William Jefferson Clinton
President of the United States
MEMORANDUM OF PRESIDENT
WILLIAM JEFFERSON CLINTON
Twenty-six months ago, more than 90 million
Americans left their homes and
work places to travel to schools, church halls and other civic centers
a President of the United States. And on January 20, 1997, William
Clinton was sworn in to serve a second term of office for four years.
The Senate, in receipt of Articles of
Impeachment from the House of
Representatives, is now gathered in trial to consider whether that
should be set aside for the remaining two years of the President's
term. It is a
power contemplated and authorized by the Framers of the Constitution,
before employed in our nation's history. The gravity of what is at
stake -- the
democratic choice of the American people -- and the solemnity of the
dictate that a decision to remove the President from office should
from the most serious of circumstances and should be done in conformity
Constitutional standards and in the interest of the Nation and its
The Articles of Impeachment that have been
exhibited to the Senate fall far
short of what the Founding Fathers had in mind when they placed in the
the Congress the power to impeach and remove a President from office.
far short of what the American people demand be shown and proven before
democratic choice is reversed. And they even fall far short of what a
prosecutor would require before presenting a case to a judge or jury.
Take away the elaborate trappings of the
Articles and the high-flying
rhetoric that has accompanied them, and we see clearly that the House
Representatives asks the Senate to remove the President from office
- used the phrase "certain occasions" to
frequency of his improper intimate contacts with Ms. Monica Lewinsky.
were, according to the House Managers, eleven such contacts over the
approximately 500 days.
Should the will of the people be overruled and
the President of the United
States be removed from office because he used the phrase "certain
to describe eleven events over some 500 days? That is what the House of
Representatives asks the Senate to do.
- used the word "occasional" to describe the
inappropriate telephone conversations between he and Monica Lewinsky.
to Ms. Lewinsky, the President and Ms. Lewinsky engaged in between ten
fifteen such conversations spanning a 23-month period.
Should the will of the people be overruled and
the President of the United
States be removed from office because he used the word "occasional" to
describe up to 15 telephone calls over a 23-month period? That is what
of Representatives asks the Senate to do.
- said the improper relationship with Ms.
Lewinsky began in early 1996,
while she recalls that it began in November 1995. And he said the
not include touching certain parts of her body, while she said it did.
Should the will of the people be overruled and
the President of the United
States be removed from office because two people have a different
of the details of a wrongful relationship -- which the President has
That is what the House of Representatives asks the Senate to do.
The Articles of Impeachment are not limited to
the examples cited above, but
the other allegations of wrongdoing are similarly unconvincing. There
charge that the President unlawfully obstructed justice by allegedly
find a job for Monica Lewinsky in exchange for her silence about their
relationship. This charge is made despite the fact that no one involved
effort to find work for Ms. Lewinsky -- including Ms. Lewinsky herself
testifies that there was any connection between the job search and the
affidavit. Indeed, the basis for that allegation, Ms. Lewinsky's
Ms. Tripp, was expressly repudiated by Ms. Lewinsky under oath.
There is also the charge that the President
conspired to obstruct justice by
arranging for Ms. Lewinsky to hide gifts that he had given her, even
facts and the testimony contain no evidence that he did so. In fact,
evidence shows that the President gave her new gifts on the very day
articles allege he conspired to conceal his gifts to her.
In the final analysis, the House is asking the
Senate to remove the
President because he had a wrongful relationship and sought to keep the
existence of that relationship private.
Nothing said in this Trial Memorandum is
intended to excuse the President's
actions. By his own admission, he is guilty of personal failings. As he
publicly stated, "I don't think there is a fancy way to say that I have
sinned." He has misled his family, his friends, his staff, and the
about the nature of his relationship with Ms. Lewinsky. He hoped to
exposure of personal wrongdoing so as to protect his family and himself
avoid public embarrassment. He has acknowledged that his actions were
By the same token, these actions must not be
mischaracterized into a wholly
groundless excuse for removing the President from the office to which
twice elected by the American people. The allegations in the articles
argument in the House Managers' Trial Memorandum do not begin to
stringent showing required by our Founding Fathers to remove a duly
President from office, either as a matter of fact or law.
