1 The Background and History of Impeachment: Hearings on H. Res. 581 Before the Subcomm. On the Constitution, 105 th Cong., 2d Sess. (1998) (Nov. 9, 1998) (" Subcommittee Hearing"), at 96- 7.
1
Minority Dissenting Views to Articles of Impeachment
For only the second time in the history of our Nation, the House is poised to impeach a sitting President. The Judiciary Committee Democrats uniformly and resoundingly dissent.
We believe that the Presidentís conduct was wrongful in attempting to conceal an extramarital relationship. But we do not believe that the allegations that the President violated criminal laws in attempting to conceal that relationship B even if proven true B amount to the abuse of official power which is an historically rooted prerequisite for impeaching a President. Nor do we believe that the Majority has come anywhere close to establishing the impeachable misconduct alleged by the required clear and convincing evidence.
Historian Arthur Schlesinger, appearing before the Committee on November 9, 1998, explained the grave dangers of "dumbing- down" the impeachment process for largely private misconduct:
Lowering the bar to impeachment creates a novel, indeed revolutionary theory of impeachment, a theory that would send us on an adventure with ominous implications for the separation of owers that the Constitution established as the basis of our political order. 1
Impeachment is like a wall around the fort of the separation of powers fundamental to our constitution; the crack we put in the wall today becomes the fissure tomorrow, which ultimately destroys the wall entirely. This process is that serious. It is so serious the wall was not even approached when President Lincoln suspended the writ of habeas corpus, nor when President Roosevelt misled the public in the lend- lease program, nor when there was evidence that Presidents Reagan and Bush gave misleading evidence in the Iran- contra affair.
We also note at the outset our profound disagreement with the process that the Judiciary Committee undertook to report this resolution. Without any independent examination of fact witnesses, this Committee essentially rubber- stamped a September 9 th Referral from the Office of Independent Counsel (OIC). That Referral contained largely unproven allegations based on grand jury testimony -- often inadmissable hearsay evidence -- which was never subject to cross examination. Indeed the Committeeís investigation of this material amounted to nothing more than simply releasing to the public the Referral and tens of thousands of accompanying pages of confidential grand jury material. In this regard, we decry the partisanship that accompanied this sad three month process at nearly every turn, and point out its unfortunate departure from the experience of Watergate in 1974.
2 H. R. Doc. No. 311, infra, at 1393 (reprinting Lewinsky 7/ 27/ 98 OIC 302 at 5). 2 There is no question that the Presidentís actions were wrong, and that he has suffered
profound and untold humiliation and pain for his actions. But it is also undeniable that, when asked squarely about his relationship with Ms. Lewinsky before the grand jury, the President directly admitted to the improper physical relationship. The core of the charges against the President, thus, is that he did not adequately describe the intimate details of the relationship, and that his attempts to conceal his relationship amounted to a criminal conspiracy. Our review of the evidence, however, convinces us of one central fact - - there is no persuasive support for the suggestion that the President perjured himself in his civil deposition or before the grand jury in any manner nearing an impeachable offense, obstructed justice, or abused the powers of his office. A few examples will make the point.
The Presidentís statements under oath in the dismissed Jones case were in all likelihood immaterial to that case and would never have formed the legal basis for any investigation. The alleged perjury before the grand jury also involves petty factual disputes which have no standing as impeachment counts. The Majority further alleges that the President attempted to find Ms. Lewinsky a job in order to buy her silence. But the evidence makes clear that efforts to help Ms. Lewinsky find a job began in April 1996, long before she ever was identified as a witness in the
Jones case. Ms. Lewinsky herself testified that "no one ever asked me to lie and I was never promised a job for my silence." 2 Likewise, while the Majority contends that the President tried to hide gifts he had given Ms. Lewinsky, the evidence makes clear that Ms. Lewinsky B and not the President -- initiated the transfer of those items to the Presidentís secretary, Ms. Currie. Finally, while the Committee wisely rejected the abuse of power allegations brought by the OIC, it then improvidently substituted a spurious new charge of abuse largely because they did not like the Presidentís tone in responding to the 81 questions posed by Chairman Hyde.
In this context, we also point out, that since the election of President Clinton in 1992, Congressional Republicans and the OIC have spent tens of millions of dollars of taxpayersí monies on investigations of the President -- investigations which have been discredited in the eyes of the public. In the process, Congressional Republicans have perverted the powers of Congressional investigation into a political weapon, setting a dangerous precedent for future generations.
Finally, we note that there is virtual unanimity among Democrats and Republicans that the Senate will not convict President Clinton, and, thus, that the House is merely using the extraordinary powers of impeachment to express its displeasure for presidential actions. We regard this use of the impeachment sword as a perversion of our Constitutional form of government and as a dangerous arrogation of power by the Majority.
The following sets forth an outline of our dissenting views:
3
I. THE CONSTITUTIONAL STANDARD FOR IMPEACHMENT HAS NOT BEEN SATISFIED ............................................................. A. A President May Only Be Impeached for "Treason, Bribery or Other High
Crimes and Misdemeanors" ......................................... B. The Appropriate Role of The House In The Impeachment Process .......... II. THE MISCONDUCT ALLEGED IN THE ARTICLES WOULD NEVER BE
CHARGED AS A CRIMINAL VIOLATION .................................. A. The Alleged Perjurious Statements Were Immaterial ..................... B. The Alleged Perjurious Statements Would Never Merit Prosecution ........ III. THE ARTICLES OF IMPEACHMENT FAIL TO ESTABLISH IMPEACHABLE
OFFENSES .............................................................. A. Article I Alleging Perjury Before the Grand Jury Fails To Establish
Impeachable Offenses ............................................... 1. The President Did Not Commit Impeachable Offenses When Testifying
About "the nature and details of his relationship with a subordinate Government employee" ........................................ a. The President did not commit an impeachable offense when
testifying about his understanding of the definition of "sexual relations" presented to him during his civil deposition in the
Jones case ............................................. b. The President did not commit an impeachable offense when
testifying about the nature of his intimate contacts with Ms. Lewinsky .............................................. c. The President did not commit an impeachable offense when
testifying about the date on which his inappropriate contacts with Ms. Lewinsky began ................................ a. The President did not commit an impeachable offense when
testifying about the number of occasions on which he was alone with Ms. Lewinsky and the number of occasions on which they were having phone sex ................................... 2. The President Did Not Commit an Impeachable Offense Testifying
About His Prior Testimony In The Jones Civil Deposition ........... 3. The President Did Not Commit an Impeachable Offense When His
Attorney Characterized the Contents of Ms. Lewinskyís Affidavit to the Presiding Judge in the Jones Case ............................ 4. The President Did Not Commit An Impeachable Offense When He
Testified About Allegations That He Had Obstructed Justice B. Article IIís Allegations of Perjury In The Jones Civil Deposition Fail To
Establish An Impeachable Offense .................................... 1. The President Did Not Commit An Impeachable Offense When He
Testified about the Nature of His Relationship with Ms. Lewinsky .... 2. The President Did Not Commit An Impeachable Offense When He
Testified about Meeting Alone with Ms. Lewinsky .................. 3. The President Did Not Commit An Impeachable Offense When He
4
Testified about Gifts He exchanged with Ms. Lewinsky ............. 4. The President Did Not Commit An Impeachable Offense When He
Testified about Whether He Had Talked with Ms. Lewinsky about the Possibility She Would Be Asked to Testify in the Jones Case ......... 5. The President Did Not Commit An Impeachable Offense When He
Testified about Whether Ms. Lewinsky Had Told Him She Had Been Subpoenaed .................................................. 6. The President Did Not Commit An Impeachable Offense When He
Testified about Who Had Informed Him That Ms. Lewinsky Had Received a Subpoena in the Jones Case ........................... 7. The President Did Not Commit An Impeachable Offense When He
Testified about Whether Anyone Had Reported to Him about a Conversation with Ms. Lewinsky Concerning the Jones Case in the Two Weeks Prior to the Deposition .............................. 8. The President Did Not Commit An Impeachable Offense When He
Testified about Whether He Had Heard That Mr. Jordan and Ms. Lewinsky had Met to Discuss the Jones Case ...................... C. Article IIIís allegations of obstruction of justice fail to establish and
impeachable offense ................................................. 1. The President did not encourage Ms. Lewinsky to file a false affidavit
in the Jones case or testify falsely if deposed in that matter .......... 2. The President did not obstruct justice by concealing gifts that he gave
to Ms. Lewinsky .............................................. 3. The President did not assist Ms. Lewinsky in obtaining a job in New
York in order to influence her testimony in the Jones case ........... 4. The President did not commit an impeachable offense when his counsel
characterized Ms. Lewinskyís affidavit to the presiding judge during the Jones deposition ........................................... 5. The President did not relate to Ms. Currie a false and misleading
account of events relevant to the Jones suit with an intent to influence her testimony in any legal proceeding ............................ 6. The President did not obstruct justice or abuse his power by denying
to his staff his inappropriate contacts with Ms. Lewinsky ............ D. Article IV Alleging Abuse of Power Fails to Establish An Impeachable
Offenses IV THE CREDIBILITY OF THE IMPEACHMENT INQUIRY HAS BEEN
COMPROMISED ........................................................ A. Bias in OIC Investigation ............................................ B. Unfairness in Committee Investigation .................................
1. Unfairness in Conducting Committee Inquiry ..................... 2. Unfairness in the Drafting of the Articles of Impeachment ........... V. CENSURE IS AN APPROPRIATE AND CONSTITUTIONAL ALTERNATIVE TO
IMPEACHMENT ........................................................ A. A Censure Resolution Is Constitutional .................................
3 Staff of the House Comm. on the Judiciary, 93d Cong., 2d Sess (Comm. Print 1974), Constitutional Grounds for Presidential Impeachment ) (hereinafter, "Watergate Staff Report"). At the November 9, 1998, Constitution Subcommittee Hearing on the Background and History of Impeachment , Mr. Scott asked the panel whether they agreed that every felony falls within the definition of "Treason, Bribery or other high Crimes and Misdemeanors." The record shows that not one of the 10 panelists agreed that every felony is an impeachable offense.
4 Ethics in Government Act, 28 U. S. C. ßß 591- 99. 5
B. A Censure of the President Is Appropriate .............................. CONCLUSION ................................................................
I. THE CONSTITUTIONAL STANDARD FOR IMPEACHMENT HAS NOT BEEN
SATISFIED
Impeachment is only warranted for conduct that constitutes "Treason, Bribery, or other high Crimes and Misdemeanors" as set forth in Article II, Section 4 of the Constitution. As virtually all constitutional scholars have noted, there is an important distinction between criminal and impeachable offenses -- impeachment serves to protect the nation, not to punish the wrongdoer. A review of the language of the Constitution, the history and drafting of the impeachment clause, and subsequent review of its usage all serve to confirm that in all but the most extreme instances, the remedy of impeachment should be reserved for egregious abuses of presidential authority, rather than misconduct unrelated to public office. It is also clear that the President is subject to civil and criminal punishment independently of the impeachment process. The constitutional process of impeachment should not, therefore, be used for punitive purposes.
Members of the Majority have gone to great lengths to misconstrue the power of impeachment as one that is appropriately exercised against a chief executive based on any potentially criminal conduct. This interpretation is flatly inconsistent with the intentions of the Framers and the prior presidential impeachments in this country. It also is contrary to the central conclusions of the Staff Report produced by the Watergate impeachment inquiry staff in 1974. 3
Although many have inaptly compared the present proceedings to the genuine constitutional crisis brought about by President Richard Nixon, there are far more dissimilarities than parallels. In using the powers granted by the Independent Counsel Act 4 for the first time to justify the submission of a report to Congress outlining possible impeachable offenses, the OIC departed from the traditional deference shown by past presidential prosecutors. As these other prosecutors have recognized, it is Congress constitutional responsibility to determine whether alleged misconduct by a chief executive constitutes grounds for impeachment. Watergate independent prosecutor Leon Jaworski submitted grand jury materials to Congress that consisted only of grand jury transcripts and a ìroad map' through the allegations being investigated by the
5 Linda Greenhouse, Testing of a President, New York Times, Sept. 12, 1998, at 1A. 6 Kevin Johnson and Judy Keen, The Case Against the President, USA Today, Sept. 14, 1998, at 1E. 7 Watergate Staff Report at 22. 8 Watergate Staff Report at 24.
6 grand jury. His report ìprovided no analysis and drew no conclusions.' 5 To this day, that
document remains sealed. 6 Congress, in short, recognized that only it had the right and the responsibility to level public charges of impeachable offenses against the President.
