|Legal Documents - Second Clinton Rebuttal from September 12, 1998|
First White House rebuttal
Allegation VI -- Concealment of the Relationship
In the sixth allegation, the OIC contends that there is substantial and credible information that:
(i) President Clinton and Ms. Lewinsky had an understanding that they would lie under oath in the Jones case about their relationship; and
(ii) President Clinton endeavored to obstruct justice by suggesting that Ms. Lewinsky file an affidavit so that she would not be deposed, she would not contradict his testimony, and he could attempt to avoid questions about Ms. Lewinsky at his deposition.
The essence of the OIC's argument is that, because the President and Ms. Lewinsky attempted to conceal the improper nature of their relationship while it was going on and because the President failed affirmatively to assure that each statement contained in the affidavit filed by Ms. Lewinsky was true, he therefore obstructed justice. The Referral fails even to allege facts that, if true, would constitute obstruction of justice under the law as set out in our Preliminary Memorandum at pp. 21-25.
First, the Referral alleges that during the course of their admittedly improper relationship, the President and Ms. Lewinsky concealed the nature of their relationship from others. This is hardly a remarkable proposition. The use of "cover stories" to conceal such a relationship, apart from any proceeding, is not unusual and not an obstruction of justice.
The Referral alleges only one specific statement that Ms. Lewinsky claims the President made to her regarding the substance of her testimony. Ms. Lewinsky testified that the President told her, "You know, you can always say you were coming to see Betty or that you were bringing me letters." Act at 98. As an initial matter, the President testified that he did not recall saying anything like that in connection with Ms. Lewinsky's testimony in the Jones case. But even if he did, neither of those two ambiguous statements would be false. And most importantly, as even the OIC concedes, Narrative at 29, the President never instructed her to lie.
The Referral also alleges that the President somehow obstructed justice by suggesting to Ms. Lewinsky that she could sign an affidavit in the Jones case. But the Referral again fails to establish how this might constitute obstruction. The OIC makes no contention that the President ever told Ms. Lewinsky to file a false affidavit. A suggestion to submit written testimony under oath in a judicial proceeding, if he made it, is hardly improper - let alone an obstruction of justice. The President was aware that other potential deponents in the Jones case had filed affidavits in an attempt to avoid the expense, burden, and humiliation of testifying in the Jones case, and that there was a chance that doing so might enable Ms. Lewinsky to avoid testifying. Even if the affidavit did not "disclose the true nature of their relationship," as the OIC asserts, since the Jones case concerned allegations of nonconsensual sexual solicitation, a truthful albeit limited affidavit might have allowed her to have avoided giving a Jones deposition. But the President never told Ms. Lewinsky what to say in the affidavit, knew that Ms. Lewinsky had her own lawyer to protect her interests, and expressly declined the opportunity to review the content of the affidavit, according to Ms. Lewinsky. Narrative at 203. The OIC's position appears to be that this is somehow obstruction of justice -- that the President had an affirmative duty to ensure that Ms. Lewinsky volunteered in her affidavit all information in which the Jones lawyers might possibly have an interest. There simply is no such duty under the law, nor does the OIC cite any basis for such a duty. Civil litigation is based upon an adversarial process of determining truth, and a party is under no affirmative obligation to assist an opponent in every way it can.
Finally, the OIC suggests that the President was "knowingly responsible" for a misstatement of fact to a federal judge because he failed to correct a statement made by his lawyer to the court in the Jones deposition. The President testified to the grand jury that the lawyers' argument at the start of the deposition "passed [him] by;" he also remarked that the statement of his law might be literally true. The OIC distorts this response to suggest the President testified that he did not correct the statement at the January deposition because it might have been true. We do not believe the testimony would support that claim.
There is of course no legal obligation imposed on a client to listen to every word his attorney says, and the OIC has no evidence that the President even focused on or absorbed his attorney's remark. Without any evidence whatsoever, the OIC asserts that the President knew what was said, knew he was somehow responsible for it, knew it was incorrect and ignored a duty to correct it. Yet, again, the OIC has made a wholly unsupportable allegation of obstruction of justice.
