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Investigating The President

4. Harold Ickes

Mr. Ickes, a former Deputy Chief of Staff,(458) also related to the grand jury a conversation that he had with the President on the morning of January 26, 1998,(460) during which the President denied the Lewinsky allegations.

Regarding that conversation, Mr. Ickes testified: "The two things that I recall, the two things that he again repeated in public -- had already said publicly and repeated in public that same Monday morning was that he had not had -- he did not have a -- or he had not had a sexual relationship with Ms. Lewinsky and that he had done nothing -- now I'm paraphrasing -- had done nothing to ask anybody to change their story or suborn perjury or obstruct justice."(461)

Mr. Ickes recalled that the President probably volunteered this information.(462) Mr. Ickes repeated the President's false statements to the grand jury.

B. The President's Grand Jury Testimony

The President admitted to the grand jury that, after the allegations were publicly reported, he made "misleading" statements to particular aides whom he knew would likely be

called to testify before the grand jury. The President testified as follows:

Q: Do you recall denying any sexual relationship with Monica Lewinsky to the following people: Harry Thomasson, Erskine Bowles, Harold Ickes, Mr. Podesta, Mr. Blumenthal, Mr. Jordan, Ms. Betty Currie? Do you recall denying any sexual relationship with Monica Lewinsky to those individuals?

WJC: I recall telling a number of those people that I didn't have, either I didn't have an affair with Monica Lewinsky or didn't have sex with her. And I believe, sir, that -- you'll have to ask them what they thought. But I was using those terms in the normal way people use them. You'll have to ask them what they thought I was saying.

Q: If they testified that you denied sexual relationship with Monica Lewinsky, or if they told us that you denied that, do you have any reason to doubt them, in the days after the story broke; do you have any reason to doubt them?

WJC: No.

The President then was specifically asked whether he knew that his aides were likely to be called before the grand jury.

Q: It may have been misleading, sir, and you knew though, after January 21st when the Post article broke and said that Judge Starr was looking into this, you knew that they might be witnesses. You knew that they might be called into a grand jury, didn't you?

WJC: That's right. I think I was quite careful what I said after that. I may have said something to all these people to that effect, but I'll also -- whenever anybody asked me any details, I said, look, I don't want you to be a witness or I turn you into a witness or give you information that would get you in trouble. I just wouldn't talk. I, by and large, didn't talk to people about this.

Q: If all of these people -- let's leave out Mrs. Currie for a minute. Vernon Jordan, Sid Blumenthal, John Podesta, Harold Ickes, Erskine Bowles, Harry Thomasson, after the story broke, after Judge Starr's involvement was known on January 21st, have said that you denied a sexual relationship with them. Are you denying that?

WJC: No.

Q: And you've told us that you --

WJC: I'm just telling you what I meant by it. I told you what I meant by it when they started this deposition.

Q: You've told us now that you were being careful, but that it might have been misleading. Is that correct?

WJC: It might have been. . . . So, what I was trying to do was to give them something they could -- that would be true, even if misleading in the context of this deposition, and keep them out of trouble, and let's deal -- and deal with what I thought was the almost ludicrous suggestion that I had urged someone to lie or tried to suborn perjury, in other words.(463)

C. Summary

The President made the following misleading statements to his aides:

The President told Mr. Podesta that he had not engaged in sex "in any way whatsoever" with Ms. Lewinsky, "including oral sex".

The President told Mr. Podesta, Mr. Bowles, and Mr. Ickes that he did not have a "sexual relationship" with Ms. Lewinsky.

The President told Mr. Podesta that "when [Ms. Lewinsky] came by, she came by to see Betty [Currie]."

The President told Mr. Blumenthal that Ms. Lewinsky "came on to him and that he had told her he couldn't have sexual relations with her and that she threatened him."

The President told Mr. Blumenthal that he couldn't remember making any calls to Ms. Lewinsky other than once when he left a message on her answering machine.

During the President's grand jury testimony, the President admitted that his statements to aides denying a sexual relationship with Ms. Lewinsky "may have been misleading."(464) The President also knew his aides likely would be called to testify regarding any communications with him about Ms. Lewinsky. And he presumably expected his aides to repeat his statements regarding Ms. Lewinsky to all questioners, including to the grand jury. Finally, he himself refused to testify for many months. The combination of the President's silence and his deception of his aides had the effect of presenting a false view of events to the grand jury.