The Committeeís constitutional responsibility is quite distinct from cataloging laws that may have been violated. The determination of whether to impeach a President is vastly different than the determination of whether there is evidence of a legal offense. The Majority, by invoking the language of criminal statutes to describe the Presidentís alleged misconduct, directly contradicts one of the main conclusions of the Watergate Staff Report, which it purports to endorse:
The impeachment of a President must occur only for reasons at least as pressing as those needs of government which give rise to the creation of criminal offenses. But this does not mean that the various elements of proof, defenses, and other substantive concepts surrounding an indictable offense control the impeachment process. Nor does it mean that state or federal criminal codes are necessarily the place to turn to provide a standard under the United States Constitution. Impeachment is a constitutional remedy. The Framers intended that the impeachment language they employed should reflect the grave misconduct that so injures or abuses our constitutional institutions and form of government as to justify impeachment. 7
The assumption that a presidentís violation of any of a number of laws may trigger the impeachment provisions of Article II, Section 4 of the Constitution is fundamentally misguided. In fact, as virtually all constitutional experts recognize, not all impeachable offenses are crimes and not all crimes are impeachable offenses. Again, the 1974 Watergate Staff Report is instructive on this issue:
Impeachment and the criminal law serve fundamentally different purposes. Impeachment is the first step in a remedial process -- removal from office and possible disqualification from holding future office. The purpose of impeachment is not personal punishment; its function is primarily to maintain constitutional government . . . The general applicability of the criminal law also makes it inappropriate as the standard for a process applicable to a highly specific situation such as removal of a President. . . . In an impeachment proceeding a President is called to account for abusing powers that only a President possesses. 8
9 This reading is an example of the standard rule of construction known in Latin as "ejusdem generis," or "of the same kind," providing that when a general word occurs after a number of specific words, the meaning of the general word is limited to the kind or class of things in which the specific words fall.
10 The 1974 Watergate Staff Report at 12 wrote, "Blackstoneís Commentaries on the Laws of England B a work cited by delegates in other portions of the Conventionís deliberations and which Madison later described (in the Virginia ratifying convention) as ëa book which is in every manís handí B included ëhigh misdemeanorsí as one term for positive offenses ëagainst the king and government. í... ëHigh Crimes and Misdemeanorsí has traditionally been considered a ëterm of art, í like such other constitutional phrases as ëlevying warí and ëdue process. í"
11 Raoul Berger, Impeachment: The Constitutional Problems, 65 (1973). 12 Id. (emphasis added).
7
A. A President May Only Be Impeached for ìTreason, Bribery or Other High Crimes and Misdemeanors'
With regard to the actual text of the Constitution, the juxtaposition of such serious offenses of Treason and Bribery with the phrase ìother high Crimes and Misdemeanors' serves as an important indicator of how the latter term should be defined. In other words, such ìother high Crimes and Misdemeanors' must constitute abuses of public office ñ similar to treason and bribery -- to become impeachable conduct. 9 It also bears emphasis that the word ìhigh' modifies both ìCrimes' and ìMisdemeanors.'
As the history of the latter term makes clear, the Framers did not entrust Congress with the power to impeach a popularly elected President simply upon a showing that the executive committed a ìmisdemeanor' crime as we now understand the term -- a minor offense usually punishable by a fine or brief period of incarceration. Instead, an examination of the relevant historical precedents indicates that a president may only be impeached for conduct that constitutes an egregious abuse or subversion of the powers of the executive office. 10 It is evident from the legislative history surrounding the constitutional convention that the
Framers intended impeachment to be a very limited constitutional remedy. At the outset, delegates such as Governor Morris and James Madison objected to the use of broad impeachment language. Morris argued that "corruption & some few other offences to be such as ought to be impeachable; but thought the cases ought to be enumerated & defined," 11 and Madison noted that impeachment was only necessary to be used to "defend[] the Community against the incapacity, negligence or perfidy of the chief Magistrate." 12
The critical drafting occurred on September 8, 1787. George Mason objected to the fact that the draft was too limited because it applied only to ìtreason or bribery' and sought to add the term ìmaladministration.' When Madison objected that ìso vague a term will be equivalent to a tenure during pleasure of the Senate,' Mason withdrew ìmaladministration' and substituted ìhigh
13 Watergate Staff Report at 11- 12. 14 2 Max Farrand, The Records of the Federal Convention of 1781, 551 (Rev. Ed. 1967). 15 Id. at 553. 16 See Fenton, The Scope of the Impeachment Power, 65 N. W. L. Rev. 719, 740 (1970). 17 Alexander Hamilton, The Federalist Papers, 65 (C. Rossiter, ed., 1991). 18 2 Joseph Story, Commentaries on the Constitution ß 744 (1 st ed. 1833) . 19 Id.
20 Stantonís removal was said to be inconsistent with the Tenure in Office Act, requiring Senate approval for removal of certain officers.
8 crimes and misdemeanors agst. the State,' which was accepted by the delegates. 13 The
narrowness of the phrase "other high Crimes and Misdemeanors" was confirmed by the addition of the language "against the State," reflecting the Convention's view that only offenses against the political order should provide a basis for impeachment. Although the phrase "against the United States" was eventually deleted by the Committee of Style that produced the final Constitution, 14 the Committee of Style was directed not to change the meaning of any provision. 15 It is therefore clear that the phrase was dropped as a redundancy and its deletion was not intended to have any substantive impact. 16
The construction that "other high Crimes and Misdemeanors" should be limited to serious abuses of official power is further confirmed by the commentary of prominent Framers and early constitutional commentators. Alexander Hamilton wrote in Federalist No. 65 that impeachable offenses "proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust." He stressed that those offenses "may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself." 17 Hamiltonís view was endorsed a generation later by Justice Joseph Story in his
Commentaries on the Constitution when he wrote, " [impeachable offenses] are committed by public men in violation of their public trust and duties. . . . Strictly speaking, then, the impeachment power partakes of a political character, as it respects injuries to the society in its political character." 18 Justice Story added that impeachable offenses "peculiarly injure the commonwealth by the abuse of high offices of trust." 19
Prior impeachment precedents also demonstrate that, for offenses to be impeachable, they must arise out of a presidentís public, not private, conduct. In 1868, Andrew Johnson was impeached by the House Republicans because he had removed the Secretary of War, Edwin M. Stanton, who had disagreed with his post- Civil War reconstruction policies. 20 Although the impeachment of President Andrew Johnson failed in the Senate, it bears note that all of the
21 The eleven articles of impeachment related to Johnsonís removal of Stanton, the impact of that removal on congressional prerogatives and its impact on post- civil war reconstruction. See Cong. Globe Supp., 40 th Cong. 2d Sess. V. II, at 139- 40 (April 23, 1868) and 286- 89 (April 29, 1868). See also Cong. Globe Supp., 40th Cong. 2d. Sess., at 286- 310 (1868).
22 The First Article -- alleging that President Nixon coordinated a cover- up of the Watergate break- in by interfering with numerous government investigations, using the CIA to aid the cover- up, approving the payment of money and offering clemency to obtain false testimony -- qualified as a high Crime and Misdemeanor, because "[ the President used] the powers of his high office [to] engage . . . in a course of conduct or plan designed to delay, impede, and obstruct [the Watergate investigation]." The Second Article -- alleging that the President used the IRS as a means of political intimidation and directed illegal wiretapping and other secret surveillance for political purposes -- described "a repeated and continuing abuse of the powers of the Presidency in disregard of the fundamental principle of the rule of law in our system of government." The Third Article B alleging that President Nixon refused to comply with subpoenas issued by the Judiciary Committee in its impeachment inquiry -- was considered impeachable because such subpoena power was essential to "Congressí [ability] to act as the ultimate safeguard against improper presidential conduct."
23 The crux of the impeachment article related to allegations that the President understated his income and overstated his deductions for the years 1969 through 1972.
24 Republican congressmen explicitly emphasized that personal misconduct could not give rise to an impeachable offense. Congressman Tom Railsback (R- IL) noted that there was "a serious question as to whether something involving [the Presidentís] personal tax liability has anything to do with his conduct of the office of the President." Congressman Lawrence J. Hogan (R- MD), quoted from the impeachment inquiry staff report:
As a technical term, high crime signified a crime against the system of government, not merely a serious crime. This element of injury to the commonwealth, that is, to the state itself and to the Constitution, was historically the criteria for distinguishing a high crime or misdemeanor from an ordinary one.
Similarly, Democratic Congressman Jerome Waldie (D- CA) echoed the Republican distinction between public and private conduct, and opposed the proposed article because "the impeachment process is a process
9 impeachment articles related to alleged public misconduct. 21 The circumstances surrounding the proposed impeachment of President Nixon also
support the view that impeachment should be limited to threats that undermine the Constitution, not ordinary criminal misbehavior unrelated to a presidentís official duties. All three of the articles of impeachment approved by the House Judiciary Committee involved misuse of the Presidentís official duties. 22 Even more telling are the circumstances by which the Committee rejected articles of impeachment relating to allegations of income tax evasion. When the Judiciary Committee debated a proposed article of impeachment alleging that President Nixon had committed tax fraud when filing his federal income tax returns for the years 1969 through 1972 filed under penalty of perjury 23 it was defeated by a vote of 26- 12. Although some Members believed this count was not supported by the evidence, the primary ground for rejection was that the Article related to the Presidentís private conduct, not to an abuse of his authority as President. 24
designed to redefine Presidential powers in cases where there has been enormous abuse of those powers and then to limit the powers as a concluding result of the impeachment process."
25 Charles L. Black, Impeachment: A Handbook 35- 36 (1974). 26 Letter from more than 400 Constitutional law professors (Nov. 6, 1998) (submitted as part of the Constitution Subcommittee Hearing Record).
27 Statement Against the Impeachment Inquiry, submitted to the Committee by more than 400 historians (Oct. 28, 1998)( submitted as part of the Constitution Subcommittee Hearing Record).
10 A review of the writings by prominent scholars concerning the issue of impeachment
further confirms the general principal that for presidential wrongdoing to rise to the level of an impeachable offense it must relate to grievous abuse of office. The question of whether private presidential misconduct could be impeachable was posed twenty- five years ago by Professor Charles Black, in his seminal work, Impeachment: A Handbook, when he posited the following hypothetical:
Suppose a President transported a woman across a state line or even (as the Mann Act reads) from one point to another within the District of Columbia, for what is quaintly called an ìimmoral purpose.' . . . Or suppose the president actively assisted a young White House intern in concealing the latterís possession of three ounces of marijuana ñ thus himself becoming guilty of ìobstruction of justice.' Would it not be preposterous to think that any of this is what the Framers meant
when they referred to ìTreason, Bribery, or other high Crimes and Misdemeanors,' or that any sensible constitutional plan would make a president removable on such grounds? 25
More recently, a large group of legal scholars and academics have offered their views regarding the impeachability of the misconduct alleged by the Majority. On November 6, 1998, 430 Constitutional law professors wrote: ìDid President Clinton commit ëhigh Crimes and Misdemeanorsí warranting impeachment under the Constitution? We ... believe that the misconduct alleged in the report of the Independent Counsel ... does not cross that threshold .... [I] t is clear that Members of Congress would violate their constitutional responsibilities if they sought to impeach and remove the President for misconduct, even criminal misconduct, that fell short of the high constitutional standard required for impeachment.' 26
One week earlier, more than four hundred historians issued a joint statement warning that because impeachment has traditionally been reserved for high crimes and misdemeanors in the exercise of executive power, impeachment of President Clinton based on the facts alleged in the OIC Referral would set a dangerous precedent. ìIf carried forward, they will leave the Presidency permanently disfigured and diminished, at the mercy as never before of caprices of any Congress. The Presidency, historically the center of leadership during our great national ordeals, will be crippled in meeting the inevitable challenges of the future.' 27
28 Subcommittee Hearing, (Written Testimony of Cass Professor Sunstein at 2) (emphasis in original). 29 Id. at 5,7, 8, 11, 12 (emphasis in original). 30 Id. (Written Testimony of Robert F. Drinan, S. J. at 3- 7).
11 The weight of evidence offered at Committee hearings also supports the view that in all
but the most extreme instances, impeachment should be limited to abuse of public office, not private misconduct. This point was made by several of the witnesses at the Constitution Subcommittee Hearing on the Background and History of Impeachment. Chicago Law Professor Cass Sunstein, summarized the standard as follows: ì[ w] ith respect to the President, the principal goal of the impeachment clause is to allow impeachment for a narrow category of large- scale abuses of authority that come from the exercise of distinctly presidential powers. Outside of that category of cases, impeachment is generally foreign to our traditions and prohibited by the Constitution.' 28 Professor Sunstein went on to review English Parliamentary precedent, the intent of the Framers and subsequent impeachment practice as all supporting this bedrock principle. In his view, the only exception where purely private conduct would be implicated was in the case of a heinous crime, such as murder or rape:
[B] oth the original understanding and historical practice converge on a simple principle. The basic point of the impeachment provision is to allow the House of Representatives to impeach the President of the United States for egregious misconduct that amounts to the abusive misuse of the authority of his office. This principle does not exclude the possibility that a president would be impeachable for an extremely heinous ìprivate' crime, such as murder or rape. But it suggests that outside such extraordinary (and unprecedented and most unlikely) cases, impeachment is unacceptable. 29
Father Drinan, a former House Judiciary Committee Member who participated in the Watergate impeachment process, and now a Professor of Law at Georgetown University, reached the same conclusion, testifying that, ìthe impeachment of a president must relate to some reprehensible exercise of official authority. If a president commits treason he has abused his executive powers. Likewise a president who accepts bribes has abused his official powers. The same misuse of official powers must be present in any consideration of a presidentís engaging in ëother high crimes and misdemeanors.' 30 Eminent historian Arthur Schlesinger similarly distinguished between private and public misconduct:
The question we confront ... is whether it is a good idea to lower the bar to impeachment. The charges levied against the President by the Independent Counsel plainly do not rise to the level of treason and bribery. They do not apply to acts committed by a President in his role of public official. They arise from instances of private misbehavior. All the Independent Counselís charges ... derive entirely from a Presidentís lies about his own sex life. His attempts to hide
31 Id. (Written Statement of Arthur Schlesinger, Jr. at 2). 32 Hearing before the House Comm. on the Judiciary, Dec. 8, 1998 (Statement of Nicholas Katzenbach at 3- 4).