A. The Constitutional Standard for
Impeachment Has Not Been Satisfied
There is strong agreement among constitutional
and legal scholars and
historians that the substance of the articles does not amount to
offenses. On November 6, 1998, 430 Constitutional law professors wrote:
Did President Clinton commit "high
Crimes and Misdemeanors"
warranting impeachment under the Constitution? We . . . believe that
misconduct alleged in the report of the Independent Counsel . . . does
the threshold. . . . [I]t is clear that Members of Congress could
constitutional responsibilities if they sought to impeach and remove
President for misconduct, even criminal misconduct, that fell short of
constitutional standard required for impeachment.
On October 28, 1998, more than 400 historians
issued a joint statement
warning that because impeachment had traditionally been reserved for
and misdemeanors in the exercise of executive power, impeachment of the
President based on the facts alleged in the OIC Referral would set a
precedent. "If carried forward, they will leave the Presidency
disfigured and diminished, at the mercy as never before of caprices of
Congress. The Presidency, historically the center of leadership during
national ordeals, will be crippled in meeting the inevitable challenges
We address why the charges in the two articles
do not rise to the level of
`high Crimes and Misdemeanors" in Section III, Constitutional Standard
Burden of Proof.
B. The President Did Not Commit Perjury or
Article I alleges perjury before a federal grand
jury. Article II alleges
obstruction of justice. Both perjury and obstruction of justice are
crimes. In rebutting the allegations contained in the articles of
this brief refers to the facts as well as to laws, legal principles,
decisions, procedural safeguards, and the Constitution itself. Those
who seek to remove the President speak of the "rule of law." Among the
most fundamental rules of law are the principles that those who accuse
burden of proof, and those who are accused have the right to defend
by relying on the law, established procedures, and the Constitution.
principles are not "legalisms" but rather the very essence of the "rule
of law" that distinguishes our Nation from others.
We respond, in detail, to those allegations
whose substance we can decipher
in Section IV, The President Should Be Acquitted on Article I, and in
The President Should Be Acquitted on Article II.
C. Compound Charges and Vagueness
If there were any doubt that the House of
Representatives has utterly failed
in its constitutional responsibility to the Senate and to the
doubt vanishes upon reading the Trial Memorandum submitted by the House
Managers. Having proffered two articles of impeachment, each of which
unconstitutionally combines multiple offenses and fails to give even
adequate notice of the charges it encompasses, the House -- three days
the Managers are to open their case -- is still expanding, not
scope of those articles. In further violation of the most basic
principles, their brief advances, merely as "examples,"
nineteen conclusory allegations -- eight of perjury under Article I and
of obstruction of justice under Article II, some of which have never
before, even in the Report submitted by the Judiciary Committee
Report"), much less in the Office of Independent Counsel ("OIC")
Referral or in the articles themselves.1
If the target the Managers present to the Senate and to the President
moving now, what can the President expect in the coming days? Is there
at which the President will be given the right accorded a defendant in
minor criminal case -- to know with certainty the charges against which
The Senate, we know, fully appreciates these
concerns and has, in past
proceedings, dealt appropriately with articles far less flawed than
constitutional concerns raised by the House's action are addressed in
VI, The Structural Deficiencies of the Articles Preclude a
A. The Whitewater Investigative Dead-End
The Lewinsky investigation emerged in January
1998 from the long-running
Whitewater investigation. On August 5, 1994, the Special Division of
States Court of Appeals for the District of Columbia Court Circuit
Kenneth W. Starr as Independent Counsel to conduct an investigation
two Arkansas entities, Whitewater Development Company, Inc., and
Guaranty Savings and Loan Association.
