Bob Nash and later Ms. Marsha Scott were the people who could help her get a job in the White House. App. at 1458 (7/31/98 FBI Form 302 Interview of Ms. Lewinsky). Ms. Lewinsky wrote to and met several times with Ms. Scott in 1997 about a White House job. App. at 1458-59 (7/31/98 FBI Form 302 Interview of Ms. Lewinsky). The President was aware of Ms. Lewinsky's continuing efforts to work in the White House. App. at 564-65 (President's 8/17/98 grand jury testimony). While still hoping for a White House job, Ms. Lewinsky began to think about working in New York. Ultimately, Ms. Lewinsky was never offered another White House job, and when (in early October 1997) it became clear to her that she would not be offered one, she turned her focus entirely to New York.

On July 3, 1997, Ms. Lewinsky notified the President that she was thinking of moving to New York. App. at 1414 (7/29/98 FBI 302 Interview of Ms. Lewinsky). She told him of her interest in a United Nations job and explicitly asked for his help in getting a position in New York. App. at 788 (8/6/98 grand jury testimony of Ms. Lewinsky). Ms. Lewinsky again raised the prospect of moving to New York in a September 2, 1997 e-mail message to a friend. App. at 2811. According to Ms. Lewinsky, by October 6, 1997, she was "mostly resolved to look for a job in the private sector in New York." App. at 1544 (8/13/98 FBI Form 302 Interview of Ms. Lewinsky). On October 9^th or 11^th, Ms. Lewinsky asked the President if Mr. Vernon Jordan might be able to assist her with her New York job search, App. at 822-24 (8/6/98 grand jury testimony of Ms. Lewinsky); 1079 (8/20/98 grand jury testimony of Ms. Lewinsky). The idea of obtaining Mr. Jordan's assistance may have originated with Ms. Tripp. App. at 822-24 (8/6/98 grand jury testimony of Ms. Lewinsky).

Ms. Lewinsky believed that her discussions with the President about a job were "part of her relationship with" the President. App. at 1461 (7/31/98 FBI From 302 Interview). According to Ms. Lewinsky, she prepared a list of jobs she was interested in the private sector in New York. App. at 824 (8/6/98 grand jury testimony of Ms. Lewinsky); App. at 1585. In early November, Ms. Lewinsky met with Mr. Jordan who agreed to help her at that time. App. at 824 (8/6/98 grand jury testimony of Ms. Lewinsky). All of these events took place long before Ms. Lewinsky's name ever appeared on any witness list in the Jones matter. Indeed, it could not be clearer that Ms. Lewinsky's wish to move to New York and her efforts to involve the President and others in that search antedated and were unrelated to the Jones matter.

As to the actual job interviews and offers Ms. Lewinsky later obtained, no relevant circumstances reflect any attempt to obstruct justice. A fuller account of Ms. Lewinsky's job search makes this absolutely plain.

1) The United Nations Job

Ms. Lewinsky interviewed for and was ultimately offered a job at the United Nations. That job interview was arranged by Mr. John Podesta acting at the behest of Ms. Betty Currie. Supp. at 3404 (4/30/98 grand jury testimony of Bill Richardson). Ms. Currie testified that she was acting on her own in undertaking these efforts. Supp. at 592 (5/6/98 grand jury testimony of Betty Currie). In the course of a casual conversation with Ambassador Richardson, Mr. Podesta suggested that Ambassador Richardson interview a former White House employee who was moving to New York. Supp. at 3395 (1/28/98 FBI Form 302 Interview of Bill Richardson). It was not uncommon for Ambassador Richardson to interview persons on a courtesy basis. Supp. at 3418 (4/30/98 grand jury testimony of Bill Richardson. He was impressed with Ms. Lewinsky's resume. Supp. at 3411 (4/30/98 grand jury testimony of Bill Richardson). Ambassador Richardson never spoke to the President about Ms. Lewinsky. He never spoke to Mr. Jordan about Ms. Lewinsky. Supp. at 3422 (4/30/98 grand jury testimony of Bill Richardson). Ambassador Richardson felt no pressure to hire Ms. Lewinsky. Supp. at 3423 (4/30/98 grand jury testimony of Bill Richardson). Ms. Lewinsky was interviewed on October 31, 1997, long before her name appeared on the witness list in the Jones case. Supp. at 3718 (5/27/98 grand jury testimony of Mona Sutphen).

She was offered a job at the U.N. and ultimately refused it. There is no evidence that the job offer was related to the Jones case and no suggestion that she was coerced or even encouraged to take it. Moreover, there is no evidence that the U.N. job interview and subsequent offer were part of any effort to silence Ms. Lewinsky, or induce her to leave Washington, or cause her to lie in connection with the Jones case.

2) Private Sector Efforts

Ms. Lewinsky obtained help in finding a private-sector job from several sources. In late October-early November 1997, Ms. Lewinsky informed her then-boss at the Pentagon, Mr. Kenneth Bacon, that she wanted to seek employment in New York. Supp. at 11 (2/26/98 FBI Form 302 Interview of Kenneth Bacon). This was well before her name appeared on the witness list in the Jones case. She told Mr. Bacon that her mother was moving to New York and that she wanted to work in public relations. Id. Mr. Bacon then had a conversation with Mr. Howard Paster, the Chairman and CEO of Hill & Knowlton about Ms. Lewinsky's job search. Mr. Paster said that Ms. Connie Chung may have been looking for a researcher. Id. On November 24, 1997, Mr. Bacon wrote to Mr. Paster enclosing Ms. Lewinsky's resume and thanking him for his willingness to talk to Ms. Chung about Ms. Lewinsky. Id. Mr. Bacon's involvement reflects several fundamental facts concerning Ms. Lewinsky's search for a New York job: (1) the effort was initiated by her; (2) the effort predated the relevant period in the Jones matter; and 3) the effort proceeded on multiple fronts -- with, as we will see, only very limited involvement by the President.

At the heart of the Referral's obstruction charge is the notion that the President used Mr. Jordan to obtain a job for Ms. Lewinsky in New York in order to silence her or induce her to lie in the Jones case. However, the person who contacted Mr. Jordan on Ms. Lewinsky's behalf was Ms. Currie. Supp. at 592-93 (5/6/98 grand jury testimony of Betty Currie); Supp. at 1704 (3/3/98 grand jury testimony of Vernon Jordan); see also Supp. at 1755 (3/5/98 grand jury testimony of Vernon Jordan). Ms. Currie took an active role with Mr. Jordan. They were old friends, and she felt comfortable approaching him to help Ms. Lewinsky. Supp. at 592-94 (5/6/98 grand jury testimony of Betty Currie).

The Referral says that Mr. Jordan contacted people from three private companies with recommendations for Ms. Lewinsky. Ref. at 93. Those people were Mr. Peter Georgescu, the Chairman and CEO of Young & Rubicam (the parent of Burson-Marsteller); Ms. Ursula Fairbairn, the Executive Vice President of Human Resources at American Express; and Mr. Richard Halperin, the Executive Vice President and Special Counsel at MacAndrews & Forbes, the parent company of Revlon. Ms. Lewinsky applied for positions with all three companies. As the record makes clear, neither the President nor Mr. Jordan put any pressure on these companies to hire Ms. Lewinsky or tried to engineer the timing of her hiring to coincide with activity in the Jones case.

Burson Marsteller. Mr. Jordan telephoned Mr. Georgescu in early December 1997, asking him to take a look at a young White House person for a job. Mr. Jordan did not, in Mr. Georgescu's words, engage in a "sales pitch" about Ms. Lewinsky. Supp. at 1222 (3/25/98 FBI Form 302 Interview of Peter Georgescu). Mr. Georgescu told Mr. Jordan that the company "would take a look at Ms. Lewinsky in the usual way," Supp. at 1219 (1/29/98 FBI Form 302 Interview of Peter. Georgescu), and that his own involvement would be "arm's length," Supp. at 1222 (3/25/98 FBI Form 302 Interview of Peter Georgescu). After Mr. Georgescu set up the initial interview, Ms. Lewinsky would be "on [her] own from that point." Ibid. Ms. Lewinsky then interviewed with a Ms. Celia Berk of Burson-Marsteller. According to Ms. Berk, her company's actions in Ms. Lewinsky's interviewing process were handled "by the book." Supp. at 111 (3/31/98 FBI Form 302 Interview of Celia Berk). Ms. Lewinsky's "recruitment process," she said, "was somewhat accelerated, but it went through the normal stops." Ibid. Burson-Marsteller never offered Ms. Lewinsky a job.

American Express. The person Mr. Jordan spoke with at American Express was Ms. Ursula Fairbairn, the head of Human Resources. Ref. 93. According to Ms Fairbairn, there was nothing unusual for board members or company officers to recommend talented people for work at American Express. Supp. at 1087 (1/29/98 FBI Form 302 Interview of Ursula Fairbairn). Indeed Mr. Jordan had recently made another employment recommendation to Ms. Fairbairn at American Express. Supp. at 1087 (1/29/98 FBI Form 302 Interview of Ursula Fairbairn). Ms. Fairbairn felt that no pressure was exerted by Mr. Jordan. Supp. at 1087 (1/29/98 FBI Form 302 Interview of Ursula Fairbairn).

The person Ms. Lewinsky interviewed with was an American Express official in Washington named Mr. Thomas Schick. Ref. at 95. According to Mr. Schick, he never talked to Mr. Jordan at any time during this process. He also said that he felt absolutely no pressure to hire Ms. Lewinsky. Supp. at 3521 (1/29/98 FBI Form 302 Interview of Thomas Schick). Ms. Lewinsky interviewed with Mr. Schick on December 23, 1997. According to Ms. Lewinsky's account of that interview, she was told that she lacked the qualifications necessary for the position. App. at 1480 (8/1/98 FBI Form 302 Interview of Ms. Lewinsky). Ms. Lewinsky was never offered a job at American Express. Supp. at 1714 (3/3/98 grand jury testimony of Vernon Jordan).

MacAndrews & Forbes/Revlon. The person Mr. Jordan first contacted at MacAndrews & Forbes was an Executive Vice President named Mr. Richard Halperin. Ref. at 93. It was not unusual for Mr. Jordan to call him with an employment recommendation. Supp. at 1281 (1/26/98 FBI Form 302 Interview of Richard Halperin); see also Supp. at 1294 (4/23/98 grand jury testimony of Richard Halperin) (same). In fact, Mr. Jordan had recommended at least three other person besides Ms. Lewinsky to MacAndrews & Forbes. Supp. at 1746-47 (3/5/98 grand jury testimony of Vernon Jordan). On this occasion, Mr. Jordan told Mr. Halperin that Ms. Lewinsky was bright, energetic and enthusiastic and encouraged him to meet with Ms. Lewinsky. Supp. at 1286 (3/27/98 Interview of Richard Halperin). Mr. Halperin did not think there was anything unusual about Mr. Jordan's request. Id. In Mr. Jordan's telephone call, Mr. Halperin testified that Mr. Jordan did not "ask [Halperin] to work on any particular kind of timetable," Supp. at 1294 (4/23/98 grand jury testimony of Richard Halperin), and Mr. Halperin said that "there was no implied time constraint or requirement for fast action." Supp. at 1286 (3/27/98 FBI Form 302 Interview of Richard Halperin).

Ms. Lewinsky interviewed with Mr. Halperin on December 18, 1997, in New York. Supp. at 1282 (1/26/98 FBI Form 302 Interview of Richard Halperin). At the end of the Lewinsky interview, Mr. Halperin thought Ms. Lewinsky would be "shipped to Revlon" for consideration of opportunities there. Supp. at 1287 (3/27/98 FBI Form 302 Interview of Richard Halperin). Earlier that week, Mr. Halperin had sent Ms. Lewinsky's resume to Mr. Jaymie Durnan of MacAndrews & Forbes for his consideration. Ibid.

Mr. Durnan became aware of Ms. Lewinsky in mid-December 1997. Supp. at 1053 (3/27/98 FBI Form 302 Interview of Jaymie Durnan). At that time, he reviewed her resume and decided to interview her after the first of the year. Ibid. (He was going on vacation the last two weeks of December.) Ibid. When he returned from vacation, he had his assistant schedule an interview with Ms. Lewinsky for January 7, 1998, but, because of scheduling problems, he rescheduled the interview for the next day January 8, 1998. Supp. at 1049 (1/26/98 FBI Form 302 Interview of Jaymie Durnan). Mr. Durnan's decision to interview Ms. Lewinsky was made independently of the decision by Mr. Halperin to interview her. Indeed, only when Mr. Durnan interviewed Ms. Lewinsky in January did he discover that she had had a December interview with Mr. Halperin. Ibid.

Ms. Lewinsky interviewed with Mr. Durnan on the morning of January 8^th. Mr. Durnan thought she was impressive for entry level work. Supp. at 1049 (1/26/98 FBI Form 302 Interview of Jaymie Durnan). After that interview, Mr. Durnan concluded that Ms. Lewinsky would have "fit in" at the parent company (MacAndrews & Forbes), but that there was nothing available at the time that matched her interest. He also thought she might be suitable for MacAndrews & Forbes' subsidiary Revlon. Supp. at 1054 (3/27/98 FBI Form 302 Interview of Jaymie Durnan). He decided to send her resume to Revlon. He left a message for Ms. Allyn Seidman (Senior VP of Corporate Communications) at Revlon and forwarded Ms. Lewinsky's resume to her. Supp. at 1049-50 (1/26/98 FBI Form 302 Interview of Jaymie Durnan).

That same day, Mr. Jordan spoke to Mr. Ronald Perelman, CEO of MacAndrews & Forbes, by telephone and mentioned to Mr. Perelman that Ms. Lewinsky had interviewed with MacAndrews & Forbes. However, Mr. Jordan made no specific requests and did not ask Mr. Perelman to intervene. Supp. at 3273 (1/26/98 FBI Form 302 Interview of Ronald Perelman); Supp. at 3276 (3/27/98 FBI Form 302 Interview of Ronald Perelman). Later that day, Mr. Durnan spoke to Mr. Perelman, who mentioned that he had had a call from Mr. Jordan about a job candidate. Mr. Perelman simply told Mr. Durnan "let's see what we can do," and Mr. Perelman later told Mr. Jordan that they would do what they could. Mr. Jordan expressed no time constraint to Mr. Perelman. Ibid.

By the time Mr. Perelman spoke to Mr. Durnan, Mr. Durnan had already passed on Ms. Lewinsky's resume to Ms. Seidman at Revlon. Supp. at 1049-50 (1/26/98 FBI Form 302 Interview of Jaymie Durnan). After speaking with Mr. Perelman, Mr. Durnan actually spoke to Ms. Seidman about Ms. Lewinsky for the first time. Supp. at 1054-55 (3/27/98 FBI Form 302 Interview of Jaymie Durnan). Upon speaking to Ms. Seidman about Ms. Lewinsky, Mr. Durnan did not tell Ms. Seidman that CEO Perelman had expressed an interest in Lewinsky. Supp. at 1055 (3/27/98 FBI Form 302 Interview of Jaymie Durnan). Rather, he simply told Ms. Seidman that if she liked Ms. Lewinsky, she should hire her. Supp. at 1050 (1/26/98 FBI Form 302 Interview of Jaymie Durnan).