33 Id. (Written Testimony of Professor Sean Wilentz, at 5). 34 Id . (Written Testimony of Professor Michael Gearhardt at 13- 14) (footnotes omitted) (emphasis added). 35 Id. (Written Testimony of Professor William Van Alstyne at 6).
12 personal misbehavior are certainly disgraceful; but if they are to be deemed
impeachable, then we reject the standards laid down by the Framers in the Constitution and trivialize the process of impeachment. 31 Prominent witnesses called by the White House concurred in these assessments. Former
Attorney General Nicholas Katzenbach testified that impeachment must involve ìsome conduct ñ some acts ñ which are so serious as to bring into question the capacity of the person involved to carry out his role with the confidence of the public' and noted that it was clear that ìdespite the strongly held views of some, the public does not put perjury about sexual relations in the category of ëhigh crimes or misdemeanors. í' 32 Princeton History Professor Sean Wilentz warned the Committee about the dangers of a largely partisan impeachment, and warned that ìthese proceedings are on the brink of becoming irretrievably politicized, more so even than the notorious drive to remove Andrew Johnson from office one hundred and thirty years ago.' 33
The one witness jointly selected by the Majority and the Minority ñ William & Mary Law Professor Michael Gearhardt ñ also testified that impeachment should principally be limited to abuse of public office:
[There is a] widespread recognition that there is a paradigmatic case for impeachment consisting of the abuse of power. In the paradigmatic case, there must be a nexus between the misconduct of an impeachable official and the latterís official duties. It is this paradigm that Hamilton captured so dramatically in his suggestion that impeachable offenses derive from ìthe abuse or violation of some public trust' and are ìof a nature which may be peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. This paradigm is also implicit in the foundersí many references to abuses or power as constituting political crimes or impeachable offenses. 34
Even some witnesses called by the Majority cautioned that discretion should be applied before applying the impeachment power in all situations. For example, Duke Law Professor William Van Alstyne stated that the allegations by Mr. Starr constituted ìlow crimes and misdemeanors' and that ì[ t] he further impeachment pursuit of Mr. Clinton may well not now be particularly worthwhile.' 35 Charles E. Wiggins, a senior judge on the Ninth Circuit, and a former
36 Hearings before the House Comm. on the Judiciary, "The Consequences of Perjury and Related Crimes," Dec. 1, 1998 (Written Testimony of Hon. Charles E. Wiggins).
37 Id. (Written Testimony of Elliott Richardson). 38 Markup Tr. 12/ 11/ 98, at 464.
13 Republican Member of the Judiciary Committee who participated in the Watergate inquiry stated,
"I am presently of the opinion that the misconduct admittedly occurring by the President is not of the gravity to remove him from office." 36
B. The Appropriate Role of The House In The Impeachment Process
It has been repeatedly argued that the House is like a grand jury that simply votes out an article of impeachment based on ìprobable cause' to believe that impeachable offense have occurred and lets the Senate weigh the actual evidence. This view of the Houseís role has been offered in support of the proposition that the House does not have to hear evidence or make decisions about who is telling the truth because that is the Senateís job. This cramped view of the appropriate role of the House finds no support in the Constitution and is completely contrary to the great weight of historical precedent. As former Watergate Era Attorney General Elliot Richardson warned:
A vote to impeach is a vote to remove. If members. . . believe that should be the outcome, they should vote to impeach. If they think that is an excessive sentence, they should not vote to impeach, because if they do . . . the matter is out of your hands . . . 37 During the debate over the articles of impeachment, Rep. Frank reminded the Members
that they should not take the Houseís independent role to remove the president from office lightly: ìI have to say that I think it is a grave error constitutionally to denigrate what we are doing. Yes, it is true that, as a consequence of this, the President will not be instantly thrown out of office. It is also true that the only justification and basis for this proceeding and the only basis on which Members can honestly vote for these articles is the conviction that the President ought to be thrown out of office.' 38
The argument that the House is merely the body that accuses and the Senate is the body that tries, undermines the dual protection against misuse of the impeachment power that the founders intended. The Constitution requires more than that the House be a mere rubber stamp for sending allegations of wrongdoing to the Senate; rather Article II intends that the House as well as the Senate look to the same evidence with the same standards. As constitutional expert Professor John H. Labovitz concluded with respect to Watergate, in terms that seem as if they were written for today; . . . there were undesirable consequences if the House voted impeachment on the
39 Labovitz, Presidential Impeachments, at 192- 3. 40 A lie under oath becomes a criminal offense only when it is "material" to the proceeding in which it is given. Courts have held a statement to be material if it "has a natural tendency to influence, or was capable of influencing, the decision of the tribunal in making a [particular] determination. Proof of actual reliance on the statement is not required; the Government need only make a reasonable showing of its potential effects." United States v. Barrett, 111 F. 3d 947, 953 (D. C. Cir. 1997) (internal quotation omitted) (brackets in original); see also United States v. Moore, 613 F. 2d 1029, 1037- 38 (D. C. Cir. 1979) (same); United States v. Icardi, 140 F. Supp. 383,
14 basis of one- sided or incomplete information or insufficiently persuasive evidence.
Subjecting the Senate, the President, and the nation to the uncertainty and potential divisiveness of a presidential impeachment trial is not a step to be lightly undertaken. While the formal consequences of an ill- advised impeachment would merely be acquittal after trial, the political ramifications could me much more severe. Accordingly, the house . . . should not vote impeachments that are unlikely to succeed in the senate . . . the standard of proof applied in the House should reflect the standards of proof in the Senate . . . 39
Professor Labovitz has meticulously documented how, in the Nixon inquiry, everyone agreed -- the Majority, the Minority, and the Presidentís counsel -- that the standard of proof for the Committee and the House was ìclear and convincing evidence.' When the articles of impeachment are weighed against this standard, it is clear that the constitutional standard has not been satisfied.
II. THE MISCONDUCT ALLEGED IN THE ARTICLES WOULD NEVER BE CHARGED
AS A CRIMINAL VIOLATION
As discussed above, violations of criminal law are not sufficient to establish an impeachable offense. Much of the misconduct alleged in the articles of impeachment could not be the subject of a successful perjury prosecution and experienced prosecutors have persuasively testified that the misconduct alleged in the articles would never be the subject of a criminal prosecution.
A. The Alleged Perjurious Statements Were Immaterial
Both the Majorityís allegation that the President committed perjury during his grand jury testimony (Article I) and during his testimony in the Jones case (Article II), are predicated on the Presidentís efforts to conceal the nature and extent of his relationship with Ms. Lewinsky. Since so much time of the Committee was taken up with an examination of whether the Presidentís conduct violated criminal law (rather than on whether that conduct amounted to impeachable offenses), some of the relevant issues of law have to be defined. In considering whether such conduct constituted a violation of law, the Committee should have focused on the effect, if any, that this testimony had on the course of that litigation. 40 Accordingly, since the first two Articles
388 (D. D. C. 1956) (same). Significantly, the Supreme Courtís recent decision in United States v. Gaudin, 515 U. S. 506 (1995) strongly suggests the correctness of this standard. There, the Supreme Court considered the question whether, under the federal false statements statute, 18 U. S. C. ß 1001, issues of materiality should be decided by the judge or the jury. In his opinion holding that the issue is for the jury, Justice Scalia endorsed the view that a statement is material only if it has a "ë natural tendency to influence, or [be] capable of influencing, the decision of the decisionmaking body to which it was addressed." Gaudin, 515 U. S. at 509 (quoting Kungys v. United States, 485 U. S. 759, 770 (1988)) (brackets in original). The Courtís interpretation of ß 1001 as embodying a "capable of influencing" definition of materiality should be applied to the perjury statutes, which are very similar in scope and purpose.
41 See Equal Employment Opportunity Statement: Executive Office of the President; 29 CFR ß1604.11a. 42 United States v. Barrett, 111 F. 3d 947, 953 (D. C. Cir. 1997).
15 are largely based on the presumed seriousness of the Presidentís failure to admit the full extent of
his inappropriate relationship during his testimony, the relevance of the testimony must be considered.
Paula Jones was seeking to prove unwelcome and unsolicited conduct by the President. Whatever else it was, the Presidentís relationship with Ms. Lewinsky was neither unwanted nor harassing. 41 If the Presidentís testimony under oath is what supports the allegation of abuse of constitutional magnitude, then the immateriality of that testimony makes clear the insufficiency of the Articles recommending impeachment on that basis.
Paula Jones, a former Arkansas state employee, filed a civil lawsuit against the President in 1994 alleging that he had sexually harassed her during an encounter in a hotel room during a government conference. After protracted discovery, the Presidentís motion for summary judgment was granted on the basis that, even if one assumed the truth of every allegation made by Jones concerning the Presidentís behavior, Jones failed to prove that she was entitled to any relief as a matter of law. In light of this fundamental weakness in Jonesí case, it is exceedingly difficult to establish that the allegedly misleading statements made by the President during his testimony were legally ìmaterial' or ìcapable of influencing' a court. 42 Simply put, Mrs. Jones would have
lost her lawsuit regardless of the Presidentís deposition testimony. In evaluating the Majorityís charge, the rulings made by Judge Wright in the Jones case must be considered. These are directly relevant to the question whether the Presidentís allegedly false statements could possibly be characterized as violations of the federal law cited by the Referral and relied upon by the Majority. Judge Wrightís order excluding evidence concerning Ms. Lewinsky, and her order granting the Presidentís summary judgment motion, clearly establish that any alleged misleading statements by the President concerning his indisputably consensual and non- harassing relationship with Ms. Lewinsky were simply not material matters.
On January 29, 1998, the Independent Counsel intervened in the Jones case and moved to
43 The Presidentís actions in supposedly denying a civil litigant access to evidence has been frequently cited as one reason that the Presidentís alleged perjury may constitute an impeachable offense. It is ironic, therefore, that it was the Independent Counselís insistence that the allegations relating to Ms. Lewinsky merited criminal investigation which actually deprived Mrs. Jones of the ability to present evidence concerning Monica Lewinsky to the court.
44 Judge Wrightís order further held that "some of this evidence might even be inadmissible as extrinsic evidence under Rule 608( b) of the Federal Rules of Evidence." Jones v. Clinton, No. LR- C- 94- 290, Order dated Jan. 29, 1998, at 2. Federal Rule of Evidence 608( b) governs a partyís ability to introduce specific instances of a witnessí prior conduct in order to impeach the witnessí credibility. The rule provides, as a general matter, that a witnessí prior conduct may not be proved by extrinsic evidence. Judge Wright clearly thought it possible that proof of the Presidentís alleged relationship with Monica Lewinsky would be inadmissible because, at best, it was relevant only to the Presidentís credibility. See also Jones v. Clinton, No. LR- C- 94- 290, Order dated Mar. 9, 1998, at 2 (denying motion to reconsider order excluding Lewinsky evidence because "any evidence concerning Ms. Lewinsky would be excluded from the trial of this matter").
45 Jones v. Clinton, No. LR- C- 94- 290, Memorandum Opinion and Order at 10- 11 (E. D. Ark. Apr. 1, 1998).
46 Id. at 3 n. 3. 47 Id. at 39.
16 exclude from that proceeding any evidence regarding Monica Lewinsky. 43 In her order granting
that motion, Judge Wright concluded that evidence relating to Monica Lewinsky was not ìessential to the core issues in this case.' 44 Since Paula Jonesí lawyers would have been precluded from introducing any evidence relating to Lewinsky to attack the Presidentís credibility, the Presidentís testimony was not material to the Jones case.
On April 1, 1998, Judge Wright granted the Presidentís motion for summary judgment in the Jones case. 45 As required by federal law, in reviewing the Presidentís summary judgment motion, Judge Wright assessed the evidence in the case in the light most favorable to Ms. Jones. 46 Nevertheless, Judge Wright concluded that no ìrational trier of fact [could] find for [Ms. Jones],'
and therefore that there were ìno genuine issues for trial[.]' 47 The courtís decision undermines the OICís assumption that the Presidentís testimony regarding Monica Lewinsky could ever be material to the resolution of the specific claims that Ms. Jones made:
One final matter concerns the alleged suppression of pattern and practice evidence. Whatever relevance such evidence may have to prove other elements of the plaintiffís case, it does not have anything to do with the issues presented by the Presidentís . . . motion[] for summary judgment . . . . Whether other women may have been subjected to workplace harassment, and whether such evidence has allegedly been suppressed, does not change the fact that plaintiff has failed to demonstrate that she
48 Id. at 38- 39 (emphasis in original). 49 The drafters of the rule further explained that testimony is proper at a deposition so long as it is part of "a broad search for facts, . . . or any other matter which may aid a party in the preparation or presentation of his case." Fed. R. Civ. P. 26, 1946 Advisory Committee Note.