In the spring of 1997, OIC investigators,
without any expansion of
jurisdiction, interviewed Arkansas state troopers who had once been
the Governor's security detail, and "[t]he troopers said Starr's
investigators asked about 12 to 15 women by name, including Paula
Jones. . . ." Woodward & Schmidt, "Starr Probes
Clinton Personal Life," The Washington Post (June 25, 1997) at
(emphasis added). "The nature of the questioning marks a sharp
from previous avenues of inquiry in the three-year old investigation .
. . .
Until now, . . . what has become a wide-ranging investigation of many
Clinton's governorship has largely steered clear of questions about
relationships with women . . . ."2
One of the most striking aspects of this new phase of the Whitewater
investigation was the extent to which it focused on the Jones
of the troopers interviewed declared, "`[t]hey asked me about Paula
all kinds of questions about Paula Jones, whether I saw Clinton and
together and how many times.'"3
In his November 19, 1998, testimony before the
House Judiciary Committee,
Mr. Starr conceded that his agents had conducted these interrogations
acknowledged that at that time, he had not sought expansion of his
from either the Special Division or the Attorney General.4
Mr. Starr contended that these inquiries were somehow relevant to his
investigation: "we were, in fact, interviewing, as good prosecutors,
investigators do, individuals who would have information that may be
our inquiry about the President's involvement in Whitewater, in Madison
Savings and Loan and the like."5 It
seems irrefutable, however, that the OIC was in fact engaged in an
attempt to gather embarrassing information about the President --
wholly unrelated to Whitewater or Madison Guaranty Savings and Loan,
potentially relevant to the lawsuit filed by Paula Jones.
B. The Paula Jones Litigation
The Paula Jones lawsuit made certain allegations
about events she said had
occurred three years earlier, in 1991, when the President was Governor
Arkansas. Discovery in the case had been stayed until the Supreme
decision on May 27, 1997, denying the President temporary immunity from
Shortly thereafter, Ms. Jones' legal team began a public relations
against the President, headed by Ms. Jones' new spokesperson, Ms. Susan
Carpenter-McMillan, and her new counsel affiliated with the
Rutherford Institute.7 "`I will
never deny that when I first heard about this case I said, "Okay, good.
We're gonna get that little slimeball,"' said Ms. Carpenter-McMillan."8
While Ms. Jones' previous attorneys, Messrs. Gilbert Davis and Joseph
had largely avoided the media, as the Jones civil suit
became a partisan vehicle to try to damage the President, public
attacks became the order of the day.9 As
is now well known, this effort led ultimately to the Jones lawyers
permitted to subpoena various women, to discover the nature of their
relationship, if any, with the President, allegedly for the purpose of
determining whether they had information relevant to the sexual
charge. Among these women was Ms. Lewinsky.
In January 1998, Ms. Linda Tripp notified the
OIC of certain information she
believed she had about Ms. Lewinsky's involvement in the Jones
that time, the OIC investigation began to intrude formally into the Jones
case: the OIC met with Ms. Tripp through the week of January 12, and
cooperation taped Ms. Lewinsky discussing the Jones case and
President. Ms. Tripp also informed the OIC that she had been
taping conversations with Ms. Lewinsky in violation of Maryland law,
exchange for her cooperation, the OIC promised Ms. Tripp immunity from
prosecution, and assistance in protecting her from state prosecution.10
On Friday, January 16, after Ms. Tripp wore a body wire and had taped
conversations with Ms. Lewinsky for the OIC, the OIC received
the Attorney General and formalized an immunity agreement with Ms.
The President's deposition in the Jones
case was scheduled to take
place the next day, on Saturday, January 17. As we now know, Ms. Tripp
and briefed the lawyers for Ms. Jones the night before the deposition
perception of the relationship between Ms. Lewinsky and the President
so based on confidences Ms. Lewinsky had entrusted to her.11
She was permitted to do so even though she had been acting all week at
behest of the OIC and was dependent on the OIC to use its best efforts
protect her from state prosecution. At the deposition the next day, the
President was asked numerous questions about his relationship with Ms.
by lawyers who already knew the answers.
