Clinton Response to Starr Reports

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PRELIMINARY MEMORANDUM

CONCERNING REFERRAL OF

OFFICE OF INDEPENDENT COUNSEL









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




September 11, 1998

EXECUTIVE SUMMARY


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


1. The President has acknowledged a serious mistake - an
inappropriate relationship with Monica Lewinsky. He has
taken responsibility for his actions, and he has apologized
to the country, to his friends, leaders of his party, the
cabinet and most importantly, his family.

2. This private mistake does not amount to an impeachable
action. A relationship outside one's marriage is wrong -
and the President admits that. It is not a high crime or
misdemeanor. The Constitution specifically states that
Congress shall impeach only for "treason, bribery or other
high crimes and misdemeanors." These words in the
Constitution were chosen with great care, and after
extensive deliberations.

3. "High crimes and misdemeanors" had a fixed meaning to the
Framers of our Constitution - it meant wrongs committed
against our system of government. The impeachment clause
was designed to protect our country against a President who
was using his official powers against the nation, against
the American people, against our society. It was never
designed to allow a political body to force a President
from office for a very personal mistake.

4. Remember -- this report is based entirely on allegations
obtained by a grand jury - reams and reams of allegations
and purported "evidence" that would never be admitted in
court, that has never been seen by the President or his
lawyers, and that was not subject to cross-examination or
any other traditional safeguards to ensure its credibility.


5. Grand juries are not designed to search for truth. They do
not and are not intended to ensure credibility,
reliability, or simple fairness. They only exist to
accuse. Yet this is the process that the Independent
Counsel has chosen to provide the "evidence" to write his
report.

6. The law defines perjury very clearly. Perjury requires
proof that an individual knowingly made a false statement
while under oath. Answers to questions that are literally
true are not perjury. Even if an answer doesn't directly
answer the question asked, it is not perjury if it is true
- no accused has an obligation to help his accuser.
Answers to fundamentally ambiguous questions also can never
be perjury. And nobody can be convicted of perjury based
on only one other person's testimony.

7. The President did not commit perjury. Most of the illegal
leaks suggesting his testimony was perjurious falsely
describe his testimony. First of all, the President never
testified in the Jones deposition that he was not alone
with Ms. Lewinsky. The President never testified that his
relationship with Ms. Lewinsky was the same as with any
other intern. To the contrary, he admitted exchanging
gifts with her, knowing about her job search, receiving
cards and notes from her, and knowing other details of her
personal life that made it plain he had a special
relationship with her.

8. The President has admitted he had an improper sexual
relationship with Ms. Lewinsky. In a civil deposition, he
gave narrow answers to ambiguous questions. As a matter of
law, those answers could not give rise to a criminal charge
of perjury. In the face of the President's admission of
his relationship, the disclosure of lurid and salacious
allegations can only be intended to humiliate the President
and force him from office.

9. There was no obstruction of justice. We believe Betty
Currie testified that Ms. Lewinsky asked her to hold the
gifts and that the President never talked to her about the
gifts. The President admitted giving and receiving gifts
from Ms. Lewinsky when he was asked about it. The
President never asked Ms. Lewinsky to get rid of the gifts
and he never asked Ms. Currie to get them. We believe that
Ms. Currie's testimony supports the President's.

10. The President never tried to get Ms. Lewinsky a job after
she left the White House in order to influence her
testimony in the Paula Jones case. The President knew Ms.
Lewinsky was unhappy in her Pentagon job after she left the
White House and did ask the White House personnel office to
treat her fairly in her job search. He never instructed
anyone to hire her, or even indicated that he very much
wanted it to happen. Ms. Lewinsky was never offered a job
at the White House after she left - and it's pretty
apparent that if the President had ordered it, she would
have been.

11. The President did not facilitate Ms. Lewinsky's interview
with Bill Richardson, or her discussions with Vernon
Jordan. Betty Currie asked John Podesta if he could help
her with her New York job search which led to an interview
with Bill Richardson, and Ms. Currie also put her in touch
with her longtime friend, Mr. Jordan. Mr. Jordan has made
it clear that this is the case, and, as a private
individual, he is free to offer job advice wherever he sees
fit.

12. There was no witness tampering. Betty Currie was not
supposed to be a witness in the Paula Jones case. If she
was not called or going to be called, it was impossible for
any conversations the President had with her to be witness
tampering. The President testified that he did not in any
way attempt to influence her recollection.

13. There is no "talking points" smoking gun. Numerous illegal
leaks painted the mysterious talking points as the proof
that the President or his staff attempted to suborn the
perjury of Monica Lewinsky or Linda Tripp. The OIC's
spokesman said that the "talking points" were the "key" to
Starr even being granted authority to investigate the
President's private life. Yet in the end, Ms. Lewinsky has
apparently admitted the talking points were written by her
alone [or with Ms. Tripp's assistance], and the President
was not asked one single question about them in his grand
jury appearance.

14. Invocation of privileges was not an abuse of power. The
President's lawful assertion of privileges in a court of
law was only made on the advice of his Counsel, and was in
significant measure validated by the courts. The legal
claims were advanced sparingly and as a last resort after
all attempts at compromise by the White House Counsel's
office were rejected to protect the core constitutional and
institutional interests of this and future presidencies.

15. Neither the President nor the White House played a role in
the Secret Service's lawful efforts to prevent agents from
testifying to preserve its protective function. The
President never asked, directed or participated in any
decision regarding the protective function privilege.
Neither did any White House official. The Treasury and
Justice Departments independently decided to respond to the
historically unprecedented subpoenas of Secret Service
personnel and to pursue the privilege to ensure the
protection of this and future presidents.

16. The President did not abuse his power by permitting White
House staff to comment on the investigation. The President
has acknowledged misleading his family, staff and the
country about the nature of his relationship with Ms.
Lewinsky, and he has apologized and asked for forgiveness.
However, this personal failing does not constitute a
criminal abuse of power. If allowing aides to repeat
misleading statements is a crime, then any number of public
officials are guilty of misusing their office for as long
as they fail to admit wrong doing in response to any
allegation about their activities.

17. The actions of White House attorneys were completely
lawful. The White House Counsel attorneys provided the
President and White House officials with informed, candid
advice on issues raised during this investigation that
affected the President's official duties. This was
especially necessary given the fact that impeachment
proceedings against the President were a possible result of
the OIC's investigation from Day One. In fact, throughout
the investigation, the OIC relied on the White House
Counsel's office for assistance in gathering information
and arranging interviews and grand jury appearances. The
Counsel's office's actions were well known to the OIC
throughout the investigation and no objection was ever
voiced.


This means that the OIC report is left with nothing but the
details of a private sexual relationship, told in graphic details
with the intent to embarrass. Given the flimsy and
unsubstantiated basis for the accusations, there is a complete
lack of any credible evidence to initiate an impeachment inquiry
concerning the President. And the principal purpose of this
investigation, and the OIC's report, is to embarrass the
President and titillate the public by producing a document that
is little more than an unreliable, one-sided account of sexual
behavior.

Where's Whitewater? The OIC's allegations reportedly include no
suggestion of wrongdoing by the President in any of the areas
which Mr. Starr spend four years investigating: Whitewater, the
FBI files and the White House travel office. What began as an
inquiry into a 24 year old land deal in Arkansas has ended as an
inquest into brief, improper personal encounters between the
President and Monica Lewinsky. Despite the exhaustive nature of
the OIC's investigation into the Whitewater, FBI files and travel
office matters, and a constant stream of suggestions of
misconduct in the media over a period of years, to this day the
OIC has never exonerated the President or the First Lady of
wrongdoing.

PRELIMINARY MEMORANDUM CONCERNING
REFERRAL OF OFFICE OF INDEPENDENT COUNSEL

This document is intended to be a preliminary response to
the Referral submitted by the Office of Independent Counsel to The
Congress. Because we were denied the opportunity to review the content,
nature or specifics of the allegations made against the President by
the Office of Independent Counsel (OIC), we do not pretend to offer a
point-by-point refutation of those allegations, or a comprehensive
defense of the President.

We commend the House of Representatives for the
extraordinary steps it has taken to safeguard the secrecy of the OIC's
allegations. Unfortunately, its efforts were thwarted by unnamed
sources familiar with the details of the OIC's allegations -- sources
that could only come from the OIC itself -- who saw fit to leak
elements of the allegations to the news media.

Based on these illegal leaks, as well as our knowledge of
the President's testimony, we offer this document as a summary outline
of his side of the case. We will provide you with a specific rebuttal
as soon as we have had a chance to review the materials that the OIC
has already transmitted to you.

The simple reality of this situation is that the House is
being confronted with evidence of a man's efforts to keep an
inappropriate relationship private. A personal failure that the
President has acknowledged was wrong, for which he apologized, and for
which he accepts complete responsibility. A personal failure for which
the President has sought forgiveness from members of his family,
members of the Cabinet, Members of Congress, and the American people.
Such a personal failing does not, however, constitute "treason, bribery
and high crimes and misdemeanors" that would justify the impeachment of
the President of the United States.

The President himself has described his conduct as wrong.
But no amount of gratuitous details about the President's relationship
with Ms. Lewinsky, no matter how salacious, can alter the fact that:

1) The President did not commit perjury:
2) The President did not obstruct justice;
3) The President did not tamper with witnesses; and
4) The President did not abuse the power of his office.

Impeachment is a matter of incomparable gravity. Even to
discuss it is to discuss overturning the electoral will of the people.
For this reason, the Framers made clear, and scholars have long agreed,
that the power should be exercised only in the event of such grave
harms to the state as "serious assaults on the integrity of the
processes of government," or "such crimes as would so stain a president
as to make his continuance in office dangerous to public order."
Charles L. Black, Impeachment: A Handbook 38-39 (1974). We do not
believe the OIC can identify any conduct remotely approaching this
standard. Instead, from press reports, if true, it appears that the
OIC has dangerously overreached to describe in the most dramatic of
terms conduct that not only is not criminal but is actually proper and
lawful.

The President has confessed to indiscretions with Ms.
Lewinsky and accepted responsibility and blame. The allegations
concerning obstruction, intimidation, perjury and subornation of
perjury that we anticipate from the OIC are extravagant attempts to
transform a case involving inappropriate personal behavior into one of
public misconduct justifying reversal of the judgment of the electorate
of this country.

I. STANDARDS FOR IMPEACHMENT

The Constitution provides that the President shall be
removed from office only upon "Impeachment for, and Conviction of,
Treason, Bribery, or other high Crimes and Misdemeanors." U.S. Const.
Art. II, Sect. 4. Of course, there is no suggestion of treason or
bribery present here. Therefore, the question confronting the House of
Representatives is whether the President has committed a "high Crime[]
or Misdemeanor." The House has an obligation to consider the evidence
in view of that very high Constitutional threshold. It should pursue
the impeachment process only if there is evidence implicating that high
standard.

The House must approach the question with solemnity and
with care, for history teaches that an "impeachable offense" is no
ordinary kind of wrongdoing. The Framers included specific provisions
for impeachment in the Constitution itself because they understood that
the most severe political remedy was necessary to remedy the most
serious forms of public wrongdoing. Impeachment is a basic
constitutional safeguard, designed both to correct harms to the system
of government itself and to protect the people from ongoing
malfeasance. Nothing less than the gravest executive wrongdoing can
justify impeachment. The Constitution leaves lesser wrongs to the
political process and to public opinion.