50 United States v. Adams, 870 F. 2d 1140, 1147- 48 (6 th Cir. 1989). 51 The practice of the OIC to continue to speak publicly and to issue press releases after it made itsí 595( c) Referral to Congress bears note. This report points out the bias, impartiality, and "attitude" with which the Referral was written. The fact that the OIC continued to feel the need to defend itself against all possible criticisms C large and small C demonstrates that it was indeed too vested and partial in this entire event.
52 Appendices to the Referral (Part 1) H. Doc. 103- 311 at 294. 17 has a case worthy of submitting to a jury. 48
If Jonesí claims failed for lack of proof, nothing the President said about Ms. Lewinsky could possibly have affected the outcome of the case.
The presence of Judge Wright during the deposition and her decision to allow certain questions to be posed does not suggest, as some have argued, that the Presidentís responses to those questions were inevitably material to the Jones case. During a discovery deposition, only questions that are wholly irrelevant to the underlying action will be disallowed. Relevance in the discovery stage of civil litigation is an exceedingly broad standard which is not co- extensive with the concept of materiality. The Federal Rules of Civil Procedure provide that discovery may be had on any subject relevant to a pending case, and that the ìinformation sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.' Fed. R. Civ. P. 26( b)( 1). 49 Courts have held, however, that the mere fact that testimony was deemed permissible is not sufficient to establish materiality.
[T] he credibility of a witness is always at issue, but not every word of a witnessí testimony is invariably material. The materiality of a particular snippet of testimony is not automatically established by the simple expedient of proving that the testimony was given. 50
In sum, not all testimony that a judge permits to be elicited during a pretrial discovery proceeding can satisfy the materiality requirement that the information be likely to influence the outcome of the case.
Some Members of the Majority and the OIC in press releases that it issued during the course of the Committeeís hearings 51 have alleged that the materiality of the Presidentís alleged false statements in Jones v. Clinton has already been dispositively resolved by the United States Court of Appeals for the District of Columbia Circuit. 52 This assertion is misleading and untrue. The litigation referred to by the OIC involved a legal challenge by Ms. Lewinskyís lawyer, Frank
53 In re Sealed Case, slip op. at 4- 6 (D. C. Cir., Nos. 98- 3052, 98- 3053, 98- 3059, May 26, 1998). 18 Carter, to a subpoena issued by the OIC for testimony and materials protected by the attorneyclient
privilege. In seeking to compel testimony that would ordinarily be protected by the attorney- client privilege, the OIC argued that it had reason to believe that the attorney- client relationship had been exploited to facilitate the filing of a false affidavit, which would permit ordinarily privileged material to be disclosed pursuant to the ìcrime- fraud' exception. In opposing this subpoena to her former attorney, Ms. Lewinsky argued that her affidavit related to matters later excluded from the Jones case and, therefore, was not ìmaterial' to that proceeding, thereby rendering the truth or falsity of her affidavit legally irrelevant. The D. C. Circuit, in rejecting this argument, did not hold that Ms. Lewinskyís affidavit was relevant to the underlying
Jones litigation. Instead, the Court arrived at the much narrower ruling that Ms. Lewinskyís affidavit was relevant to her motion to quash her own subpoena.
Lewinsky used the statement in her affidavit . . . to support her motion to quash the subpoena issued in the discovery phase of the Arkansas litigation. . . . There can be no doubt that Lewinskyís statements in her affidavit were . . . predictably capable of affecting this decision. She executed and filed her affidavit for this very purpose. 53
That Ms. Lewinskyís affidavit was material to her own motion to quash is not surprising, but that holding does not compel the conclusion that the Presidentís testimony concerning Ms. Lewinsky was material to the Jones case. It is a disservice to the state of the record to suggest that the important threshold question of materiality has been conclusively resolved by the D. C. Circuit. Most importantly, as the Majority has argued time and time again, these are not legal proceedings. Although scholars differ about the materiality issue, it cannot be denied that the Presidentís allegedly false statements played no actual role in depriving Ms. Jones of any relief she was seeking as a civil litigant. To the contrary, the negative publicity created by both her case and the OICís involvement in her civil discovery processes may well led the President to offer her a generous settlement despite the decision dismissing her claims. These are legitimate, common- sense considerations which should have weighed more heavily in this Committeeís deliberations about the gravity of the offenses alleged. When Judge Webber Wright ruled on April 1 that no matter what the President did with Ms. Lewinsky, Paula Jones herself had not proven that she had been harmed, the courtís opinion confirmed that the Presidentís statements, whether truthful or not, were not of the grave constitutional significance necessary to support impeachment.
B. The Alleged Perjurious Statements Would Never Merit Prosecution
On December 9, 1998, a panel of five highly regarded former Democratic and Republican federal prosecutors appeared before the Committee and testified that the OICís case against the President would not have been pursued by a responsible federal prosecutor. It stood to reason, therefore, that if lawyers could agree that the Presidentís conduct would not even merit a criminal
54 12/ 9/ 98 Tr. at 14- 15. 55 12/ 9/ 98 Tr. at 15. 56 12/ 9/ 98 Tr. at 15. 57 12/ 9/ 98 Tr. at 16.
19 prosecution under ordinary circumstances, how could lawmakers in Congress conclude that it
amounted to a ìhigh crime?' The bi- partisan panel consisted of:
! Richard J. Davis, former task force leader for the Watergate Special Prosecution Force, and former Assistant Secretary of the Treasury for Enforcement and Operations;
! Edward S. G. Dennis, Jr., former Acting Deputy Attorney General of the United States, former Assistant Attorney General for the Criminal Division of the Department of Justice, and former United States Attorney for the Eastern District of Pennsylvania;
! Ronald K. Noble, former Under Secretary for Enforcement of the Department of the Treasury, former Deputy Assistant Attorney General of the United States, and former Assistant United States Attorney for the Eastern District of Pennsylvania;
! Thomas P. Sullivan, former United States Attorney for the Northern District of Illinois; and
! William F. Weld, former Governor of Massachusetts, former Assistant Attorney General in charge of the Criminal Division of the Department of Justice, former United States Attorney for the District of Massachusetts, and House Judiciary Committee Counsel during Watergate.
In his testimony, Mr. Sullivan told the Committee that federal prosecutions for perjury and obstruction of justice are relatively rare, in part, because they are extremely difficult to prove. 54 He explained that the law of perjury ìcan be particularly arcane, including the requirements that the government prove beyond a reasonable doubt that the defendant knew his testimony to be false at the time he or she testified, that the alleged false testimony was material, and that any ambiguity or uncertainty about what the question or answer meant must be construed in favor of the defendant.' 55 He further stated that, as a general matter, ì[ f] ederal prosecutors do not use the criminal process in connection with civil litigation involving private parties.' 56 That is because ìthere are well established remedies available to civil litigants who believe perjury or obstruction has occurred.' 57 Mr. Sullivan testified that ìthe evidence set out in
58 12/ 9/ 98 Tr. at 17. 59 12/ 9/ 98 Tr. at 24. 60 12/ 9/ 98 Tr. at 24. 61 12/ 9/ 98 Tr. at 24. 62 12/ 9/ 98 Tr. at 24. 63 12/ 9/ 98 Tr. at 26. 64 12/ 9/ 98 Tr. at 32. 65 12/ 9/ 98 Tr. at 32.
20 the Starr report would not be prosecuted as a criminal case by a responsible federal prosecutor.' 58
Mr. Davis testified that in ìmaking a prosecution decision as recognized by Justice Department policy, the initial question for any prosecutor is, can the case be won at trial? Simply stated, no prosecutor should bring a case if he or she does not believe that based upon the facts and the law, it is more likely than not that they will prevail at trial.' 59 Mr. Davis added that ì[ c] ases that are likely to be lost cannot be brought simply to make a point, to express a sense of moral outrage, however justified such a sense of outrage might be.' 60 Like Mr. Sullivan, Mr. Davis noted that perjury cases are difficult to prosecute because ìquestions and answers are often imprecise.' 61 Significantly, Mr. Davis noted that in civil lawsuits, ìlawyers routinely counsel their
clients to answer only the question asked, not to volunteer and not to help out an inarticulate questioner.' 62 Based on his review of the OICís evidence, Mr. Davis concluded that there does not exist a prosecutable case of perjury against the President arising out of his grand jury testimony. That is because the President ìacknowledged to the grand jury the existence of an improper relationship with Monica Lewinsky, but argued with prosecutors questioning him that his acknowledged conduct was not a sexual relationship as he understood the definition of that term being used in the Jones deposition.' 63 Put another way, Mr. Davis testified that it would not be possible to prove that the President perjured himself about his subjective understanding of the definition of ìsexual relations' drafted by the Jones attorneys.
Mr. Dennis testified that a criminal conviction of the President ìwould be extremely difficult to obtain in a court of law' because there ìis very weak proof of the criminal intent of the President.' 64 In addition, Mr. Dennis told the Committee that the ìLewinsky affair is of questionable materiality to the proceedings in which it was raised.' 65 According to Mr. Dennis, perjury and obstruction of justice cases arising out of civil litigation involving private parties are ìrare,' and ìrarer still are criminal investigations in the course of civil litigation in anticipation of
66 12/ 9/ 98 Tr. at 33. 67 12/ 9/ 98 Tr. at 33. 68 12/ 9/ 98 Tr. at 34. 69 12/ 9/ 98 Tr. at 34. 70 12/ 9/ 98 Tr. at 35. 71 12/ 9/ 98 Tr. at 39. 72 12/ 9/ 98 Tr. at 41. 73 12/ 9/ 98 Tr. at 41. 74 12/ 9/ 98 Tr. at 45. 75 12/ 9/ 98 Tr. at 48.
21 incipient perjury or obstruction of justice.' 66 That is because in the latter circumstances,
ìprosecutors are justifiably concerned about the appearance that government is taking the side of one private party against another.' 67 Under the facts of the Jones case, Mr. Dennis testified that a criminal prosecution was not warranted and ìmost likely would fail.' 68 He concluded that ì[ c] ertainly the exercise of sound prosecutorial discretion would not dictate prosecuting such a case.' 69
Mr. Noble testified that ìa Federal prosecutor ordinarily would not prosecute a case against a private citizen based on the facts set forth in the Starr referral.' 70 He explained that ìFederal prosecutors and Federal agents, as a rule, ought to stay out of the private sexual lives of consenting adults.' 71 Like his colleagues, Mr. Noble agreed that as a general matter ìFederal prosecutors are not asked to bring Federal criminal charges against individuals who have allegedly perjured themselves in connection with civil lawsuits.' 72 That is because ì[ b] y their nature, lawsuits have remedies built into the system. Lying litigants can be exposed to such and lose their lawsuits. The judge overseeing the lawsuit is in the best position to receive evidence about false statements, deceitful conduct and even perjured testimony.' 73 Mr. Noble also testified that ì[ n] o prosecutor would be permitted to bring a prosecution where she believed that there was no chance that an unbiased jury would convict[,]' and for that reason urged the Committee to ìconsider the impact that a long and no doubt sensationalized trial will have on the country, especially a trial that will not result in a conviction.' 74
Finally, Governor Weld testified that in the Reagan Administration, it was not the policy of the Department of Justice ìto seek an indictment based solely on evidence that a prospective defendant had falsely denied committing unlawful adultery or fornication.' 75 He also testified that under settled principles of federal prosecution, ìthe prosecutor has to believe that there is sufficient evidence, admissible evidence, to obtain from a reasonable and unbiased jury a
76 12/ 9/ 98 Tr. at 81. 77 12/ 9/ 98 Tr. at 58. 78 12/ 9/ 98 Tr. at 32. 79 12/ 9/ 98 Tr. at 59. 80 12/ 9/ 98 Tr. at 75. 81 12/ 9/ 98 Tr. at 81.