The President says that at the time he spoke to his aides, he chose his words with great care so that, in his view, his statements would be literally true because he was referring only to intercourse. That explanation is undermined by the President's testimony before the grand jury that his denials "may have been misleading" and by the contradictory testimony by the aides themselves -- particularly John Podesta, who says that the President specifically denied oral sex with Ms. Lewinsky. Moreover, on January 24, 1998, the White House issued talking points for its staff, and those talking points refute the President's literal truth argument: The talking points state as the President's view the belief that a relationship that includes oral sex is "of course" a "sexual relationship."(465)

For all of these reasons, there is substantial and credible information that the President improperly tampered with witnesses during the grand jury investigation.

XI. There is substantial and credible information that President Clinton's actions since January 17, 1998, regarding his relationship with Monica Lewinsky have been inconsistent with the President's constitutional duty to faithfully execute the laws.

Before, during, and after his January 17, 1998, civil deposition, the President attempted to conceal the truth about his relationship with Ms. Lewinsky from the judicial process in the Jones case. Furthermore, the President has since lied under oath to the grand jury and facilitated the provision of false information to the grand jury by others.

The President also misled the American people and the Congress in his public statement of January 26, 1998, in which he denied "sexual relations" with Ms. Lewinsky. The President misled his Cabinet and his senior aides by denying the relationship to them. The Cabinet and senior aides in turn misled the American people and the Congress by conveying the President's denials and professing their belief in the credibility of those denials.

The President promised in January 1998 to cooperate fully with the grand jury investigation and to provide "more rather than less, sooner rather than later." At that time, the OIC was conducting a criminal investigation and was obligated to report to Congress any substantial and credible information that may constitute grounds for an impeachment.

The President's conduct delayed the grand jury investigation (and thereby delayed any potential congressional proceedings). He asserted, appealed, withdrew, and reasserted Executive Privilege (and asserted other governmental privileges never before applied in federal criminal proceedings against the government). The President asserted these privileges concerning the investigation of factual questions about which the President already knew the answers. The President refused six invitations to testify voluntarily before the grand jury. At the same time, the President's aides and surrogates argued publicly that the entire matter was frivolous and that any investigation of it should cease.

After being subpoenaed in July, the President made false statements to the grand jury on August 17, 1998. That night, the President again made false statements to the American people and Congress, contending that his answers in his civil deposition had been "legally accurate." The President then made an implicit plea for Congress to take no action: "Our country has been distracted by this matter for too long."(466)

The President has pursued a strategy of (i) deceiving the American people and Congress in January 1998, (ii) delaying and impeding the criminal investigation for seven months, and (iii) deceiving the American people and Congress again in August 1998.

A. Beginning on January 21, 1998, the President misled the American people and Congress regarding the truth of his relationship with Ms. Lewinsky.

On January 21, 1998, the day the Washington Post first reported the Lewinsky matter, the President talked to his long-time advisor Dick Morris. With the President's approval, Mr. Morris commissioned a poll that evening. The results indicated that voters were willing to forgive the President for adultery but not for perjury or obstruction of justice.(467) When the President telephoned him that evening, Mr. Morris explained that the President thus should not go public with a confession or explanation.(468) According to Mr. Morris, the President replied, "Well, we just have to win, then."(469)

The next evening, the President dissuaded Mr. Morris from any plan to "blast[] Monica Lewinsky 'out of the water.'" The President indicated that "there's some slight chance that she may not be cooperating with Starr and we don't want to alienate her."(470)

The President himself spoke publicly about the matter several times in the initial days after the story broke. On January 26, the President was definitive: "I want to say one thing to the American people. I want you to listen to me. I'm going to say this again: I did not have sexual relations with that woman, Miss Lewinsky. I never told anybody to lie, not a single time. Never. These allegations are false."(471)

The President's emphatic denial to the American people was false. And his statement was not an impromptu comment in the heat of a press conference. To the contrary, it was an intentional and calculated falsehood to deceive the Congress and the American people.(472)

B. The First Lady, the Cabinet, the President's staff, and the President's associates relied on and publicly emphasized the President's denial.