Presidential impeachment is thus a matter of incomparable
gravity. As Professor Charles Black stated,

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

Impeachment: A Handbook 1 (1974). Presidential impeachment is thus an
"awful step." Ibid. The Framers knew this. For that reason they
framed the constitutional procedure with precision and specified
grounds for impeachment with great care.

The Framers deliberately chose to make "high Crimes and
Misdemeanors" the standard of an impeachable offense. They were
familiar with English common law and parliamentary history and they
borrowed the expression directly from the English law of impeachment.
They did so knowing that the expression was a term of art and they made
the choice after deliberate rejection of alternative formulations of
the impeachment standard.

The Framers intended the standard to be a high one. They
rejected a proposal that the President be impeachable for
"maladministration," for, as James Madison pointed out, such a standard
would "be equivalent to a tenure during the pleasure of the Senate."(1)
The Framers plainly did not intend to permit Congress to debilitate the
executive by authorizing impeachment for something short of the most
serious harm to the state. In George Mason's apt phrase, impeachment
was thought necessary to remedy "[a]ttempts to subvert the
Constitution."

In English practice, the term "high crimes and
misdemeanors" had been applied to various offenses, the common elements
of which were their severity and the fact that the wrongdoing was
directed against the state.(2) The English cases included
misappropriation of public funds, interfering in elections, accepting
bribes, neglect of duty, and various forms of corruption. Ibid. These
offenses all affected the discharge of public duties by public
officials. In short, under the English practice, "the critical element
of injury in an impeachable offense was injury to the state."(3)

That is why, at the time of the ratification debates,
Alexander Hamilton described impeachment as a "method of NATIONAL
INQUEST into the conduct of public men." The Federalist No. 65 at 331
(Gary Wills ed. 1982). This "inquest" is perhaps the gravest process
known to our Constitution. No act touches more fundamental questions
of constitutional government than does the process of Presidential
impeachment. No act more directly affects the public interest. No act
presents the potential for greater injustice -- injustice both to the
Chief Executive and to the people who elected him.

For these reasons, the impeachment process must be
painstaking and deliberate. It must focus only on such harms as the
Framers intended to be redressed by the incomparably severe act of
impeachment. And most importantly, it must be understood for what it
is -- a process of inquiry. That process is itself the exercise of a
public trust "of delicacy and magnitude."(4) Accordingly, if the
process is begun it is only just that the members engaged in this
solemn task withhold judgment until the process is complete and all the
facts are known. Our Constitution's most basic values and the
requirements of simple justice together demand no less.

The President is sole head of one branch of our government
-- indeed, in a certain sense the President is the Executive Branch.
The Constitution provides that "[t]he executive Power shall be vested
in a President of the United States of America." U.S. Const. art. II,
Sect. 1. The President is the only government official to have been
popularly elected by all the American people. When the people elect a
President, the popular will is expressed in its most important, most
visible and most unmistakable form.(5) The impeachment process, by
definition, threatens to undo the popular will. Impeachment presents
the prospect of reversing the electoral mandate that brought the
executive to office. Conviction upon articles of impeachment actually
does so.

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

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

Federalist 65 at 330-31.

The Framers and early commentators on the Constitution are
in accord on the question of impeachment's intended consequence. In
Justice James Wilson's words, impeachments are "proceedings of a
political nature . . . confined to political characters" charging only
"political crimes and misdemeanors" and culminating only in "political
punishments." J. Wilson, Works 426 (R. McCloskey, ed. 1967) And as
Justice Story put the matter, "the [impeachment] power partakes of a
political character, as it respects injuries to the society in its
political character." Joseph Story, Commentaries on the Constitution
Sect. 744 (1st Ed. 1833).(6) That understanding of the Framers and
early commentators reflected the historical understanding of
impeachable offenses in England. "'High crimes and misdemeanors' were
a category of political crimes against the state." Berger,
Impeachment, at 61 (emphasis in original). Therefore, the Framers
"intended that a president be removable from office for the commission
of great offenses against the Constitution."(7)

Impeachment therefore addresses public wrongdoing, whether
denominated a "political crime[] against the state,"(8) or "an act of
malfeasance or abuse of office,"(9) or a "great offense[s] against the
federal government."(10) In short, impeachment is a necessary
Constitutional check by a coordinate branch of government upon serious
and aggravated abuses of executive power that, given the President's
four-year term, might otherwise go unchecked.

Holders of public office are therefore not to be impeached
for private conduct, however wrongful. To the contrary, only "serious
assaults on the integrity of the processes of government,"(11)and "such
crimes as would so stain a president as to make his continuance in
office dangerous to public order"(12) should constitute impeachable
offenses. Conduct which is not an "offense[] against the
government,"(13) or "malfeasance or abuse of office,"(14) and which
bears no "functional relationship"(15) to public office, does not
constitute grounds for impeachment. Allegations concerning private
conduct--private sexual conduct in particular--simply do not implicate
high crimes or misdemeanors.

Private misconduct, or even public misconduct short of an
offense against the state, is not redressable by impeachment because
that solemn process, in Justice Story's words, addresses "offences[]
which are committed by public men in violation of their public trust
and duties." Story, Commentaries Sect. 744 (emphasis added).
Impeachment is a political act in the sense that its aims are public;
it attempts to rein in abuses of the public trust committed by public
officeholders in connection with conduct in public office. As one
scholar has put it, "[t]he nature of [impeachment] proceedings is
dictated by the harms sought to be redressed - "the misconduct of
public men" relating to the conduct of their public office - and the
ultimate issue to be resolved - whether they have forfeited through
that conduct their right to continued public trust."(16)

Impeachment's public character is further evidenced by the
fact that, as Justice Story expressed it, the process is conducted "by
the representatives of the nation, in their public capacity," and "in
the face of the nation." Story, Commentaries Sect. 686.
Constitutionally, impeachment's public function demands public
accountability. Elected officials are no more qualified than ordinary
voters to assess the private wrongs of public officeholders. The
Constitution's impeachment mechanism does not exist to punish such
wrongs.

The public character of impeachable wrongs is also
reflected in the fact that the remedy imposed for commission of
impeachable acts is a wholly public one. Impeachment results in
removal from office and possible disqualification from further office.
U.S. Const. art.I, Sect. 3, cl. 7.

To say that impeachment is fundamentally a "political"
process, however, is not to say that it is "partisan" in nature.
Indeed, the Framers warned against the spirit of partisanship in
impeachment proceedings. In Federalist 65, Hamilton wrote that the
impeachment process threatened to "agitate the passions of the whole
community . . .to divide it into parties . . . [to] connect itself with
pre-existing factions [and] to enlist their animosities, partialities,
influence and interest." Id. at 331. Justice Story warned of the
danger that "the decision [to impeach] will be regulated more by the
comparative strength of the parties, than by the strength of the
proofs." Commentaries Sect. 744. Only substantial evidence of
presidential wrongdoing that threatened the processes of government or
the public order can justify this grave and ideally bipartisan process.

What is ultimately intended by impeachment's truly
"political" nature is the manner of limitation the Constitution allows
one elected (political) branch to place on the other elected
(political) branch, the Presidency. Impeachment is necessarily a
public act conducted by public bodies (the Houses of Congress
exercising their constitutionally allotted portion of impeachment
power) against a public officeholder (here, the President). Exercise
of that limiting function is justified only when the people's
representatives conclude that the people themselves must be protected
from their own elected executive.

Impeachment must therefore be approached with the utmost
solemnity. The process must focus on public acts, performed in the
President's public capacity, and affecting the public interest.
Cognizant of the enormous harm that must follow the bare suggestion of
formal impeachment processes, the House should pursue an impeachment
inquiry if and only if there is credible evidence of actions
constituting fundamental injuries to the governmental process. Indeed,
the Committee should consider and approve articles of impeachment only
for such acts as have, in its judgment, so seriously threatened the
integrity of governmental processes as to have made the President's
continuation in office a threat to the public order.

Impropriety falling short of that high standard does not
meet the constitutional measure. It must be left to the court of
public opinion and the judgment of history.

II. THE RELEVANT FACTUAL BACKGROUND

The Monica Lewinsky investigation is the most recent phase
of an amorphous, languorous, expensive, and seemingly interminable
investigation into the affairs of a small Arkansas real estate firm,
Whitewater Development Company, Inc. In January, 1994, Attorney
General Reno made an administrative appointment (the Ethics in
Government Act of 1978 having expired) of Robert B. Fiske, Jr., to
investigate the relationship of the President and Mrs. Clinton to
Whitewater, Madison Guaranty Savings & Loan Association, and Capital
Management Services. After the reenactment of the Ethics in Government
Act, the Special Division for the Purpose of Appointing Independent
Counsels of the Court of Appeals appointed Kenneth W. Starr, a former
high official in two Republican administrations, to replace Mr. Fiske
on August 5, 1994, and gave him a generally similar grant of
investigatory jurisdiction.

During the past four and a half years, the President has
cooperated extensively with this investigation. He has given testimony
by deposition at the White House to the Independent Counsel on four
separate occasions, and on two other occasions, he gave videotaped
deposition testimony for Whitewater defendants and was cross-examined
by the Independent Counsel. He has submitted written interrogatory
answers, produced more than 90,000 pages of documents and other items,
and provided information informally in a variety of ways. The OIC
subpoenaed from the President, and reviewed, virtually every personal
financial record and gubernatorial campaign finance record that exists
for the period from the mid-1980s to the present, in its endless search
to find something to use against the President. This comprehensive and
thorough financial review yielded the OIC nothing.

In May 1994, President Clinton was sued civilly by Ms.
Paula Jones, who made various claims arising out of an encounter on May
8, 1991, when the President was Governor of Arkansas. Various
constitutional questions were litigated, and it was not until the
Supreme Court's decision on May 27, 1997(17) that the case proceeded to
discovery. The Independent Counsel had no jurisdiction with respect to
the Jones case, but there were occasional press reports that the OIC
was in fact investigating the President's personal life.(18)

III. THE PRESIDENT'S TESTIMONY ABOUT MS. LEWINSKY

In his grand jury testimony on August 17, 1998, the
President acknowledged having had an improperly intimate relationship
with Ms. Lewinsky. This is enormously difficult for any person to do
even in private, much less in public.

It is important to recognize that the improper relationship
with Ms. Lewinsky ended in early 1997, at the President's behest. It
therefore had been over for almost a year at the time of the
President's deposition in the Jones case. From feelings both of
friendship and responsibility, the President remained in touch with Ms.
Lewinsky after the improper relationship ended and tried to help her:
none of this help was improper or conditioned on her behaving (or
testifying) in any particular way.