According to Mr. Durnan, Mr. Perelman never said or implied that Ms. Lewinsky had to be hired. Indeed, Mr. Durnan concluded that Ms Lewinsky's hiring was not mandatory. Supp. at 1055 (3/27/98 FBI Form 302 Interview of Jaymie Durnan). According to Ms. Seidman, Mr. Durnan told Ms. Seidman that he thought she should interview Ms. Lewinsky because he thought she was a good candidate. Supp. at 3634 (4/23/98 grand jury testimony of Allyn Seidman). In fact, there is nothing in the record to suggest that Ms. Seidman even knew that Mr. Perelman had any interest at all in Ms. Lewinsky. Supp. at 3643 (4/23/98 grand jury testimony of Allyn Seidman). And there's no evidence that Mr. Perelman instructed or suggested to Ms. Seidman that she conduct that interview. Supp. at 3642 (4/23/98 grand jury testimony of Allyn Seidman). Having seen his name in Ms. Lewinsky's application materials, Ms. Seidman was aware that Ms. Lewinsky had some connection with Mr. Jordan, but there is no evidence that Ms. Seidman was aware of Mr. Jordan's January 8^th call to Mr. Perelman. Supp. at 3643 (4/23/98 grand jury testimony of Allyn Seidman).

In fact, the next day when Ms. Seidman interviewed Ms. Lewinsky, she liked her so well she decided to hire her that very day. Supp. at 3643 (4/23/98 grand jury testimony of Allyn Seidman). And when Ms. Seidman decided to hire Ms. Lewinsky, there is no evidence that Mr. Perelman or Mr. Durnan or Mr. Halperin told her to do that. Supp. at 3643 (4/23/98 grand jury testimony of Allyn Seidman). The decision to hire Ms. Lewinsky was made by Ms. Seidman completely unaware of Mr. Jordan's January 8 telephone call.

c. The Referral Falsely Suggests Obstruction by Suppressing Crucial Facts

As the foregoing narrative establishes, there was a great deal more to Ms. Lewinsky's job search that the Referral acknowledges. Indeed, the events of December and January (upon which the Referral's obstruction theory places such reliance) assume quite a different cast when the details are filled in. It becomes clear that the Referral has completely suppressed a host of pertinent facts, every one of them relevant to the question whether Ms. Lewinsky's job was procured at a crucial time in the Jones case in exchange for a false affidavit or to buy her silence. Among those set forth in the above narrative, those omitted facts include the following:

• that Ms. Lewinsky believed that her discussions with the President about a job were "part of her relationship with" the President. App. at 1461 (7/31/98 FBI From 302 Interview).
• that Ms. Lewinsky raised the prospect of moving to New York in a September 2, 1997 e-mail message to a friend. App. at 2811;
• that the idea of obtaining Mr. Jordan's assistance may have originated with Ms. Tripp. App. at 822-24 (8/6/98 grand jury testimony of Ms. Lewinsky);
• that Ms. Lewinsky was simultaneously pursuing New York jobs through avenues other than the President and his associates, Supp. at 11 (2/26/98 FBI Form 302 Interview of Kenneth Bacon);
• that those efforts occurred well before her name appeared on the witness list in the Jones case, Supp. at 11 (2/26/98 FBI Form 302 Interview of Kenneth Bacon);
• that Mr. Jordan put no pressure on Mr. Peter Georgescu of Young & Rubicam/Burson Marsteller and that Mr. Georgescu told Mr. Jordan that the company "would take a look at Ms. Lewinsky in the usual way." Supp. at 1219 (1/29/98 FBI Form 302 Interview of Peter Georgescu), that Mr. Georgescu's involvement would be "arm's length," and that after he set up the initial interview, Ms. Lewinsky would be "on [her] own from that point," Supp. at 1222 (3/25/98 FBI Form 302 Interview of Peter Georgescu);
• that Ms. Lewinsky's interview with a Ms. Celia Berk of Burson-Marsteller was handled "by the book", Supp. at 111 (3/31/98 FBI Form 302 Interview of Celia Berk), and that it "went through the normal stops." Ibid.;
• that Burson-Marsteller never offered Ms. Lewinsky a job;
• that Ms. Lewinsky's initial contact with American Express was not extraordinary because according to Ms. Ursula Fairbairn, there was nothing unusual for board members or company officers to recommend talented people for work at American Express, Supp. at 1087 (1/29/98 FBI Form 302 Interview of Ursula Fairbairn);
• that Mr. Jordan had recently made another employment recommendation to Ms. Fairbairn at American Express, Supp. at 1087 (1/29/98 FBI Form 302 Interview of Ursula Fairbairn);
• that Ms. Fairbairn felt that no pressure was exerted by Mr. Jordan, Supp. at 1087 (1/29/98 FBI Form 302 Interview of Ursula Fairbairn);
• that the person Ms. Lewinsky interviewed with at American Express, an official named Mr. Thomas Schick, never talked to Mr. Jordan at any time during this process, Supp. at 3521 (1/29/98 FBI Form 302 Interview of Thomas Schick);
• that Mr. Schick stated that he felt absolutely no pressure to hire Ms. Lewinsky, Supp. at 3521 (1/29/98 FBI Form 302 Interview of Thomas Schick);
• that during Ms. Lewinsky's interview with Mr. Schick on December 23, 1997, she was told that she lacked the qualifications necessary for the position, App. 1480 (8/1/98 FBI Form 302 Interview of Ms. Lewinsky);
• that Ms. Lewinsky was never offered a job at American Express;
• that the person Mr. Jordan first contacted at MacAndrews & Forbes/Revlon was an Executive Vice President named Mr. Richard Halperin who said that it was not unusual for Mr. Jordan to call him with an employment recommendation, Supp. at 1281 (1/26/98 FBI Form 302 Interview of Richard Halperin), and that he did not think there was anything unusual about Mr. Jordan's request, Supp. at 1286 (3/27/98 FBI Form 302 Interview of Richard Halperin);
• that in Mr. Jordan's call to Mr. Halperin, Mr. Jordan did not "ask [Halperin] to work on any particular kind of timetable," Supp. at 1294 (4/23/98 grand jury testimony of Richard Halperin), and that "there was no implied time constraint or requirement for fast action," Supp. at 1286 (3/27/98 FBI Form 302 Interview of Richard Halperin);
• that Ms. Lewinsky's interview with Mr. Halperin was scheduled for December 18, 1997 in New York at her request, Supp. at 1282 (1/26/98 FBI Form 302 Interview of Richard Halperin);
• that earlier that week, Mr. Halperin, with no input from Mr. Jordan or MacAndrews and Forbes CEO Ronald Perelman, had sent Ms. Lewinsky's resume to Jaymie Durnan for his consideration, Ibid.;
• that Mr. Durnan became aware of Ms. Lewinsky in mid-December 1997, Supp. at 1053 (3/27/98 FBI Form 302 Interview of Jaymie Durnan), and that at that time, he reviewed her resume and decided to interview her after the first of the year, Ibid.;
• that when Mr. Durnan returned from vacation, he had his assistant schedule an interview with Ms. Lewinsky for January 7, 1998, but, because of scheduling problems, he rescheduled the interview for the next day January 8,1998, Supp. at 1049 (1/26/98 FBI Form 302 Interview of Jaymie Durnan);
• that Mr. Durnan's decision to interview Ms. Lewinsky was made independently of the decision by Mr. Halperin to interview her;
• that when Ms. Lewinsky interviewed with Mr. Durnan on the morning of January 8^th, Mr. Durnan thought she was impressive for entry level work, Supp. at 1049 (1/26/98 FBI Form 302 Interview of Jaymie Durnan);
• that Mr. Durnan concluded that Ms. Lewinsky would have "fit in" at the parent company (MacAndrews & Forbes Holdings) but that there was nothing available at the time that matched her interest and so, for that reason, he referred her to Revlon, thinking she might be suitable for that company, Supp. at 1054 (3/27/98 FBI Form 302 Interview of Jaymie Durnan). He decided to send her resume to Revlon;
• that, as the Referral makes so much of, Mr. Jordan did speak to CEO Ronald Perelman on January 8, 1998, but that Mr. Jordan made no specific requests and did not ask Mr. Perelman to intervene, Supp. at 3273 (1/26/98 FBI Form 302 Interview of Ronald Perelman); Supp. at 3276 (3/27/98 FBI Form 302 Interview of Ronald Perelman);
• that in that call, Mr. Jordan did not say that there was any time constraint involved in considering Ms. Lewinsky for a job, Supp. at 3276 (3/27/98 FBI Form 302 Interview of Ronald Perelman);
• that on that same day, Mr. Perelman spoke to Mr. Durnan about Ms. Lewinsky, but he simply told Mr. Durnan "let's see what we can do," Ibid., and later told Mr. Jordan only that they would do what they could, Ibid.;
• that at the time Mr. Perelman spoke to Mr. Durnan, Mr. Durnan had already passed Ms. Lewinsky's resume over to Ms. Allyn Seidman (Senior VP Corporate Communications) at Revlon, Supp. at 1049-50 (1/26/98 FBI Form 302 Interview of Jaymie Durnan);
• that upon first speaking to Ms. Seidman about Ms. Lewinsky, Mr. Durnan did not tell Ms. Seidman that CEO Perelman had expressed an interest in Lewinsky. Supp. at 1055 (3/27/98 FBI Form 302 Interview of Jaymie Durnan). Rather, he simply told Ms. Seidman that if she liked ML, she should hire her, Supp. at 1050 (1/26/98 FBI Form 302 Interview of Jaymie Durnan);
• that Mr. Perelman never said or implied that Ms. Lewinsky had to be hired and that Mr. Durnan concluded that Ms Lewinsky's hiring was not mandatory, Supp. at 1055 (3/27/98 FBI Form 302 Interview of Jaymie Durnan);
• that according to Ms. Seidman, Mr. Durnan told Ms. Seidman that he thought she should interview Ms. Lewinsky because he thought she was a good candidate, Supp. at 3634 (4/23/98 grand jury testimony of Allyn Seidman);
• that according to Ms. Seidman, when she interviewed Ms. Lewinsky, she liked her a great deal and so decided to hire her that very day, Supp. at 3643 (4/23/98 grand jury testimony of Allyn Seidman);
• and that when Ms. Seidman decided to hire Ms. Lewinsky, there is no evidence that Mr. Perelman or Mr. Durnan or Mr. Halperin told her to do that, Supp. at 3643 (4/23/98 grand jury testimony of Allyn Seidman).

Every one of the foregoing facts is relevant to the case for obstruction of justice. Every one of them suggests that there was no obstruction. And every one of them is missing from the Referral.

d. The Referral Omits Ms. Lewinsky's Own Statement of Her Reason for Seeking the President's Help in Obtaining A New York Job

Ms. Lewinsky expressly told the OIC that her principal reason for moving to New York was her understanding -- growing throughout 1997 and confirmed on October 6, 1997 -- that she would never work in the White House again:

"LEWINSKY advised that the main reason she looked for a job in New York was because TRIPP said that "KATE at NSC" said LEWINSKY would never get a job in the White House . . ." LEWINSKY advised TRIPP told LEWINSKY this in an October 6, 1997 telephone call." App. at 1419-20 (7/29/98 FBI Form 302 Interview of Ms. Lewinsky).

Despite the fact that Ms. Lewinsky stated that this was her "main reason for look[ing] for a job in New York," that statement is nowhere to be found in the Referral. And despite the fact that she apparently reached this decision on October 6, 1997, that fact too is not part of the Referral's chronology of "key events." These two facts sharply undermine the OIC's insistence that the President's assistance to Ms. Lewinsky in obtaining a job in New York was motivated by an intent to obstruct justice in the Jones case's December-January discovery proceedings, but they are missing from the Referral.

e. The Referral Leaves Out Direct Evidence Contradicting the Notion that Ms. Lewinsky's Job Was Procured in Exchange for Silence or for a False Affidavit

The OIC's chronology of key events plainly intends to suggest that Ms. Lewinsky's Jones affidavit was signed in exchange for a New York job. What the chronology omits are the following statements made by Ms. Lewinsky showing that there simply was no job-for-affidavit deal of any kind:

"[t]here was no agreement with the President, JORDAN, or anyone else that LEWINSKY had to sign the Jones affidavit before getting a job in New York. LEWINSKY never demanded a job from JORDAN in return for a favorable affidavit. Neither the President nor JORDAN ever told LEWINSKY that she had to lie." App. at 1398 (7/27/98 FBI Form 302 Interview of Ms. Lewinsky);

and that the only person who suggested that she sign the affidavit in exchange for a job was Ms. Tripp:

"TRIPP told LEWINSKY not to sign the affidavit until LEWINSKY had a job." App. at 1493 (8/2/98 FBI Form 302 Interview of Ms. Lewinsky);

Ms. Tripp made Ms. Lewinsky promise her not to sign an affidavit without first telling Jordan "no job, no affidavit." App. at 900 (8/6/98 grand jury testimony of Ms. Lewinsky);

Ms. Tripp said to Ms. Lewinsky: "Monica, promise me you won't sign the affidavit until you get the job. Tell Vernon you won't sign the affidavit until you get the job because if you sign the affidavit before you get the job they're never going to give you the job." App. at 902 (8/6/98 grand jury testimony of Ms. Lewinsky);

Ms. Lewinsky reiterated that, "as I mentioned earlier, she [Tripp] made me promise her that I wouldn't sign the affidavit until I got the job." App. at 933 (8/6/98 grand jury testimony of Ms. Lewinsky);

"I [Ms. Lewinsky] told Mr. Jordan I wouldn't sign the affidavit until I got a job. That was definitely a lie, based on something Linda had made me promise her on January 9^th." App. at 1134 (8/20/98 grand jury testimony of Ms. Lewinsky).

Five distinct statements by Ms. Lewinsky make Ms. Tripp the sole source of the job-for-affidavit notion which the OIC holds out as the heart of the obstruction case. Ms. Lewinsky's recitation of Ms. Tripp's statements are the only direct evidence contained in the appendices bearing on that idea. Yet these statements are nowhere to be found in the Referral.

f. The Referral Suppresses Directly Exculpatory Statements of Ms. Lewinsky

Finally, the OIC's chronology of key events fails to include the following three statements of Ms. Lewinsky bearing directly on the core of this issue. The first was made in Ms. Lewinsky's original proffer on February 1, 1998:

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

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

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

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

Q. Monica, is there anything that you would like to add to your prior testimony . . . anything that you think needs to be amplified on or clarified?

A. . . . I would just like to say that no one ever asked me to lie and I was never promised a job for my silence.

App. at 1161 (8/20/98 grand jury testimony of Ms. Lewinsky).