The Jones case, of course, was not about
Ms. Lewinsky. She was a
peripheral player and, since her relationship with the President was
consensual, irrelevant to Ms. Jones' case. Shortly after the
deposition, Chief Judge Wright ruled that evidence pertaining to Ms.
would not be admissible at the Jones trial because "it is not
essential to the core issues in this case."12
The Court also ruled that, given the allegations at issue in the Jones
case, the Lewinsky evidence "might be inadmissible as extrinsic
under the Federal Rules of Evidence because it involved merely the
instances of conduct" of a witness.13
On April 1, 1998, the Court ruled that Ms. Jones
had no case and granted
summary judgment for the President. Although Judge Wright "viewed the
record in the light most favorable to [Ms. Jones] and [gave] her the
all reasonable factual inferences,"14
the Court ruled that, as a matter of law, she simply had no case
President Clinton, both because "there is no genuine issue as to any
material fact" and because President Clinton was "entitled to a
judgment as a matter of law." Id. at 11-12. After reviewing all
proffered evidence, the Court ruled that "the record taken as a whole
not lead a rational trier of fact to find for" Ms. Jones. Id.
C. The President's Grand Jury Testimony
About Ms. Lewinsky
On August 17, 1998, the President voluntarily
testified to the grand jury
and specifically acknowledged that he had had a relationship with Ms.
involving "improper intimate contact," and that he "engaged in
conduct that was wrong." App. at 461.15
He described how the relationship began and how he had ended it early
in 1997 --
long before any public attention or scrutiny. He stated to the grand
an embarrassing and personally painful thing, the truth about my
with Ms. Lewinsky," App. at 533, and told the grand jurors, "I take
full responsibility for it. It wasn't her fault, it was mine." App. at
The President also explained how he had tried to
navigate the deposition in
the Jones case months earlier without admitting what he
admitted to the
grand jury -- that he had been engaged in an improper intimate
Ms. Lewinsky. Id. at 530-531. He further testified that the
encounters" with Ms. Lewinsky had ended, at his insistence, in early
He declined to describe, because of considerations of personal privacy
institutional dignity, certain specifics about his conduct with Ms.
but he indicated his willingness to answer,17
and he did answer, the other questions put to him about his
her. No one who watched the videotape of this grand jury testimony had
that the President admitted to having had an improper intimate
D. Proceedings in the House of
On September 9, 1998, Mr. Starr transmitted a
Referral to the House of
Representatives that alleged eleven acts by the President related to
Lewinsky matter that, in the opinion of the OIC, "may constitute
for an impeachment."18 The
allegations fell into three broad categories: lying under oath,
justice, and abuse of power.
The House Judiciary Committee held a total of
four hearings and called but
one witness: Kenneth W. Starr. The Committee allowed the President's
days in which to present a defense. The White House presented four
distinguished expert witnesses who testified that the facts, as
alleged, did not
constitute an impeachable offense, did not reveal an abuse of power,
not support a case for perjury or obstruction of justice that any
prosecutor would bring. White House Counsel Charles F.C. Ruff presented
to the Committee on behalf of the President, which is incorporated into
Trial Memorandum by reference.19
On December 11 and 12, the Judiciary Committee
voted essentially along party
lines to approve four articles of impeachment. Republicans defeated the
alternative resolution of censure offered by certain Committee
immediately after censure failed in the Committee, the House Republican
leadership declared publicly that no censure proposal would be
considered by the
full House when it considered the articles of impeachment.20
On December 19, 1998, voting essentially on
party lines, the House of
Representatives approved two articles of impeachment: Article I, which
perjury before the grand jury, passed by a vote of 228 to 206 and
which alleged obstruction of justice, passed by a vote of 221 to 212.
House defeated two other Articles: Article II, which alleged that the
committed perjury in his civil deposition, and Article IV, which
of power. Consideration of a censure resolution was blocked, even
of both parties had expressed a desire to vote on such an option.
From beginning to end the House process was both
partisan and unfair.