22 conviction and to sustain it on appeal' before a decision is made to bring a charge against a
potential defendant. 76 Thus, the former federal prosecutors agreed on a number of points. First, they agreed that the criminal law generally is not used to sanction misbehavior that occurs during civil litigation. As Mr. Sullivan explained, ìthe thrust of what I am saying is that the Federal criminal process simply is not used to determine truth or falsity in statements in civil litigation, and it is particularly true -- I mean, thatís true, and it is also even more true when you take a situation, as you have here, that the testimony is even peripheral to the civil case involved.' 77 Second, they concurred that testimony concerning the Presidentís relationship with Ms. Lewinsky was not material to the Jones lawsuit. Mr. Dennis testified that the ìLewinsky affair is of questionable materiality to the proceedings in which it was raised.' 78 Third, the panelists agreed that the OICís case against the President likely could not be sustained in court. As Mr. Noble put it, ìI think that it is fairly clear, and that if a poll were taken of former U. S. attorneys from any administration, you would probably find the overwhelming number of them would agree with the assessment that this case is a loser and just would not be sustained in court.' 79 Fourth, the former prosecutors agreed that the charge of obstruction of justice against the
President arising out of his conversations with Betty Currie was weak. In the words of Governor Weld, ìI think it [the case for obstruction] is a little thin.' 80 And finally, they agreed that a charge should not be brought against a defendant unless it can be sustained at trial. As Mr. Sullivan remarked, ìI have had situations where my . . . [law enforcement] agents have said to me after discussion about the evidence -- and we concluded that we cannot get a conviction or it is likely that we will lose -- letís indict him anyway to show him. My response to that is, get out of my office and never come back.' 81
III. THE ARTICLES OF IMPEACHMENT FAIL TO ESTABLISH IMPEACHABLE
OFFENSES A. Article I Alleging Perjury Before the Grand Jury Fails To Establish
Impeachable Offenses
23 The Committee has approved an article of impeachment concerning the Presidentís grand
jury testimony which alleges perjurious testimony with respect to the following subject matters: ì( 1) the nature and details of his relationship with a subordinate Government employee; (2) prior perjurious, false and misleading testimony he gave in a Federal civil rights actions brought against him; (3) prior false and misleading statements he allowed his attorney to make to a federal judge in that civil rights action; and (4) his corrupt efforts to influence the testimony of witnesses and to impede the discovery of evidence in that civil actions.'
1. The President Did Not Commit Impeachable Offenses When Testifying About ìthe nature and details of his relationship with a subordinate Government employee'
Specific details of the allegedly perjurious statements described by this subparagraph were not included in the articles. In the absence of such specifics, the Minority has no choice but to presume that the Committee intends to parrot the allegations of grand jury perjury contained in the OICís Referral. The Referral alleged that the President perjured himself in his grand jury testimony by responding to questions concerning the physical nature of his relationship with Ms. Lewinsky in the following ways:
C The President testified that he understood the definition of ìsexual relations' given to him in the Jones deposition not to include oral sex performed on him.
C The President asserted that his admittedly intimate contacts with Ms. Lewinsky did not constitute ìsexual relations' as the President testified he understood that term to be defined in the Jones deposition.
C The President testified that his physical relationship with Ms. Lewinsky did not begin until early 1996, rather than late 1995, as recalled by Ms. Lewinsky.
The Majority Counsel, in his presentation, additionally alleged that the President testified falsely to the grand jury concerning the following issues:
C The exact number of the Presidentís meetings with Ms. Lewinsky.
C The exact number of his telephone conversations with Ms. Lewinksy that included sexual banter.
This Committee has not been presented with clear and convincing evidence that the Presidentís testimony on any of subjects was intentionally false. More importantly, there is no real prospect that a Senate trial would ever find sufficient evidence to convict the President of impeachable offenses based on these allegations.
(a) The President did not commit an impeachable offense when
82 Clinton 1/ 17/ 98 Depo at 20. 24
testifying about his understanding of the definition of ìsexual relations' presented to him during his civil deposition in the
Jones case
It is alleged that the President falsely testified before the grand jury that he genuinely believed that the definition of ìsexual relations' presented to him in the Jones case did not include oral sex. This charge turns, of course, on the nearly impossible task of demonstrating that the Presidentís was not testifying truthfully about his subjective understanding of a complicated and abstract legal definition of ìsexual relations' presented to him for the first time on the day of the Jones deposition and modified by the presiding judge in response to the Presidentís objections.
At the beginning of the Jones deposition, the President was presented with the following definition of sexual relations:
For the purposes of this deposition, a person engages in ìsexual relations' when the person knowingly engages in or causes (
1) contact with the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to arouse or gratify the sexual desire of any person[.]
(2) contact between any part of the personís body or an object and the genitals or anus of another person; or
(3) contact between the genitals or anus of the person and any part of another personís body. ìContact' means intentional touching, either directly or through clothing.
The proposed use of this definition by the Jones attorney drew heated and protracted objections based on its ambiguous wording and the potential for confusion. The Presidentís lawyer, Robert Bennett, argued: ìI think this could really lead to confusion, and I think itís important that the record be clear . . . . I do not want my client answering questions not understanding exactly what these folks are talking about.' 82 Counsel for the Presidentís codefendant, former Arkansas trooper Danny Ferguson, also objected. ìFrankly, I think itís a political trick [the definition], and Iíve told you [Judge Wright] before how I feel about the
83 Clinton 1/ 17/ 98 Depo at 20. 84 Clinton 1/ 17/ 98 Depo at 25. 85 Clinton 1/ 17/ 98 Depo at 78. 86 Clinton 8/ 17/ 98 GJ at 93.
25 political character of this lawsuit.' 83 The Presidentís counsel invited the Jones attorneys to
questions the President directly about his conduct regardless of the embarrassing nature of the questions. ìWhy donít they ask him about what happened or what didnít happen?' In retrospect, these objections were especially well- taken since we now know that Jonesís attorneys had been extensively debriefed the previous evening by Ms. Lewinskyís confidante, Linda Tripp. Judge Wright, in response to these objections, amended the definition by striking subparts (2) and (3), allowing only subpart (1) to stand. When the plaintiffís attorneys sought to introduce another convoluted definition, Judge Wright, apparently regretting her previous ruling permitting the earlier use of such definitions during questioning, rejected the plaintiffís additional proposed definition due to its confusing nature, and concluded: ìIím not sure Mr. Clinton knows all these definitions, anyway.' 84 When the President was later asked by the Jones attorneys whether his contacts with Ms. Lewinsky fit within their tortured definition of sexual relations, he understandably denied that this was so. 85
During the Presidentís August 17, 1998 grand jury testimony, the OIC prosecutor returned to this topic and asked whether the President regarded oral sex as falling within the definition provided to him in the Jones deposition.
Q: [I] s oral sex performed on you within the definition as you understood it, the definition in the Jones ...
A: As I understood it, it was not; no. 86 The President was consistent in his interpretation that sexual relations are distinct from oral sex, and, thus, that his physical relations with Ms. Lewinsky did not meet the definition provided in the Jones case. For example, he testified that when he was presented with the definition in the
Jones case he was very uncomfortable because he had to acknowledge that, in one instance, he had engaged in conduct that met the definition of ìsexual relations':
All I can tell you is, whatever I thought was covered, and I thought about this carefully. And let me just point out, this was uncomfortable for me. I had to acknowledge, because of this definition, that under this definition I had actually had sexual relations with Gennifer Flowers, a person who had spread all kinds of ridiculous, dishonest, exaggerated stories about me for money. And I knew when I did that, it would be leaked. It was. And I was
87 Clinton 8/ 17/ 98 GJ at 150. 88 Clinton 8/ 17/ 98 GJ at 151. 89 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).
26 embarrassed. But I did it.
* * * * Let me remind you, sir, I read this carefully. And I thought about it. I thought about what ëcontactí meant. I thought about what ëintent to arouse or gratifyí meant. And I had to admit under this definition that Iíd actually had sexual relations with Gennifer Flowers. Now, I would rather have taken a whipping than done that, after all the trouble Iíd been through with Gennifer Flowers 87
The lawyers in the Jones deposition simply did not ask the question most relevant to uncovering the nature of the physical contact between the President and Ms. Lewinsky. The world now knows why these attorneys asked the questions couched in the definitions they invented. They were, in fact, trying to create the very chaos and confusion that has occurred. They were not seeking information; they already had it from Linda Tripp. What they were seeking was to set the President up. If they had asked real questions, seeking real information, and had raised specific conduct, we might have avoided this charge in the Referral entirely. The President testified that he had no intention of avoiding a question regarding oral sex; he just wasnít asked about it:
Q. Would you have been prepared, if asked by the Jones lawyers, would you have been prepared to answer a question directly about oral sex performed on you by Monica Lewinsky?
A. If the Judge had required me to answer it, of course, I would have answered it. And I would have answered truthfully . . . . 88
There is no evidence of intent on the Presidentís part to commit perjury in his grand jury appearance - - the President simply explained and re- explained his interpretation of the definition of sexual relations provided to him by the lawyers in the Jones case.
When a question is ìfundamentally ambiguous,' the answers to the questions posed are insufficient as a matter of law to support a perjury conviction. 89 Simply put, when there is more than one way of understanding the meaning of a question, and the witness has answered
90 See United States v. Dunnigan, 507 U. S. 87, 94 (1993): Department of Justice Manual, at 9- 69.214 (Supp. 1997).
91 Referral at 148. 27 truthfully as to his understanding, he cannot commit perjury. Even assuming, for the sake of argument, that the Presidentís definition of sexual
relations is too narrow, even in the context of the Jones deposition, the record shows at most that the President may have been mistaken in construing the definition too narrowly, not that he intended to lie. It is well established that inaccurate or false testimony which is provided as a result of confusion or mistake cannot form the basis for a perjury charge. 90 (b) The President did not commit an impeachable offense when
testifying about the nature of his intimate contacts with Ms. Lewinsky
Article I also appears to encompass the allegation that the President testified falsely when he denied during his grand jury testimony that his intimate physical contact with Ms. Lewinsky fell within the definition presented to him in the Jones deposition. We do not believe that the constitutional responsibilities of this Committee compel a detailed regurgitation of the salacious details concerning the alleged physical contact between the President and Ms. Lewinsky. Considerations of personal privacy and institutional dignity must hold some sway in this process, especially where this factual question, even if dispositively resolved against the President, cannot merit his impeachment.
In a prolonged Senate trial, additional evidence could conceivably be amassed concerning the intimate details of the physical relationship between the President and Ms. Lewinsky, but that is not necessary. The Presidentís alleged misstatements about this matter would not warrant the inquiry suggested by the Majority. These were statements made in a civil case that was based on allegations of sexual harassment, not consensual sexual relationships; these were statements made under a very narrow and confusing definition of ìsexual relations;' and these were statements not material to the decision in the case. In the end, these statements denying an improper relationship were made with the primary purpose of attempting to conceal what the President himself has acknowledged was a serious lapse of judgment concerning a private matter, rather than a corrupt attempt to impede the administration of justice.
It is equally important to note that the evidence does not provide clear and convincing proof that the President has testified in an intentionally false manner concerning the nature of his intimate contacts with Ms. Lewinsky. Article I rests on the OICís untenable assumption that there is no possibility that Ms. Lewinskyís memory is inaccurate or that she was, to some extent, untruthful. As the Referral states: ìThere can be no contention that one of them has a lack of memory or is mistaken.' 91 Independent Counsel Starr at his November 19, 1998 appearance
92 11/ 19/ 98 Hearing Tr. at 236. 93 Referral at 12, n. 8. 94 Referral at 13.
28 before the Committee all but stated that Ms. Lewinsky was not to be believed on a variety of
issues (e. g., whether she was denied a chance to call her attorney when she was first confronted, whether she was asked to wear a wire to tape record Vernon Jordan and the President, and whether she really believed that ìno one asked her to lie, and no one promised her a job for her silence'). The OIC then reiterated the same lack of confidence in Ms. Lewinsky in its December 11, 1998 written responses to the Committeeís questions following his November 19 appearance, repeatedly asserted that Ms. Lewinskyís grand jury testimony concerning the conduct of OIC prosecutors was false. For example, the OIC denied the truthfulness of Ms. Lewinskyís sworn testimony that she had been threatened with a jail sentence of 27 years, that her mother had been threatened with prosecution, and that she had been asked to secretly tape record conversations with Betty Currie, Vernon Jordan and possibly the President. As Rep. Watt asked during his questioning of the Independent Counsel, ìhow are you picking and choosing what you believe from Ms. Lewinsky?' 92
More specifically, the record is replete with evidence that Ms. Lewinskyís memory, standing alone, does not constitute clear and convincing evidence on the disputed issues of fact concerning her intimate contacts with the President. If the House is going to discharge its constitutional responsibilities to send charges to the Senate only upon ìclear and convincing' evidence, it must review the contradictions in the record with respect to Ms. Lewinsky. This is especially true with respect to times that Ms. Lewinsky was contemporaneously describing ìthe nature and details' of her relationship with the President to her friends and acquaintances -- the very issue about which a trial in the Senate would have to occur. However, the Minority has been seeking, and continues to seek to avoid entirely, any further inquiry into these matters and thereby spare Ms. Lewinsky further personal embarrassment. That is why it has pointed out that the immateriality of these allegedly false statements concerning these matters is dispositive of the issue.
As a general matter, the Independent Counselís Referral acknowledges (albeit in a footnote) that Ms. Lewinsky has certain credibility problems due to ìher perjurious Jones
affidavit, her efforts to persuade Linda Tripp to commit perjury, her assertion in a recorded conversation that she had been brought up to regard lying as necessary, and her forgery of a letter while in college. 93 As a result, the Independent Counsel placed great weight on statements made by Ms. Lewinsky to her confidantes concerning the nature and character of her physical contacts with the President. 94 Indeed, on the narrow factual question in dispute concerning the exact nature of their physical contacts, Ms. Lewinskyís contemporaneous statements to her associates are the only corroborating evidence offered for Ms. Lewinskyís account. A more detailed examination of the record reveals, however, that the mere fact that, on more than one occasion,
95 Estep 8/ 23/ 98 302 at 3. 96 Estep 8/ 23/ 98 302 at 3. 97 Young 6/ 23/ 98 GJ at 48. 98 Nancy Ridson 1/ 26/ 98 302. 99 Nancy Ridson 3/ 27/ 98 302. 100 Erbland 2/ 12/ 98 GJ at 26 (" She told me that she had given him [oral sex] and she had had all of her clothes off, . . "),
101 "[ N] either of us ever really took C completely took off any piece of our clothing, I think specifically because of the possibility of encounters . . ." Lewinsky 8/ 26/ 98 GJ at 43- 44.