Allegation VII -- Job Search for Ms. Lewinsky
In its seventh allegation, the Referral contends that certain actions taken on behalf of Ms. Lewinsky in her job efforts amounted to obstruction of justice. The Referral acknowledges that the case for obstruction based on the job search is wholly circumstantial and that there is absolutely "no evidence" of any "arrangement . . . explicitly spelled out." Acts at 113 n.361. Noting that the critical issue centers on the intent of the party providing the assistance, the Referral asks that "inferences be drawn" from the circumstantial evidence set forth in the Referral chronology. Id. at 113.
But that chronology presents precious little in the way of Presidential involvement and nothing that supports an inference of any intent to obstruct justice by helping Ms. Lewinsky (to the limited extent he did) in her job efforts. It may be the OIC's view that the President should have cast Ms. Lewinsky off and refused to assist her in any way, simply because the Jones case was filed. Fortunately the law requires no such callous absurdity.
The Referral states that the President agreed to help Ms. Lewinsky look for a job, Acts at 105; that he said he would take care of finding her a reference from someone in the White House, Id. at 105; and that after Ms. Lewinsky obtained a job, the President asked Erskine Bowles "could we see if [John Hilley] could recommend her, if asked," Id. at 111-12. There is no suggestion that he ever ordered or directed anyone to assist Ms. Lewinsky or asked anyone to give her special advantages or disadvantages because of their relationship or that he ever linked his relatively insubstantial assistance to a requirement that she act -- or testify -- in a certain way. The kinds of actions that are alleged simply do not constitute obstruction of justice.
Indeed, upon close reading, the Referral itself acknowledges the following facts, which, if taken as true, are all at odds with the notion that the President acted with corrupt intent:
This account fails to allege facts supporting a case of obstruction of justice under the only statute that could conceivably apply here, 18 U.S.C. § 1503. Under that provision, the government must prove obstruction of justice by establishing that there was a pending judicial proceeding, that the defendant knew of the proceeding, and that the defendant acted "corruptly" with the specific intent to obstruct or interfere with the proceeding or due administration of justice. See, e.g., United States v. Buicey, 876 F.2d 1297, 1314 (7th Cir. 1989); United States v. Smith, 729 F. Supp. 1380 (D.C.C. 1990). Four federal courts of appeals have held that the "act corruptly" element of the crime requires that the defendant have acted with the specific intent to obstruct justice. See, e.g., United States v. Moon, 718 F.2d 1219, 1236 (2d Cir.1983); United States v. Bashaw, 982 F.2d 168, 170 (6th Cir. 1992); United States v. Rasheed, 663 F.2d 843, 847 (9th Cir. 1981). It is simply not enough that the effects of a person's actions may have had the effect of somehow impeding justice if that was not the intent of the person accused. And here it is not even clear how the President's limited assistance was meant to or did obstruct anything.
Allegation VIII -- Conversations with Mr. Jordan
The OIC asserts in its eighth allegation that the President was "asked during his civil deposition whether he had talked to Mr. Jordan about Ms. Lewinsky's involvement in the Jones case" and that he "stated that he did not recall whether Mr. Jordan had talked to Ms. Lewinsky about her involvement in the Jones case." Acts at 115. This account of the question and answer is simply false. The President was not asked that question, and he did not give that answer.
To bolster this extraordinary claim, the OIC misrepresents certain of the President's deposition responses. First, the OIC quotes one question and answer --
Q. Did anyone other than your attorneys ever tell you that Monica Lewinsky had been served with a subpoena in this case?
A. I don't think so. (emphasis added in Referral)
-- but omits the next question and answer, even though it is apparent from the text, and the OIC was told by the President, that the next question and answer were a continuation:
Q. Did you ever talk with Monica Lewinsky about the possibility that she might be asked to testify in this case?
A. Bruce Lindsey, I think Bruce Lindsey told me that she was, I think maybe that's the first person told me she was. I want to be as accurate as I can.