It is not true that the President had an improper 18-month
relationship with Ms. Lewinsky, as several media reports have alleged.
In his grand jury deposition, he testified that on certain occasions in
early 1996 and once in early 1997, he engaged in improper conduct with
Ms. Lewinsky. These encounters did not consist of sexual intercourse,
and they did not consist of "sexual relations" as he understood that
term to be defined at his Jones deposition on January 17, 1998
(explained infra), but they did involve inappropriate intimate contact.
These inappropriate encounters ended, at the President's insistence, in
early 1997, not because of the imminence of discovery, not because of
the Jones case (which the Supreme Court had not yet decided), but
because he knew they were wrong. On August 17, 1998, the President
expressed regret to the grand jury and, later, to the country, that
what began as a friendship came to include this conduct, and he took
full responsibility. He has frequently, to different audiences, made
similar expressions of regret and apology.

In this investigation, no stone has been left unturned--or
(we believe) unthrown. In simple fairness, therefore, it is important
to distinguish between what the President has acknowledged and what the
OIC merely alleges (on the basis of evidence we have not yet seen).

IV. THE NATURE OF THE OIC'S EVIDENCE

Use of a federal grand jury to compile evidence for
possible impeachment proceedings in Congress raises numerous troubling
questions regarding the credibility of that evidence. Indeed, given
the limited role of a grand jury in our system and the total absence of
procedural protections in the process, the Independent Counsel's
insistence that his investigation has been a search for "truth" is
deeply misleading. In fact, it has been a one-sided effort to present
the worst possible version of a limited set of facts.

Section 595(c) requires the OIC to provide the House with
"substantial and credible information . . . that may constitute grounds
for impeachment." But a grand jury is a totally unsuitable vehicle for
generating information that can, without more, be taken as credible
beyond challenge. The grand jury's historic role is not to determine
the truth but rather to act as an accusatory body. United States v.
Williams, 504 U.S. 36, 51 (1992). The process excludes contrary views
of the information gathered and fails to identify the kinds of
exculpatory information that might have been elicited or presented had
a targeted individual, and not just the OIC, had an opportunity to
cross-examine and the ability to compel responses.

Because it is inherently so one-sided and untested by
cross-examination, it normally is not permissible to use grand jury
testimony as a basis for anything other than permitting a grand jury to
indict or decline to indict. It may constitute nothing more than
hearsay, Costello v. United States, 350 U.S. 359, 364 (1956), or even
multiple hearsay--evidence which would likely be excluded from a trial.
Indeed, the information a grand jury gathers is not circumscribed by
the Federal Rules of Evidence at all, see Fed. R. Evid. 1101(d)(2), nor
delimited by the other safeguards of reliability which would be
enforced at trial. The testimony a grand jury elicits is not subject
to impeachment by interested parties, and such testimony may come from
immunized witnesses, from witnesses who fear prosecution, from
witnesses prepared by the prosecution, from witnesses with a history of
untruthfulness--or from disinterested witnesses. On the record of the
grand jury there need be no distinction among these sources, despite
the fact that their reliability varies greatly.

In its day-to-day operations, no judge presides over grand
jury proceedings. United States v. Williams, 504 U.S. 36, 48 (1992).
Grand jury witnesses do not have counsel present. Fed. R. Crim P.
6(d). The Double Jeopardy Clause does not prevent a grand jury from
returning an indictment after a first grand jury has declined to do so.
Ex Parte United States, 287 U.S. 241, 250-51 (1932). The exclusionary
rule does not apply to grand jury proceedings. United States v.
Calandra, 414 U.S. 338, 349 (1974). Grand jury witnesses have no right
to respond with information, however related, if it is not called for
by the prosecution, and targets and subjects of its inquiry have no
compulsory process to gather and present their side of the matter. Nor
does the target of a grand jury inquiry have any right to offset
potentially incriminating information with exculpatory information in
his possession. Williams, 504 U.S. at 55. In short, the most basic
techniques our adversary system of justice employs for testing and
assuring the reliability of evidence are completely missing in the
grand jury context.

As a consequence, "reliability" simply is not the
touchstone of a grand-jury inquiry. The Supreme Court itself has said
that "the mere fact that evidence is unreliable is not sufficient to
require a dismissal of [an] indictment." Bank of Nova Scotia v. United
States, 487 U.S. 250, 261 (1988). The same is true of "inadequate or
incompetent" evidence. Its presence will not justify dismissal of an
indictment. Calandra, 414 U.S. at 345; see also Holt v. United States,
218 U.S. 245 (1910) (same).

It must therefore be recognized that it is not the grand
jury's function to provide information about anything that can be taken
as true on its face. Its function is not to get at the ultimate truth.
The grand jury's inquisitorial powers serve but one end: to empower a
body of citizens to make a threshold decision whether to initiate the
search for truth that is the purpose of adversarial proceedings or to
decline to indict and thereby forego that search altogether. Only
after the grand jury renders that threshold decision does the search
for truth really commence because only then are the adversary system's
credibility-assessing mechanisms available.

The grand jury secrecy rule, Rule 6(e), Fed. R. Crim. P.,
is justified--indeed, mandated--by this reality. Grand jury
information is to be kept secret largely because it has been generated
without the protections of the adversarial system. Unlike information
presented in a trial setting, grand jury information presents an
enormous risk that persons' reputations will be injured or destroyed on
the basis of non-credible or insubstantial assertions. That harm may
damage both witnesses and persons who are subjects of witness
testimony. That is why, when a grand jury elects to indict, grand jury
materials are sealed and withheld from the petit jury ultimately
convened to find the truth and render a verdict.

Accordingly a fair report from the OIC would, inter alia,
provide all exculpatory evidence, assess the credibility of witnesses
in terms of bias, reason to falsify, prior inconsistent statements,
etc., and draw reasonable inferences. A fair report would identify
shortcomings in the investigation itself, including any excesses,
mistakes, errors in judgment, or impermissible tactics. A fair report
would demonstrate that every possible effort had been made to identify
all possibly exculpatory evidence, and that all such evidence had been
given appropriate weight. And a fair report would address honestly and
answer truthfully the following questions:

1) What were Linda Tripp's motives in seeking out the OIC in
January, 1998? Did she articulate a fear of being
prosecuted in Maryland under that State's anti-taping laws?
Why did she request immunity from prosecution? Why was she
given immunity?

2) What role did the OIC play in arranging for Ms. Tripp to
meet with the Jones lawyers on Friday, January 16, 1998,
the evening before the President's deposition? Did anyone
from the OIC drive Ms. Tripp to this meeting? Did the OIC
warn Ms. Tripp about the criminal law pertaining to sharing
with third parties the fruits of illegal tapings or even
communicating the fact that illegal tapes exist? Has
anyone at the OIC made any assessment of what impact Ms.
Tripp's conduct might have on any federal immunity deal Ms.
Tripp might have obtained from the OIC?

3) What authority did the OIC have to wire Linda Tripp and
attempt to develop evidence before obtaining permission to
expand its jurisdiction from the Attorney General or the
Special Division? What prevented the OIC from going
directly to the Attorney General upon receiving the tapes
from Ms. Tripp? If the primary basis for the expansion of
the OIC's jurisdiction was evidence that was obtained in an
ultra vires manner by the OIC, does that taint other
information obtained by the OIC?

4) What assessment has the OIC made of Ms. Tripp's ideological
motivations? Was the OIC aware she had submitted an
anti-Clinton book proposal to avowed Clinton hater Lucianne
Goldberg? Was the OIC aware of Goldberg's role in Ms.
Tripp's taping and arrangement for Ms. Lewinsky's use of a
messenger service?

5) How many statements on the Tripp-Lewinsky tapes are false
or exaggerated? How many statements contradict assertions
in the OIC's report?

6) When Ms. Tripp was asked to record Ms. Lewinsky
surreptitiously, was this because the OIC was concerned
about the legality of Ms. Tripp's previous telephone tapes
of Ms. Lewinsky?

7) What was Ms. Tripp's motivation in initiating the
surreptitious recording of her conversations with Ms.
Lewinsky? Did Tripp steer the taped conversations with Ms.
Lewinsky to obtain details about Ms. Lewinsky's sexual
activities? Was the taping connected in any way to her
relationship with Lucianne Goldberg? If Ms. Tripp began to
tape Ms. Lewinsky with an unlawful purpose, did she commit
a violation of the federal wiretapping statute (Title III)?
If the tapes were obtained in violation of federal law, can
the tapes or evidence derived from them be part of any
official proceeding in Congress (see 18 U.S.C. Sect. 2515)?

8) What, if anything, did the OIC offer the press to keep
secret its investigation into Ms. Lewinsky?

9) Why was the OIC in such haste to petition the Attorney
General for an expansion of jurisdiction? Precisely what
was the Attorney General told about Ms. Tripp's telephone
taping of Ms. Lewinsky? Did the "talking points" play any
role in the application? What particular alleged crimes
did the OIC seek authorization to investigate?

10) Ms. Lewinsky's lawyers, William Ginsburg and Nathaniel
Speights, wrote in an essay in Time (Feb. 16, 1998) that
the OIC informed them on Friday, January 16, 1998, "We've
got a deal, and we want to wire her and record some phone
calls;" these lawyers also wrote in that essay that "[The
OIC] wanted her [Ms. Lewinsky] wired, and they wanted her
to record telephone calls with the President of the U.S.,
Vernon Jordan and others--at their will." What persons did
the OIC intend Ms. Lewinsky to record surreptitiously?

11) In a letter from the Independent Counsel to the President's
personal counsel, dated February 6, 1998, the Independent
Counsel wrote: "From the beginning, I have made the
prohibition of leaks a principal priority of the Office.
It is a firing offense, as well as one that leads to
criminal prosecution." However, Chief Judge Johnson has
entered a series of orders finding prima facie reason to
believe that persons in the OIC violated Rule 6(e), Fed. R.
Crim. P., by illegal leaking (for example, "[t]he Court
finds that the serious and repetitive nature of disclosures
to the media of Rule 6(e) material strongly militates in
favor of conducting a show cause hearing" (June 19, 1998,
Order, at 5)). Has anyone been fired or disciplined by the
OIC for illegal leaking? What steps have been taken to
investigate and discipline OIC personnel who have engaged
in illegal leaking?


V. LIKELY OIC ALLEGATIONS OF OBSTRUCTION OF JUSTICE, SUBORNATION OF
PERJURY, AND INTIMIDATION OF WITNESSES

The OIC obtained jurisdiction on January 16, 1998 to
investigate possible obstruction of justice, subornation of perjury,
and intimidation of witnesses in the Jones case. These crimes are
quite specifically defined in the law, and the elements do not always
have an obvious meaning. We consider first the definition and then the
possible conduct to which these definitions might be applied.

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

For a conviction under Sect. 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 Sect. 1503. See, e.g., United States v. Brown, 688 F.2d
1391, 1400 (9th Cir. 1992). Perhaps more significant is the "acting
corruptly" element of the offense. Some courts have defined this term
as acting with "evil and wicked purposes." See United States v. Banks,
942 F.2d 1576, 1578 (11th Cir. 1991). Four federal courts of appeals
have held that to "act corruptly" under the statute, a defendant must
have acted with the specific intent to obstruct justice. See United
States v. Moon, 718 F.2d 1219, 1236 (2d Cir. 1983); United States v.
Bashaw, 982 F.2d 168, 170 (6th Cir. 1992); United States v. Anderson,
798 F.2d 919, 928 (7th Cir, 1986); United States v. Rasheed, 663 F.2d
843, 847 (9th Cir. 1981). That is, it is not enough to prove that the
defendant knew that a result of his actions might be to impede the
administration of justice, if that was not his intent.