- The House released the entire OIC Referral to
the public without ever
reading it, reviewing it, editing it, or allowing the President's
- The Chairman of the House of Judiciary
Committee said he had "no
interest in not working in a bipartisan way";21
- The Chairman also pledged a process the
American people would conclude was
- The Speaker-Designate of the House endorsed a
vote of conscience on a
motion to censure;23
- Members of the House were shown secret
"evidence" in order to
influence their vote -- evidence which the President's counsel still
been able to review.
III. THE CONSTITUTIONAL
STANDARD AND BURDEN OF PROOF FOR DECISION
A. The Offenses Alleged Do Not Meet the
Constitutional Standard of High Crimes and Misdemeanors
1. The Senate Has a Constitutional Duty to
Confront the Question Whether Impeachable Offenses Have Been Alleged
It is the solemn duty of the Senate to consider
the question whether the
articles state an impeachable offense.24
That Constitutional question has not, in the words of one House
"already been resolved by the House."25
To the contrary, that question now awaits the Senate's measured
and independent judgment. Indeed, throughout our history, resolving
question has been an essential part of the Senate's constitutional
"try all Impeachments." U.S. Const. Art. I, § 3, cl. 7. In the
words of John Logan, a House Manager in the 1868 proceedings:
It is the rule that all questions of
law or of fact are to be
decided, in these proceedings, by the final vote upon the guilt or
the accused. It is also the rule, that in determining this general
must consider the sufficiency or insufficiency in law or in fact of
every article of accusation."26
We respectfully suggest that the articles
exhibited here do not state
wrongdoing that constitutes impeachable offenses under our
2. The Constitution Requires a High
of Proof of "High Crimes and Misdemeanors" for Removal
a. The Constitutional Text and Structure
an Intentionally High Standard for Removal
The Constitution provides that the President
shall be removed from office
only upon "Impeachment for, and Conviction of, Treason, Bribery, or
high Crimes and Misdemeanors." U.S. Constitution, Art. II, section 4.
charges fail to meet the high standard that the Framers established.27
The syntax of the Constitutional standard
"Treason, Bribery or
other high Crimes and Misdemeanors" (emphasis added) strongly
by the interpretive principle noscitur a sociis,28
that, to be impeachable offenses, high crimes and misdemeanors must be
seriousness of "Treason" and "Bribery."
Our Constitutional structure reaffirms that the
standard must be a very high
one. Ours is a Constitution of separated powers. In that Constitution,
President does not serve at the will of Congress, but as the directly
solitary head of the Executive Branch.
reflects a judgment that a strong Executive, executing the law
legislative will, is a necessary protection for a free people.
These elementary facts of constitutional
structure underscore the need for a
very high standard for impeachment. The House Managers, in their Brief,
that the failure to remove the President would raise the standard for
impeachment higher than the Framers intended. They say that if the
not remove the President, "The bar will be so high that only a
felon or a traitor will need to be concerned." But that standard is
modified version of the plain language of Article II, Section 4 of the
Constitution, which says a President can only be impeached and removed
Bribery, or other high Crimes and Misdemeanors." The Framers wanted a
bar. It was not the intention of the Framers that the President should
subject to the will of the dominant legislative party. As Alexander
said in a warning against the politicization of impeachment: "There
always be the greatest danger that the decision will be regulated more
comparative strength of parties than by the real demonstrations of
guilt." Federalist 65. Our system of government does not permit
unseat the President merely because it disagrees with his behavior or
policies. The Framers' decisive rejection of parliamentary government
reason they caused the phrase "Treason, Bribery or other high Crimes
Misdemeanors" to appear in the Constitution itself. They chose to
those categories of offenses subject to the impeachment power, rather
that judgment to the unfettered whim of the legislature.