This unresponsive answer reflects the President's effort to recall, in response to the prior question, where he had first learned about the subpoena, but the word "first" implies there were other people (perhaps Mr. Jordan) who told him. The Jones lawyers simply did not pursue this by asking the logical follow-up questions.
Nor do the remaining two passages state what the OIC claims. The next passage asked whether, in the past two weeks (before January 17) anyone had reported to the President that they had had a conversation with Ms. Lewinsky about the lawsuit, to which the President replied he did not believe so. This response of course does not rule out all conversations with Mr. Jordan about Ms. Lewinsky's involvement in the case, as the OIC would suggest, but only in the two-week period and only accounts of conversations with Ms. Lewinsky, not conversations simply about her involvement in the case. Moreover, the OIC's 252-page Narrative does not identify reports to the President about conversations that Mr. Jordan had with Ms. Lewinsky in that time period -- instead, it recounts only that, 10 days before the deposition, Mr. Jordan left word for the President that the affidavit was signed. The last passage on which the OIC relies simply asked whether the President had heard that Mr. Jordan and Ms. Lewinsky met to discuss the case; the President recounted his belief that the two had met to discuss the job search -- about which the President readily acknowledged an awareness. The OIC's assertion that the President "did not recall whether Mr. Jordan had talked to Ms. Lewinsky about her involvement in the Jones case," is simply not supported by the testimony. This allegation is a fabrication by the OIC.
Allegation IX -- "Witness Tampering"
In its ninth allegation the OIC charges that President Clinton obstructed justice and improperly influenced a witness when he spoke with Ms. Currie the day after his deposition in the Jones case. The OIC's claims are wrong and, again, the product of extraordinary overreaching and pejorative conjecture -- a transparent attempt to draw the most negative inference possible about lawful conduct.
The President's actions could not as a matter of law give rise to either charge because Ms. Currie was not a witness in any proceeding at the time he spoke with her: her name had not appeared on any of the Jones witness lists; she had not been named as a witness in the Jones case; there were just two weeks of discovery left in the case; and there was no reason to suspect she would play any role in that case. The President had no reason to suspect that the OIC had embarked on a wholly new phase of its four-year investigation, one in which Ms. Currie would later be called by the OIC as a witness. To obstruct a proceeding or tamper with a witness, there must be both a witness and a proceeding. Here, there was neither. Despite the OIC's far-fetched suggestion to the contrary, there was no reason the President should not have spoken with Ms. Currie about Ms. Lewinsky.
Indeed, it is hardly surprising that the President would have reached out to Ms. Currie after the deposition. Ms. Currie was Ms. Lewinsky's friend. The President had just faced unexpected and hostile questioning by his fierce political opponents in the Jones case about Ms. Lewinsky. He was obviously puzzled at being asked such detailed (and in some cases such bizarrely inaccurate) questions about a past secret relationship. He had no one to whom he could talk freely about the relationship, but he nonetheless had a desire to find out what might have transpired with Ms. Lewinsky and to test his recall, since he had not anticipated such detailed questions or prepared for them. It was his belief that Ms. Currie was unaware that he had engaged in improper activity with Ms. Lewinsky. He wanted to reassure himself that that was so. He also recalled that in 1997, after the improper relationship ended, he had asked Ms. Currie to try always to be present when Ms. Lewinsky visited. He wanted to inquire whether that was also Ms. Currie's recollection. The President's actions were hardly surprising since he had just undergone hostile and unexpected questioning in a bitterly contested civil suit.
Whatever his reasons, however, one simple fact remains. At the time he discussed Ms. Lewinsky with Ms. Currie, Ms. Currie was not expected to be, nor was she, a witness. Again, the OIC has wholly overreached to make baseless allegations of criminal conduct.
Allegation X -- Refusal to Testify
The tenth allegation is premised on the OIC's misrepresentation of the facts. The assertion that "[the President] simultaneously lied to potential grand jury witnesses," "[w]hile refusing to testify for seven months" is a gross distortion of the Referral's own citations.