From initial proffer to the last minutes of her grand jury appearance, the testimony of Ms. Lewinsky (the OIC's principal witness) has been clear and consistent on this obstruction issue: she was never asked or encouraged to lie or promised a job for silence or for a favorable affidavit.

g. Conclusion

There was no obstruction of justice in connection with Ms. Lewinsky's job search. That search was undertaken long before her involvement in the Jones case was known to anyone. It involved individuals other than the President and his friends. It resulted in several dead ends. It was not conducted according to any timetable, explicit or tacit. It was completed without pressure of any kind and without reference to the Jones case.

The Referral's insinuations to the contrary are just that. When the omissions and falsely suggestive juxtapositions are examined, the truth becomes clear: The jobs-based obstruction charge lacks even the most basic circumstantial support.

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

The Committee appears to be considering an article of impeachment concerning the assertion in the Referral that President Clinton and Ms. Lewinsky had an understanding or agreement that they would lie under oath in the Jones case about their relationship. Ref. at 173; see also Schippers Presentation at 13 ("the two agreed that they would employ the same cover story in the Jones case"). Both the Starr Referral and the Majority's presentation simply ignore the fact that neither Ms. Lewinsky nor the President testified that they had any such agreement regarding their testimony in the Jones case. To the contrary, Ms. Lewinsky stated repeatedly that she was neither asked nor encouraged to lie, by the President or anyone else on his behalf. And Ms. Lewinsky never testified that the President ever discussed with her in any way the substance or content of his own testimony. There simply was no such agreement, and neither the OIC nor the majority have cited any testimony by either of the supposed conspirators that supports one. This allegation of obstruction of justice attempts to rest solely on the shaky basis that the President and Ms. Lewinsky attempted to conceal the improper nature of their relationship while it was on-going.

In the Referral, Mr. Starr inexplicably never once quotes Ms. Lewinsky's repeated, express denials that anyone had told her to lie in the Jones case and therefore does not even attempt to reconcile them with his theory of obstruction:

"Neither the Pres[ident] nor Mr. Jordan (or anyone on their behalf) asked or encouraged Ms. L[ewinsky] to lie." App. at 718 (2/1/98 Proffer).

"I think I told [Tripp] that -- you know at various times the President and Mr. Jordan had told me I had to lie. That wasn't true." App. at 942 (Ms. Lewinsky's 8/6/98 grand jury testimony).

"I think because of the public nature of how this investigation has been and what the charges aired, that I would just like to say that no one ever asked me to lie and I was never promised a job for my silence." App. at 1161 (Ms. Lewinsky's 8/20/98 grand jury testimony).

"Neither the President nor Jordan ever told Lewinsky that she had to lie." App. at 1398 (7/27/98 FBI Form 302 Interview of Ms. Lewinsky).

"Neither the President nor anyone ever directed Lewinsky to say anything or to lie ..." App. at 1400 (7/27/98 FBI Form 302 Interview of Ms. Lewinsky).

The Referral alleges that during the course of their admittedly improper relationship, the President and Ms. Lewinsky concealed the nature of their relationship from others. This is hardly a remarkable proposition. The use of "cover stories" to conceal such a relationship, apart from any proceeding, is, however unpraiseworthy, not unusual and certainly not an obstruction of justice. Ms. Lewinsky's explicit testimony clearly indicates that the conversations she said she had with the President about denying the relationship had occurred long before her involvement in the Jones case. The following exchange occurred between Ms. Lewinsky and a grand juror:

Q: Is it possible that you had these discussions [about denying the relationship] after you learned that you were a witness in the Paula Jones case?

A: I don't believe so. No.

Q: Can you exclude that possibility?

A: I pretty much can....

App. at 1119 (8/20/98 grand jury testimony of Ms. Lewinsky).

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

Q. And in that conversation, or in any conversation in which you informed her she was on the witness list, did you tell her, you know, you can always say that you were coming to see Betty or bringing me letters? Did you tell her anything like that?

A. I don't remember. She was coming to see Betty. I can tell you this. I absolutely never asked her to lie.

App. at 568. The President testified that he and Ms. Lewinsky "might have talked about what to do in a non-legal context at some point in the past," but that he had no specific memory of that conversation. App. at 569.

Even if that conversation did take place, neither of those two ambiguous statements would be false, and neither statement was ever made by Ms. Lewinsky in the Jones case. Ms. Lewinsky stated on several occasions that the so-called "cover stories" were not false. In her handwritten proffer, Ms. Lewinsky stated that the President told her if anyone asked her about her visits to the Oval Office, that she could say "she was bringing him letters (when she worked in Legislative Affairs) or visiting Betty Currie (after she left the White House)." App. at 709 (2/1/98 Proffer). Ms. Lewinsky expressly told the OIC: "There is truth to both of these statements." App. at 709 (2/1/98 Proffer) (emphasis added). Ms. Lewinsky also said that this conversation took place "prior to the subpoena in the Paula Jones case." App. at 718 (2/1/98 Proffer) (emphasis added). Ms. Lewinsky alleged that the President mentioned these explanations again after the President told her she was on the witness list and reiterated that "[n]either of those statements [was] untrue." App. at 712 (2/1/98 Proffer) (emphasis added). Ms. Lewinsky also stated in her proffer that "[t]o the best of Ms. L's memory, she does not believe they discussed the content of any deposition that Ms. L might be involved in at a later date." App. at 712 (2/1/98 Proffer).

Ms. Lewinsky testified to the grand jury that she did bring papers to the Oval Office and that on some occasions, she visited the Oval Office only to see Ms. Currie:

Q: Did you actually bring [the President] papers at all?

A: Yes.

Q: All right. And tell us a little about that.

A: It varied. Sometimes it was just actual copies of letters. . . .

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

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

App. at 775 (8/6/98 grand jury testimony of Ms. Lewinsky).

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

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

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

The President's testimony overwhelmingly indicates that he had no intention that Ms. Lewinsky file a false affidavit -- and no testimony to the contrary has been presented. No fewer than eight times in his testimony to the grand jury, the President explained that he thought she could and would execute a truthful affidavit that would establish she was not relevant to the Jones case:

"Q: Did you talk with Ms. Lewinsky about what she meant to write in her affidavit?

A: I didn't talk to her about her definition. I did not know what was in this affidavit before it was filled out specifically. I did not know what words were used specifically before it was filled out, or what meaning she gave to them. But I'm just telling you that it's certainly true what she says here, that we didn't have -- there was no employment, no benefit in exchange, there was nothing having to do with sexual harassment. And if she defined sexual relationship in the way that I think most Americans do, meaning intercourse, then she told the truth." App. at 474.

"You know, I believed then, I believe now, that Monica Lewinsky could have sworn out an honest affidavit, that under reasonable circumstances, and without the benefit of what Linda Tripp did to her, would have given her a chance not to be a witness in this case." App. at 521.

"I believed then, I believe today, that she could execute an affidavit which, under reasonable circumstances with fair-minded, non-politically oriented people, would result in her being relieved of the burden to be put through the kind of testimony that, thanks to Linda Tripp's work with you and with the Jones lawyers, she would have been put through. I don't think that's dishonest, I don't think that's illegal." App. at 529.

"But I also will tell you that I felt quite comfortable that she could have executed a truthful affidavit, which would not have disclosed the embarrassing details of the relationship that we had had, which had been over for many, many months by the time this incident occurred." App. at 568-69.

"I said I thought this could be a truthful affidavit. And when I read it, since that's the way I would define it, since -- keep in mind, she was not, she was not bound by this sexual relations definition, which is highly unusual; I think anybody would admit that. When she used a different term, sexual relationship, if she meant by that what most people meant by it, then that is not an untruthful statement." App. at 474-75.

"I believe that the common understanding of the term, if you say two people are having a sexual relationship, most people believe that includes intercourse. So, if that's what Ms. Lewinsky thought, then this is a truthful affidavit. I don't know what was in her mind. But if that's what she thought, the affidavit is true." App. at 475.

"Q: Did you tell her to tell the truth?

A: Well, I think the implication was she would tell the truth. I've already told you that I felt strongly that she could issue, that she could execute an affidavit that would be factually truthful, that might get her out of having to testify. Now, it obviously wouldn't if the Jones people knew this, because they knew that if they could get this and leak it, it would serve their larger purposes, even if the judge ruled that she couldn't be a witness in the case. The judge later ruled she wouldn't be a witness in the case. The judge later ruled the case had no merit.

So, I knew that. And did I hope she'd be able to get out of testifying on an affidavit? Absolutely. Did I want her to execute a false affidavit? No, I did not." App. at 571.

"I believe at the time that she filled out this affidavit, if she believed that the definition of sexual relationship was two people having intercourse, then this is accurate. And I believe that is the definition that most ordinary Americans would give it.

If you said Jane and Harry have a sexual relationship, and you're not talking about people being drawn into a lawsuit and being given definitions, and then a great effort to trick them in some way, but you are just talking about people in ordinary conversations, I'll bet the grand jurors, if they were talking about two people they know, and said they have a sexual relationship, they meant they were sleeping together; they meant they were having intercourse together." App. at 473.

There is simply no evidence that contradicts the President's stated intention that the affidavit be limited but truthful. In other words, there is simply no evidence that the President had any "corrupt" intent, which is a requisite element of obstruction of justice.

Ms. Lewinsky's repeated statements that she was not asked or encouraged to lie similarly negate the allegation that the President asked or encouraged her to file a false affidavit, and yet Mr. Starr omitted these statements from his Referral:

"Neither the Pres[ident] nor Mr. Jordan (or anyone on their behalf) asked or encouraged Ms. L[ewinsky] to lie." App. at 718 (2/1/98 Proffer).

"I think I told [Tripp] that -- you know at various times the President and Mr. Jordan had told me I had to lie. That wasn't true." App. at 942 (8/6/98 grand jury testimony).

"I think because of the public nature of how this investigation has been and what the charges aired, that I would just like to say that no one ever asked me to lie and I was never promised a job for my silence." App. at 1161 (8/20/98 grand jury testimony).

"Neither the President nor Jordan ever told Lewinsky that she had to lie." App. at 1398 (7/27/98 FBI Form 302 Interview of Ms. Lewinsky).

"Neither the President nor anyone ever directed Lewinsky to say anything or to lie ..." App. at 1400 (7/27/98 FBI 302 Form Interview of Ms. Lewinsky).

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

"Ms. L[ewinsky] was comfortable signing the affidavit with regard to the sexual relationship because she could justify to herself that she and the Pres[ident] did not have sexual intercourse." App. at 718 (2/1/98 Proffer).

"Lewinsky said her use of the term `having sex' means having intercourse..." App. at 1558 (8/19/98 FBI 302 Form Interview of Ms. Lewinsky).

"I never even came close to sleeping with [the President] ... We didn't have sex ... Having sex is having intercourse ... Having sex is having intercourse. That's how most people would -- " Supp. at 2664 (Linda Tripp tape of a conversation between Ms. Lewinsky and Ms. Tripp).^149/

Moreover, Ms. Lewinsky told the OIC that she believed the President himself made such a distinction: "After having a relationship with him, Lewinsky deduced that the President, in his mind, apparently does not consider oral sex to be sex. Sex to him must mean intercourse." App. at 1558 (8/19/98 FBI 302 Form Interview of Ms. Lewinsky).

In short, the President never told Ms. Lewinsky what to say in the affidavit, he knew that Ms. Lewinsky had her own lawyer to protect her interests, and he expressly declined the opportunity to review the content of the affidavit, according to Ms. Lewinsky, see App. at 1489 (8/2/98 FBI Form 302 Interview of Ms. Lewinsky). The President repeatedly testified that he did not intend Ms. Lewinsky to file a false affidavit, and the above-referenced statements of Ms. Lewinsky indicate that, at the time she executed it, she believed her affidavit was literally true.

The OIC's allegation depends on the argument that it is somehow was an obstruction of justice to fail to ensure that Ms. Lewinsky volunteered in her affidavit all information that the Jones lawyers might have used to attack the President in their politically motivated lawsuit. There simply is no such duty under the law, nor does the OIC cite any basis for such a duty. Civil litigation is based upon an adversarial process of determining truth, and a party is under no affirmative obligation to assist an opponent in every way it can.

The OIC also claims that the President obstructed justice by allegedly suggesting a misleading answer to a hypothetical question posed to him by Ms. Lewinsky. Ref. at 178. Ms. Lewinsky told the grand jury that in a phone conversation with the President on January 5, she told him that Mr. Carter had asked her some sample questions that she was unsure of how to answer. App. at 912-13 (8/6/98 grand jury testimony of Ms. Lewinsky). One of the questions was how she got her job at the Pentagon. Id. Ms. Lewinsky told the grand jury that "when I told him the questions about my job at the Pentagon, he said, `Well, you could always say that the people in Legislative Affairs got it for you or helped you get it.' And there was a lot of truth to that. I mean, it was a generality, but that was -- I said `Well that's a good idea. Okay.'" App. at 917 (8/6/98 grand jury testimony of Ms. Lewinsky) (emphasis added). In her written proffer, Ms. Lewinsky also told the OIC that the President told her she could say "The people in Legislative Affairs helped you." App. at 717 (2/1/98 Proffer). She also stated, "this is, in fact, part of the truth -- but not the whole truth." Id. A third time, "Lewinsky advised [the OIC] that that explanation was true, but it was not the entire truth." App. at 1489 (8/2/98 FBI Form 302 Interview of Ms. Lewinsky).

The OIC claims that this conversation recounted by Ms. Lewinsky was an obstruction of justice because the President encouraged Ms. Lewinsky to file a false affidavit. This conclusion ignores the fact that the conversation recounted by Ms. Lewinsky had nothing to do with her affidavit. But that is only the first problem with the OIC's claim. The Referral also failed to include any of Ms. Lewinsky's three separate statements that what the President allegedly had told her to say had "a lot of truth" to it. And, in claiming that that story was misleading because Ms. Lewinsky "in fact had been transferred because she was around the Oval Office too much," Ref. at 178, the OIC ignored the fact that the question asked was not why Ms. Lewinsky was transferred out of the White House but rather how she got her job at the Pentagon.

Finally, the OIC suggests that the President was "knowingly responsible" for a misstatement of fact to a federal judge because he failed to correct a statement made by his lawyer to the court in the Jones deposition. The President testified to the grand jury that the lawyers' argument at the start of the deposition "passed [him] by." There is of course no legal obligation imposed on a client to listen to every word his attorney says, and there is no evidence that the President focused on or absorbed his attorney's remark. Without any evidence whatsoever, the OIC asserts that the President knew what was said, knew he was somehow responsible for it, knew it was incorrect, and ignored a duty to correct it. Yet, again, this is a wholly unsupported allegation of obstruction of justice.

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

The OIC charges that President Clinton obstructed justice and improperly attempted to influence a witness when he spoke with Ms. Currie the day after his deposition in the Jones case. The OIC's claims are the product of extraordinary overreaching and pejorative conjecture -- a transparent attempt to draw the most negative inference possible about lawful conduct.