It is critical to note which actions cannot fall under the
ambit of Sect. 1503. First, false statements or testimony alone cannot
sustain a conviction under Sect. 1503. See United States v. Thomas,
916, F.2d 647, 652 (11th Cir. 1990); United States v. Rankin, 870 F.2d
109, 111 (3d Cir. 1989). For instance, in United States v. Wood, 6
F.3d 692, 697 (10th Cir. 1993), the United States Court of Appeals for
the Tenth Circuit found that a defendant's false statements to the
Federal Bureau of Investigation during a grand jury investigation did
not violate Sect. 1503, because they did not have the natural and
probable effect of impeding the due administration of justice.
Moreover, Sect. 1503 does not apply to a party's concealing or
withholding discoverable documents in civil litigation. See, e.g.,
Richmark v. Timber Falling Consultants, 730 F. Supp. 1525, 1532 (D. Or.
1990) (because of the remedies afforded by the Federal Rules of Civil
Procedure, Sect. 1503 does not cover party discovery in civil cases,
and "[t]he parties have not cited and the court has not found any case
in which a person was charged with obstruction of justice for
concealing or withholding discovery in a civil case").(19) Most cases
that have found Sect. 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 Sect.
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."
However, by its terms, it does not purport to reach all forms of
witness tampering, but only tampering by specified means. In order to
obtain a conviction under Sect. 1512, the government must prove that a
defendant knowingly engaged in intimidation, physical force, threats,
misleading conduct, or corrupt persuasion with intent to influence,
delay, or prevent testimony or cause any person to withhold objects or
documents from an official proceeding. While there is no "pending
proceeding" requirement for convictions under Sect. 1512, it is clear
that a defendant must be aware of the possibility of a proceeding and
his efforts must be aimed specifically at obstructing that proceeding,
whether pending or not; Sect. 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 Sect. 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. Sect. 1515(a)(6). It is also clear from the caselaw that
"misleading conduct" does not cover scenarios where the defendant urged
a witness to give false testimony without resorting to coercive or
deceptive conduct. See, e.g., United States v. Kulczyk, 931 F.2d 542,
547 (9th Cir. 1991) (no attempt to mislead witnesses knew defendant was
asking them to lie); United States v. King, 762 F.2d 232, 237 (2d Cir.
1985) (defendant who attempts to persuade witness to lie but not to
mislead trier of fact does not violate Sect. 1512).

Subornation of perjury is addressed in 18 U.S.C. Sect.
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,
Sect. 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").

Based upon illegal OIC leaks and press reports, we believe
that the OIC's principal claims of obstruction, intimidation and
subornation -- the three prongs of the January 1998 expansion of
jurisdiction -- appear to arise out of:

(1) "Talking Points"

The so-called "talking points"(20) have been widely hailed
as the linchpin of any charge of subornation of perjury or obstruction
of justice. Not only were they touted as the "smoking gun" of the
investigation, they were instrumental in the OIC efforts to secure an
expansion of its jurisdictional authority. Charles Bakaly, the OIC
spokesman, appearing on Meet the Press, emphasized the critical nature
of this document to the expansion of the OIC jurisdiction:

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

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

NBC Meet the Press, July 5, 1998 (emphasis added).

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

"And NBC News has learned more about another critical piece of
evidence. A memo first discovered by Newsweek that Linda
Tripp claims was given to her by Monica Lewinsky. Sources
in Starr's office and close to Linda Tripp say they believe
the instructions came from the White House. If true, that
could help support a case of obstruction of justice." NBC
Nightly News, February 4, 1998.

"Prosecutors suspect the President and his longtime friend,
Vernon Jordan, tried to cover up allegations that Mr.
Clinton was involved sexually with former White House
intern Monica Lewinsky and other women - which is why this
document, obtained last night by NBC News, could be a
smoking gun. It's called 'Points to Make in Affidavit.'
Prosecutors say it might as well be called 'How to Commit
Perjury in the Paula Jones Case.'" NBC News at Sunrise,
January 22, 1998.

"A three page summary telling Linda R. Tripp how to lie in the
Paula Jones sexual misconduct lawsuit remains a key reason
why independent counsel Kenneth Starr wants to question top
White House aides in the Monica Lewinsky sex-and-lies grand
jury investigation. Mr. Starr, according to lawyers and
other close to the grand jury probe, wants to know what
White House Deputy Counsel Bruce R. Lindsey and senior aide
Sidney Blumenthal know about the source of the summary, or
'talking points,' that were given to Mrs. Tripp by Miss
Lewinsky, the former White House intern. The summary,
which prosecutors are convinced was not written by Miss
Lewinsky, could corroborate accusations of a White House
attempt to obstruct justice and suborn perjury in the Jones
suit, sources said." Washington Times, May 18, 1998.

"Because of Lindsey's earlier discussions with Tripp about the
Willey incident, prosecutors appear to be trying to learn
whether he had any role in helping Lewinsky prepare the
three-page document. Lindsey, who has been summoned to the
grand jury twice, has denied any connection to the talking
points." Washington Post, March 10, 1998.

"'If the author of the talking points is anywhere near the
president,' said Jonathan Turley, law professor at George
Washington University in Washington, 'this case will take a
dramatic turn against the White House.'" USA Today, July
1, 1998.

"The document has emerged as possible evidence of obstruction of
justice as Starr investigates whether Clinton or his
associates made attempts to conceal the president's
encounters with women." USA Today, June 29, 1998.

"Based largely on two pieces of evidence - those talking points
and the secret tapes made by Ms. Tripp of her conversations
with Ms. Lewinsky - Mr. Starr is trying to determine
whether the President, Mr. Jordan, Ms. Lewinsky or others
set about to obstruct justice in the Jones case by lying,
concealing evidence and tampering with witnesses. These
are the central charges in the case, and the participants'
versions appear to diverge." New York Times, March 7,
1998.

"Starr wants to find out if anyone in the White House was
involved in preparing the talking points." The Plain
Dealer, February 19, 1998.

"The evidence that strikes dread in the White House is a three-page
document called 'the talking points.' The author of
the talking points will most likely be found, is in real
danger of going to jail and may not want to go alone for
long." William Safire, New York Times, February 12, 1998.

"The memo is a critical piece of evidence to Whitewater
independent counsel Kenneth Starr because it could be proof
of an effort to induce Tripp to lie under oath. Starr's
investigators are exploring whether anyone close to Clinton
prepared or knew about the talking points." USA Today,
February 6, 1998.

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

"It seems clear that Starr's focus is now on building a case that
Clinton or his agents tried to sway the testimony of
witnesses in the Jones case. A critical piece of evidence
is the 'talking points' memo that Lewinsky gave her friend
Linda Tripp, apparently advising Tripp on how to fudge her
testimony. The document is the only known physical
evidence of witness tampering, and its authorship remains
one of the great mysteries of the Lewinsky matter."
Chicago Tribune, April 3, 1998 (emphasis added).

"The talking points, which seemed intended to coach Ms. Tripp in
possible testimony about Mr. Clinton, are central to Mr.
Starr's effort to determine whether obstruction of justice
occurred." New York Times, July 27, 1998.

"Prosecutors regard the legalistic, three-page talking points -
intended to guide Tripp's testimony in the Jones lawsuit -
as a key piece of evidence in a possible case of
obstruction of justice . 'Anyone who wrote a document like
that is out of is mind,' one prosecutor said. 'Those
talking points are the smoking gun.'" Pittsburgh
Post-Gazette, February 8, 1998 (emphasis added).

"Leakers from the Starr chamber have implied that the talking
points are instructions to lie. But lawyers routinely give
there clients talking points before a grand jury. The
Lewinsky case is about something else, spelled S-E-X."
Clarence Page, Sun-Sentinel, June 4, 1998 (emphasis added).

"But a three page document known as the 'talking points' may
prove to be the most important. . . 'The talking points are
the closest thing to a smoking gun in this case. . .' legal
scholar Paul Rothstein said Tuesday." USA Today, July 1,
1998.

"The talking points memorandum and the Tripp-Lewinsky tapes form
the backbone of the independent counsel's inquiry into
whether anyone lied or obstructed justice over Ms.
Lewinsky's relationship with President Clinton." New York
Times, June 11, 1998.

"The talking points memo, whose authorship is unknown, is of keen
interest to Starr." Baltimore Sun, February 26, 1998.

"It is unclear who wrote the talking points and whether they were
given to Ms. Tripp on Jan. 14 to encourage her to give
false testimony in the Paula Corbin Jones sexual misconduct
lawsuit against the President. These are questions of
intense interest to the independent counsel Kenneth W.
Starr, said lawyers close to his investigation. The
talking points could be an important piece of physical
evidence showing that there were unlawful efforts to
encourage false testimony in the Jones case." New York
Times, February 19, 1998.

"That suggests one particular piece of evidence will play a huge
role: the list of written talking points Lewinsky gave her
friend Linda Tripp on how to testify in the Paula Jones
sexual harassment case. Who wrote the document is one of
the key questions, whoever did could be charged with
obstruction of justice." Chicago Tribune, February 15,
1998.

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

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

The President frequently gives gifts to and receives gifts
from friends and supporters; he gave Ms. Lewinsky the same kind of
gifts he has shared with others. He was not concerned about the Jones
lawyers' knowledge of the gifts. In the Jones deposition, he
acknowledged knowing Ms. Lewinsky, acknowledged seeing her,
acknowledged she had given him gifts, and acknowledged he had given her
gifts. Moreover, in his grand jury testimony, he acknowledged giving
Ms. Lewinsky good-bye gifts on December 28, 1997, shortly before she
moved to New York, a date which we believe to be after Ms. Currie
picked up the box of gifts from Ms. Lewinsky. The gifts simply were
not a concern to him.

It is our understanding that Ms. Lewinsky may have
testified that she raised with the President a concern about the Jones
lawyers' request for gifts from the President and that, shortly
thereafter, Ms. Currie appeared at her home stating that she understood
Ms. Lewinsky had something for her. Ms. Lewinsky apparently testified
that she then provided to Ms. Currie for safekeeping a box containing
some of the gifts received from the President.

For Ms. Lewinsky's account to be credible, Ms. Currie must
have been asked by the President to contact Ms. Lewinsky for the box.
However, her account conflicts directly both with that of the President
and with what we believe to be Ms. Currie's testimony. The President
told Ms. Lewinsky she would have to produce what she had in response to
a request. He did not ever suggest that gifts from him should be
disposed of, and he did not ever ask or instruct Ms. Currie to pick up
the gifts from Ms. Lewinsky. We believe that Ms. Currie's testimony
corroborates this recollection. Ms. Currie has apparently testified
that Ms. Lewinsky initiated the contact with her about the box, asking
Ms. Currie to come by her apartment building, giving a sealed box to
her, and asking her to hold on to it. Ms. Currie has no knowledge that
the President ever even knew about the box prior to public disclosures
about it, and the President testified that he did not learn about the
box until after the OIC investigation became public.