The statements to Presidential aides cited by the Referral were made either on the day the Lewinsky story broke (January 21, 1998) or within a few days of that date. Those statements were concurrent in time with the President's repeated public statements to the country denying sexual relations with Ms. Lewinsky. And they were virtually identical in substance. Having announced to the whole country on live television that he was not having sexual relations with Ms. Lewinsky, it is simply absurd to believe that he was somehow attempting to corruptly influence the testimony of aides when he told them virtually the same thing at the same time.
And in any event, the mere repetition of a public denial to these aides could not have affected the grand jury process. The elicited testimony was hearsay. The aides were not witnesses to any sexual activity, and they had no first-hand knowledge pertinent to the denials. Their testimony as to what they heard from the President was truthful -- the President in no conceivable way sought to alter any other perceptions or information they might have had. Their testimony thus was merely cumulative of the President's own nationally broadcast statements. The suggestion that the President violated section 1503's prohibition on "influenc[ing], obstruct[ing], or imped[ing] the due administration of justice" is groundless. There is and could be no evidence that the President had a specific intent to obstruct justice by his aides' repetition of his own denials.
Nor is there evidence that the President's statements constituted
"witness tampering" in violation of section 1512. To make out such a violation, the government must show that the behavior knowingly occurred through one of the specific means set forth in the statute: -- intimidation, physical force, threats, misleading conduct or corrupt persuasion -- with intent to influence testimony in a legal proceeding. A defendant must be aware of the legal proceeding's existence, and his efforts must be aimed specifically at obstructing that proceeding. See United States v. Wilson, 565 F. Supp. 1416, 1431 (S.D.N.Y. 1983). In fact, the President simply repeated to aides substantially the same statement he made to the whole country. There was no action here intended specifically to influence the grand jury through the testimony of Presidential aides. Under the OIC's theory, it could have subpoenaed to the grand jury any citizen who heard the President's denial and thus have created a new violation of law.
In sum, the President's statements to his aides could not have obstructed justice as a matter of law. Their legal duty was to answer the prosecutor's questions and to tell the truth honestly as they knew it, and the President's comments in no conceivable way affected that duty.
The OIC suggests that the President's delay in acknowledging a relationship with Ms. Lewinsky somehow contributed to an obstruction of justice because it affected how the prosecutors would conduct the investigation. This claim is unfounded, as a matter of law. The President had no legal obligation to appear before the grand jury absent compulsion and every reason not to do so, given the OIC's tactics, illegal leaking, and manifest intent to cause him damage.
Allegation XI -- Abuse of Power
As the Office of Independent Counsel itself acknowledges, Acts at 148, from the very beginning, its investigation was focused on the prospect that the information it was gathering would be transmitted to the Congress. It is in this context, with the threat of impeachment on the horizon, that the OIC's last allegation of an abuse of power must be judged.
The OIC begins with the charge that the President's false denial that he had an improper relationship with Ms. Lewinsky -- something that he has now admitted and apologized for -- was itself an abuse of power because it served to deceive the American people. Implicit in this charge is the notion that any official, in any branch of the government, who makes a public statement about his own conduct, or indeed any other matter, that is not true may be removed from office. It would follow, therefore, that no official could mount a defense to impeachment, or to ethics charges, or to a criminal investigation while remaining in office, for anything other than an immediate admission of guilt will necessarily be misleading.
In the Federalist Papers, Alexander Hamilton described abuse of power as the "corrupt use of the office for personal gain or some other improper purpose." Twenty-four years ago, President Nixon's false statements to the public and to the courts, which were part of a scheme to obstruct justice through the perjury of his senior staff, through payoffs to criminal defendants, and through use of the Central Intelligence Agency (CIA) to thwart an FBI investigation into crimes in which he was involved, fit squarely within that definition. Merely to describe that conduct makes clear how different it is from that of President Clinton and how far the OIC has been willing to go to synthesize its charges of impeachable conduct.