After the President lied to the American people, the President's associates argued that the allegations against the President were false and even scurrilous.

Mrs. Clinton forcefully denied the allegations on January 27, 1998, one day after the President's public denial. She admitted that the American people "should certainly be concerned" if a President had an affair and lied to cover it up. She acknowledged that it would be a "very serious offense." But she emphasized that the allegations were false -- a "pretty bad" smear. She noted that the President "has denied these allegations on all counts, unequivocally." And Mrs. Clinton shifted the focus away from the President, indicated that "this is a battle" and stated that "some folks are going to have a lot to answer for" when the facts come out.(473)

The most senior officials in the Executive Branch served as additional (albeit unwitting) agents of the President's deception. The Cabinet and White House aides stated emphatically that the allegations were false. For example, White House spokesperson Michael McCurry was asked whether the President's denial covered all forms of sexual contact, and Mr. McCurry stated that "I think every American that heard him knows exactly what he meant."(474) So, too, White House Communications Director Ann Lewis said on January 26, 1998: "I can say with absolute assurance the President of the United States did not have a sexual relationship because I have heard the President of the United States say so. He has said it, he could not be more clear. He could not have been more direct."(475) She added: "Sex is sex, even in Washington. I've been assured."(476)

After a Cabinet meeting on January 23, 1998, in which the President offered denials, several members of the Cabinet appeared outside the White House. Secretary of State Albright stated: "I believe that the allegations are completely untrue."(477) Coupled with the President's firm denial, the united front of the President's closest advisors helped shape perception of the issue.

C. The President repeatedly and unlawfully invoked the Executive Privilege to conceal evidence of his personal misconduct from the grand jury.

When the allegations about Ms. Lewinsky first arose, the President informed the American people that he would cooperate fully. He told Jim Lehrer that "we are doing our best to cooperate here."(478) He told National Public Radio that "I have told people that I would cooperate in the investigation, and I expect to cooperate with it. . . . I'm going to do my best to cooperate with the investigation."(479) He told Roll Call "I'm going to cooperate with this investigation. . . . And I'll cooperate."(480)

Such cooperation did not occur. The White House's approach to the constitutionally based principle of Executive Privilege most clearly exposed the non-cooperation. In 1994, White House Counsel Lloyd Cutler issued an opinion that the Clinton Administration would not invoke Executive Privilege for cases involving personal wrongdoing by any government official.(481) By 1998, however, the President had blended the official and personal dimensions to the degree that the President's private counsel stated in a legal brief filed in the U.S. Court of Appeals for the District of Columbia Circuit: "In a very real and significant way, the objectives of William J. Clinton, the person, and his Administration (the Clinton White House) are one and the same."(482)

After the Monica Lewinsky investigation began, the President invoked Executive Privilege for the testimony of five witnesses: Bruce Lindsey, Cheryl Mills, Nancy Hernreich, Sidney Blumenthal, and Lanny Breuer. These claims were patently groundless. Even for official communications within the scope of the privilege, the Supreme Court ruled unanimously in 1974 in United States v. Nixon(483) that the Executive Privilege gives way in the face of the compelling need for evidence in criminal proceedings.

The President's assertion of Executive Privilege for Ms. Hernreich, an assistant who manages the secretarial work for the Oval Office,(484) was frivolous. At the time that the President was asserting Executive Privilege for one assistant, the President's other assistant (Betty Currie) had already testified extensively.

Based on Nixon, the OIC filed a motion to compel the testimony of Hernreich, Lindsey, and Blumenthal. The United States District Court held a hearing on March 20. Just before the hearing, the White House -- without explanation -- dropped its Executive Privilege claim as to Ms. Hernreich.(485)

On May 4, 1998, Chief Judge Norma Holloway Johnson ruled against the President on the Executive Privilege issue.(486) After the White House filed a notice of appeal, the OIC filed an expedited petition for certiorari before judgment in the Supreme Court. The President thereupon dropped his claim of Executive Privilege.