The President's actions could not as a matter of law give rise to either charge because Ms. Currie was not a witness in any proceeding at the time he spoke with her; there was no reason to suspect she would play any role in the Jones case; her name had not appeared on any of the Jones witness lists; she had not been named as a witness in the Jones case; and the discovery period in the case was down to its final days. Nor did the President have any reason to suspect that the OIC had embarked on a wholly new phase of its four-year investigation, one in which Ms. Currie would later be called by the OIC as a witness. To obstruct a proceeding or tamper with a witness, there must be both a proceeding and a witness. Here, there was (as far as the President knew) neither. Furthermore, Ms. Currie testified that she felt no pressure to agree with the questions that the President asked her. Despite the Referral's suggestion to the contrary, there was no reason the President should not have spoken with Ms. Currie about Ms. Lewinsky.

Indeed, it is hardly surprising that the President would have reached out to Ms. Currie after the deposition. As he knew, Ms. Currie was Ms. Lewinsky's friend. The President had just faced unexpected, detailed, and hostile questioning from fierce political opponents in the Jones case about Ms. Lewinsky. He was obviously puzzled at being asked such precise, and in some cases such bizarrely inaccurate, questions about a past secret relationship. The President also explained that he was expecting media questions, based on the Drudge Report indicating that Newsweek was pursuing the story of his relationship with Ms. Lewinsky. The President testified:

I do not remember how many times I talked to Betty Currie or when. I don't. I can't possibly remember that. I do remember, when I first heard about this story breaking, trying to ascertain what the facts were, trying to ascertain what Betty's perception was. I remember that I was highly agitated, understandably, I think.

App. at 593. He had no one to whom he could talk freely about the relationship, but he nonetheless had a desire to find out what might have transpired with Ms. Lewinsky (e.g., was she -- to Ms. Currie's knowledge -- aiding his opponents in the Jones case?) and to test whether his recollection was accurate, since he had not anticipated or prepared for such detailed questions.

The President explained to the grand jury, "[W]hat I was trying to determine was whether my recollection was right and that she was always in the office complex when Monica was there.... I was trying to get the facts down. I was trying to understand what the facts were. ... I was trying to get information in a hurry. I was downloading what I remembered." App. at 507-08. It was his belief that Ms. Currie was unaware that he had engaged in improper activity with Ms. Lewinsky, since she had not been in the White House complex when Ms. Lewinsky had visited on weekends in 1995-96, and he wanted to reassure himself that that was so. He also recalled that in 1997, after the improper relationship ended, he had asked Ms. Currie to try always to be present when Ms. Lewinsky visited. He wanted to inquire whether that was also Ms. Currie's recollection. The President testified "I was not trying to get Betty Currie to say something that was untruthful. I was trying to get as much information as quickly as I could." App. at 508.

Ms. Currie was also asked about this conversation with the President in the grand jury, and her testimony supports the President's assertion that he was merely trying to gather information. First, Ms. Currie stated in her first interview with the OIC that "Clinton then mentioned some of the questions he was asked at his deposition. Currie advised the way Clinton phrased the queries, they were both statements and questions at the same time." Supp. at 534 (1/24/98 FBI Form 302 Interview of Ms. Currie). The interview further reflects that "Currie advised that she responded `right' to each of the statements because as far as she knew, the statements were basically right..." Id. Ms. Currie was asked in the grand jury:

Q: You testified with respect to the statements as the President made them, and, in particular, the four statements that we've already discussed. You felt at the time that they were technically accurate? Is that a fair assessment of your testimony?

A: That's a fair assessment.

Q: But you suggested that at the time. Have you changed your opinion about it in retrospect?

A: I have not changed my opinion, no.

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

Q: Now, back again to the four statements that you testified the President made to you that were presented as statements, did you feel pressured when he told you those statements?

A: None whatsoever.

Q: What did you think, or what was going through your mind about what he was doing?

A: At that time I felt that he was -- I want to use the word shocked or surprised that this was an issue, and he was just talking.

* * *

Q: That was your impression that he wanted you to say -- because he would end each of the statements with "Right?," with a question.

A: I do not remember that he wanted me to say "Right." He would say "Right" and I could have said, "Wrong."

Q: But he would end each of those questions with a "Right?" and you could either say whether it was true or not true?

A: Correct.

Q: Did you feel any pressure to agree with your boss?

A: None.

Supp. at 668 (7/22/98 grand jury testimony of Ms. Currie) (emphasis added). Ms. Currie also testified, "I said `Right' to him because I thought they were correct, `Right, you were never alone with Monica.' ... " Supp. at 665 (7/22/98 grand jury testimony of Ms. Currie).

Ms. Currie's testimony supports the President's assertion that he was looking for information as a result of his deposition. Neither the testimony of Ms. Currie nor that of the President -- the only two participants in this conversation -- supports the inference that the conversation had an insidious purpose. Furthermore, at the time he discussed Ms. Lewinsky with Ms. Currie, Ms. Currie was not expected to be, nor was she, a witness. When the President became aware that the OIC was investigating his relationship with Ms. Lewinsky, he repeatedly told Ms. Currie to tell the truth: "I said, Betty, just don't worry about me. Just relax, go in there, and tell the truth." App. at 591. The President told the grand jury:

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

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

6. The President Did Not Attempt to Influence the Testimony of "Potential" Grand Jury Witnesses Through His Denials

The Referral also alleges that the President endeavored to obstruct justice by denying to several of his aides that he had a sexual relationship with Ms. Lewinsky. Ref. at 197. The statements made to the Presidential aides (Messrs. John Podesta, Erksine Bowles, Harold Ickes, and Sidney Blumenthal) cited in the Referral were made either on the day the Lewinsky story broke (January 21, 1998) or within a few days of that date. Those statements were concurrent in time with the President's repeated public statements to the country denying "sexual relations" with Ms. Lewinsky and were virtually identical in substance. Having made this announcement to the whole country on television, it is simply absurd to believe that he was somehow attempting to corruptly influence the testimony of aides when he told them virtually the same thing at the same time.

The Supreme Court has stated that in order to constitute obstruction of justice, actions must be taken "with an intent to influence judicial or grand jury proceedings." United States v. Aguilar, 515 U.S. 592, 599 (1995). There is no evidence that the President had the intent to do so when he made the alleged statements to these four individuals. The President spoke with the individuals regarding the allegations that had been made against him because of the long-standing professional and personal relationships that he shared with them and the responsibility that he felt to address the concerns that he assumed they would have after hearing such allegations. There is simply no evidence that he spoke with them for any other reason, and certainly not that he spoke with them intending to obstruct any proceeding.

The mere repetition of a public denial to these aides could not possibly affect the grand jury process. The testimony elicited from these aides in the grand jury regarding the President's statements was hearsay. The aides were not witnesses to any sexual activity, and they had no first-hand knowledge pertinent to the denials. The President never attempted to influence their testimony regarding their own personal knowledge or observations. Any testimony about the President's remarks was merely cumulative of the President's own nationally broadcast statements. The suggestion that the President violated section 1503's prohibition on "influenc[ing], obstruct[ing], or imped[ing] the due administration of justice" is groundless.

Furthermore, the Referral cites no evidence, and there is none, for the assertion that the President knew these individuals were going to be grand jury witnesses at that very early stage of the investigation. The Referral does not allege that any of them were under subpoena when the statements were made -- indeed they were not. The Referral cites the President's testimony that he knew it was possible that if he provided people with factual details surrounding the allegations that had been made that they might be called as witnesses. But his point was that he did not want to make them into witnesses through admissions, not that he believed they would be. As the Supreme Court has made clear, the possibility that one may or may not be a witness is simply insufficient to establish obstruction in this context. "[I]f the defendant lacks knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct." United States v. Aguilar, supra, 515 U.S. at 599 (emphasis added). Because of this requirement, the Supreme Court has held that false statements made to an individual who merely has the potential to be a witness, even if the individual is a federal investigative or law enforcement agent, do not constitute obstruction of justice: "We do not believe that uttering false statements to an investigating agent who might or might not testify before a grand jury is sufficient to make out a violation of the catchall provision of § 1503 [of the obstruction of justice statute]." Id. at 600. Thus, the Referral fails to allege the most essential elements of obstruction.

Nor is there evidence that the President's statements constituted

"witness tampering" in violation of section 1512. To make out such a violation, the government must show that the behavior knowingly occurred through one of the specific means set forth in the statute: intimidation, physical force, threats, misleading conduct or corrupt persuasion -- with intent to influence testimony in a legal proceeding. None of those requisite means is present or even alleged in the Starr Referral. The efforts must be aimed specifically at obstructing a known legal proceeding. See United States v. Wilson, 565 F. Supp. 1416, 1431 (S.D.N.Y. 1983). As explained above, any statements made to those individuals were made for reasons wholly separate from and unrelated to any legal proceedings. Again, there is simply no evidence that when the President repeated to aides substantially the same statement he made to the whole country that he had any thought whatsoever of the grand jury proceedings, let alone the corrupt intent to influence the grand jury through the testimony of Presidential aides who were not even witnesses at that time. Under the Referral's theory, the OIC could have subpoenaed to the grand jury any citizen who heard the President's denial and thus have created a new violation of law.

In sum, the President's statements to his aides could not have obstructed justice as a matter of law. Their legal duty was to answer the prosecutor's questions and to tell the truth honestly as they knew it, and the President's comments in no conceivable way affected that duty.

The OIC suggests that the President's delay in acknowledging a relationship with Ms. Lewinsky somehow contributed to an obstruction of justice because it affected how the prosecutors would conduct the investigation. This claim is unfounded, as a matter of law. The President had no legal obligation to appear before the grand jury absent compulsion and every reason not to do so, given the OIC's tactics, illegal leaking, and manifest intent to cause him damage.

VIII. THE PRESIDENT DID NOT ABUSE POWER

The Independent Counsel's allegation that the President's assertions of privilege constituted an abuse of power is baseless and disingenuous. As the Framers recognized, impeachment is justified only for "the abuse or violation of some public trust."^150/ The record is devoid of any such improper conduct, a conclusion that Mr. Schippers apparently also reached as demonstrated by his not including an abuse of office charge in his presentation to the Committee. To the contrary, the record demonstrates that the White House acted at all times based upon a good faith belief that its narrow assertions of privilege were appropriate and its claims were well founded in existing law. The OIC misstates the record with respect to the litigation over privilege and entirely omits reference to the occasions when the White House privilege claims were vindicated.

From the inception of the Lewinsky investigation, the OIC's objective was clear -- to send Congress information that it believed constituted grounds for impeachment. Public commentators and members of Congress alike raised the issue of impeachment within days of the investigation becoming public.^151/ Indeed, Congressman Barr had already introduced a resolution on impeachment even before the Lewinsky investigation began.^152/ Thus, from the outset, the White House reasonably viewed impeachment proceedings as an imminent possibility. With that in mind, the President consulted with his lawyers and senior staff, and they consulted among themselves, about political and strategic issues with the expectation that these conversations were, and would remain, confidential.^153/ The President had every right and institutional obligation to seek to preserve the confidentiality of these strategic deliberations.

At no time was executive privilege asserted with any intention of preventing White House staff from providing the grand jury with the facts surrounding the President's relationship with Ms. Lewinsky. Rather, it was asserted to protect the confidentiality of conversations dealing with the President's official functions as he carried out his duties under the very real threat of impeachment. These conversations included discussions about whether and to what extent privileges should be asserted. White House Counsel consistently attempted to ensure that the OIC had all of the information necessary to complete its investigation. Because the OIC adopted the wholly untenable and absolutist position that no executive privilege existed whatsoever with respect to its investigation, the White House had no choice but to assert privilege as narrowly as possible and allow the courts to uphold precedent and resolve the legal dispute between the White House and the OIC.

In short, White House claims of privilege have always reflected a fundamental and good faith disagreement over legal questions. The sole reason for the assertion of privilege was to protect this President and future Presidents from unwarranted intrusions into confidential communications among senior staff.

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

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

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

From the outset, the White House Counsel believed that the OIC's invasion of the President's confidential communications with his advisors was both inappropriate and unnecessary. Counsel reasonably relied upon the long-standing principle that a President is entitled to receive the frank, candid, and confidential advice that is essential to the execution of his constitutional, official, statutory, and other duties.¹⁵⁶ Nevertheless, White House Counsel recognized its obligation to try to reach an accommodation with the OIC, as it had on numerous other occasions in this and other Independent Counsel investigations as well as Congressional inquiries. Thus, the White House attempted in good faith to initiate a process by which the OIC could obtain all of the information it deemed necessary for a prompt resolution to its investigation, without unnecessarily intruding into the domain of confidential presidential communications. This is precisely the process in which the White House attempted to engage when the OIC subpoenaed Bruce Lindsey, Assistant to the President and Deputy Counsel.¹⁵⁷

Prior to Mr. Lindsey's grand jury appearance, White House Counsel met with the OIC on February 3, 1998, to discuss ways in which to ensure the OIC received all of the information it needed without unnecessarily encroaching upon areas subject to executive privilege.^158/ At that time and subsequently, the White House made clear that no factual information regarding the President's relationship with Ms. Lewinsky would be withheld on the basis of privilege. Unfortunately, the OIC refused all efforts to devise a workable compromise -- insisting on an absolutist position that no privilege applied.^159/ The White House sought to protect internal discussions about how to handle press inquiries, what political strategies to consider, and how to advise the President concerning available political strategies.^160/ The White House also sought to protect the discussions about legal strategy, i.e., whether and to what extent to assert various privileges, and the political consequences of such strategies.¹⁶¹ None of this information was critical to the OIC's understanding of the President's relationship with Ms. Lewinsky or any of the factual allegations it was investigating. Rather, the discussions related to the President's capacity to govern in the face of an ongoing investigation -- to pursue his legislative agenda, to ensure the continued leadership of the United States in the world community, and to maintain the confidence and support of the people who elected him.^162/

Despite the admittedly private nature of the Lewinsky allegations, the White House Counsel's Office was faced with strategic decisions involving official duties of the Presidency. For example, advisors had to deliberate among themselves and provide advice to the President about responses to the daily press inquiries, the State of the Union Address which was to be given within days of the public disclosure of the investigation, and the visit by Prime Minister Blair with its accompanying press conference.^163/ While these deliberations were important to the functioning of the Presidency and illustrated the President's need for candid advice, they were not relevant to the OIC's investigation. The OIC's concerted effort to learn about the internal deliberations of White House Counsel and other advisors on political and legal strategy -- whether to assert privilege or not, how to handle the voluminous media inquiries, whether to refer to the Lewinsky matter during the State of the Union, and how to assure foreign leaders that the leadership of the country would be stable -- does not render the substance of those deliberations relevant.

Shortly after this meeting with the OIC on February 3, the White House reiterated its willingness to ensure that any facts -- as opposed to internal deliberations -- would be made available to the OIC.^164/ On March 4, the White House again proposed to allow senior advisors to testify about any factual information they had about the Lewinsky matter, including any information the President had communicated to them. Id. The only communication with non-attorneys sought to be protected were strategic deliberations and discussions. Id. The OIC flatly rejected this and all other overtures aimed at resolving the sensitive issue of executive privilege. Id.