The manifest desire to create improprieties where none exist and to transform personal misconduct into impeachable official malfeasance is evident also in the OIC's claim that the President's assertion of executive privilege was somehow unlawful. Oddly enough, the OIC finds abuse of power both in the assertion of the privilege and its withdrawal -- surely evidence of an overwrought imagination or of a conceit that any legal position other than the OIC's is presumptively obstructive. In truth, the OIC's decision to invade the confidential relationship between the President and his most senior advisors and lawyers was unprecedented. It reflects a patent abuse of authority by the OIC and a wholesale abandonment of any prosecutorial judgment in a campaign to prevent the President from consulting meaningfully with his advisors. At bottom, the Independent Counsel seems to believe that, merely because he chooses to seek confidential information from the Office of the President, the President may not contest that demand without risking a charge that he is abusing his power.
Reading the OIC's Referral, one would never know which party to the executive privilege litigation was right and which was wrong on the basic question whether the privilege applied to the communications the OIC was seeking to obtain. In the District Court, the OIC took the position that executive privilege was simply inapplicable in the face of its grand jury subpoena because the communications at issue related to the President's private conduct, but Chief Judge Johnson rejected that claim out of hand. In re Grand Jury Proceedings, 1998 U.S. Dist. Lexis 7736 (D.D.C. 1998). Astoundingly, however, the OIC simply repeats that claim in the Referral, Acts at 155, with no acknowledgement that the court agreed with the White House that the privilege had been properly asserted.10
More importantly, the OIC's abuse-of-power allegation must necessarily rest on the assumption that the President initiated the executive privilege claim with intent to impede the OIC's investigation. Yet, the record is clear that it was only after extensive negotiations in which the White House offered to make available to the OIC factual information concerning the President's conduct and had its offer rejected out of hand, that the White House Counsel notified the President of the OIC's demands, explained the failed accommodation effort, and recommended that he invoke the privilege. Counsel gave that advice because he believed it important to protect the constitutional interests of the presidency. Thus, the President's decision to claim privilege was not the result of his own initiative, much less of any intent to obstruct the grand jury investigation, but rather was the result of his Counsel's advice.11
Even more egregiously misleading is the claim that the President abused his power by "acquiescing" in the efforts of the Secret Service to assert a protective function privilege. First, the OIC characterizes that assertion as frivolous even though it reflected the judgment of the law enforcement professionals charged with protecting this and future presidents and was supported by President Bush.12 Further, the OIC charges the President with abusing his power despite the fact that the OIC knew that he had nothing to do with the decision to assert the privilege or to pursue the appeal from Judge Johnson's decision. Indeed, the OIC itself had argued (in contesting the claim of the Secret Service in the district court) that the failure of the President to involve himself in the matter was itself a reason for the court to reject the Service's claim. The OIC cannot have it both ways.
Last, the OIC charges that it was an abuse of power for the President, at a time when both his personal and official interests were in the balance, not to testify before the grand jury until August -- surely a claim that must astound lawyers and laymen alike. Could the OIC truly be taking the position that any government official who is the subject of a criminal investigation must immediately come forward and testify at a prosecutor's whim or risk impeachment? To state the question is to answer it.
It has come down to this.
After four years, scores of FBI agents, hundreds of subpoenas, thousands of documents, and tens of millions of dollars. After hiring lawyers, accountants, IRS agents, outside consultants, law professors, personal counsel, ethics advisers, and a professional public relations expert. After impaneling grand juries and leasing office space in three jurisdictions, and investigating virtually every aspect of the President's business, financial, political, official and, ultimately, personal life, the Office of Independent Counsel has presented to the House a Referral that no prosecutor would present to any jury.
The President has admitted he had an improper relationship with Ms. Lewinsky. He has apologized. The wrongfulness of that relationship is not in dispute. And yet that relationship is the relentless focus of virtually every page of the OIC's Referral.
In 445 pages, the Referral mentions Whitewater, the failed land deal which originated its investigation, twice. It never once mentions other issues it has been investigating for years -- matters concerning the firing of employees of the White House travel office and the controversy surrounding the FBI files. By contrast, the issue of sex is mentioned more than 500 times, in the most graphic, salacious and gratuitous manner.