The tactics employed by the White House have not been confined to the judicial process. On March 24, while the President was traveling in Africa, he was asked about the assertion of Executive Privilege. He responded, "You should ask someone who knows." He also stated "I haven't discussed that with the lawyers. I don't know."(487)

This was untrue. Unbeknownst to the public, in a declaration filed in District Court on March 17 (seven days before the President's public expression of ignorance), White House Counsel Charles F.C. Ruff informed Chief Judge Johnson that he "ha[d] discussed" the matter with the President, who had directed the assertion of Executive Privilege.(488)

The deception has continued. Because the President withdrew his Executive Privilege claim while the case was pending in the Supreme Court of the United States, it was assumed that the President would no longer assert Executive Privilege. But that assumption proved incorrect. White House attorney Lanny Breuer appeared before the grand jury on August 4, 1998, and invoked Executive Privilege. He would not answer, for example, whether the President had told him about his relationship with Monica Lewinsky and whether they had discussed the gifts he had given to Monica Lewinsky.(489) On August 11, 1998, Chief Judge Johnson denied the Executive Privilege claim as a basis for refusing to testify, and ordered Mr. Breuer to testify.(490)

On August 11, 1998, Deputy White House Counsel Cheryl Mills testified and repeatedly asserted Executive Privilege at the President's direction.(491) The breadth of the claim was striking: The privilege was asserted not only for Ms. Mills's communications with the President, senior staff, and staff members of the White House Counsel's Office -- but also for Ms. Mills's communications with private lawyers for the President, private lawyers for grand jury witnesses, and Betty Currie.(492)

On August 17, the President testified before the grand jury. At the request of a grand juror, the OIC asked the President about his assertions of Executive Privilege and why he had withdrawn the claim before the Supreme Court. The President replied that "I didn't really want to advance an executive privilege claim in this case beyond having it litigated, so that we, we had not given up on principal [sic] this matter, without having some judge rule on it. . . . I strongly felt we should not appeal your victory on the executive privilege issue."(493)

Four days after this sworn statement, on August 21, 1998, the President filed a notice of appeal with respect to the Executive Privilege claim for Lanny Breuer that Chief Judge Johnson had denied ten days earlier (and six days before the President's testimony). In addition, Bruce Lindsey appeared again before the grand jury on August 28, 1998, and the President again asserted Executive Privilege with respect to his testimony -- even though the President had dropped the claim of Executive Privilege for Mr. Lindsey while the case was pending before the Supreme Court of the United States in June.(494)

The Executive Privilege was not the only claim of privilege interposed to prevent the grand jury from gathering relevant information. The President also acquiesced in the Secret Service's attempt to have the Judiciary craft a new protective function privilege (rejecting requests by this Office that the President order the Secret Service officers to testify). The District Court and the U.S. Court of Appeals for the District of Columbia Circuit rejected the privilege claim. The litigation was disruptive to the Secret Service and to the grand jury. The frivolity of the claim is evidenced by the Chief Justice's decision to reject the Secret Service's request for a stay without even referring the matter to the full Court. All of that litigation would have been unnecessary had the President testified in February instead of August, or had he taken the position that relevant facts should be fully available to the grand jury.

D. The President refused six invitations to testify to the grand jury, thereby delaying expeditious resolution of this matter, and then refused to answer relevant questions before the grand jury when he testified in August 1998.

>This Office extended six separate invitations to the President to testify before the grand jury. The first invitation was issued on January 28, 1998. The OIC repeated the invitations on behalf of the grand jury on February 4, February 9, February 21, March 2, and March 13. The President declined each invitation. His refusals substantially delayed this Office's investigation.

Finally, in the face of the President's actions, this Office asked the grand jury to consider issuing a subpoena to the President. The grand jury deliberated and approved the issuance of a subpoena. On July 17, 1998, the OIC served the subpoena, in accordance with the grand jury's action, on the President's private counsel. The subpoena required the President to appear on July 28.