White House Counsel had hoped to resolve potential privilege issues related to Mr. Lindsey and other senior advisors by asking the OIC to describe with particularity possible areas of inquiry so that counsel could determine whether they would implicate privileged information.^165/ Given Mr. Lindsey's role as a key advisor and counsel to the President on a variety of issues, as well as his service as an intermediary between the President and his private counsel, the White House was justified in raising its concerns with the OIC.^166/ As noted, however, the OIC flatly rejected the request.^167/ The OIC had no interest in resolving the issues of privilege with the White House by a reasonable compromise.

Instead, the OIC filed motions to compel the testimony of Mr. Lindsey and other senior staff. Id. In the face of this absolutist position by the OIC, White House Counsel believed it had no choice but to proceed to seek a judicial resolution of the executive privilege claims. This decision was not made lightly, but was made with full recognition that it would not be politically popular and would subject the White House to accusations of delay. Nevertheless, because of the grave institutional concerns, i.e., to protect the ability of this President and future Presidents to receive confidential advice, White House Counsel felt obligated to recommend that the President assert privilege over a few narrow conversations. Thus, White House Counsel notified the President of the privilege issues, explained the OIC's unwillingness to engage in the traditional accommodation process, and recommended that he invoke the presidential communications privilege to protect the institutional needs of the Presidency. The President accepted this recommendation and authorized the Counsel to assert the privilege.^168/ Thus, contrary to the OIC's allegations, the President's decision was not made on his own initiative to delay the investigation, but was made on the recommendation of counsel to protect the Presidency as an institution.

It is important to note that the scope of the assertion was narrow: these communications ultimately involved the limited testimony of only three senior Counsel's Office lawyers. Each testified fully with respect to issues that did not implicate confidential advice and decision-making. Many current and former White House staff members, including many senior advisors, testified without asserting any privilege whatsoever. The ensuing litigation on executive privilege was based on principles that were critical to the institution of the Presidency.

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

Despite the narrowness of the privilege asserted by the White House, the OIC took the position that executive privilege was inapplicable in the face of a grand jury subpoena because the discussions the OIC sought related in some way to the President's personal conduct. The OIC argued, therefore, that it did not have to demonstrate any need for the information and that it was entitled to immediate and full disclosure of all strategic and political communications.^169/ This position, which was squarely at odds with decisions of the Supreme Court and the D.C. Circuit, was rejected by Chief Judge Johnson.

She upheld the White House's claim that the communications over which it was asserting privilege were indeed presumptively privileged and flatly rejected the OIC's absolutist position. In re Grand Jury Proceedings, 5 F. Supp.2d 21, 25-27 (D.D.C 1998). Having found that the communications were presumptively privileged, the Court required the OIC to make a showing of need sufficient to overcome the privilege. Id. at 28-29. After reviewing the OIC's factual proffer, the Court concluded that the OIC had met its burden with respect to the areas identified to the Court. At no time, however, did the Court suggest that the President's assertion of executive privilege was groundless, improper, made in bad faith, or in any way an abuse of power.^170/

We respectfully suggest that the White House's claim of executive privilege furnishes no ground for impeachment. The facts the OIC selectively omits from the Referral, as recounted above, unequivocally support the legitimacy of the White House's decision to raise the issue of executive privilege. The OIC not only continues to reiterate its claim that executive privilege is inapplicable in a grand jury context but also omits the critical fact that Judge Johnson validated the White House's assertion of the privilege and required the OIC to demonstrate a sufficient showing of need before it obtained the information.

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

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

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

The OIC challenged sound legal authority recognizing the attorney-client privilege in the governmental context and sought to compel access to all confidential communications between the President and his government lawyers. The White House Counsel's decision to assert the governmental attorney-client privilege was based upon a careful consideration of the applicable law, the likelihood of impeachment proceedings, and the important ethical and institutional obligations of the Counsel's Office to the Office of the President.

For centuries, the law has recognized that the attorney-client privilege is absolute in protecting the confidentiality of attorney-client communications. The D.C. Circuit has also upheld the attorney-client privilege in the context of confidential communications between government lawyers and the government officials they represented. See, e.g., Mead Control, Inc. v. Dept. of the Air Force, 566 F.2d 242 (D.C. Cir. 1977). Courts recognize that a government official, like every other citizen, must be able to provide information to and seek advice from government lawyers without fear of public disclosure to ensure well-advised and fully-informed decision-making.

A recent Supreme Court case, which was decided during the courts' consideration of the White House's privilege claims, rejected the OIC's sweeping attack on the attorney-client privilege and further supported the White House's position. In Swidler & Berlin v. United States, U.S. , 1998 U.S. Lexis 4214, *7 (1998), the OIC argued that the personal attorney-client privilege should automatically give way to the needs of a criminal investigation. The Court rejected the OIC's position and found "no case authority for the proposition that the privilege applies differently in a criminal and civil context," id. at *7, thus supporting the principle that the privilege remains absolute in a grand jury context. Accordingly, the President's position with respect to the absolute nature of governmental attorney-client privilege had a substantial legal basis.

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

The rulings of both the District Court and Court of Appeals belie any notion that the claim of attorney-client privilege was an abuse of power. The District Court rejected the OIC's position that government attorneys and clients are not entitled to have confidential communications. In re Grand Jury Proceedings, 5 F.Supp.2d 21, 31-32 (D.D.C. 1998). To the contrary, the Court held that such conversations are covered by the attorney-client privilege. Ibid. Performing a need analysis similar to that which it employed with respect to the executive privilege claim, the Court balanced the President's interests against those of the grand jury and ultimately determined that the grand jury was entitled to the information. Id. at 32-39. Thus, despite the fact that the Court ultimately ruled in favor of the OIC, the Court never suggested -- or even hinted -- that the privilege claim was anything but legitimate.

On appeal, a sharply divided D.C. Circuit ruled that the President had an attorney-client privilege with White House Counsel in the civil context, but not in response to a grand jury subpoena. In re Lindsey, 158 F.3d 1263, 1271-78 (D.C. Cir. 1998). Judge Tatel dissented, finding that the Court's opinion did not account for "the unique nature of the Presidency, its unique need for confidential legal advice, or the possible consequences of abrogating the attorney-client privilege for a President's ability to obtain such advice." Id. at 1286. Judge Tatel's recognition of the validity of the privilege demonstrates that the President's position was not frivolous and necessarily negates any claim that the President abused the power of his Office by advancing such a claim. This point is brought home by Justice Breyer's dissent from the denial of certiorari, joined by Justice Ginsburg, that "[t]he divided decision of the Court of Appeals makes clear that the question presented by this petition has no clear legal answer and is open to serious legal debate." Office of the President v. Office of Independent Counsel, No. 98-316, 67 U.S.L.W. 3321 (Nov. 10, 1998).

One further point is worth noting. Conspicuously absent from the Referral is any mention of the President's personal attorney-client privilege claim concerning the communications that Mr. Lindsey had with the President's private counsel, Robert Bennett. The White House argued that these communications were covered by the President's personal attorney-client privilege because Mr. Lindsey was acting as an intermediary between the President and Mr. Bennett -- a position rejected by the OIC. In re Lindsey, 158 F.3d at 1279-80.

The Court of Appeals rejected the OIC's position. The Court recognized the "tradition of federal courts' affording `the utmost deference to Presidential responsibilities.'" Id. at 1280 (quoting Clinton v. Jones, 117 S. Ct. 1636, 1652 (1997)). The Court also acknowledged "the President's undisputed right to have an effective relationship with personal counsel, consonant with carrying out his official duties." Id. at 1282. Given the "unavoidable, virtually full-time demands of the office [of the President]," id. at 1280, the Court found that the President's use of Mr. Lindsey as an intermediary was "at least reasonably necessary." Ibid. Thus, the Court held that "while acting in this capacity [Mr. Lindsey's] communications came within the President's personal attorney-client privilege." Ibid. The Court remanded the case to the District Court so it could determine in which instances Mr. Lindsey was serving as an intermediary so that he could claim privilege, on the President's behalf, over those communications.

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

The OIC also claims that the invocation of privilege was intended to delay its investigation. Ref. at 207 n.473. If delay occurred, the OIC has only itself to blame. First, the procedural history recounted above establishes that the White House attempted to reach a reasonable accommodation before any witnesses testified. The OIC rejected that offer, choosing instead to litigate these issues. Throughout the litigation, the Office of the President frequently sought to avoid any delay by proposing and/or agreeing to expedited briefing schedules involving privilege litigation, and the courts ruled swiftly.

Second, privilege claims were advanced only as to a narrow portion of the testimony of three witnesses. The OIC originally filed motions to compel the testimony of two senior staff members and one Counsel's Office lawyer. The litigation only temporarily postponed the testimony of the two senior staff members; they both appeared and testified fully. The privilege assertions ultimately involved the testimony of only three senior Counsel's Office lawyers. Each of these individuals testified at length regarding any facts they may have possessed about their knowledge of the President's relationship with Ms. Lewinsky. Moreover, the questions as to which they asserted privilege were narrow in scope.

Finally, independent of any litigation, substantial delay in the overall investigation has been self-inflicted. The OIC has called presidential advisors before the grand jury as many as six times, sometimes for only one- or two-hour sessions. Some witnesses appeared to testify only to wait for hours and then be told to return on another day.

The OIC also has expended substantial time and effort exploring irrelevant subjects, such as White House contacts with the press or matters of personal opinion. For example, the OIC asked Mr. Lindsey, "[W]hat do you think about learning that the President lied to you personally about this matter?" When Mr. Lindsey questioned the relevance of an inquiry into his personal feelings, the OIC lawyer persisted and asked, "So are you just too embarrassed to answer the question, sir?" Supp. at 2447 (8/28/98 grand jury testimony of Bruce Lindsey). Such lines of inquiry serve no legitimate purpose and appear designed simply to create a confrontation or embarrass and humiliate a witness.

Another aspect of the OIC's allegation is its claim that the President misused his presidential prerogative by asserting and then withdrawing privilege claims in order to delay the investigation. Ref. at 206-209. The OIC specifically cites to the privilege claim raised, and subsequently withdrawn, relating to the testimony of Nancy Hernreich, Director of Oval Office Operations, as a basis for this contention. Transcript of November 19, 1998 Hearing at 197-98. The OIC argues that an executive privilege claim with respect to Ms. Hernreich was illegitimate because she "does have an important function at the White House; she manages the Oval Office operations . . . [B]ut that is not the kind of function that the principle of executive privilege was meant to protect." Id. at 198. This contention is both legally and factually incorrect.

First, an individual's title or job description does not determine whether her communications fall within executive privilege. As set forth in the Court of Appeals decision in In re Sealed Case, virtually any individual who participates in the deliberative process can take part in a communication or provide information that becomes subject to executive privilege; e.g., the information provided by a paralegal that becomes part an advisor's recommendation. In re Sealed Case, 121 F.3d at 752-53. Thus, neither Ms. Hernreich's role nor her title precludes her conversations from being subject to executive privilege.

Moreover, the OIC disregards the unique events surrounding this privilege claim. Ms. Hernreich was one of the first individuals subpoenaed by the OIC whose testimony would potentially raise privilege concerns. Because the OIC refused to describe the areas of inquiry with respect to Ms. Hernreich, the White House was unable to give her any guidance in advance of her testimony. Thus, at her first grand jury appearance, Ms. Hernreich took the precautionary step of preserving the privilege. Subsequently, the White House voluntarily and unilaterally narrowed the scope of the communications over which privilege was being asserted and offered to allow Ms. Hernreich, along with other non-lawyer advisors, to testify fully about any factual information she possessed.^171/

On March 6, some ten days after Ms. Hernreich's appearance, and without notice to the White House, the OIC filed its motion to compel her testimony, despite the fact that the White House had already informally indicated to the OIC that no privilege would be asserted with respect to her testimony. On March 17, in response to the OIC's motion (and before the Court had ruled on the issue), the White House formally withdrew its privilege claims with respect to Ms. Hernreich's testimony. At that point, Ms. Hernreich could have testified before the grand jury about those communications. Yet, the OIC waited two full months before requesting Ms. Hernreich to return to the grand jury. Such conduct by the OIC illustrates the hollowness of the OIC's claim of delay caused by the President.

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

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

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

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

Q. Mr. President, we haven't yet had the opportunity to ask you about your decision to invoke executive privilege, sir. Why shouldn't the American people see that as an effort to hide something from them?

The President. Look, that's a question that's being asked and answered back home by the people who are responsible to do that. I don't believe I should be discussing that here.

Q. Could you at least tell us why you think the First Lady might be covered by that privilege, why her conversation might fall under that?

The President. All I know is -- I saw an article about it in the paper today. I haven't discussed it with the lawyers. I don't know. You should ask someone who does.^172/

The full question and answer establish that the President was not being asked about "the assertion of Executive Privilege," but about the very narrow issue of the privilege vis-à-vis the First Lady, which was one of the many press rumors in circulation when the story broke.

As the OIC well knows, at this time, the OIC had refused to describe the areas of its inquiry to determine which, if any, raised privilege concerns. Consequently, the White House Counsel's discussion with the President about possible privilege claims was limited to possible issues that might arise during a witness's testimony and did not identify particular individuals who might claim privilege. Thus, the President could not possibly have known what conversations the First Lady participated in, if any, which might have fallen within the scope of executive privilege.

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

The OIC also contends that it was an abuse of power for the President, at a time when both his personal and official interests were at stake, not to volunteer to testify before the grand jury until August. Ref. at 159-61. This claim is wholly unfounded.

The OIC apparently believes that any government official who is the subject of a criminal investigation must immediately testify or risk impeachment. Because he was initially invited to appear voluntarily, the President had the right to decide the timing of his testimony. It became clear early in the OIC's investigation that this was not a run-of-the-mill grand jury investigation but was instead a focused effort to target the President himself. The President's decision to decline invitations to testify was entirely appropriate, given the nature of the OIC's investigation.

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

President Clinton has acknowledged that he misled the American public when he denied having an improper relationship with Lewinsky. However, his public denial of this relationship does not warrant impeachment. A comparison to Watergate is illuminating, for false statements allegedly made by President Nixon were an important part of that inquiry.

Twenty-four years ago, Chairman Rodino stated that the Judiciary Committee's approach during the Nixon inquiry would be to consider "whether or not serious abuses of power or violations of the public trust have occurred, and if they have, whether under the Constitution, they are grounds for impeachment"^173/ The Watergate impeachment investigation focused on whether President Nixon's allegedly false public statements rose to the level of abuse of power, but the subject matter was quite different. President Nixon's statements related to official matters of state and were allegedly part of a comprehensive scheme to undermine the political process and to obstruct justice by encouraging and condoning perjury by senior members of his administration, paying hush money to criminal defendants, and using the CIA to thwart the FBI investigation. This Committee finally charged that his false statements were calculated to lull the public into believing that the administration was adequately investigating alleged governmental wrongdoing -- in other words, he lied about his official actions.