Any just and proper impeachment process must be
reasonably viewed by the
public as arising from one of those rare cases when the Legislature is
to stand in for all the people and remove a President whose
office threatens grave harm to the Republic. Indeed, it is not
say -- as a group of more than 400 leading historians and
scholars publicly stated -- that removal on these articles would
the system of checks and balances that is our chief safeguard against
public power."30 Removal of the
President on these grounds would defy the constitutional presumption
removal power rests with the people in elections, and it would do
damage to the institution of the Presidency. If "successful," removal
here "will leave the Presidency permanently disfigured and diminished,
the mercy as never before of the caprices of any Congress."31
The Framers made the President the sole
nationally elected public official
(together with the Vice-President), responsible to all the people.
when articles of impeachment have been exhibited, the Senate confronts
inescapable question: is the alleged misconduct so profoundly serious,
malevolent to our Constitutional system, that it justifies undoing the
decision? Is the wrong alleged of a sort that not only demands removal
President before the ordinary electoral cycle can do its work, but also
justifies the national trauma that accompanies the impeachment trial
itself? The wrongdoing alleged here does not remotely meet that
b. The Framers Believed that Impeachment
Removal Were Appropriate Only for Offenses Against the System of
"[H]igh Crimes and Misdemeanors" refers to
nothing short of
Presidential actions that are "great and dangerous offenses" or
to subvert the Constitution."32
Impeachment was never intended to be a remedy for private wrongs. It
intended to be a method of removing a President whose continued
presence in the
Office would cause grave danger to the Nation and our Constitutional
government.33 Thus, "in all but the
most extreme instances, impeachment should be limited to abuse of
not private misconduct unrelated to public office."34
Impeachment was designed to be a means of
redressing wrongful public
conduct. As scholar and Justice James Wilson wrote, "our President
. is amenable to [the laws] in his private character as a citizen, and in
his public character by impeachment."35
As such, impeachment is limited to certain forms of wrongdoing.
Hamilton described the subject of the Senate's impeachment jurisdiction
those offenses which proceed from the
misconduct of public men, or
in other words from the abuse or violation of some public trust. They
are of a
nature which may with peculiar propriety be denominated POLITICAL, as they
relate chiefly to injuries done to the society itself.36
The Framers "intended that a president be
removable from office for the
commission of great offenses against the Constitution."37
Impeachment therefore addresses public wrongdoing, whether denominated
crime[ ] against the state,"38 or "an act
of malfeasance or abuse of office,"39 or a "great
offense[ ] against the federal government."40
Ordinary civil and criminal wrongs can be addressed through ordinary
processes. And ordinary political wrongs can be addressed at the ballot
by public opinion. Impeachment is reserved for the most serious public
misconduct, those aggravated abuses of executive power that, given the
President's four-year term, might otherwise go unchecked.
3. Past Precedents Confirm that
of Dishonesty Do Not Alone State Impeachable Offenses
Because impeachment of a President nullifies the
popular will of the people,
as evidenced by an election, it must be used with great circumspection.
applicable precedents establish, it should not be used to punish
a. The Fraudulent Tax Return Allegation
Against President Nixon
Five articles of impeachment were proposed
against then-President Nixon by
the Judiciary Committee of the House of Representatives in 1974. Three
approved and two were not. The approved articles alleged official
Article I charged President Nixon with "using the powers of his high
[to] engage[ ] . . . in a course of conduct or plan designed to delay,
and obstruct" the Watergate investigation.41
Article II described the President as engaging in "repeated and
abuse of the powers of the Presidency in disregard of the fundamental
of the rule of law in our system of government" thereby "us[ing] his
power as President to violate the Constitution and the law of the land."42
Article III charged the President with refusing to comply with
Committee subpoenas in frustration of a power necessary to "preserve
integrity of the impeachment process itself and the ability of Congress
as the ultimate safeguard against improper Presidential conduct."43
One article not approved by the House Judiciary
Committee charged that
President Nixon both "knowingly and fraudulently failed to report
income and claimed deductions [for 1969-72] on his Federal income tax
which were not authorized by law."44
The President had signed his returns for those years under penalty of
and there was reason to believe that the
underlying facts would have
supported a criminal prosecution against President Nixon himself.46
Specifying the applicable standard for
impeachment, the majority staff
[b]ecause impeachment of a President is
a grave step for the
nation, it is to be predicated only upon conduct seriously incompatible
either the constitutional form and principles of our government or the
performance of constitutional duties of the president office.47
And the minority views of many Republican
members were in substantial
the Framers . . . were concerned with
preserving the government
from being overthrown by the treachery or corruption of one man. . . .