102 Raines 1/ 25/ 98 302 at 1; Tripp 7/ 2/ 98 GJ at 101. 103 Lewinsky 8/ 6/ 98 GJ at 19.
29 Ms. Lewinsky volunteered information to friends about the details of her relationship with the
President is not a reliable indicator of the truthfulness of that information. For example, Ms. Lewinsky confided to her friend, Kathleen Estep, on one occasion, that the President was brought to her apartment at 2: 00 a. m. by the Secret Service. 95 Not only did Ms. Estep conclude that Ms. Lewinsky was lying to her about this incident, but the OIC found no evidence that such a visit had occurred. 96 Similarly, Ms. Lewinsky told her friend, Dale Young, that she had recorded some of the Presidentís late night telephone calls to her. 97 No such recordings were ever recovered and Ms. Lewinsky never told the OIC about such recordings during her extensive debriefings with them. When interviewing for a job in New York, Ms. Lewinsky told one of her interviewers that she had lunch with Hillary Clinton the previous week and that the First Lady had offered to help Ms. Lewinsky find an apartment in New York. 98 It was the impression of the interviewer that ìLewinskyís comments strained credulity.' 99 Ms. Lewinsky also offered untruthful details to her friends about the nature of her
intimate contacts with the President. For example, Ms. Lewinsky told a friend about a sexual encounter with the President where she was fully unclothed 100 , but told the grand jury that neither she nor the President ever fully disrobed. 101 Ms. Lewinsky told both Ashley Raines and Linda Tripp that her sexual relations with the President included, on occasion ìreciprocal oral sex.' 102 Ms. Lewinsky told the grand jury, however, that she never received oral sex from the
President. 103 These conflicting accounts are all the evidence available to the Committee on this narrow issue. It is not necessary to conclude, however, that either Ms. Lewinsky or the President is intentionally falsifying their respective accounts of their intimate contacts. The record before us suggests that recollections can vary according to the witnessí perspective. For example, Ms.
104 Lewinsky 8/ 6/ 98 GJ at 178- 79. 105 Lewinsky 8/ 6/ 98 GJ at 179- 180. 106 See Lewinsky 8/ 6/ 98 GJ at 143; cf. Lewinsky 8/ 1/ 98 OIC 302 at 8; Lewinsky 7/ 27/ 98 OIC 302 at 9. 107 In his testimony before the Committee, Independent Counsel Starr reiterated that people can have different perceptions about these kinds of events without one being called a liar.
30 Lewinsky testified before the grand jury that she ìdoes not have a memory' of how she ìmade it
clear that she intended to deny' the sexual relationship with the President (as she said in her proffer), but insists she was telling the truth at the time she wrote that. 104 In a remarkable exchange, the OIC prosecutors suggested that one reason for her inability to remember may be her guilt over getting Jordan in trouble:
Q. But -- and I think you also said you feel some -- I donít know if this is the reason you donít remember it, but -- you have expressed to us that you feel some guilt about Vernon Jordan. Is that correct?
A. Yes. Q. Okay. Can you tell us why that is? A. He was the only person who did what he said he was going to do
for me and --- in getting me the job. And when I met with Linda on the 13th, when she was wearing a wire, and even in subsequent or previous conversations and subsequent conversations, I attributed things to Mr. Jordan that werenít true because I knew that it had leverage with Linda and that a lot of those things that I said got him into a lot of trouble and I just -- heís a good person. 105
This is not the only failure of Ms. Lewinskyís recollection concerning Mr. Jordan. For example, Ms. Lewinsky told the OIC in an interview that she never explained to Jordan what phone sex was, but testified in her grand jury appearance that she did. 106 The OICís indulgence of the memory lapses of its star witness on a key point in her proffer does not strike the Minority as wholly unreasonable. Instead, the Independent Counsel gave Ms. Lewinsky the benefit of the doubt based on the apparent assumption that recollections can honestly fail concerning subjects that cause the witness emotional pain. 107 On the basis of the record before us, particularly in light of the gravity of this impeachment proceeding, every consideration should also be given to the possibility that the differing recollections of the President and Ms. Lewinsky may be colored by their differing emotional perspectives concerning the intimate events at issue. As Ms. Lewinsky testified before the grand jury, the Presidentís description of the limited nature of their physical contacts was interpreted by her as a repudiation of the emotional component of their relationship
108 Lewinsky 8/ 20/ 98 GJ at 54. 109 Lewinsky 8/ 20/ 98 GJ at 24. 110 Lewinsky 8/ 26/ 98 GJ at 51- 52; see also Lewinsky 8/ 20/ 98 GJ at 70.
31 that reduced it to a mere ìservice contract.' 108 It is incumbent on us to consider the possibility
that her emotional perspective could lead a mistaken but good- faith recollection about the nature of their contacts.
Likewise, the Presidentís recollection of the limited nature of their sexual contacts was not a subject of emotional indifference to him. Ms. Lewinsky testified to the grand jury that the Presidentís refusal to engage in specific sexual acts was his way of rationalizing his behavior. 109 Ms. Lewinsky herself described the depth of the Presidentís emotional reaction when he rebuffed
her sexual overture to him in August of 1997, several months after the President had ended their relationship. According to Ms. Lewinsky, she was ìshocked' about the extent to which the President became ìvisibly upset' and ìemotionally upset' about her overture. 110 The Presidentís public expressions of guilt and remorse over his inappropriate conduct underscore this same point.
In light of the contradictory state of the evidence, the uncertain probative worth of Ms. Lewinskyís contemporaneous statements to friends and the other failures of recollection documented in the record, it seems highly unlikely that a Senate trial will ever be able to adduce clear and convincing evidence that the President intentionally lied to the grand jury about the exact nature of his intimate contacts with Ms. Lewinsky.
(c) The President did not commit an impeachable offense when testifying about the date on which his inappropriate contacts with Ms. Lewinsky began
Article I also alleges that the President made a false statement to the grand jury regarding the timing of the beginning of his relationship with Ms. Lewinsky. The Referral charges the President with making a false statement because he testified to the grand jury that his inappropriate relationship with Ms. Lewinsky began in early 1996, whereas Ms. Lewinsky testified that their relationship began in November 1995. In the Majority Staffís initial presentation to the Committee on October 5, when it was debating whether to recommend the initiation of a formal impeachment inquiry, this particular allegation of false testimony to the grand jury was not even mentioned. During a hearing the Committee conducted on December 1, 1998, the Chairman even stated that this charge was a ìparticularly weak' one. Now, based on the exact same evidentiary record, the charge has been resurrected. Even assuming Ms. Lewinsky is correct in her recollection, the statement by the President regarding the timing of the relationship is completely immaterial to the grand juryís investigation.
111 Referral at 149. 112 Lewinsky 7/ 30/ 98 302 at 6. 113 Referral at 149. 114 Lewinsky 8/ 24/ 98 302 at 5.
32 A statement must be material to be perjurious. Certainly the Presidentís testimony
concerning the date that his intimate contacts with Ms. Lewinsky began could not have made any difference to the grand juryís inquiry into whether the President lied during the Jones deposition about having sexual relations with Ms. Lewinsky. The President has admitted that he had an inappropriate relationship with Ms. Lewinsky. The differing, yet immaterial, recollections of Ms. Lewinsky and the President as to the commencement of the consensual relationship -- a quibble over whether the relationship began in November 1995 or February 1996 -- could not possibly support a charge of criminal perjury, much less an article of impeachment.
Moreover, the evidence in support of the proposition that the President testified falsely on this point is exceedingly slight. The Independent Counselís Referral supports this charge by arguing that the President was motivated to lie about the date on which his physical relationship with Ms. Lewinsky started because the President did not want to admit having an inappropriate relationship with an intern. 111 As support for this assertion, the Referral cites a comment from the President to Ms. Lewinsky where, according to Ms. Lewinsky, the President said that her ìpink intern pass' was ìgoing to be a problem.' 112 The Referral suggests that the President intentionally misled the grand jury concerning the beginning of his relationship to avoid having to acknowledge inappropriate physical contact with Ms. Lewinsky while she was an intern. 113 This is an extremely unconvincing argument.
First, the Presidentís admission in his grand jury testimony of his inappropriate physical contacts with Ms. Lewinsky sparked an entirely foreseeable firestorm of intense public criticism of the Presidentís conduct. The suggestion that the President intentionally sought to mislead the grand jury based on the hope that such public criticism could be muted by obscuring Ms. Lewinskyís employment status at the time the relationship began seems strained, to say the least. Second, the evidence in the record strongly suggests a much more plausible alternative explanation for the Presidentís comment to Ms. Lewinsky about her intern pass: namely, that he was concerned that this pass did not allow her access to the West Wing without an escort. Ms. Lewinsky confirmed that to be the Presidentís concern when he made the statement to her. 114 The attempt to characterize the Presidentís mere confusion over dates as an intentionally
perjurious statement finds no persuasive support in the record.
(d) The President did not commit an impeachable offense when testifying about the number of occasions on which he was alone with Ms. Lewinsky and the number of occasions on which they were having phone sex
115 Websterís Collegiate Dictionary (10th ed. 1997). 116 Referral at 156 n. 160; GJ Exhibit ML- 7 (chart prepared by OIC based on Lewinskyís testimony listing,
inter alia, all visits with the President). 33 The Majority Counselís presentation, alleged not only the false statements to the grand
jury outlined above, but also that the President intentionally perjured himself when he admitted to the grand jury that he had been alone with Ms. Lewinsky on ìcertain occasions' and that he ìalso had occasional telephone conversations with Lewinsky that included sexual banter.' Incredibly, the Majority Counsel charges that these candid admissions were, in fact, intentionally false because the record suggests that the President was alone with Ms. Lewinsky on twenty occasions and that the President had seventeen phone conversations with Ms. Lewinsky that included sexual banter. The Majority Counsel offered no support for his contention that the Presidentís description was intentionally false except to offer his opinion that ì[ o] ccasional sounds like once every four months or so doesnít it.' In fact, the dictionary defines ìoccasional' as an event ìoccurring at irregular or infrequent intervals.' 115 The meetings between Ms. Lewinsky and the President were, in fact, ìirregular and infrequent.' 116 The Majority Counsel also refused to offer any reason why he or the grand jury would be legitimately interested in the exact number of telephone calls between the President and Ms. Lewinsky that included sexual banter. The President was never asked about such phone calls during the Jones deposition (because phone sex was plainly not within the definition in that case) and this issue was, therefore, wholly irrelevant to the questions that the grand jury was examining concerning the truth of the Presidentís statements during that deposition. The mere fact that the President chose not to include as many salacious details in his statement to the grand jury as the Independent Counsel included in his Referral hardly constitutes an intentional falsehood, much less an impeachable offense. To even refer to such trivial matters amply demonstrates the underlying partisanship of these proceedings and undermines the Majorityís claim that this inquiry is not about sex.
2. The President Did Not Commit An Impeachable Offense When Testifying About His Prior Testimony In The Jones Civil Deposition
This subsection of Article I represents a dramatic departure from the approach utilized by the Independent Counselís Referral by alleging that the Presidentís descriptions and justifications for his allegedly perjurious statements in the Jones civil deposition were themselves perjurious. The Majority has offered no formal specifications of which statements fall into this category. Instead, in response to objections stated during public debate about the Articleís lack of
specificity, the Members indicated an intention to refer the full House and the Senate to the presentation by the Majority Counsel and the record of the debates within the Committee. With these stated intentions as the only available guidance concerning the particulars of this subsection, our review suggests that the following statements are at issue:
117 Clinton 1/ 17/ 98 Depo at 54. 118 Clinton 1/ 17/ 98 Depo at 29.
34
C The Presidentís explanation of his response to questions during the Jones
deposition concerning who had told him that Ms. Lewinsky had been subpoenaed.
C The Presidentís explanation of his response to questions during the Jones
deposition concerning whether he had exchanged gifts with Ms. Lewinsky.
C The Presidentís explanation of why he characterized Ms. Lewinskyís affidavit as ìtrue' during the Jones deposition.
Each of these alleged false statements are analyzed in detail in the following section in connection with Article II, which explains why the Presidentís testimony during Jones
deposition, as well as his explanation of that testimony during his grand jury appearance, was not intentionally false and did not constitute an impeachable offense. See Section III. B, infra.