President Clinton's misleading public denial of an improper relationship with Ms. Lewinsky, although admittedly wrong, is not such an abuse of power. President Clinton did not misuse the FBI, conceal governmental law-breaking, or misuse the official powers of the President. To the contrary, the underlying conduct addressed by his public statements was indisputably private.

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

To consider the President's misleading public denials of an improper relationship impeachable would radically lower the constitutional bar to impeachment. For better or worse, allegations of public untruthfulness by Presidents -- often on important matters of state -- have been levelled at most Presidents. President Reagan faced accusations about his truthfulness regarding Iran-Contra. President Bush confronted similar charges, with The New York Times characterizing his statements on the subject as "incredible."^174/ President Johnson faced a "credibility gap" regarding his statements about the Viet Nam war. President Kennedy lied about the Bay of Pigs, and President Eisenhower lied about Gary Powers and the U2 incident. And many have suggested that Presidents Wilson and Franklin Roosevelt were less than fully candid about the prospective involvement of the United States in World Wars I and II. These examples demonstrate how dangerous it would be to make it an impeachable offense to lie to the public. All of these alleged misstatements related to public policy. If they were in fact untrue, they denied the public and Congress an opportunity to exercise their democratic prerogative to affect those policies. Accordingly, if false public statements are to satisfy the constitutional standard for impeachment, it is difficult to conceive of a single Presidency in the last century that would not have been subject to potential impeachment proceedings.

In hotly contested policy disputes, accusations often fly regarding the truthfulness of a President's statements. Such accusations may or may not be justified. But to devalue the impeachment currency by making lack of truthfulness, real or perceived, an impeachable offense would potentially inflate many policy disagreements into impeachment inquiries.

This danger is compounded by the inevitable uncertainty regarding the type of statements that would be penalized. Would it be impeachable to promise to take an action before an election, such as raising taxes or staying out of war, and then to reverse position after the election? Or to fail to disclose a physical infirmity? Would all Presidential untruths be impeachable?

Surely misstatements about public policy are more significant than misstatements about private indiscretions. False public statements about sexual indiscretions or other personal activities simply do not affect policymaking and do not implicate the powers of the presidency.

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

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

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

For more than two years, President Nixon repeatedly denied any personal or White House involvement in or responsibility for (1) the burglary of the DNC headquarters to obtain political intelligence regarding the Presidential election, (2) the subsequent cover-up, involving misuse of law enforcement, and (3) the scope of other illegal activities involving presidential powers carried out by and for the former President.^176/ The first such false statement was made on June 22, 1972, when Nixon publicly characterized as accurate his Press Secretary's statement that "The White House has no involvement whatever in this particular incident" (referring to the Watergate break-in).^177/

More than two months later, on August 29, 1972, the President held another press conference, during which he discussed the various pending investigations. In attempting to persuade the public that no special prosecutor was necessary, the President stated

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

At the time he made this statement, the President knew that Mr. Dean had conducted no investigation, had not concluded that members of the White House or administration were beyond suspicion, and in fact was working to thwart the FBI's investigation.^179/ In other words, President Nixon used his Presidential powers to conceal governmental law-breaking.

This Committee's investigation ultimately revealed^180/ that President Nixon engaged in an elaborate cover-up scheme that included using his secret intelligence operation to pay both for illegal activities and subsequent blackmail money for the cover-up. On March 21, 1973, President Nixon urged the paying of hush money to Mr. E. Howard Hunt, and instructed Administration witnesses on how to commit perjury.^181/ He also used people within the Justice Department to give him information about what was transpiring within the grand jury, then passed that information along to Messrs. Haldeman and Ehrlichman, whom he knew to be targets of the investigation, in violation of Rule 6(e) of the Federal Rules of Criminal Procedure.^182/ He used his "plumbers" group to subvert the IRS and CIA, authorized illegal intelligence gathering activities, attempted to use CIA funds to pay off the Watergate burglars, directly interfered with the Justice Department's ITT investigation, and ordered the FBI to interfere with the Watergate Special Prosecution Force by sealing the WSPF offices after the Saturday Night Massacre. He also pressured the CIA to interfere with the FBI's investigation of the Watergate break-in -- a conversation captured on tape. And he used the IRS to investigate his "enemies" and the FCC to try to take away the broadcasting licenses of press organizations investigating him.^183/

These plain abuses of power cannot be equated with President Clinton's attempt to keep a private indiscretion secret. Unlike the series of lies told by President Nixon, President Clinton's denials bore no relationship to his use of the powers of the presidency. They did not deal with policy or governmental action but were designed to protect himself and his family from embarrassment caused by a purely personal indiscretion. Whereas President Nixon used governmental agencies including the CIA and FBI to thwart the investigation into his lies, President Clinton did nothing of the sort. Thus, while the pervasive and persistent lies of President Nixon to the American public about the nature and extent of official law enforcement activities could reasonably have been viewed as affecting the nature of our Constitutional government and thus warranting impeachment, President Clinton's denial of a private indiscretion cannot.

IX. CONCLUSION

Short of committing force of arms in defense of the Nation, the Framers of the Constitution did not contemplate a more solemn or awesome responsibility than the impeachment of the President. The Framers rejected amorphous and vague standards such as "maladministration" or "corruption" in favor of "Treason, Bribery or other High Crimes and Misdemeanors," which has always been taken to mean offenses against the constitutional system itself. Indeed, Benjamin Franklin once referred to impeachment as the constitutional alternative to assassination. So it is with the utmost gravity that we submit this brief. We believe a careful and fair review of the real record of this case - not the political attacks, but the real record - cannot justify the impeachment of the President.

Once again, we rely on the judgment of the House, as did the Framers, to separate fact from myth, the record from the rhetoric, and the sinful from the impeachable. On behalf of the President, we thank the Committee for reviewing this brief.

Finally, we conclude where the President asked us to begin: by conveying to you his profound and personal sense of contrition. Let nothing in this brief, nothing in our defense, nothing in your analysis of the facts or our arguments on the law confuse the reality that what the President did was wrong. For his wrongs he has admitted his regret, and he has sought the forgiveness of his family, friends, and fellow Americans.

The sole duty, the solemn obligation of the House is not to sit in judgment of the morality of the President's conduct, but rather to decide whether or not you will call upon the Senate to remove from office the duly elected President of the United States. On that issue, and that issue alone, we believe there is no cause -- on the facts, on the law, or under the Constitution -- to overturn the national election and impeach the President.

Respectfully submitted,

December 8, 1998

1 ^/ Charles L. Black, Impeachment: A Handbook 1 (1974).

2 ^/ Id.

3 ^/ Committee on Federal Legislation of the Bar Ass'n of the City of New York, The Law of Presidential Impeachment 44 (1974) (hereinafter "New York Bar Report").

4 ^/ Preliminary Memorandum Concerning Referral of Office of Independent Counsel (September 11, 1998)(73 pages); Initial Response to Referral of Office of Independent Counsel (September 12, 1998)(42 pages); Memorandum Regarding Standards of Impeachment (October 2, 1998)(30 pages).

5 ^/ Referral from Independent Counsel Kenneth W. Starr in Conformity with the Requirements of Title 28, United States Code, Section 595(c), House Doc. 105-310 (Sept. 11, 1998)(105^th Cong. 2d. Sess.)(hereinafter "Ref.").

6 ^/ The Committee has heard from certain other witnesses on legal questions, but the Independent Counsel has been the only witness called by the Committee who even attempted to address the allegations in the Referral. As the Independent Counsel conceded, however, he had almost no first-hand knowledge of the facts, since the President was the only witness he interviewed. Transcript of November 19, 1998 Hearing at 339-40.

7 ^/ The Referral states that "[i]t is not the role of this Office to determine whether the President's actions warrant impeachment by the House," Ref. at 5, but, tellingly, the Referral nowhere recites the standard that the Independent Counsel in fact used to determine that there should be eleven (but not twelve, or three, or zero) grounds, a tacit acknowledgement of the impossibility of stating a constitutional or precedential standard that would justify impeachment on the basis of such alleged facts.

8 ^/ Schippers Presentation at 11. Mr. Schippers' analysis was based entirely upon the documentary materials submitted by the Independent Counsel, and he acknowledged to the Committee that "we did not seek to procure any additional evidence or testimony from any other source . . . . [M]y staff and I did not deem it necessary or even proper to go beyond the submission itself." Id. at 5-6.

9 ^/ "Hyde, according to informed sources, may consider streamlining those [fifteen Schippers allegations] into as few as two counts . . . . `I frankly don't see how we can deal with all 15 charges adequately,' Hyde said." "Hyde May Narrow List Of Impeachment Charges," The Washington Post (Oct. 14, 1998) at A1.

10 ^/ "As the House Judiciary Committee moves into the final stages of its inquiry, Representative Henry J. Hyde's senior staff is beginning to draw up three articles of impeachment against President Clinton." "Impeachment Panel Starts Work On 3 Articles Against President," The New York Times (Nov. 26, 1998) at A1; "The committee could consider up to four articles of impeachment covering perjury, obstruction of justice, and abuse of power, committee Republicans said yesterday." "Clinton Defense Is Given 2 Days; Panel May Vote Late in Week to Impeach," The Washington Post (Dec. 7, 1998) at A1.

11 ^/ See Transcript of November 19, 1998 Hearing at 233-35 (remarks of Rep. Watt).

12 ^/ For example, the OIC did not issue its report on the 1993 death of Deputy White House Counsel Vincent Foster until October 10, 1997. It concluded, as had several other earlier (and speedier) investigations, that Foster's death was a suicide.

13 ^/ See Labaton, "Special Counsel Intends to Leave Whitewater Case-White House Is Hopeful-Starr's Decision to Take Post in August Raises Questions About Status of Inquiry," The New York Times (Feb. 18, 1997) at A1; Galvin, "Clintons' Lucky Starr: Prober to Call It Quits-Ex-prosecutors Said They Think Starr's Decision Is a Sign That His Probe Will End With a Fizzle, Not a Bang," The New York Post (Feb. 18, 1997) at 3.

14 ^/ See, e.g., Shapiro, "Starr Bails Out Of a Probe That's Adrift," USA Today (Feb. 19, 1997) at 2A; Safire, "The Big Flinch: Ken Starr Betrays His Trust," The New York Times (Feb. 20, 1997) at A33; Editorial, "Ken Starr's Flip-Flops," The Washington Times (Feb. 24, 1997) at A16. The Washington Post editorialized, "What Mr. Starr owes, before he goes anywhere, is a report on the propriety of the President's behavior. That's the subject he was hired to address," Editorial (Feb. 19, 1997) at A20, and it quoted James McKay, a former Independent Counsel, as stating: "`I'm just amazed someone given a specific job to do leaves before it is completed. It's like the captain jumping off the ship before everyone else gets off,'" Schmidt, "Some Starr Allies Say Departure Means No Clinton Charges" (Feb. 19, 1997) at A7. The New York Times asserted that the Independent Counsel's decision reflected "a selfish indifference to [his] civic obligations"; he "never fully appreciated the gravity of [his] role," "should not have taken [the job] unless [he] were willing to see it through," and was "behaving as if [he] had no greater responsibility than to tend to [his] career." Editorial, "Just a Minute, Mr. Starr" (Feb. 19, 1997) at A26.

15 ^/ "Starr seemed unprepared for and taken aback by the furor his departure announcement has generated." Schmidt, "Starr Appears to Waver on Timing of Departure," The Washington Post (Feb. 20, 1997) at A1.

16 ^/ Ibid. Trooper Roger Perry, a 21-year veteran of the Arkansas state police, stated that he "was asked about the most intimate details of Clinton's life:" "`I was left with the impression that they wanted me to show he was a womanizer . . . . All they wanted to talk about was women.'" Ibid. (ellipsis in original).

17 ^/ Ibid.

18 ^/ Transcript of November 19, 1998 Hearing at 377-378.

19 ^/ Ibid. at 378.

20 ^/ Winerip, "Ken Starr Would Not Be Denied," The New York Times Magazine (Sept. 6, 1998) at 64.

21 ^/ Clinton v. Jones, 526 U.S. 681 (1997).

22 ^/ Ms. Jones was described as having "accepted financial support of a Virginia conservative group," which intended to "raise $100,000 or more on Jones's behalf, although the money will go for expenses and not legal fees." "Jones Acquires New Lawyers and Backing," The Washington Post (October 2, 1998) at A1. Jones' new law firm, the Dallas-based Rader, Campbell, Fisher and Pyke, had "represented conservatives in antiabortion cases and other causes." Ibid. See also "Dallas Lawyers Agree to Take on Paula Jones' Case-Their Small Firm Has Ties to Conservative Advocacy Group," The Los Angeles Times (Oct. 2, 1997) (Rutherford Institute a "conservative advocacy group," a "conservative religious-rights group").

23 ^/ "Cause Celebre: An Antiabortion Activist Makes Herself the Unofficial Mouthpiece for Paula Jones," The Washington Post (July 23, 1997) at C1. Ms. Carpenter-McMillan, "a cause-oriented, self-defined `conservative feminist'", described her role as "flaming the White House" and declared "`Unless Clinton wants to be terribly embarrassed, he'd better cough up what Paula needs. Anybody that comes out and testifies against Paula better have the past of a Mother Teresa, because our investigators will investigate their morality.'" "Paula Jones' Team Not All About Teamwork," USA Today (Sept. 29, 1997) at 4A.

24 ^/ After Ms. Jones' new team had been in action for three months, one journalist commented:

In six years of public controversy over Clinton's personal life, what is striking in some ways is how little the debate changes. As in the beginning, many conservatives nurture the hope that the past will be Clinton's undoing. Jones's adviser, Susan Carpenter-McMillan, acknowledged on NBC's `Meet the Press' yesterday that her first reaction when she first heard Jones's claims about Clinton was, "Good, we're going to get that little slime ball."

Harris, "Jones Case Tests Political Paradox," The Washington Post (Jan. 19, 1998) at A1.

25 ^/ Evans-Pritchard, The Secret Life of Bill Clinton 363 (1997).

26 ^/ Baker, "Linda Tripp Briefed Jones Team on Tapes: Meeting Occurred Before Clinton Deposition," The Washington Post (Feb. 14, 1998) at A1.

27 ^/ Order, at 2, Jones v. Clinton, No. LR-C-94-290 (E.D. Ark.) (Jan. 29, 1998).

28 ^/ Ibid.

29 ^/ "While I will provide the grand jury whatever other information I can, because of privacy considerations affecting my family, myself, and others, and in an effort to preserve the dignity of the office I hold, this is all I will say about the specifics of these particular matters." App. at 461.

30 ^/ "I will try to answer, to the best of my ability, other questions including questions about my relationship with Ms. Lewinsky, questions about my understanding of the term `sexual relations,' as I understood it to be defined at my January 17^th, 1998 deposition; and questions concerning alleged subornation of perjury, obstruction of justice, and intimidation of witnesses." App. at 461.

31 / See Raoul Berger, Impeachment: The Constitutional Problems 67-73 (1973).