(3) Job Assistance to Ms. Lewinsky

The President made certain efforts to try to assure that
Ms. Lewinsky had a fair shot at a job other than her Pentagon position,
where she was not happy, and he generally was aware of other efforts by
his secretary Ms. Currie and his friend Mr. Jordan. These actions were
totally appropriate. At no time did the President ask that Ms.
Lewinsky be accorded specially favorable or unfavorable treatment
because of his relationship with her or for any other reason. These
actions began well before Ms. Lewinsky was ever named a witness in the
Jones litigation, and they were in no way intended to influence Ms.
Lewinsky to keep secret what was at that time an already terminated
relationship. There is no evidence of any link whatsoever between the
President's actions and possible testimony by Ms. Lewinsky in the Jones
case.

In April 1996, Ms. Lewinsky was reassigned from the White
House to the Pentagon. Although the transfer was viewed as a
promotion, the President became aware that Ms. Lewinsky was upset about
it, did not see it as a positive change, and feared that the transfer
would be appear to be a demotion or "black mark" on her resume. To the
extent that Ms. Lewinsky was criticized for spending more time in the
West Wing than was required by her responsibilities in the Office of
Legislative Affairs, the President felt responsible.

In the summer of 1997, the President spoke to Marsha Scott,
the deputy personnel director at the White House, and inquired about
the possibility of a position being available for Ms. Lewinsky in the
White House. He never ordered Ms. Scott or anyone else to provide her
special treatment or directed that she be given a job at the White
House. He simply wanted to assure that she had been treated fairly and
asked only that Ms. Scott look into the possibility of a position at
the White House for Ms. Lewinsky if it was appropriate. Ms. Lewinsky
was never offered an opportunity to return to the White House--as a
result of that conversation or otherwise.

In the fall of 1997, Ms. Betty Currie spoke to Mr. John
Podesta about finding a job for Ms. Lewinsky in New York, and Mr.
Podesta ultimately spoke to Ambassador Bill Richardson about the
matter. The Ambassador agreed to interview Ms. Lewinsky for a position
in his New York office. The President was not involved in arranging
the Richardson interview. When Ms. Lewinsky indicated to Ms. Currie
that she preferred a job in the private sector, Ms. Currie contacted
Mr. Jordan, her long-time friend, to see whether he would be willing to
make inquiries regarding a job opportunity for Ms. Lewinsky in the
private sector. Mr. Jordan referred her for interviews at American
Express and Revlon, and to the advertising agency of Young & Rubicam.
As Mr. Jordan said in his January 22, 1998 statement on the matter:

Throughout my professional career, I have been privileged to
assist people with their vocational aspirations. I have done so
for two reasons. first, I stand on the shoulders of many
individuals who have helped me. Second, I believe "to whom much
is given much is required" so I have tried to lend a helping
hand.

For many years now . . . I am consulted by individuals, young
and old, male and female, black and white, Hispanic and Asian,
rich and poor, cabinet members and secretaries, for assistance.
And I have met with some success, from paralegals to mailroom
clerks, to corporate directors, to CEO's.

I was pleased to be helpful to Ms. Lewinsky whose drive,
ambition, and personality were impressive. She was referred by
Ms. Betty Currie, a secretary to the president.

Mr. Jordan is a private individual who is free to offer job assistance
to whomever he chooses.

Questions have been raised about a connection between the
timing of Ms. Lewinsky's affidavit (which was executed January 7 and
filed January 16) and the timing of any job offer. There was no
connection. Francis Carter, Esq., Ms. Lewinsky's attorney at the time
she executed the affidavit, apparently has stated that Ms. Lewinsky
never asked him to delay the filing of an affidavit until after she had
secured a job in New York and never suggested when the affidavit should
be filed. The Washington Post, June 19, 1998. Indeed, Mr. Carter has
reported that he himself delayed the filing of the affidavit while he
attempted to persuade the Jones attorneys to withdraw the subpoena to
Ms. Lewinsky. Ibid.

Indeed, it was totally appropriate for Mr. Jordan to refer
Ms. Lewinsky to Francis Carter to represent her in the Jones
litigation. Mr. Carter is a highly respected lawyer who would owe his
duty to Ms. Lewinsky and represent her interests. Assuring a witness
has her own counsel in whom she may confide is the surest and most
appropriate way to protect the integrity of the process. As Mr. Jordan
indicated in his January 22 statement, the referral was "at her
request" and Mr. Jordan simply "took her to Mr. Carter's office,
introduced them, and returned to my office." Ms. Lewinsky paid Mr.
Carter herself. Mr. Carter has said that Mr. Jordan brought Ms.
Lewinsky to his office, introduced them, and told him that she had been
subpoenaed in the Jones case and needed an attorney. The Washington
Post, June 19, 1998. According to Mr. Carter, Mr. Jordan did not
suggest what should be done or how the matter should be handled, but
promptly left. Ibid. Mr. Carter has stated, "I never received any
kind of information from [Ms. Lewinsky] at any time that contradicted
anything that's in that affidavit." Ibid.

Finally, in January of 1998, the President asked Mr.
Erskine Bowles whether the legislative affairs office where Ms.
Lewinsky once had worked would be able to give Ms. Lewinsky a reference
that would not be negative. The President understood from Ms. Lewinsky
that she thought she could get a good reference from The Department of
Defense but hoped for a White House reference that was at least
neutral. The President did not instruct anyone to provide such a
reference and did not follow up on the inquiry. This innocuous query
for an honest reference cannot conceivably be a basis for any charge of
wrongdoing.

VI. "ABUSES OF POWER"

From the very beginning, the Lewinsky investigation has
been about potential impeachment -- a direct attack by the OIC on the
constitutional status of the President. It is in that context that the
OIC's allegations of abuse of power must be judged.

Any charge the OIC might make that the President has abused
the powers of his office through the assertion of privileges --
privileges that were asserted at the initiation and recommendation of
the Counsel's Office, not by the President himself -- is utterly
baseless. Indeed, those charges are more a reflection of the OIC's
unfettered abuse of his authority and his wholesale abandonment of any
prosecutorial judgment in his campaign to prevent the President from
consulting with his most senior advisors in confidence. No prosecutor,
not even during Watergate, ever has contemplated the sort of sweeping
intrusion into the President's ability to obtain advice that has been
undertaken by the OIC. At bottom, the Independent Counsel believes
that, merely because he demands confidential information, the President
may not defend himself against impeachment without raising a charge
that he is thereby abusing his power.

Before moving to these issues, one other point is worthy of
note. It has been suggested in media reports that one of the grounds
for impeachment advanced by the OIC is that the President abused his
power by denying to his staff, in the days immediately following
disclosure of the Lewinsky investigation, that he had engaged in any
improper conduct when he knew that they might be called as witnesses
before the grand jury and knew that they were making public statements
in his defense. If this allegation were not so serious, such a
suggestion would be ludicrous.

Implicit in the allegation is the notion that any official,
in any branch of the government, who makes a statement about his own
conduct, or indeed any other matter, that is not absolutely true is
liable for misusing his office for so long as he fails to admit
wrongdoing, for the official's staff will inevitable repeat his
explanation in any number of forums. It would follow, therefore,
according to what appears to be the OIC's reasoning, that no official
could mount a defense to impeachment, or to ethics charges, or to a
criminal investigation while remaining in office, for anything other
than an admission of guilt will be treated as an abuse of his official
powers.

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

The Independent Counsel apparently attempts to evoke images
of Watergate by charging that the President has abused the powers of
his office. This allegation is simply meritless. In the Federalist
Papers, Alexander Hamilton described abuse of power as the "corrupt use
of the office for personal gain or some other improper purpose."
Former President Nixon's use of the Central Intelligence Agency (CIA)
to thwart a major criminal investigation by the Federal Bureau of
Investigation (FBI) of a crime in which he was involved, to take but
one example, fits squarely within that definition. President Clinton's
lawful assertion of privileges in a court of law and the Counsel's
Office conduct of its official duties plainly does not.

There is no comparison between the claimed abuses of power
by President Nixon and the public and lawful assertion of privileges
during the OIC investigation. Indeed, comparing this White House with
President Nixon's diminishes the historical significance of the
unprecedented claims of abuse of power by the Nixon administration and
attempts to criminalize the proper exercise of presidential
prerogatives. The specious nature of the OIC's allegations reveal the
OIC's true motive: to create an offense where none exists.

In July 1974, the House Judiciary Committee lodged serious
and significant abuse of power charges against President Nixon,
alleging that President Nixon, among other things:

Engaged in an elaborate cover-up scheme that included using his
secret intelligence operation to pay both for illegal activities
and subsequent blackmail money for the cover-up;

Paid hush money to his advisor;

Instructed administration officials on how to commit perjury;

Violated grand jury secrecy rules by obtaining 6(e) material from
the Justice Department and passing it on to presidential
advisors, who were targets of the investigation;

Attempted to subvert the IRS and CIA;

Authorized illegal intelligence gathering activities;

Directly interfered with the Justice Department's ITT
investigation; and,

Pressured the CIA to interfere with the FBI's investigation of
the Watergate break-in -- a conversation caught on tape.

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

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

The assertion of a protective function privilege by the
Secret Service cannot possibly serve as a basis for the OIC's
allegations of abuse of power. As a factual matter, the President
never asked, directed, or participated in any decision regarding the
protective function privilege. Moreover, no one at the White House
asked, directed, participated or had any role in such decisions. The
Treasury and Justice Departments independently decided to pursue a
privilege for the Secret Service to ensure the protection of this and
future presidents.

Second, ignoring significant security concerns expressed by
the Secret Service, the Independent Counsel sought testimony from
agents about non-criminal events they may have witnessed as well as
non-criminal conversations they may have overheard in the course of
protecting the President. For the first time in the history of the
Independent Counsel statute, the Independent Counsel sought to use the
protective service as a source of intelligence for admittedly
non-criminal activities of a protectee. In the wake of this
unprecedented demand, it was and continues to be the reasoned judgment
of career professionals in the Secret Service that the absence of a
protective privilege would severely impair agents' ability to fulfill
their mission to protect this and future Presidents (as well as other
protectees). The Secret Service's position was supported by former
presidents and by former agents assigned to protect presidents in both
Republican as well as Democratic administrations.

Thus, the Justice and Treasury Departments' assertion of a
protective privilege advanced valid concerns about the Secret Service's
ability to perform its function. The OIC's suggestion that the
assertion of this privilege constituted an abuse of power not only
insults the integrity of career law enforcement officials, but that of
congressional policy makers too. Indeed, because of the Independent
Counsel's unorthodox overreaching, Senator Hatch vowed to seek
legislation to enact the type of limited privilege asserted by the
Secret Service in response to the Independent Counsel's sweeping
actions. Congressional Press Releases, Senator Orrin Hatch, July 17,
1998.

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

Any charge by the OIC that the President's assertion of
privileges constitutes an abuse of power is equally baseless. The
White House advanced claims of privilege only sparingly and as a last
resort to protect the core constitutional and institutional interests
of this and future presidencies. In pursuing his attack on the
institution of the Presidency, the OIC took the extreme position that
executive privilege was inapplicable and that the governmental
attorney-client privilege did not exist in the face of grand jury
subpoena. The OIC now seeks to penalize the President for disagreeing
with its interpretations of the law, despite the fact that the courts
(and the Department of Justice) both also disagreed with the OIC.