3. The President Did Not Commit An Impeachable Offense When His Attorney Characterized the Contents of Ms. Lewinskyís Affidavit to the Presiding Judge in the Jones case
In another departure from the approach taken by the Independent Counselís Referral, the Majority, without the benefit of any additional evidence, has recycled an allegation that Mr. Starr used solely in support of his claim that the President committed perjury during his civil deposition. This approach bootstraps the same facts into a new and separate allegation of grand jury perjury. The basis for the allegation in this subsection is the Presidentís failure to volunteer
information during the Jones deposition when Mr. Bennett, while discussing the appropriate scope of questioning by plaintiffís attorneys, characterized Ms. Lewinskyís affidavit as saying that ìthere is no absolutely no sex of any kind in any manner, shape or form, with President Clinton . . . .' 117 As a threshold matter, no charge of perjury can exist without some perjurious statement by the defendant. Here, of course, the Majority appears to advance a new theory of criminal liability: the imputed perjurious statement. Notwithstanding the legal irrelevance Mr. Bennettís statement, the President explained in his grand jury testimony that he was not paying close attention to his lawyerís comments.
I donít believe I ever even focused on what Mr. Bennett said in the exact words he did until I started reading this transcript carefully for this hearing. That moment, that whole argument just passed me by. I was a witness. I was trying to focus on what I said and how I said it. 118
119 Clinton 1/ 17/ 98 Depo at 58- 59. 35 I was not paying a great deal of attention to this exchange. I was
focusing on my testimony. . . . Iím quite sure that I didnít follow all the interchanges between the lawyers all that carefully. And I donít really believe therefore, that I can say Mr. Bennettís testimony or statement is testimony or is imputable to me. I didnít -- I donít know that I was even paying that much attention to it. 119
The Majority Counsel argues that this was a perjurious statement because the videotape of the deposition supposedly shows that the President was paying attention. The evaluation of the demeanor of a witness is traditionally reserved to the ultimate fact- finder, but a review of the tape does not reveal any outward sign that the President is in fact following or agreeing with Mr. Bennettís colloquy with the judge. The President appears to be looking in Mr. Bennettís direction, but he neither nods his head nor makes any other facial expression from which his awareness of the import of Mr. Bennettís remarks may be inferred. On many other occasions during the videotaped deposition, the viewer can see the President nodding or making some other gesture of acknowledgment which is not the case in this exchange. In addition, the article fails to state that the President obviously was thinking as fast as he could as he just realized that someone was setting him up with respect to the relationship with Ms. Lewinsky. He was, no doubt, taking every break from questions and answers he could to try to figure out how much the
Jones attorneys knew and where the questions were heading. It is completely logical to think that he was not paying attention under all of these circumstances.
Finally, it is important to note that, as with all of the other alleged perjurious statements, Judge Wright retained the inherent authority to impose sanctions, including criminal contempt, on the President for his alleged conduct during the deposition. Indeed, Judge Wright was invited to do just that by the Jones attorneys, but has, to date, declined to take any such action. We believe that the district judgeís forbearance in this matter is a legitimate factor that weighs against the supposed gravity of the allegations leveled against the President.
4. The President Did Not Commit An Impeachable Offense When He Testified About Allegations That He Had Obstructed Justice
In another apparent attempt to bolster the article charging grand jury perjury, the Majority has included new allegations of perjury in the grand jury not detailed in the Independent Counselís Referral concerning the Presidentís responses to questions about the actions that are alleged to constitute obstruction of justice. It is significant that the Independent Counsel, with all his prosecutorial zeal, declined to ìdouble charge' the President with both obstruction of justice
and separate charges of perjury based solely on his denials that he committed obstruction of justice. The Majority, however, has shown no similar reluctance to pile on duplicative charges. Once again, without a formal statement of the alleged false statements, the Minority is left to guess from the Majority Counselís presentation, and other exchanges during Committee debates,
36 that this subpart of the article refers to the following statements:
C The Presidentís testimony that he could not recall, but did not dispute, making a 2: 00 a. m. telephone call to Ms. Lewinsky on December 17.
C The Presidentís testimony concerning his discussion with Ms. Lewinsky on December 28, during which meeting it is alleged that Ms. Lewinsky asked about what to do in response to any request from the Jones lawyers for gifts he had given her.
C The Presidentís testimony concerning his purpose in speaking with his secretary, Betty Currie, following the Jones deposition.
As noted above, these allegations essentially restate charges that are contained in Article III, which alleges obstruction of justice. In order to avoid unnecessary duplication (a goal not shared by these needlessly repetitive articles of impeachment), the Minorityís views on the substance of these allegations are discussed below in the section addressing Article III. See Section III. C,
infra.
B. Article IIís Allegations of Perjury In The Jones Civil Deposition Fail To Establish An Impeachable Offense
The second article of impeachment charges the President with unspecified instances of perjurious testimony concerning three broad subject- matter areas: (i) the ìnature and details of his relationship with a subordinate Government employee'; (ii) his ìknowledge of that employeeís involvement and participation in the civil rights action brought against him'; and (iii) his ìcorrupt efforts to influence the testimony of that employee.' Although the alleged perjurious statements contemplated by this article are not identified, the Minority believes that the article contemplates at least the following allegations.
1. The President Did Not Commit An Impeachable Offense When He Testified about the Nature of His Relationship Ms. Lewinsky
During his deposition in the Jones case, the President testified that his intimate contact with Ms. Lewinsky could not be accurately characterized as a ìsexual relationship,' a ìsexual affair,' or even ìsexual relations' as that term was used by Ms. Lewinsky in her affidavit, which was presented to the President during his deposition. It is now a matter of record that the President and Ms. Lewinsky enjoyed intimate contact, but never had sexual intercourse. The question whether the Presidentís responses can be labeled as perjurious turns, therefore, on whether the President testified in an intentionally false manner when he denied various questions inquiring into whether he had ìsex' with Ms. Lewinsky. There is substantial evidence in this record that the Presidentís responses, although evasive and misleading, did reflect a genuinelyheld and not unreasonable belief that the limited nature of his intimate contacts with Ms.
120 Clinton 8/ 17/ 98 GJ at 21. 37 Lewinsky did not require him to respond affirmatively to the questions put to him on this subject.
The President testified during his grand jury appearance that he understood questions concerning sexual relations to be inquiring into whether he had had intercourse with Ms. Lewinsky
If you said Jane and Harry have a sexual relationship, and youíre not talking about people being drawn into a lawsuit and being given definitions, and then a great effort to trick them in some way, but you are just talking about people in ordinary conversations, Iíll bet the grand jurors, if they were talking about two people they know, and said they have a sexual relationship, they meant they were sleeping together; they meant they were having intercourse together. 120
Ms. Lewinsky was similarly convinced that her contacts with the President did not constitute ìsex.' In an illegally recorded telephone conversation with Ms. Tripp, Ms. Lewinsky confided that she did not believe that her contacts with the President amounted to sex:
Tripp: Well, I guess you can count [the President] in a half- assed sort of way.
Lewinsky: Not at all. I never even came close to sleeping with him.
Tripp: Why, because you were standing up. Lewinsky: We didnít have sex, Linda. Not - - we didnít have sex. Tripp: Well, what do you call it? Lewinsky: We fooled around. Tripp: Oh. Lewinsky: Not sex. Tripp: Oh, I donít know. I think if you go to - - if you get to orgasm, thatís having sex.
Lewinsky: No, itís not. Itís - -
121 Lewinsky/ Tripp 10/ 3/ 97 Tr. 0018 at 49. 122 Young 6/ 23/ 98 GJ at 91. 123 App. at 1558 (8/ 19/ 98 FBI 302 Form Interview of Ms. Lewinsky).
38 Tripp: Its not having - -
Lewinsky: Having sex is having intercourse. 121 Another friend of Ms. Lewinskyís, Dale Young, testified before the grand jury that Ms. Lewinsky had told her that ìshe didnít have sex with the President,' and that when Ms. Lewinsky referred to sex she meant ìintercourse.' 122 The genuineness of President Clintonís beliefs on this subject is even supported by the OICís account of Ms. Lewinskyís testimony during an interview with the FBI:
[A] fter having a relationship with him, Lewinsky deduced that the President, in his mind, apparently does not consider oral sex to be sex. Sex to him must mean intercourse. 123
The record is convincing that these beliefs were not only genuinely held, but objectively reasonable. Numerous dictionary definitions support both the Presidentís and Ms. Lewinskyís interpretation of sexual relations as necessarily including intercourse.
Websterís Third New International Dictionary (1 st ed. 1981) at 2082, defines "sexual relations" as "coitus;"
Random House Websterís College Dictionary (1st ed. 1996) at 1229, defines "sexual relations" as "sexual intercourse; coitus."
Merriam- Websterís Collegiate Dictionary (10 th ed. 1997) at 1074, defines "sexual relations" as "coitus;"
Blackís Law Dictionary (Abridged 6 th ed. 1991) at 560, defines "intercourse" as "sexual relations;" and
Websterís Tenth Edition defines ìsexual relations' as ìcoitus' which is defined as ìintercourse.'
In short, the evidence supports only the conclusion that the Presidentís responses with respect to these undefined terms were truthful and good faith responses to indisputably ambiguous questions. There is no evidence to the contrary.
2. The President Did Not Commit An Impeachable Offense When He
124 Clinton 1/ 17/ 98 Depo at 53. In his grand jury testimony the President stated that he had been alone with Ms. Lewinsky. See, e. g., App. at 481. The term "alone" is vague unless a particular geographic space is identified. For example, Ms. Currie testified that "she considers the term alone to mean that no one else was in the entire Oval Office area." Supp. at 534- 35 (1/ 24/ 98 FBI Form 302 Interview of Ms. Currie; see also Supp. at 665 (7/ 22/ 98 grand jury testimony of Ms. Currie) (" I interpret being ëaloneí as alone Y [W] e were around, so they were never alone."). Ms. Currie also acknowledged that the President and Ms. Lewinsky were "alone" on certain occasions if alone meant that no one else was in the same room. Supp. at 552- 53 (1/ 27/ 98 grand jury testimony of Ms. Currie).
125 Submission by Counsel for President Clinton to the Committee on the Judiciary of the United States House of Representatives, pp. 77- 78 (Dec. 8, 1998).
39
Testified about Meeting Alone with Lewinsky
Some Minority Members of the Committee have expressed discomfort with the Presidentís responses during the Jones deposition to questions about whether he was ever alone with Ms. Lewinsky, some even concluded that they believed his testimony may have been false. The Presidentís counsel, however, has strongly argued that the Presidentís responses on this point cannot be characterized as perjurious.
President Clintonís deposition testimony regarding whether he was alone with Ms. Lewinsky at various times and places does not constitute perjury. The fundamental flaw in the charge is that it is based on a mischaracterization of the Presidentís testimony -- the President did not testify that he was never alone with Ms. Lewinsky.
Both the Starr Referral and Mr. Schipperís presentation to the Committee start from the incorrect premise that the President testified that he was never alone with Ms. Lewinsky. In fact, the President did not deny that he had been alone with Ms. Lewinsky. For example, the President answered "yes" to the question "your testimony is that it was possible, then, that you were alone with her Y ?" 124
Whatever confusion or incompleteness there may have been in the Presidentís testimony about when and where he was alone with Ms. Lewinsky cannot be charged against the President. The Jones lawyers failed to follow up on incomplete or unresponsive answers. They were free to ask specific follow- up questions about the frequency or locale of any physical contact, but they did not do so. This failure cannot be used to support a charge of perjury. 125 In addition to the evidentiary questions raised by the Presidentís counsel, the lack of
materiality of any of the Presidentís responses concerning Ms. Lewinsky in the Jones litigation undercuts arguments that false statements in this civil deposition could support the criminal charge of perjury, much less constitute an impeachable offense.
126 Referral at 158. 127 Clinton 1/ 17/ 98 Depo. at 75 (emphasis added). 128 Clinton 8/ 17/ 98 GJ at 52: 7- 8. 129 Majority Counselís Presentation (Dec. 10, 1998). 130 Indeed, the President readily acknowledged having given Ms. Lewinsky certain gifts after they were specifically identified. See Clinton 1/ 17/ 98 Depo at 75 (" Q. Do you remember giving her an item that had been purchased from The Black Dog store at Marthaís Vineyard? A. I do remember that Y .").
40
3. The President Did Not Commit An Impeachable Offense When He Testified about Gifts He Exchanged with Lewinsky
The Presidentís civil deposition testimony has been seriously mischaracterized by suggestions that the President falsely stated that ìhe could not recall whether he had given any gifts to Ms. Lewinsky.' 126 In fact, the Presidentís response, fairly read, clearly concedes that he had given Ms. Lewinsky gifts, but that he could not specifically recall what they were.
Q. Well, have you given any gifts to Monica Lewinsky? A. I donít recall. Do you know what they were? 127
President Clinton confirmed to the grand jury that this was the proper interpretation of his response.