The Office of Independent Counsel is asking the House of Representatives to undertake its most solemn and consequential process short of declaring war; to remove a duly, freely and fairly elected President of the United States because he had -- as he has admitted -- an improper, illicit relationship outside of his marriage. Having such a relationship is wrong. Trying to keep such a relationship private, while understandable, is wrong. But such acts do not even approach the Constitutional test of impeachment -- "treason, bribery, or other high crimes and misdemeanors."
The founders were wise to set such a high standard, and were wise to vest this awesome authority in the hands of the most democratic and accountable branch of our Government, and not in the hands of unaccountable prosecutors.
We have sought in this Initial Response to begin the process of rebutting the OIC's charges against the President -- charges legal experts have said would not even be brought against a private citizen. The President did not commit perjury. He did not obstruct justice. He did not tamper with witnesses. And he did not abuse the power of the office of the Presidency.
1 CNN Late Edition with Wolf Blitzer (May 31, 1998). Other commentators and journalists have made similar assertions. See, e.g., The Washington Times (March 19, 1998); The New York Times (March 29, 1998); ABC Nightline (April 15, 1998); The Washington Times (July 29, 1998).
2 Charles L. Black, Jr. Impeachment: A Handbook- 38-39 (1974)
4 The President was presented with the following definition, as he understood the court to have amended:
Definition of Sexual Relations
For the purposes of this deposition, a person engages in "sexual relations" when the person knowingly engages in or causes -
(1) contact with the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to arouse or gratify the sexual desire of any person;
(2) contact between any part of the person's body or an object and the genitals and anus of another person; or
(3) contact between the genitals or anus of the person and any part of another person's body. "Contact" means intentional touching, either directly or through clothing.
5 For example, dictionary definitions of "sexual relations" expressly support the President's interpretation. See, e.g., Webster's Third International Dictionary (defining "sexual relations" as "coitus"). Yet, apparently, the OIC did not bother to check a dictionary before leveling its accusations.
6 This overreaching is compounded by the complete lack of legal citation and analysis in the Referral. Perjury is a specific intent crime, and is an area of the law in which stringent safeguards have been erected to make perjury prosecutions exceedingly difficult. Rather than explain how, notwithstanding these safeguards, it has made out a valid perjury charge, the OIC has elected simply to forego discussing the law entirely.
7 The ambiguity and indeterminacy of Ms. Lewinsky's testimony here, as quoted by the OIC, dramatically illustrates the need to review carefully all the materials which the OIC cryptically cites in the Referral.
8 The lengths to which the OIC is willing to go to force evidence into the picture it wants to draw is further revealed by its citation to the fact that Ms. Currie drove to Ms. Lewinsky's apartment to pick up the gifts as evidence that Ms. Lewinsky's story, rather than Ms. Currie's, is the correct one. According to the OIC, "the person making the extra effort (in this case, Ms. Currie) is ordinarily the person requesting the favor." Acts at 83. There is no basis in logic or experience for this position.
9 The United States Secret Service WAVES records do not reflect a clearance request or an entry into the White House complex by Ms. Lewinsky on this date (or any other date in 1998).
10 Judge Johnson then asked the OIC to make a showing of its need for the information and found that that showing was sufficient to overcome the privilege. At that point, the White House elected not to pursue the issue as to the non-lawyer advisors, and they testified at length before the grand jury.
11 Similarly, the OIC misleads the Congress and the public by blaming the President for pursuing an appeal from rulings of the District Court involving executive privilege claims by lawyers in the White House Counsel's Office. It does so without acknowledging the fact that White House Counsel had informed Independent Counsel Starr, in a letter dated September 4, that those appeals had been taken only to preserve an issue raised for the first time by the Court of Appeals in a recent opinion dealing with the attorney-client privilege.
12 The OIC also argues that Chief Justice Rehnquist's decision to deny a stay reflects a judgment that the Service's claim was frivolous, but fails to disclose that the Chief Justice specifically left open the prospect that the Court would decide to hear an appeal on the merits.