32 / Gerhardt, The Constitutional Limits to Impeachment and Its Alternatives, 68 Tex. L. Rev. 1, 82 (1989) (emphasis added). In fact, the first draft of what became Article II Section 4's impeachment provision actually set the standard of impeachment, in addition to treason and bribery, as "other high crimes and misdemeanors against the State." 2 Farrand, The Records of the Federal Convention of 1787 550 (Rev. ed. 1966) (emphasis added). That phrase was ultimately deleted, however, by the Committee on Style and Arrangement, which was charged with making only such changes as did not affect the meaning of the original language.

33 / Impeachment of Richard M. Nixon, President of the United States, Report by the Staff of the Impeachment Inquiry, House Comm. on the Judiciary, 93d Cong. 2d Sess. at 5 (Feb. 1974) (hereinafter "Impeachment Inquiry") (emphasis added).

34 / 2 Farrand, The Records of the Federal Convention of 1787 550 (Rev. ed. 1966).

35 / Ibid.

36 / The Federalist No. 65 at 331 (Gary Wills ed. 1982).

37 / Edmund Randolph, 3 Elliot, The Debate in the Several State Conventions on the Adoption of the Federal Constitution 486 (reprint of 2d ed.) (Virginia Convention).

38 / James Madison, 3 Elliot at 500 (Virginia Convention).

39 / James Iredell, 4 Elliot at 127 (North Carolina Convention).

40 / Abraham Baldwin (Georgia), 1 Annals of Cong. 535-36 (debates on the President's removal power).

41 / N.J. Const., Art. XII (1776); Hoffer & Hull, Impeachment in America 1635-1805 80 (1984).

42 / Del. Const., Art. XXIII.

43 / See Hoffer & Hull at 70; Va. Const. of 1776, ¶ 15.

44 / Impeachment Inquiry at 14-15.

45 / 2 Elliot at 480 (emphasis in original).

46 / 2 Story, Commentaries on the Constitution of the United States § 762 at 234 (reprint of 1st ed. 1833).

47 / Federalist 65 at 330-31.

48 / Wilson, Works 426 (R. McCloskey, ed. 1967).

49 / Story, Commentaries on the Constitution § 744. And as a contemporary scholar has expressed it, "[c]ognizable `high Crimes and Misdemeanors' in England . . . generally concerned perceived malfeasance -- which may or may not be proscribed by common law or statute -- that damaged the state or citizenry in their political rights." O'Sullivan, The Interaction Between Impeachment and the Independent Counsel Statute, 86 Geo. L.J. 2193, 2210 (1998) (emphasis added).

50 / Labovitz, Presidential Impeachment at 94.

51 / Berger, Impeachment at 61.

52 / Rotunda, An Essay on the Constitutional Parameters of Federal Impeachment, 76 Ky. L.J. 707, 724 (1987/1988).

53 / Gerhardt, 68 Tex. L. Rev. at 85.

54 / Story, Commentaries § 744 (emphasis added).

55 / O'Sullivan, 86 Geo. L.J. at 2220.

56 / Of course, that election takes place through the mediating activity of the Electoral College. See U.S. Const. Art. II, § 1, cl. 2-3 and Amend. XII.

57 / Statement of Historians in Defense of the Constitution (Oct. 28, 1998); see also Schmitt, "Scholars and Historians Assail Clinton Impeachment Inquiry," The New York Times (Oct. 19, 1998) at A18.

58 / Statement, ibid.

59 / See Rehnquist, Grand Inquests: The Historical Impeachments of Justice Samuel Chase and President Andrew Johnson 256-58 (1992).

60 / Id. at 202-216.

61 / Trial of Andrew Johnson, v.1, 88 (March 30, 1868) (emphasis added).

62 ^/ Cong. Globe (Supp.) 412 (May 26, 1868).

63 / Congressional Quarterly: Impeachment and the U.S. Congress, March 1974.

64 / See discussion of the Income Tax Count against President Nixon in Part III.C.2, infra.

65 / Impeachment of Richard M. Nixon, President of the United States, Report of the Comm. on the Judiciary, 93^rd Cong., 2d Sess., H. Rep. No. 93-1305 (Aug. 20, 1974) (hereinafter "Nixon Report") at 133.

66 / Nixon Report at 180.

67 / Id. at 212-13.

68 / Statement of Cass R. Sunstein to the House Subcommittee on the Constitution of the House Judiciary Committee, dated November 9, 1998, at 15.

69 / Black, Impeachment at 34-35.

70 / Id. at 38.

71 / Labovitz, Presidential Impeachment at 26.

72 / Berger, Impeachment at 61.

73 / Black, Impeachment at 38-39.

74 / Labovitz, Presidential Impeachment at 110.

75 / Rotunda, 76 Ky. L.J. at 726.

76 / Ibid.

77 / Gerhardt, 68 Tex. L. Rev. at 85.

78 / New York Bar Report at 18.

79 / Statement of Historians in Defense of the Constitution (Oct. 28, 1998) (emphasis added).

80 / Ibid.

81 / Letter of 430 Law Professors to Messrs Gingrich, Gephardt, Hyde and Conyers (released Nov. 6, 1998).

82 / Id. at 3.

83 / Ibid.

84 / Statement of Professor Michael J. Gerhardt Before the House Subcommittee on the Constitution of the House Judiciary Committee Regarding the Background and History of Impeachment, dated November 9, 1998, at 13.

85 / Ibid. (emphasis added).

86 / See generally Rosenfeld, "Founding Fathers Didn't Flinch," Los Angeles Times (Sept. 18, 1998) at A11.

87 / Ibid.

88 / Ibid.

89 / Impeachment Inquiry at 26 (emphasis added).

90 / Nixon Report at 364-365 (Minority Views of Messrs. Hutchinson, Smith, Sandman, Wiggins, Dennis, Mayne, Lott, Moorhead, Maraziti and Latta) (final emphasis added).

91 / Nixon Report at 220. The President was alleged to have failed to report certain income, to have taken improper tax deductions, and to have manufactured (either personally or through his agents) false documents to support the deductions taken.

92 / Given the underlying facts, that act might have provided the basis for multiple criminal charges; conviction on, for example, the tax evasion charge, could have subjected President Nixon to a 5-year prison term.

93 / See Nixon Report at 344 ("the Committee was told by a criminal fraud tax expert that on the evidence presented to the Committee, if the President were an ordinary taxpayer, the government would seek to send him to jail") (Statement of Additional Views of Mr. Mezvinsky, et al.).

94 / Nixon Report at 220.

95 / Debate on Articles of Impeachment: Hearings on H. Res. 803 Before the House Comm. on the Judiciary, 93^rd Cong., 2d Sess., 524 (1974).

96 / Id. at 549.

97 / Id. at 541 (quoting with approval conclusion of Impeachment Inquiry).

98 / Id. at 548.

99 / Impeachment Inquiry at 27.

100 / Statement of James St. Clair, III Impeachment Inquiry Hearings on H. Res. 803 Before the House Comm. on the Judiciary, 932 Cong., 2d Sess., 1889 (1974). (emphasis added).

101 / Statement of John Doar, id. at 1927 (emphasis added).

102 / Ibid.

103 / Statement of Samuel Garrison, III, id. at 2040.

104 / Impeachment Inquiry (Minority Views of Messrs. Hutchinson, Smith, Sandman, Wiggins, Dennis, Mayne, Lott, Moorhead, Maraziti, and Latta) at 381 (emphasis added).

105 / The third Watergate article of impeachment, based on President Nixon's refusal to comply with this Committee's subpoenas, was based on "undisputed facts," Impeachment Inquiry at 213, so there was no need to articulate or apply an evidentiary standard to the factfinding process on which that article was based.

106 / Representative Caldwell Butler (R-Va.) explicitly applied the clear and convincing standard when he announced in Committee he would vote for impeachment. "Butler said . . . [t]he evidence was `clear, direct, and convincing' -- St. Clair's words -- that Richard Nixon had abused power." Kutler, The Wars of Watergate 522 (1990).

107 / Marcus, "Panel Unclear About Impeachment Role," The Washington Post (Dec. 6, 1996) at A8.

108 / In criminal cases, proof beyond a reasonable doubt is required to convict. In re Winship, 397 U.S. 358, 363-64 (1970).

109 / Labovitz, Presidential Impeachment at 192.

110 / Marcus, "Panel Unclear About Impeachment Role," The Washington Post (Dec. 6, 1996) at A8.

111 / Thus, a member would act in derogation of a solemn constitutional duty if he or she approved an article of impeachment without having concluded that the President had been shown, by clear and convincing evidence, to have performed an impeachable act. The House has its own independent constitutional obligation to weigh the evidence presented. It is not a matter of merely voting for the article on the theory that the Senate will determine the truth.

112 ^/ See also Kutler, The Wars of Watergate 477-89 (1990); Labovitz, Presidential Impeachment at 189.

113 ^/ Id. at 471.

114 ^/ We are not privy to all of the relevant documentation, but it appears that Mr. Starr secured from the Special Division in early July a general authorization to disseminate grand jury information in a referral which would later be drafted and submitted to Congress. App. at 10 (July 7, 1998 Order of Special Division). The OIC also apparently "advised" Chief Judge Johnson that it was submitting the Referral, Ref. at 4 n.18, but, as we point out in the text above, this is quite a different procedure from the careful review that Chief Judge Sirica performed in 1974 before the Watergate grand jury information was submitted to this Committee.

115 / The Jaworski report was "[o]nly 55 pages long, ... set forth the relevant evidence without any commentary, made no conclusions about whether the President had committed ordinary crimes or impeachable offenses, and contained a single piece of evidence on each page." Jeffrey Rosen, "Starr Crossed," The New Republic (Dec. 14, 1998).

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

117 / The absence of the "Talking Points" from the Referral is particularly striking given that that document was considered to be "the backbone of the independent counsel's inquiry into whether anyone lied or obstructed justice over Ms. Lewinksy's relationship with the President." The New York Times (June 11, 1998). As emphasized by OIC press spokesman Charles Bakaly:

Tim Russert: ...How important is it that we find out who is the author of those talking points?

Charles Bakaly: Well, in the grant of jurisdiction that the special division of the D.C. Circuit Court of Appeals gave to Judge Starr after the request of the Attorney General, that was the key mandate to look into, those kinds of issues of subornation of perjury and obstruction of justice.

NBC Meet the Press (July 5, 1998) (emphasis added). The document was also described as "the only known physical evidence of witness tampering," Chicago Tribune (April 3, 1998), and the "smoking gun," NBC News (Jan. 22, 1998).

118 / There are two basic federal perjury statutes: 18 U.S.C. § 1621 and 18 U.S.C. § 1623. Section 1621 applies to all material statements or information provided under oath "to a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered." Section 1623, in contrast, applies only to testimony given before a grand jury and other court proceedings. Although there are differences between the two statutes, the four basic elements of each are substantially the same.

119 / While Bronston involved a perjury conviction under the general perjury statute, 18 U.S.C. § 1621, lower federal courts have uniformly relied on it in reviewing perjury convictions under § 1623(a), which makes it unlawful to make any false material declaration "in any proceeding before or ancillary to any court or grand jury of the United States." See, e.g., United States v. Porter, 994 F.2d 470, 474 n.7 (8th Cir.1993); United States v. Reveron Martinez, 836 F.2d 684, 689 (1st Cir.1988); United States v. Lighte, 782 F.2d 367, 372 (2d Cir.1986).

120 / See also United States v. Finucan, 708 F.2d 838, 847 (1st Cir. 1983) (intent to mislead is insufficient to support conviction for perjury); United States v. Lighte, 782 F.2d 367, 374 (2d Cir. 1986) (literally true answers by definition non-perjurious even if answers were designed to mislead); United States v. Tonelli, 577 F.2d 194, 198 (3d Cir. 1978) (perjury statute is not to be invoked because a "wily witness succeeds in derailing the questioner"); United States v. Abroms, 947 F.2d 1241, 1245 (5th Cir. 1991) (unambiguous and literally true answer is not perjury, even if there was intent to mislead); United States v. Eddy, 737 F.2d 564, 569 (6th Cir. 1984) ("An `intent to mislead' or `perjury by implication' is insufficient to support a perjury conviction."); United States v. Williams, 536 F.2d 1202, 1205 (7th Cir. 1976) (literally true statement cannot form basis of perjury conviction even if there was intent to mislead); United States v. Robbins, 997 F.2d 390, 394 (8th Cir. 1993); United States v. Boone, 951 F.2d 1526, 1536 (9th Cir. 1991) (literally true statement is not actionable); United States v. Larranaga, 787 F.2d 489, 497 (10th Cir. 1986) (no perjury where answer literally truthful and prosecutor's questioning imprecise); United States v. Shotts, 145 F.3d 1289, 1297 (11th Cir. 1998) ("An answer to a question may be non-responsive, or may be subject to conflicting interpretations, or may even be false by implication. Nevertheless, if the answer is literally true, it is not perjury."); United States v. Dean, 55 F.3d 640, 662 (D.C. Cir. 1995) (perjury charge cannot be based upon evasive answers or even misleading answers so long as such answers are literally true).

121 / Many other cases as well hold that ambiguous questions cannot produce perjurious answers. See, e.g., Lighte, 782 F.2d at 376 (questions fundamentally ambiguous because of imprecise use of "you," "that," and "again"); United States v. Farmer, 137 F.3d 1265, 1270 (10th Cir. 1998) (question "Have you talked to Mr. McMahon, the defendant about your testimony here today?" ambiguous because phrase "here today" could refer to "talked" or to "testimony;" conviction for perjury could not result from the question); United States v. Ryan, 828 F.2d 1010, 1015-17 (3d Cir. 1987) (loan application question asking for "Previous Address (last 5 years)" fundamentally ambiguous because unclear whether "address" refers to residence or mailing address, and "previous" could mean any previous address, the most recent previous address, or all previous addresses; based on ambiguity, perjury cannot result from answer to question); United States v. Markiewicz, 978 F.2d 786, 809 (2d Cir. 1992) (question "[D]id you receive any money that had been in bingo hall" ambiguous, and incapable of producing perjurious answer, when it did not differentiate between witness's personal and business capacities). See also United States v. Manapat, 928 F.2d 1097, 1099 (11th Cir. 1991); United States v. Eddy, 737 F.2d 564, 565-71 (6th Cir. 1984); United States v. Hilliard, 31 F.3d 1509 (10th Cir. 1994).

122 ^/ Dennis R. Suplee and Diana S. Donaldson, The Deposition Handbook at 161 (2d ed.).

123 ^/ For the same reason as that set forth herein, the allegation by Mr. Schippers that the President's sworn answers to interrogatories -- in which he denied a "sexual relationship" -- were false is without merit.

124 / For the sake of clarity, it should be understood that the President's affirmation of paragraph eight of Ms. Lewinsky's affidavit, Dep. at 204, was made many hours after his counsel, Mr. Bennett, characterized the affidavit as "saying there is absolutely no sex of any kind." Dep. at 54.