The President sought to delay his testimony.(495) Shortly after a hearing before the District Court on the President's motion for a continuance, the President and the OIC reached an agreement by which the President would testify on August 17 via live video feed to the grand jury. In a Rose Garden ceremony on July 31, 1998, the President stated to the country: "I'm looking forward to the opportunity . . . of testifying. I will do so completely and truthfully."(496)

At the outset of his grand jury appearance, the President similarly stated: "I will answer each question as accurately and fully as I can."(497) The President then read a prepared statement in which he admitted "inappropriate intimate contact" with Ms. Lewinsky.(498) Despite his statement that he would answer each question, the President refused to answer specific questions about that contact (other than to indicate that it was not intercourse and did not involve the direct touching of Ms. Lewinsky's breasts or genitals).(499)

E. The President misled the American people and the Congress in his public statement on August 17, 1998, when he stated that his answers at his civil deposition in January had been "legally accurate."

The President addressed the Nation on the evening of August 17, 1998, after his grand jury appearance. The President did not tell the truth. He stated: "As you know, in a deposition in January, I was asked questions about my relationship with Monica Lewinsky. While my answers were legally accurate, I did not volunteer information."(500) As this Referral has demonstrated, the President's statements in his civil deposition were not "legally accurate," and he could not reasonably have thought they were. They were deliberate falsehoods designed to conceal the truth of the President's sexual relationship with Monica Lewinsky.

The President's claim that his testimony during the civil deposition was legally accurate -- which he made to the grand jury and to the American people on August 17 -- perpetuates the deception and concealment that has accompanied his relationship with Monica Lewinsky since his first sexual encounter with her on November 15, 1995.

F. Summary

In this case, the President made and caused to be made false statements to the American people about his relationship with Ms. Lewinsky. He also made false statements about whether he had lied under oath or otherwise obstructed justice in his civil case. By publicly and emphatically stating in January 1998 that "I did not have sexual relations with that woman" and these "allegations are false," the President also effectively delayed a possible congressional inquiry, and then he further delayed it by asserting Executive Privilege and refusing to testify for six months during the Independent Counsel investigation. This represents substantial and credible information that may constitute grounds for an impeachment.

1. The pseudonym Jane Doe was used during discovery to refer to certain women whose identities were protected from the public.

2. For a discussion of the procedural background to the Jones case, see Appendix, Tab C.

3. Sections 1621 and 1623 of Title 18 (perjury) carry a penalty of imprisonment of not more than five years for knowingly making a false, material statement under oath, including in any ancillary court proceeding. An "ancillary proceeding" includes a deposition in a civil case. United States v. McAfee, 8 F.3d 1010, 1013 (5th Cir. 1993); United States v. Scott, 682 F.2d 695, 698 (8th Cir. 1982). The perjury statutes apply to statements made during civil proceedings. As one United States Court of Appeals recently stated, "we categorically reject any suggestion, implicit or otherwise, that perjury is somehow less serious when made in a civil proceeding. Perjury, regardless of the setting, is a serious offense that results in incalculable harm to the functioning and integrity of the legal system as well as to private individuals." United States v. Holland, 22 F.3d 1040, 1047 (11th Cir. 1994); see also United States v. Wilkinson, 137 F.3d 214, 225 (4th Cir. 1998).

4. Clinton 1/17/98 Depo.; see also Clinton 1/17/98 Depo. at 18.

5. Clinton 1/17/98 Depo. at 19.

6. Written interrogatories are a common discovery device in federal civil cases by which a party serves written questions on the opposing party. The rules require that they be answered under oath and therefore under penalty of perjury. See Fed. R. Civ. P. 33.

7. V002-DC-00000016-32 (Plaintiff's Second Set of Interrogatories, see Interrogatory no. 10). The interrogatory in the text reflects Judge Wright's order, dated December 11, 1997, limiting the scope of the question to cover only women who were state or federal employees at the relevant times.

8. V002-DC-00000052-55 (President Clinton's Supplemental Responses to Plaintiff's Second Set of Interrogatories, see Response to Interrogatory no. 10).

9. Clinton 1/17/98 Depo., Exh. 1.

10. Robert S. Bennett, counsel for President Clinton.

11. Clinton 1/17/98 Depo. at 78 (emphasis added).

12. Id. at 204 (emphasis added). The full text of Ms. Lewinsky's affidavit is set forth in the Doc. Supp. B, Tab 7.

13. White House records reflecting entry and exit are incomplete. For Ms. Lewinsky, there are no records for January 7, 1996, and January 21, 1996.