I think what I meant there was I donít recall what they were, not that I donít recall whether I had given them. 128
The Majority Counsel, in his December 10 presentation to the Committee, claimed that this response was perjurious on the theory that an answer that ìbaldly understates a numerical fact' in ìresponse to a specific quantitative inquiry' may be technically true but is actually false. 129 Majority Counselís belabored construction of the applicable legal principles totally ignores the fact that no ìquantitative inquiry' was put to the President on this topic. The President was not asked how many gifts he had given to Ms. Lewinsky, but simply whether he had given her any gifts. In response to such an inquiry, it is astounding that the Majority Counsel continues to insist that the Presidentís immediate acknowledgment that he had given Ms. Lewinsky gifts amounts to a perjurious statement. 130 The entire theory of alleged perjury by the President concerning gifts rests, therefore, not on the Presidentís denials that gifts had been exchanged, but simply on his failure to recall the gifts with specificity.
Before discussing each specific question concerning gifts, it is important to note that the President testified during his grand jury testimony that he was not especially concerned about the
Jones attorneys discovering that he had exchanged gifts with Monica Lewinsky:
131 Clinton 8/ 17/ 98 GJ at 575- 76. 41 I formed an opinion really early in 1996, once I got into this
unfortunate and wrong conduct, that when I stopped it, which I knew Iíd have to do and which I should have done a long time before I did, that she would talk about it. Not because Monica Lewinsky is a bad person. Sheís basically a good girl. Sheís a good young woman with a good heart and a good mind. I think she is burdened by some unfortunate conditions of her upbringing. But sheís basically a good person. But I knew that the minute there was no longer any contact, she would talk about this. She would have to. She couldnít help it. It was, it was a part of her psyche. 131
The President also testified that he did not view an admission about gifts as necessarily indicating a romantic relationship between himself and Monica Lewinsky:
And let me also tell you, Mr. Bittman, if you go back and look at my testimony here, I actually asked the Jones lawyers for help on one occasion, when they were asking me what gifts I had given her, so they could ñ I was never hung up on this gift issue. Maybe its because I have a different experience. But, you know, the President gets hundreds of gifts a year, maybe more. I have always given a lot of gifts to people, especially if they give me gifts. And this was no big deal to me. I mean, itís nice. I enjoy it. I gave dozens of personal gifts to people last Christmas. I give gifts to people all the time. Friends of mine give me gifts all the time, give me ties, give me books, give me other things. So, it was just not a big deal.
* * * * And when I was asked about this in my deposition, even though I was not trying to be helpful particularly to these people that I though were not well- motivated, or being honest or even lawful in their conduct vis- a- vis me, that is, the Jones legal team, I did ask them specifically to enumerate the gifts. I asked them to help me because I couldnít remember the specifics. So, all Iím saying is, it didnít ñ I wasnít troubled by this gift issue.
* * * * I have always given a lot of people gifts. I have always been given gifts. I do not think there is anything improper about a man giving
132 Clinton 8/ 17/ 98 GJ at 43, 45 & 46. 133 Tripp 7/ 29/ 98 GJ at 105. 134 Clinton 8/ 17/ 98 GJ at 51- 52.
42 a woman a gift, or a woman giving a man a gift, that necessarily
connotes an improper relationship. So, it didnít bother me. 132 Even Linda Trippís grand jury testimony confirmed that the President expressed no great alarm to Ms. Lewinsky about the prospect that his gifts to her might be surrendered to the Jones
attorneys. But the interesting thing was his take on that, and so then Monicaís take on that, was no big deal. No one seems to ñ he said itís still just a fishing net and theyíre just ñ you know, maybe he bought 25 hat pins and its known that he bought 25 hat pins . . . 133
The President also pointed out in his own defense that the specificity of the questions put to him by the Jones attorneys made it clear to him that they had specific information concerning his receipt of the gifts:
It was obvious to me by this point in the deposition, in this deposition, that they had, these people had access to a lot of information from somewhere, and I presume it came from Linda Tripp. And I had no interest in not answering their questions about these gifts. I do not believe that gifts are incriminating, nor do I think they are wrong. I think it was a good thing to do. Iím not, Iím still not sorry I gave Monica Lewinsky gifts. 134
In order to credit the assertion that the Presidentís failures of memory regarding specific gifts were intentionally false statements rather than genuine memory lapses, one has to accept the notion that the President intentionally misled the Jones attorneys about gifts that he did not believe would indicate an improper relationship and about which the Jones attorneys clearly had specific information. These premises are inherently implausible. The actual facts concerning the specific gifts about which the President was asked quickly reveals the insubstantiality of these allegations.
The hat pin. In response to specific follow- up questions on this topic, the President conceded that he may have given Ms. Lewinsky a hat pin, but that he had no specific recollection of doing so. There is no persuasive evidence that the President falsely denied that he could not recall whether he gave Ms. Lewinsky a hat pin. The President gave Ms. Lewinsky that gift on
135 Referral at 156. 136 The Referral also misleadingly suggests that the President also spoke with Currie about the hat pin around the same time that Ms. Lewinsky claims to have discussed with the President the request for it by the Jones
lawyers. Ms. Currie testified that she did not know when she discussed the hatpin with the President, and her description of their conversation strongly supports the conclusion that it occurred shortly after the President presented Ms. Lewinsky with the hat pin on February 28, 1997. Currie 5/ 6/ 98 GJ at 142: 9- 10 (" I think he may have said something ëDid Monica show you the hat pin I gave her . . .í").
137 Referral at 156. 138 Lewinsky 8/ 6/ 98 GJ at 152. 139 Lewinsky 8/ 6/ 98 GJ at 152. 140 Lewinsky 8/ 6/ 98 GJ at 151: 18- 19. 141 Clinton 8/ 17/ 98 GJ at 45: 9- 16.
43 February 28, 1997, almost eleven months prior to his deposition in the Jones case. 135 Under these
circumstances, the Presidentís inability to recall whether he had given this specific item to Ms. Lewinsky is hardly so remarkable as to justify the inference that the Presidentís failure of recollection was an intentionally perjurious statement. 136
It has been argued that the President must have had a specific recollection of the hat pin by citing to Ms. Lewinskyís testimony that she specifically discussed the hat pin with the President on December 28, 1997, after she received a subpoena from the Jones lawyers. 137 According to Ms. Lewinsky, she met with the President on December 28, 1997, and brought up
the fact that she had received a subpoena from the Jones lawyers asking her to produce, among other things, any hat pin given to her by the President. 138 According to Ms. Lewinsky, the President ìsaid that that had sort of concerned him also and asked me if I had told anyone that he had given me this hat pin and I said no.' 139 The entire discussion concerning the Jones case, according to Ms. Lewinsky, took ìmaybe about five -- no more than ten minutes.' 140 The President testified to the grand jury that he would not dispute Ms. Lewinskyís recollection, but reiterated that he had no recollection of any reference to the hat pin during that conversation:
Q. Well, didnít she tell you, Mr. President, that the subpoena specifically called for a hat pin that you had . . . given her?
A. I donít remember that. I remember ñ sir, Iíve told you what I remember. That doesnít mean my memory is accurate. A lot of things have happened in the last several months, and a lot of things were happening then. But my memory is she asked me a general question about gifts. 141
The record is simply inconclusive as to whether the Presidentís failure to recall giving a hat pin
142 Clinton 1/ 17/ 98 Depo. at 75. 143 Referral at 156. 144 Clinton 1/ 17/ 98 Depo. at 75. 145 Clinton 1/ 17/ 98 Depo. at 75. 146 Referral at 156 n. 160; GJ Exhibit ML- 7. 147 Lewinsky 8/ 6/ 98 GJ at 27- 28. 148 Lewinsky 8/ 6/ 98 GJ at 28: 18- 19.
44 to Ms. Lewinsky was intentionally false.
In addition, this factual point was not material to the Jones lawsuit. The gift of a hatpin would not have signified an inappropriate relationship between the President and Ms. Lewinsky. Indeed, the President readily conceded that he may have given Ms. Lewinsky a hatpin and, notwithstanding his inability to summon a specific recollection of that gift, the Jones attorneys were free to pose appropriate follow- up questions, which they declined to do.
Book ìabout' Walt Whitman. When asked if he had ever given Ms. Lewinsky a book ìabout' Walt Whitman, the President responded by saying that ìI give people a lot of gifts, and when people are around I give a lot of things I have at the White House away, so I could have given her a gift, but I donít remember a specific gift.' 142 The President had given Ms. Lewinsky a volume of poetry by Walt Whitman called ìLeaves of Grass.' 143 Jonesí lawyer, however, inartfully asked the President whether he ever gave Ms. Lewinsky a book ìabout' Walt Whitman. 144 The allegation that the President responded falsely to this question appears to be premised on the assumption that the President was obligated to guess about what the Jones
lawyers intended to ask and respond accordingly. Our perjury statutes impose no such obligation. Simply put, the Presidentís testimony on this point was not perjurious.
The gold broach. The President also testified that he did not remember giving Ms. Lewinsky a gold broach. 145 Both the Majority Counsel and the Independent Counsel allege that the President knowingly lied in denying any specific recollection of giving the broach to Ms. Lewinsky, but neither has acknowledged that Ms. Lewinsky herself suffered lapses of memory concerning her receipt of that item. For example, in support of its allegation that the President gave Ms. Lewinsky the broach, the Referral directs the reader to the ìChart of Contacts and Gifts' prepared by the OIC from all of the evidence it has received. 146 This chart is described by Ms. Lewinsky during one of her grand jury appearances as a document she prepared in consultation with the Independent Counsel, and that ìdefinitely includes the visits I had with him, as well as most of the gifts we exchanged.' 147 Ms. Lewinsky also agreed that the chart was ìa pretty accurate rendition or description of [Lewinskyís] memory of all the events.' 148 This
149 Lewinsky 8/ 7/ 98 302 at 1. 150 Referral at 156 n. 160 (" Ms. Lewinsky testified that the President had given her a gold brooch, . . .") 151 Lewinsky 7/ 27/ 98 302 at 8. 152 Lewinsky 7/ 27/ 98 302 at 14- 15 (Lewinsky lists all gifts received from President, but broach is not itemized); see also Lewinsky 7/ 30/ 98 302 at 19- 21 (similar list does not mention a gold broach).
153 Erbland 2/ 12/ 98 GJ at 41. The Referral misleadingly asserts that Lewinsky made "nearcontemporaneous" comments about the receipt of the broach to four of her confidantes. Referral at 156 n. 160. With the exception of Neysa Erbland, however, three of these witnesses had no knowledge as to when Lewinsky received the broach from the President and each had heard about or seen the gift at different times of the year. Raines 1/ 29/ 98 GJ at 53: 13- 18 (cannot recall whether Lewinsky received broach before or after leaving White House); Ungvari 3/ 19/ 98 GJ at 44 (saw either the pin or the broach, but cannot recall which one, at Lewinskyís fatherís house "this past Thanksgiving"); Tripp 7/ 29/ 98 GJ at 105 (recounting discussion about broach after Lewinsky received subpoena in December 1997).
45 chart, although reviewed by Ms. Lewinsky on several occasions 149 and cited by the Referral in
support of the assertion that the President had given Ms. Lewinsky a gold broach 150 , does not list the gold broach.
A review of all the statements and testimony given by Ms. Lewinsky reveals that a ìbroach' is only mentioned once in passing as an item included in the box of items given to Currie on December 28, 1997. 151 The broach is not mentioned, however, in other interviews with Ms. Lewinsky concerning gifts. 152 Ms. Lewinskyís repeated failure to recall the broach she received from the President during multiple interviews with the Independent Counsel is certainly relevant to any assessment of the truthfulness of the Presidentís testimony that he did not recall giving that item to her. The Majority, however, makes no attempt to place these facts in their proper context.
Moreover, one of Ms. Lewinskyís confidanteís, Neysa Erbland, testified that she had heard about Ms. Lewinskyís receipt of the broach from the President around Christmas of 1996. 153 The more than one- year gap between the time that the President gave the broach to Ms. Lewinsky and the time that he was asked about it during the Jones deposition reinforces the reasonableness of his inability to recall that specific gift.
4. The President Did Not Commit An Impeachable Offense When He Testified about Whether He Had Talked with Lewinsky about the Possibility She Would Be Asked to Testify in the Jones Case
During the Jones deposition, when questioned as to whether he ìever talked to Monica Lewinsky about the possibility that she might be asked to testify?' the President began an answer with ìIím not sure,' but then suggested that if he had, it was as part of a conversation in which he joked that every woman he had ever talked to was going to be called as a witness in the Paula
154 Clinton 1/ 17/ 98 Depo at 69. 155 Ms. Lewinsky confirmed the accuracy of the Presidentís recollection of this conversation in her testimony. See Lewinsky 8/ 24/ 98 302 (" LEWINSKY advised CLINTON may have said during this conversation that every woman he had ever spoken to was going to be on the witness list.").
156 Clinton 1/ 17/ 98 Depo at 70- 71. 157 United States v. Dunnigan, 507 U. S. 87, 94 (1993).
46
Jones case. 154 This was a truthful response. 155 The President did not deny that he had had other
conversations with Ms. Lewinsky about the Jones case. The President expressed uncertainty about whether there were other occasions. The President testified that ìI donít think we ever had more of a conversation than that about it.' when describing the earlier exchange with Ms. Lewinsky over whether she might appear on the witness list. 156 As in so many other instances, the Jones attorneys failed to ask appropriate follow- up questions such as ìwere there any othe