A. The President Followed the Advice of White House Counsel
Regarding the Assertion of Official Privileges

A necessary component of the OIC's abuse of power
allegation is that the President initiated the White House's claims of
privilege -- both executive and attorney-client -- with intent to
impede the OIC's investigation. The record completely refutes this
premise.

The privilege issue initially arose when the OIC served on
Bruce Lindsey, Assistant to the President and Deputy Counsel, a
subpoena seeking his testimony before the grand jury. Declaration of
Charles F.C. Ruff ("Ruff Dec.") Par. 31. Prior to Mr. Lindsey's
appearance, the White House Counsel met with the OIC to discuss
privilege issues and to ask the OIC to describe with particularity
possible areas of inquiry to determine whether they would encompass
privileged information. Id. Par. 32. The OIC declined to discuss this
issue, and later stated that it intended to question Mr. Lindsey on
areas implicating a wide array of privileges because it believed that
executive and attorney-client privileges were inapplicable to
information relating to the Lewinsky investigation. Id. Par.Par. 32-34.
The White House offered, in good faith, to provide the OIC with
any factual testimony regarding the Lewinsky investigation. Id.
Par.Par. 45-50. The OIC rejected this offer. Id. Par. 51.

Instead, the OIC suddenly filed motions to compel the
testimony of Mr. Lindsey and other senior staff. Id. After careful
deliberations, the White House Counsel notified the President of the
privilege issue, explained the failed accommodation effort, and
recommended that he invoke privilege. As he did in every instance, the
President accepted the White House Counsel's recommendation and
authorized the Counsel to make the claim of privilege. Id. Par. 56.
Thus, the President's decision to claim privilege was never the result
of his own initiative, but of his Counsel's advice.

B. The President's Executive Privilege Assertions Were Upheld
by the Court

To put the OIC's apparent abuse of power charges in
context, it is important to recognize that the OIC took the
extraordinary position that executive privilege was inapplicable in the
face of a grand jury subpoena and that it therefore was entitled to
immediate and full disclosure of all strategic and political
communication among the President's most senior advisors. This
position was squarely at odds with the law of the Supreme Court, and of
course, the D.C. Circuit. Executive privilege is
constitutionally-based and covers communications relating to the
President's official duties and the effective functioning of the
executive branch. It ensures that the President receives frank and
candid advice and recommendations, which ultimately fosters more
informed and effective decision-making.

Here, the President asserted executive privilege over
communications that relate to matters that affect the performance of
his official duties. In re Grand Jury Proceedings, 1998 U.S. Dist.
Lexis 7736, *7 (D.D.C. 1998); Ruff Dec. Par.Par. 16-30. Indeed, some
of these communications related to the President's decision whether to
invoke privilege over other communications. Id. Par.Par. 26-28.

Rather than acknowledge the presumptively privileged nature
of the information, the OIC maintained that the privilege was
inapplicable and that it did not have to demonstrate any need for the
information. Chief Judge Johnson rejected the OIC's position holding
that the communications were presumptively privileged. In re Grand
Jury Proceedings, 1998 U.S. Dist. Lexis at *3-10. The Court then
required the OIC to make a showing that its need for the information
was sufficient to overcome the privilege. Id. at * 13-21. Although
the Court concluded that the OIC had met its burden, the Court at no
time even suggested that the President's assertion of executive
privilege was groundless, improper, or made in bad faith. In those
circumstances, it cannot seriously be argued that assertion of the
privilege was an abuse of power.

C. The President's Assertion of the Attorney-Client Privilege
was Solidly Grounded in the Law of this Circuit

For centuries, the law has recognized the attorney-client
privilege as absolute in protecting the confidentiality of
communications between lawyers and their clients. The D.C. Circuit has
also recognized that the attorney-client privilege protects
confidential communications between government lawyers and officials.
E.g. Mead Data Control, Inc. v. Dep't of the Air Force, 566 F.2d 242
(D.C. Cir. 1977). Courts recognize that a government official, like
any other citizen, must be able to provide information to and seek
advice from government lawyers without fear of public disclosure.
Ultimately, the privilege serves an important governmental function by
fostering well-advised and fully-informed decision-making. The
possibility that those communications may be disclosed will forfeit
the benefits the privilege was intended to protect.

Despite the law in the D.C. Circuit recognizing the
attorney-client privilege in the governmental context, the Independent
Counsel pushed to breach the bonds of the governmental attorney-client
privilege. Unlike his predecessors, who have respected the
professional obligation of government attorneys to provide confidential
legal advice on official matters, the Independent Counsel has insisted
that government attorneys and clients do not have the right to discuss
legal issues in confidence. In this context, the White House's
assertion of the attorney-client privilege was not only appropriate,
but it was an ethical and institutional obligation.

Prior to the D.C. Circuit litigation, the OIC was well
aware that the White House fundamentally disagreed with the OIC
regarding the applicability and scope of the governmental
attorney-client privilege. In the Eighth Circuit, the OIC had
attempted to obtain a White House lawyer's notes that reflected
confidential communications. In re Grand Jury Subpoena Duces Tecum,
112 F.3d 910 (8th Cir. 1997). At the time of that litigation, which
the White House resisted and the OIC won, there was no authority
rejecting the existence of a governmental attorney-client privilege.

Two years later, the OIC, in the Lewinsky investigation,
sought to compel the disclosure of confidential communications between
the President and his official lawyers in which legal advice was either
being sought by or provided to the President regarding official
matters. In view of the law of the D.C. Circuit, which recognized an
absolute governmental attorney-client privilege, the White House
Counsel recommended, and the President asserted, the privilege.

A recent Supreme Court ruling that rejected the OIC's
sweeping attack on the attorney-client privilege provided additional
support for the President's position. In Swidler & Berlin v. United
States, ___U.S.___ (1998); 1998 U.S. Lexis 4214 (1998), the OIC argued
that the personal attorney-client privilege should automatically give
way to the needs of a criminal investigation. The Court rejected the
OIC's position and stated that "there is no case authority for the
proposition that the privilege applies differently in criminal and
civil cases," id. at *7, supporting the principle that the privilege
remains absolute in a grand jury context. Accordingly, the President's
position on the applicability of the privilege in this context had a
substantial basis in the decisions of both this Circuit and the Supreme
Court.

Undaunted, the OIC argued that, based upon the non-binding
Eighth Circuit opinion, the governmental attorney-client privilege is
inapplicable in a grand jury context. 112 F.3d 910 (8th Cir. 1997).
From an institutional standpoint, the OIC's position stripped the
President of any ability to obtain confidential advice from government
lawyers about official matters in the event that the OIC made a
referral to Congress for possible impeachment hearings. In an
impeachment context, the President is entitled to rely on Counsel's
Office lawyers to provide critical legal guidance. Without the ability
to receive such confidential advice, he is left without any legal
guidance regarding the conduct of his official duties.

The District Court rejected the OIC's position and held
that the President had a valid, though qualified, governmental
attorney-client privilege. In re Grand Jury Proceedings, 1998 U.S.
Dist. Lexis at *21-52. Performing a need analysis similar to executive
privilege, the Court balanced the President's interests against those
of the grand jury and ultimately determined that the grand jury was
entitled to the information. Once again, the District Court did not
suggest that the privilege claim was spurious or made in bad faith.

On appeal, a divided D.C. Circuit Court of Appeals ruled
that the President had an attorney-client privilege with White House
Counsel in some contexts, but not this one. In re: Bruce R. Lindsey,
1998 U.S. App. Lexis 17066, *7-43 (D.C. Cir. 1998). Judge David Tatel,
whose dissenting opinion in the Court of Appeals' decision in Swidler &
Berlin was adopted by the Supreme Court, dissented here as well.
Consistent with his analysis in Swidler & Berlin, Judge Tatel found
that the Court's opinion did not account for "the unique nature of the
Presidency, its unique need for confidential legal advice, or the
possible consequences of abrogating the attorney-client privilege for a
President's ability to obtain such advice." Id. at *54. Judge Tatel's
recognition of the validity of the absolute nature of the privilege and
the President's need to assert this and belies the notion that the
assertion was in any way an abuse of power.

The OIC's apparent argument that the assertions of
privilege were for purposes of delay lacks any evidentiary support and,
more significantly, overlooks the OIC's own dilatory conduct. After
Mr. Lindsey was subpoenaed and before he was scheduled to testify, the
Office of the President attempted to avoid litigating these issues by
reaching an accommodation that would provide the OIC with access to the
information to which it was entitled while maintaining the legitimate
confidentiality interests of the President. Id. Par.Par. 31-32. The
OIC rejected those efforts and instead filed its motion to compel. Id.
Par.51. The OIC has continued to reject any attempt by the White House
to compromise, choosing instead to litigate these issues. The Office
of the President has sought to avoid any delay by agreeing to expedited
briefing schedules involving privilege litigation, and the courts,
appreciating the time-sensitivity of the issues, have ruled swiftly on
these matters.

In any event, any delay that might have been caused by the
White House had no substantive impact on the OIC's investigation.
Privilege claims have been advanced as to only a narrow portion of the
testimony of three witnesses. The OIC originally filed motions to
compel the testimony of two senior staff members and one Counsel's
Office lawyer. The litigation only temporarily postponed the testimony
of the two senior staffers; in March, they both appeared before the
grand and testified fully. The privilege assertions ultimately
involved the testimony of only three Counsel's Office lawyers. Each of
these individuals has testified at length regarding any facts they may
have possessed about whether the President had a relationship with Ms.
Lewinsky. The questions as to which they asserted privilege were
narrow in scope and irrelevant to the matters being investigated.

Finally, substantial delay in the investigation has been
self-inflicted. The OIC has wandered aimlessly down more alleys and
byways than any federal prosecutor would appropriately do. The OIC has
called current and former White House staffers before the grand jury,
and interviewed many others. The OIC has called presidential advisers
before the grand jury four, five and six times; sometimes for only one-
or two-hour sessions. Some witnesses appeared to testify only to find
themselves waiting for hours and then being told to return on another
day. The OIC has also insisted on exploring such irrelevant subjects
as White House contacts with the press, and has required testimony from
attorneys whose primary function was to deal with the OIC. Such
actions are highly unusual, if not unprecedented.

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

Finally, the open and lawful efforts of the White House
lawyers to assist White House staff obtain lawyers, to speak with
witnesses and their lawyers, and to provide advice on the ramifications
of the investigation also cannot be considered an abuse of power.

As a threshold matter, when there is an official nexus
between the duties of the President and an ongoing investigation, which
certainly exists here, it is the duty of government attorneys to
represent their official client. The specter of impeachment loomed
from the day the Lewinsky story broke in the press. Ruff Dec. Par. 21.
Members of the Congress asserted that the investigation, which drew
explosive media, public and congressional attention, burdened the
President's ability to perform his constitutional and statutory duties.
Accordingly, the White House Counsel's Office lawyers, among others,
were responsible for providing the President and White House officials
with informed, candid advice on the issues raised by the investigation
that affected the President's official duties. Id. Par.Par. 16-30.