14. The President's false statements to the grand jury are discussed in Ground II.

15. Lewinsky 8/26/98 Depo. at 6-7.

16. Id. at 7.

17. Id. at 8. Ms. Lewinsky stated that the hallway outside the Oval Office study was more suitable for their encounters than the Oval Office because the hallway had no windows. Lewinsky 8/6/98 GJ at 34-35.

18. Lewinsky 8/26/98 Depo. at 8.

19. Id. at 8, 21. Ms. Lewinsky testified that she had an orgasm. Id. at 8.

20. Id. at 11-12.

21. Id. at 12-13.

22. Id. at 14.

23. Id. at 12-13.

24. Id. at 15-16.

25. Id. at 17. After the sexual encounter, she saw the President masturbate in the bathroom near the sink. Id. at 18.

26. Id. at 18.

27. Id. at 18.

28. Id. at 19. They engaged in oral-anal contact as well. See Lewinsky 8/26/98 Depo. at 18-20.

29. Id. at 21-22. This was shortly after their first phone sex encounter, which occurred on January 16, 1996. Id. at 22; Lewinsky 7/30/98 Int. at 9. Phone sex occurs when one or both parties masturbate while one or both parties talk in a sexually explicit manner on the telephone.

30. Lewinsky 8/26/98 Depo. at 25.

31. Id. at 26. As Ms. Lewinsky departed, she observed the President "manually stimulating" himself in Ms. Hernreich's office. Id. at 27.

32. Id. at 28-32.

33. Id. at 28.

34. Id. at 30-31. Ms. Lewinsky testified that she had an orgasm. Id.

35. Id. at 30-32. They engaged in oral-anal contact as well. See Lewinsky 8/26/98 Depo. at 29-33.

36. Id. at 34-38.

37. Id. at 37-38. The President then put the cigar in his mouth and said to Ms. Lewinsky: "it tastes good." Lewinsky 7/30/98 Int. at 12-13; see also Lewinsky Depo. at 38.

38. Lewinsky 8/6/98 GJ at 91, 94-97; Lewinsky 8/26/98 Depo. at 40-42.

39. Lewinsky 8/26/98 Depo. at 40-43.

40. Id. at 45-49. They had engaged in phone sex a number of times in the interim, according to Ms. Lewinsky. Lewinsky 7/30/98 Int. at 14-15.

41. Lewinsky 8/26/98 Depo. at 47. On this occasion, the President ejaculated. Id.

42. FBI Lab Report, Lab Nos. 980730002SBO and 980803100SBO, 8/17/98.

43. Lewinsky 8/26/98 Depo. at 49-51.

44. Ms. Lewinsky testified that she had multiple orgasms.  Id. at 50.

45. Id. at 50-51; Lewinsky 8/6/98 GJ at 21. On this occasion, the President ejaculated. Lewinsky 8/26/98 Depo. at 50-51.

46. Lewinsky 8/26/98 Depo. at 51-53.

47. Id. at 53. See also Lewinsky 8/6/98 GJ at 35-36.

48. Lewinsky 7/30/98 Int. at 11-16; Lewinsky 8/6/98 GJ at 24. The summary chart of contacts between the President and Ms. Lewinsky, GJ Exhibit ML-7, which is based on information provided by Ms. Lewinsky, lists 17 separate phone sex calls. Id. at 27-28. Ms. Lewinsky also gave the President Vox, a novel about phone sex. Id.

While phone sex may not itself constitute a "sexual relationship," it adds detail to Ms. Lewinsky's testimony and underscores the sexual and intimate nature of the relationship between the President and Ms. Lewinsky.

Ms. Lewinsky also said that the President left a few messages on her home answering machine (although he told her he did not like to leave messages). Ms. Lewinsky provided four microcassettes of four messages to the OIC on July 29, 1998. FBI Receipt for Property Received, dated 7/29/98.

49. FBI Lab Report, Lab No. 9800730002SB0, 8/3/98.

50. FBI Observation Report (White House), 8/3/98.

51. FBI Lab Report, Lab No. 980730002SBO and 980803100SBO, 8/17/98.

52. Id.

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