125 / Counsel for Ms. Jones stated, "Mr. President, in light of the Court's ruling, you may consider subparts two and three of the Deposition Exhibit 1 [the definition of sexual relations] to be stricken, and so when in my questions I use the term `sexual relations,' sir, I'm talking only about part one in the definition of the body." Dep. at 23 (emphasis added).

126 ^/ A specific allegation is made with respect to a difference between the President's and Ms. Lewinsky's recollection of the precise nature of the physical contact in their admittedly inappropriate intimate relationship. That issue is addressed below in the context of the allegation that the President committed perjury in his August 17 grand jury testimony. See Section VI.F.2 infra.

127 / The Referral's mischaracterization of the President's testimony appears to come from Mr. Starr's transformation of a question about being alone with Ms. Lewinsky in the Oval Office, Dep. at 52, into being alone more generally.

128 / In his grand jury testimony the President stated that he had been alone with Ms. Lewinsky. See, e.g., App. at 481. The term "alone" is vague unless a particular geographic space is identified. For example, Ms. Currie testified that "she considers the term alone to mean that no one else was in the entire Oval Office area." Supp. at 534-35 (1/24/98 FBI Form 302 Interview of Ms. Currie; see also Supp. at 665 (7/22/98 grand jury testimony of Ms. Currie) ("I interpret being `alone' as alone ... [W]e were around, so they were never alone."). Ms. Currie also acknowledged that the President and Ms. Lewinsky were "alone" on certain occasions if alone meant that no one else was in the same room. Supp. at 552-53 (1/27/98 grand jury testimony of Ms. Currie).

129 / The videotape of the President's January 17 deposition makes clear that the cold transcript can be somewhat misleading. When the President is asked, "Well, have you ever given any gifts to Monica Lewinsky?", the transcript records his response as, "I don't recall. Do you know what they were?" Dep. at 75. The videotape reveals the President's response, however, was a run-on sentence, as though the punctuation were omitted, for the real communicative gist of his quoted response (as it appears on the videotape) was, "Yes -- I know there were some -- please help remind me." In succeeding questions, the President states that he "could have" given her a hat pin and a book, does not believe he gave her a "gold broach," and does recall giving her some Black Dog memorabilia. Dep. at 75-76.

130 ^/ It also is not clear why he would want to deny such knowledge, since parties to a lawsuit generally and properly are aware of the witnesses in the case.

131 / In fact, Ms. Lewinsky did come to the White House for a Christmas party on December 5, 1997, well before she was subpoenaed. See App. at 125 (OIC log of Ms. Lewinsky's visits); App. at 3140 (photo of Ms. Lewinsky at Christmas party).

132 / Mr. Schippers analyzed the Referral and cited a discrepancy between the testimony of President Clinton and Ms. Lewinsky over the precise nature of the physical contact involved in their relationship as the basis for an allegation that President Clinton perjured himself before the grand jury. Schippers Presentation at 27. Mr. Starr, in his Referral, advocated two additional bases: first, explaining his deposition testimony as based on his belief that the terms "sexual relationship" "sexual affair," and "sexual relations" required intercourse; and second, testifying that he recalled his inappropriate relationship with Ms. Lewinsky beginning early in 1996, rather than in mid-November of 1995 as Ms. Lewinsky recalled. As Mr. Schippers evidently concluded, these alternative claims have no merit. One need look no further than the common dictionary definition of terms such as "sexual relations" to find the President's views validated, see supra at Section VI.F.1.a, and it is not credible to believe that the slim difference between the President's and Ms. Lewinsky's recollections of the commencement date of their relationship (mid-November 1995 as opposed to early 1996) was in any way material to the grand jury's investigation whatsoever. As Chairman Hyde himself stated in reference to this latter allegation, "It doesn't strike me as a terribly serious count." Remarks of Chairman Hyde at Perjury Hearing of December 1, 1998.

133 / Ms. Lewinsky's statements to her friends about the nature of the contact between herself and the President do not constitute independent corroboration. These statements obviously are not independent as they were made by Ms. Lewinsky. They also appear to be inconsistent, a fact which is even noted, albeit quietly, in Mr. Starr's Referral. See Ref. at 17 n.39 (noting conflicting accounts of oral sex); see also Supp. at 1083 (statement by Kathleen Estep that Ms. Lewinsky told her that President Clinton was brought to her apartment by the Secret Service at 2 a.m.).

134 / For instance, in United States v. Wood, 6 F.3d 692, 697 (10th Cir. 1993), the United States Court of Appeals for the Tenth Circuit found that a defendant's false statements to the Federal Bureau of Investigation during a grand jury investigation did not violate § 1503, because they did not have the natural and probable effect of impeding the due administration of justice.

135 / See, e.g., Richmark v. Timber Falling Consultants, 730 F. Supp. 1525, 1532 (D. Ore. 1990) (because of the remedies afforded by the Federal Rules of Civil Procedure, § 1503 does not cover party discovery in civil cases, and "[t]he parties have not cited and the court has not found any case in which a person was charged with obstruction of justice for concealing or withholding discovery in a civil case"). See also United States v. Lundwall, 1 F. Supp. 2d 249, 251-54 (S.D.N.Y. 1998) (noting that "[c]ases involving prosecutions for document destruction during civil pre-trial discovery are notably absent from the extensive body of reported § 1503 case law," and that "there are a great many good reasons why federal prosecutors should be reluctant to bring criminal charges relating to conduct in ongoing civil litigation," but concluding that systematic destruction of documents sought during discovery should satisfy § 1503).

136 ^/ Ms. Lewinsky herself explicitly made nine such statements and the tenth (number 8 in the sequence listed above in the text) was made by a juror re-stating Ms. Lewinsky's earlier statement. Ms. Lewinsky appeared to agree with, and did not correct, that restatement.

137 / Independent Counsel Kenneth Starr (Nov. 19, 1998) Statement Before the Committee on the Judiciary U.S. House of Representatives at 15.

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

139 ^/ Number 4 above.

140 ^/ The Referral's concealment discussion (Ref. at 165-172) makes but a single mention of any of Ms. Lewinsky's other accounts of the December 28 conversation. See Ref. at 166 n.226 (quoting App. at 1122 (8/20/98 grand jury testimony Ms. Lewinsky) (number 6 in the list above)).

141 / See also App. at 874 (8/6/98 grand jury testimony of Ms. Lewinsky); App. at 1127 (8/20/98 grand jury testimony of Ms. Lewinsky).

142 / The Referral's further musings on the subject of the gifts, Ref. at 170-71, are based on conjecture, not evidence. See, e.g., Ref. at 170. ("[m]ore generally, the person making the extra effort [here, picking up the gifts] . . . is ordinarily the person requesting the favor"). As to the Referral's credibility judgments, see Part V.B.1.b.3 below.

143 ^/ Summaries of Ms. Lewinsky's 18 different interviews with the OIC appear at App. at 1389-1603.

144 ^/ Ms. Lewinsky replies, "You know, I have come recently to look at that as sort of a strange situation . . . ." App. at 888.

145 ^/ From his standpoint, Mr. Jordan's assistance to Ms. Lewinsky was not in the least unusual. Mr. Jordan testified repeatedly that he is often asked to help people get jobs and often provides such help. See Supp. at 1707 (3/3/98 grand jury testimony of Vernon Jordan) (Mr. Jordan is "asked frequently by people to help . . . get jobs"); id. at 1711-12 (noting referrals of other individuals for jobs at Revlon, Young & Rubicam, American Express and other companies and stating "to the extent you think [assisting Ms. Lewinsky was] out of the ordinary, it is not out of the ordinary, given what I do"); see also January 22, 1998 Statement of Vernon Jordan: ("For many years now . . . I am consulted by individuals, young and old, male and female, black and white, Hispanic and Asian, rich and poor, cabinet members and secretaries, for assistance.").

146 ^/ See also Supp. at 1827 (5/5/98 grand jury testimony of Vernon Jordan):

Q. Did [Ms. Lewinsky] ever directly indicate to you that she wanted her job in New York before she could finish [her affidavit] up with Mr. Carter?

A. Unequivocally, no.

Q. . . . Is there anything about the way she acted when speaking to you that, as you sit here now, makes you think that perhaps she was attempting not to finalize whatever she was doing with Mr. Carter until she had a job in New York?

A. Unequivocally, indubitably, no.

147 / As we will establish below, the omitted facts are flatly at odds with that theory. Had the President intended to ensure Ms. Lewinsky's silence concerning their relationship, it was surely within his power -- at any time -- to secure a job for Ms. Lewinsky at the White House. It appears from the record that she desperately wanted such a position. Given Ms. Lewinsky's repeatedly expressed desire for such a job, any jobs-for-silence scheme could have been readily implemented by giving her a White House position. No such position was ever offered, because there was never an effort to silence or buy off Ms. Lewinsky.

148 / In addition to the many relevant facts omitted from the Referral altogether, see Part V.C, infra, the Referral also contains its own misleading "editing" of events it does include. For instance, the Referral includes a number of exculpatory facts in its Narrative section, but then, when it sets forth what it calls "substantial and credible evidence" of wrongdoing, it omits them from its so-called summary of "key events and dates." Ref. 181. The following is just a sampling of facts the Referral's authors did not regard as "key events" deserving consideration in the accusatory part of the Referral:

· that throughout the first half of 1997, Ms. Lewinsky had been hoping to return to a job in the White House and that she had not succeeded in doing so; App. at 564 (President's 8/17/98 grand jury testimony);

· that the idea of a job at the United Nations originated with Ms. Lewinsky, not the President; see App. at 788 (8/6/98 grand jury testimony of Ms. Lewinsky) (in July 3 letter, "I said in New York at the United Nations");

· that Ms. Lewinsky's resolve to leave Washington was cemented by remarks reported to her by Ms. Tripp on October 6, 1997 and that those remarks, by a Tripp acquaintance, "were `the straw that broke the camel's back.'" App. at 1460 (7/31/98 FBI Form 302 Interview of Ms. Lewinsky);

· that before she ever had had the October discussion with the President about a job, she had discussed with Ms. Tripp whether Mr. Jordan would help with her job search; App. at 823-24 (8/6/98 grand jury testimony of Ms. Lewinsky);

· that Ms. Lewinsky first expressed a need for a White House reference on October 11, and that she suggested that Mr. John Hilley was the appropriate person to provide the reference because he had at one time been her supervisor; App. at 1544-45 (8/13/98 FBI Form 302 Interview of Ms. Lewinsky);

· that Ms. Lewinsky needed the reference not for any improper motive but because she had worked at the White House in the Office of Legislative Affairs; App. at 934-35 (8/6/98 grand jury testimony of Ms. Lewinsky). Mr. Hilley was the appropriate person to provide the reference because he had been her boss there during the latter part of her tenure at the White House. Ibid.

The omission of each of these facts from the accusatory portion of the Referral artificially bolsters the theory of the Referral by creating the effect that Ms. Lewinsky's job search occurred mostly in December and January.

149 / A friend of Ms. Lewinsky's also testified that she believed that Ms. Lewinsky did not lie in her affidavit based on her understanding that when Ms. Lewinsky referred to "sex" she meant intercourse. Supp. at 4597 (6/23/98 grand jury testimony of Ms. Dale Young).

150 ^/ Federalist 65 at 331.

151 / See, e.g., "Bryant Suggests Clinton Should Consider Stepping Aside," Gannett News Service (January 27, 1998); "President Imperiled As Never Before," The Washington Post (January 22, 1998); "Clinton Accused: Guide to Impeachment," The Independent (January 23, 1998) at 8.

152 / H. Res. 304, 105^th Cong., 1^st Sess. (November 5, 1997). See "17 in House Want Clinton Impeached," The Washington Times (November 6, 1997) at A3.

153 / Declaration of Charles F. C. Ruff (hereinafter, "Ruff Dec."), at ¶ 19-22, 53 (dated March 17, 1998), filed in In re Sealed Case, Misc. No. 98-95 (D.D.C.); United States v. Nixon, 418 U.S. 683, 708 (1974).

154 / In re Grand Jury Proceedings, 5 F. Supp.2d 21 (D.D.C. 1998); see also United States v. Nixon, 418 U.S. 683, 711 (1974); In re Sealed Case, 121 F.3d 729, 745, 750-52 (D.C. Cir. 1997).

155 / In re Grand Jury Proceedings, 5 F. Supp.2d at 28-29.

156 / United States v. Nixon, 418 U.S. at 711; In re Sealed Case, 121 F.3d at 750.

157 / Ruff Dec. at ¶ 31.

158 ^/ Id. at ¶¶ 31-33.

159 ^/ Id. at ¶ 37.

160 ^/ Id. at ¶¶ 29-30.

161 / Id. at ¶¶ 26-30.

162 ^/ Id. at ¶¶ 19-25.

163 ^/ Id. at ¶¶ 23-25.

164 ^/ Id. at ¶¶ 45-51.

165 / Id. at ¶ 32.

166 / Id. at ¶¶ 41.

167 / Id. at ¶¶ 51.

168 / Id. at ¶ 56.

169 ^/ Cf., In re Sealed Case, 121 F.3d at 744-45 (explaining need requirement set forth in United States v. Nixon).

170 ^/ The Court of Appeals in dicta also validated the appropriateness of the executive privilege claim, although the White House appeal was limited to the attorney-client privilege issue and did not include the executive privilege claim. See In re Lindsey, 158 F.3d 1263, 1277 (D.C. Cir. 1998) ("information gathered in preparation for impeachment proceedings and conversations regarding strategy are presumably covered by executive, not attorney-client, privilege").

171 / Ruff Dec., Exhibit 6.

172 / White House Press Release: Remarks by the President in Photo Opportunity with President Museveni of Uganda, 1 (March 24, 1998).

173 ^/ Cong. Record 2350, February 6, 1974.

174 ^/ Editorial, "What the President Knew," The New York Times (Oct. 19, 1992) at A16.

175 ^/ Nixon Report at 2.

176 ^/ Nixon Report at 27-34.

177 ^/ Nixon Report at 27, 47.

178 ^/ Nixon Report at 27.

179 ^/ Nixon Report at 59-60.

180 ^/ Nixon Report at 3-4.

181 ^/ Nixon Report at 98-99.

182 ^/ Nixon Report at 103.

183 ^/ Nixon Report at 161-70, 177-79.

What's New - December 1998

White House Conference on Social Security

New Housing Grants

Social Security and Y2K Event

Combat Medicare Fraud

Air Strike Against Iraq

Initiative To Help Prevent Violence

Opening Remarks, White House Conference

The Air Strikes Against Iraq

General Benjamin Davis

World AIDS Day Event

Statements

Eleanor Roosevelt Human Rights Awards

Congressional Meeting Statement

End of Operation Desert Fox

Rose Garden Statement

Safe Drinking Water

Service Event in Washington, D.C.

New Relief Aid For Central America

The Earned Income Tax Credit

Tenth Anniversary of Pan Am 103 Disaster

Palestinian National Council Address

Unemployment at a Generational Low

The People Of Israel Address

Submission By Counsel For President Clinton To The Committee On The Judiciary Of The United States House Of Representatives