When it suited the OIC's interests, the OIC recognized the
appropriateness of, and relied on, the White House Counsel's efforts.
From the beginning of this investigation, the OIC sought -- and
received -- the cooperation of the White House lawyers in setting up
interviews and grand jury appearances of current and former White House
employees. The OIC, however, refused to allow the White House lawyers
to represent even the most junior, uninvolved witnesses. Thus, all
White House officials, from the most senior to the most junior, were
required to obtain private counsel. White House lawyers also provided
relevant documents to witnesses' attorneys to ensure complete and
accurate testimony, provided privilege instructions and guidance, and
followed-up afterwards to discuss an individual's interview or grand
jury appearance and any outstanding issues. All of the Counsel's
Office activities were well-known to the OIC, and no objection was ever
voiced.

Lastly, it was not uncommon for the White House to be
faced with inaccurate and spurious stories that seemed to be coming
from the OIC or "sources close to the OIC" shortly after a witness
testified or was interviewed by the prosecution. Indeed, Judge Johnson
examined media reports, and concluded that they contained grand jury
material and that there was evidence that the OIC as the source. In re
Grand Jury Proceedings, Misc. No. 98-55 (D.D.C. June 19, 1998), Mem.
Op. at 6. Accordingly, Judge Johnson held that this evidence
established a prima facie case that the OIC had violated Rule 6(e) and
ordered the OIC to appear to show cause why it should not be held in
contempt for Rule 6(e) violations. These leaks created a deluge of
press inquiries to the White House; not surprisingly, White House
Counsel lawyers were required to gather information and advise senior
staff concerning the appropriate response to these inquiries.

VII. ALLEGATIONS OF PERJURY(21)

The OIC cannot make out even a colorable claim of perjury.
If answers are truthful or literally truthful but misleading, there is
no perjury as a matter of law, no matter how misleading the testimony
is or is intended to be. The law simply does not require the witness
to aid his interrogator. The Referral seeks to punish the President
for being unhelpful to those trying to destroy him politically.

A. The Law of Perjury

Perjury requires proof that a defendant, while under oath,
knowingly made a false statement as to material facts.(22) See, e.g.,
United States v. Dunnigan, 507 U.S. 87, 94 (1993). The "knowingly"
requirement is a high burden: the government must prove the defendant
had a subjective awareness of the falsity of his statement at the time
he provided it. See, e.g., United States v. Dowdy, 479 F.2d 213, 230
(4th Cir. 1973); United States v. Markiewicz, 978 F.2d 786, 811 (2d
Cir. 1992). It is beyond debate that false testimony provided as a
result of confusion, mistake, faulty memory, carelessness,
misunderstanding, mistaken conclusions, unjustified inferences
testified to negligently, or even recklessness does not satisfy the
"knowingly" element. See, e.g., Dunnigan, 507 U.S. at 94; United
States v. Dean, 55 F.3d 640, 659 (D.C. Cir. 1995); see also Department
of Justice Manual, 1997 Supplement, at 9-69.214.

Moreover, it is of course clear that a statement must be
false in order to constitute perjury. It is equally beyond debate that
the following types of answers are not capable of being false and are
therefore by definition non-perjurious: literally truthful answers that
imply facts that are not true, see, e.g., United States v. Bronston,
409 U.S. 352, 358 (1973), truthful answers to questions that are not
asked, see, e.g., United States v. Corr, 543 F.2d 1042, 1049 (2d Cir.
1976), and failures to correct misleading impressions. See, e.g.,
United States v. Earp, 812 F.2d 917, 919 (4th Cir. 1987). The Supreme
Court has made abundantly clear that it is not relevant for perjury
purposes whether the witness intends his answer to mislead, or indeed
intends a "pattern" of answers to mislead, if the answers are truthful
or literally truthful.

Thus, in explaining the law of perjury, the Supreme Court
and numerous lower federal courts have set forth three clear standards.
First, answers to questions under oath that are literally true, but
unresponsive to the questions asked, do not, as a matter of law, fall
under the scope of the federal perjury statute. That is so even if the
witness intends to mislead his questioner by his answer and even if the
answer is false by "negative implication." The second clear rule is
that answers to questions that are fundamentally ambiguous cannot, as a
matter of law, be perjurious. Finally, a perjury conviction under 18
U.S.C. Sect. 1621 cannot rest solely on the testimony of a single
witness, and, at the very least as a matter of practice, no reasonable
prosecutor would bring any kind of perjury case based on the testimony
of one witness without independent corroboration - especially if the
witness is immunized, or has any question as to credibility or
truthfulness. As the Supreme Court has made clear, a perjury case
"ought not to rest entirely upon 'an oath against an oath.'" United
States v. Weiler, 323 U.S. 606, 608-09 (1945).

1. Bronston and "Literal Truth."

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

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

Q: Do you have any bank accounts in Swiss banks, Mr.
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 sanction that is almost always unwarranted, since "a
prosecution for perjury is not the sole, or even the primary safeguard
against errant testimony." Id. at 360. The perjury statute cannot be
invoked "simply because a wily witness succeeds in derailing the
questioner - so long as the witness speaks the literal truth." 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.(23) For instance, in United States v. Earp,
812 F.2d 917 (4th Cir. 1987), the defendant, a member of the Ku Klux
Klan, had stood guard during the attempted burning of a cross on the
lawn of an interracial couple, and further evidence demonstrated that
he had personally engaged in other attempts to burn crosses. During
questioning before a grand jury, however, he denied ever having burned
crosses on anyone's lawn. He was convicted of perjury, but the United
States Court of Appeals for the Fourth Circuit reversed his conviction,
because "like the witness in Bronston, [the defendant's] answers were
literally true although his second answer was unresponsive." Id. at
919. That is, the defendant had not actually succeeded in his
cross-burning attempts, so it was literally true that he had never
burned crosses on anyone's lawn. The court noted that "while he no
doubt knew full well that he had on that occasion tried to burn a cross,
he was not specifically asked either about any attempted cross
burnings." Id. Literally every federal court of appeals in the nation
concurs in this reading of Bronston.(24)

2. Fundamentally Ambiguous Questions Cannot Produce Perjurious
Answers.

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

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

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

Id. at 109.

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

Similarly, in United States v. Tonelli, 577 F.2d 194 (3d Cir.
1978), the defendant answered negatively a question whether he had "hand
led 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.

United States v. Bell, 623 F.2d 1132, 1137 (5th Cir. 1980), is yet
another example of this doctrine. In Bell, a witness was asked before a
grand jury, "Whether personal or business do you have records that are
asked for in the subpoena," and the witness answered, "No, sir, I do
not." It was later established that the witness's files clearly
contained relevant records. Nonetheless, the court held that the
question was ambiguous, and therefore incapable of yielding a
perjurious answer. The witness interpreted the question to ask whether
he had brought the records with him that day, and not whether he had
any records anywhere else in the world.(25)

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

The law is clear that in a perjury prosecution under 18 U.S.C.
Sect. 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 Sect. 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 Sect. 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
Sect. 1621 cannot lie where there is no independent second witness who
corroborates the first, or where there is no independent evidence that
convincingly contradicts the testimony of the accused.

While 18 U.S.C. Sect. 1623 does not incorporate the
"two-witness rule," it is nonetheless clear from the case law that
perjury prosecutions require a high degree of proof, and that
prosecutors should not, as a matter of reason and practicality, even
try to bring perjury prosecutions based solely on the testimony of a
single witness. In Weiler v. United States, 323 U.S. 606, 608-09
(1945), the United States Supreme Court observed that "[t]he special
rule which bars conviction for perjury solely upon the evidence of
a single witness is deeply rooted in past centuries." The Court
further observed that "equally honest witnesses may well have differing
recollections of the same event," and hence "a conviction for perjury
ought not to rest entirely upon 'an oath against an oath.'" Id. at 609
(emphasis added). Indeed, the common law courts in seventeenth-century
England required the testimony of two witnesses as a 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 Sect. 2040(a), at 359-60 (Chadbourne rev. 1978).
The common law courts actually adopted the two-witness rule from the
Court of Star Chamber, which had followed the practice of the
ecclesiastical courts of requiring two witnesses in perjury cases. Id.
The English rationale for the rule is as resonant today as it was in
the seventeenth century: "[I]n all other criminal cases the accused
could not testify, and thus one oath for the prosecution was in any case
something as against nothing; but on a charge of perjury the accused's
oath was always in effect evidence and thus, if but one witness was
offered, there would be merely . . . an oath against an oath." Id.
And, as noted above, no perjury case should rest merely upon "an oath
against an oath."

B. The Jones Deposition

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

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

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

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

Not so. The President was asked whether he had "an extramarital sexual
affair" with Ms. Lewinsky (p. 78) and responded that he did not. That
term was undefined and ambiguous. The President understood the term
"sexual affair" to involve a relationship involving sexual intercourse.
He had no such relationship with Ms. Lewinsky.

The President also was asked whether he had "sexual relations"
with Ms. Lewinsky, "as that term is defined in Deposition Exhibit 1, as
modified by the Court." (p. 59). The Court explicitly directed the
President's attention to Definition Number 1 on Exhibit 1, which the
President had circled.

The President denied he had "sexual relations" with Ms.
Lewinsky under this definition. Although the President's counsel, Mr.
Bennett, had invited the Jones lawyers to ask specific questions about
the President's conduct--"Why don't they ask the President what he did,
what he didn't do, and then we can argue in Court later about what it
means?" (p. 21)--the Jones lawyers declined to do so, relying instead
on the definition. The President was not asked any specific questions
at all about his physical contact with Ms. Lewinsky, and in particular
he was not pointedly asked whether he had engaged in any of the conduct
outside the definition provided. The President's testimony in response
to these questions was accurate. He did not have sexual intercourse
with Ms. Lewinsky or otherwise engage in sexual conduct covered by the
definition, as provided by plaintiff and narrowed by the Court.

The President also testified in the Jones deposition that Ms.
Lewinsky's affidavit, in which she stated she had never had a "sexual
relationship" with the President, was accurate (p. 204). He believed
this testimony to be truthful. The term "sexual relationship" was not
defined in the affidavit or in the deposition. The definition of the
different term "sexual relations" utilized by the Jones lawyers did not
apply to that question. The term "sexual relationship," like sexual
affair, has no definitive meaning. To the President, that term
reasonably requires sexual intercourse as a necessary component of the
relationship. Since his relationship with Ms. Lewinsky did not involve
intercourse, he truthfully answered that the affidavit was accurate.

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

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

VIII. THE LEWINSKY EXPANSION OF THE WHITEWATER INVESTIGATION

The expansion of the Independent Counsel's jurisdiction to
encompass the Jones case and Ms. Lewinsky did not occur by accident or
easily. The OIC deliberately and purposefully sought this expansion on
an emergency basis. Media accounts that the Attorney General herself
requested this expansion are highly misleading.

On January 16, 1998, upon the OIC's request, the Special
Division of the Court of Appeals for the Purpose of Appointing
Independent Counsels expanded the OIC's jurisdiction to allow it to
investigate "whether Monica Lewinsky or others suborned perjury,
obstructed justice, intimidated witnesses, or otherwise violated
federal law . . . in dealing with witnesses, potential witnesses,
attorneys, or others concerning the civil case Jones v. Clinton."
Order, Div. No. 94-1 (Jan. 16, 1998) (Div. for Purpose of Appointing
Independent Counsel) (D.C. Cir.). The series of events that led to
this expansion of authority raise serious questions as to the
motivations and manipulations of the OIC in securing this expanded
jurisdiction.

Under the Independent Counsel statute, if the "independent
counsel discovers or receives information about possible violations of
criminal law by [covered persons], which are not covered by the
prosecutorial jurisdiction of the independent counsel, the independent
counsel may submit such information to the Attorney General." 28
U.S.C. Sect. 593 (c)(2)(A). The Attorney General is then to conduct a
preliminary investigation. 28 U.S.C. Sect. 592. The statute did not
give the OIC authority to conduct its own preliminary investigation in
order to gather or create evidence to present to the Attorney General
to support a request for an expansion of jurisdiction.

According to media reports, Ms. Linda Tripp contacted the
OIC on Monday, January 12, 1998. There was no particular logic to
this contact, and she could easily have taken her concerns to state or
federal authorities. In any event, the OIC arranged for Ms. Tripp to
wear an F.B.I. recording device and tape surreptitiously a conversation
that she had with Ms. Lewinsky the next day, Tuesday, January 13, 1998
(Ms. Lewinsky had not yet filed an affidavit in the Jones case). On
Friday, January 16, 1998, at the OIC's request, Ms. Tripp lured
Ms. Lewinsky to a meeting, where she was apprehended by OIC agents,
who confronted her and attempted to pressure her into doing
surreptitious taping herself. She was informed that an immunity
agreement was contingent on her not contacting her lawyer.(26)

That same day, the Special Division agreed to expand the
OIC's authority, based upon the Independent Counsel's earlier
application to the Attorney General and on the tapes that the OIC had
already created: "In a taped conversation with a cooperating witness,
Ms. Lewinsky states that she intends to lie when deposed. In the same
conversation, she urges the cooperating witness to lie in her own
upcoming deposition. . . . Independent Counsel Starr has requested that
this matter be referred to him." (Text of Attorney General's Petition
to Special Division, The Associated Press, January 29, 1998.)

The Independent Counsel later suggested that the expansion of
authority prior to the taping was unnecessary, as it was already within
his jurisdiction. However, the Lewinsky matter had no connection
whatsoever to the Whitewater activities, or any other activities, then
being investigated by the OIC. In addition, the Attorney General
specifically stated in her referral to the Special Division that she
was seeking an expansion of the Independent Counsel's jurisdiction. Or,
as former independent counsel Michael Zeldin pointed out, "If he had
jurisdiction to investigate it when he wired her, why did he have to go
to court to get it afterward? In some ways, he is talking out of both
sides of his mouth. . . . It seems to me arguable that he obtained
evidence unlawfully . . . ." Chicago Tribune, January 25, 1998. And
former independent counsel Lawrence Walsh declared, "A prosecutor has
no business getting into that case [Paula Jones] unless there's
something terrible happening. I question Starr's judgment in going
into it so hard." Chicago Tribune, January 25, 1998.

Furthermore, the sequence of events suggests that Independent
Counsel Starr deliberately delayed requesting the expansion of
jurisdiction. Neither Monica Lewinsky nor President Clinton had made
any statements under oath in the Jones case (at least that had been
filed with any court) when Linda Tripp approached the OIC on January 12.
The only evidence the OIC possessed at that time were tapes illegally
created by Tripp. The OIC itself proceeded to tape the Tuesday,
January 13 conversation between Tripp and Lewinsky. Ms. Lewinsky's
affidavit was not filed in the Jones case until January 16, and the OIC
had petitioned the Attorney General the day before for an expansion of
authority based on the evidence (the Tripp tapes and the OIC's tape)
that he had acquired without any authority to do so.

Ms. Tripp remained through the day at the hotel where Ms.
Lewinsky was apprehended by the OIC on Friday, January 16, 1998.(27)
During that day, Ms. Jones' lawyers repeatedly tried to contact Ms.
Tripp for a meeting, but she was unavailable. Ibid. Late in the
afternoon, when it became clear that Ms. Lewinsky would not cooperate
in the surreptitious taping of others, the Jones lawyers received a
call arranging a meeting with Ms. Tripp for that night, so she could
help them prepare for the President's deposition next day. Ibid.(28)
It seems probable that Ms. Tripp, who was acting as the OIC's agent
under an immunity agreement, must have gotten approval for this
briefing from the OIC. Ms. Tripp met with the Jones lawyers at her
home in Maryland that night and briefed them on the illegal tapes she
had made of Ms. Lewinsky(29), so they could use the contents of those
tapes in their questioning of the President.(30) Ms. Tripp is under
investigation in the state of Maryland because she secretly recorded
Ms. Lewinsky and then shared the existence and contents of those tapes
with the Jones lawyers. It is a crime in that state, punishable by
imprisonment up to five years and a fine of up to $10,000, for a person
to "wilfully" record a conversation without the consent of both parties
or to "wilfully" disclose the contents of such an illegally recorded
conversation. Md. Code Ann. Sect. 10-402 (1997).(31)

On January 17, armed with the information obtained from Ms.
Tripp, Ms. Jones' attorneys deposed President Clinton in great detail
regarding Ms. Lewinsky. At about this time, the OIC sought to prevent
press coverage of its attempt to have Ms. Lewinsky cooperate in secret
taping.(32)

This entire sequence of events--the OIC's delay in requesting
jurisdiction, the OIC's pressure on reporters to withhold public
disclosure of the matter,(33) the OIC's unwillingness to permit Ms.
Lewinsky to contact her lawyer, and the OIC's dispatch of Ms. Tripp to
brief the Jones lawyers about the fruits of her illegal taping the day
before they were to depose the President--suggests an intention by the
OIC to ensure that the expansion of jurisdiction was kept a secret
until the President and Ms. Lewinsky had given testimony under oath
and (if Ms. Lewinsky could be so persuaded) she had been enlisted to
do surreptitious taping. In other words, rather than taking steps to
defer or avoid any possible interference with the Jones case, the OIC
did everything in its power--and some things outside its authority--to
set up a case against the President.

(1) 2 Max Farrand, The Recofds of the Federal Convention of 1787 550
(Rev. ed. 1966)

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

(3) Michael J. Gerhardt, The Constitutional Limits to Impeachment and
Its Alternatives, 68 Tex. L. Rev. 1, 82 (1989) (emphasis added).

(4) Joseph Story, Commentaries on the Constitution Sect. 745 (1st Ed.
1833); Federalist 65 at 331.

(5) Of course that election takes place through the mediating activity
of the Electoral College. See U.S.Const. art. II, Sect. 1, cl.2-3
and amend. XII.

(6) At the time of the Constitution's framing, "[c]ognizable 'high
Crimes and Misdemeanors' in England, . . . generally concerned
perceived malfeasance--which may or may not be proscribed by
common law or statute--that damaged the state or citizenry in
their political rights." Julie O'Sullivan, The Interaction
Between Impeachment and the Independent Counsel Statute, 86 Geo.
L.J. 2193, 2210 (1998) (emphasis added) (forthcoming).

(7) John R. Labovitz, Presidential Impeachment 94 (1978).

(8) Berger, Impeachment at 61.

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

(10) Gerhardt, 68 Tex. L. Rev. at 85.

(11) Charles L. Black, Impeachment: A Handbook 38-39 (1974).

(12) Id.

(13) Labovitz at 26.

(14) Rotunda at 726.

(15) Id.

(16) Julie O'Sullivan, The Interaction Between Impeachment and the
Independent Counsel Statute, 86 Geo. L.J. at 2220.

(17) Clinton v. Jones, ___ U.S. ___, 117 S.Ct. 1636 (1997).

(18) See, e.g., "Starr Probes Clinton Personal Life--Whitewater
Prosecutors Question Troopers About Women," The Washington Post
(June 25, 1997), at A1.

(19) Cf. United States v. Lundwall, 1 F. Supp. 2d 249, 251-54 (S.D.N.Y.
1998) (noting that "[c]ases involving prosecutions for document
destruction during civil pre-trial discovery are notably absent
from the extensive body of reported Sect. 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
Sect. 1503).

(20) The term "talking points" refers to a document apparently provided by
Ms. Lewinsky to Ms. Tripp in January 1998 regarding possible testimony
in the Jones case.

(21) "Perjury" was not even in the original grant of jurisdiction to the
OIC but reportedly is now the crux of the OIC's case.

(22) There are two basic federal perjury statutes: 18 U.S.C. Sect. 1621,
and 18 U.S.C. Sect. 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.

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

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

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

(26) Time, Feb. 16, 1998, at 49.

(27) "Linda Tripp Briefed Jones Team on Tapes," The Washington Post,
Feb. 14, 1998, at A1.

(28) The Washington Times, Feb. 15, 1998,at A1, reported:

"Yesterday, a source close to Mrs. Jones' legal team confirmed
that on Jan. 16, the day before Mrs. Jones' lawyers took a
deposition from Mr. Clinton, Mrs. Tripp met for two hours with
those lawyers at her suburban Maryland home and discussed at
length what Miss Lewinsky had said in some 20 hours of
secretly recorded conversations. Mrs. Tripp had already given
those tapes to Mr. Starr's investigators.

With the information from Mrs. Tripp, the Jones lawyers were
able to ask Mr. Clinton in his deposition specific questions
about his relationship with and gifts to Miss Lewinsky,
according to a person informed about the President's
testimony."

(29) Under the Maryland electronic surveillance statute, which
criminalizes taping without the consent of both parties, it is a
violation of the statute simply to disclose that an illegal tape
has been made, since the term "Contents", as used in the statute
to define what may not be disclosed, is defined to include "any
information concerning the identity of the parties to the
communication or the existence, substance, purport, or meaning of
that communication." Md. Code Ann. Sect. 10-401(7) (1997)
(emphasis added).

(30) There is no doubt that the Jones lawyers believed they had a
significant tactical advantage due to their knowledge of the Tripp
tapes. They may also have known that Ms. Tripp was an OIC agent.
After being asked a highly specific series of questions about Ms.
Lewinsky, the President replied, "I don't even know what you're
talking about, I don't think," and one of the Jones lawyers,
James Fisher, responded, "Sir, I think this will come to light
shortly, and you'll understand" (p. 85).

(31) Recent news reports indicate that Ms. Tripp was specifically warned
at the Radio Shack store where she brought her tape recorder that
it was illegal to tape in Maryland without the con sent of the
other party. See, e.g., "Tripp Was Told of Law at Store," The
Baltimore Sun, Aug. 28, 1998, at A1.

(32) "Pressgate", Brill's Content, August 1998, at 128.

(33) See, e.g., Stephen Brill, "Pressgate" in Brill's Content (August
1998) at 127 ("Isikoff says that when he talked to Starr deputy
Jackie Bennett, Jr., on Thursday [January 15], Bennett begged him
to wait until Friday before trying to call Jordan, the White House,
or Lewinsky about his story. ... Isikoff says he agreed to hold
off in exchange for getting a full report on how the stings had
gone.").


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