our judgment, based upon this constitutional history, that the Framers
United States Constitution intended that the President should be
the legislative branch only for serious misconduct dangerous to the
government established by the Constitution.48
The legal principle that impeachable offenses
required misconduct dangerous
to our system of government provided one basis for the Committee's
the fraudulent-tax-return charge. As Congressman Hogan (R-Md.) put the
the Constitution's phrase "high crime signified a crime against the
of government, not merely a serious crime."49
As noted, the tax-fraud charge, involving an act which did not
public misconduct, was rejected by an overwhelming (and bipartisan)
b. The Financial Misdealing Allegation
Against Alexander Hamilton
In 1792, Congress investigated Secretary of
Treasury Alexander Hamilton for
alleged financial misdealings with a convicted swindler. Hamilton had
payments to the swindler and had urged his wife (Hamilton's paramour)
incriminating correspondence. Members of Congress investigated the
matter and it
came to the attention of President Washington and future Presidents
Jefferson, Madison and Monroe.
This private matter was not deemed worthy of
removing Mr. Hamilton as
Secretary of the Treasury.51 Even when it
eventually became public, it was no barrier to Hamilton's appointment
position in the United States Army. Although not insignificant,
behavior was essentially private. It was certainly not regarded as
4. The Views of Prominent Historians and
Legal Scholars Confirm that Impeachable Offenses Are Not Present
a. No Impeachable Offense Has Been Stated
There is strong agreement among constitutional
scholars and historians that
the articles do not charge impeachable offenses. As Professor Michael
summarized in his recent testimony before a subcommittee of the House
Representatives, there is "widespread recognition [of] a paradigmatic
for impeachment."52 In such a case, "there
must be a nexus between the misconduct of an impeachable official and
latter's official duties."53
There is no such nexus here. Indeed the
allegations are so far removed from
official wrongdoing that their assertion here threatens to weaken
the Presidency itself. As the more than 400 prominent historians and
constitutional scholars warned in their public statement:
[t]he theory of impeachment underlying
these efforts is
unprecedented in our history . . . [and is] are extremely ominous for
of our political institutions. If carried forward, [the current
leave the Presidency permanently disfigured and diminished, at the
never before of the caprices of any Congress.54
Similarly, in a letter to the House of
Representatives, an extraordinary
group of 430 legal scholars argued together that these offenses, even
true, did not rise to the level of an impeachable offense.55
The gist of these scholarly objections is that the alleged wrongdoing
insufficiently connected to the exercise of public office. Because the
charge wrongdoing of an essentially private nature, any harm such
is too removed from our system of government to justify unseating the
Numerous scholars, opining long before the current controversy. have
the necessary connection of impeachable wrongs to threats against the
itself. They have found that impeachment should be reserved for:
- "offenses against the government";56
- "political crimes against the state";57
- "serious assaults on the integrity of the
processes of government";58
- "wrongdoing convincingly established [and]
so egregious that [the
President's] continuation in office is intolerable";59
- "malfeasance or abuse of office,"60bearing
a "functional relationship" to public office;61
- "great offense[s] against the federal
- "acts which, like treason and bribery,
undermine the integrity of
The articles contain nothing approximating that
level of wrongdoing. Indeed
the House Managers themselves acknowledge that "the President's
perjury and obstruction do not directly involve his official conduct."64
b. To Make Impeachable Offenses of These
Allegations Would Forever Lower the Bar in a Way Inimical to the
to Our Government of Separated Powers
These articles allege (1) sexual misbehavior,
(2) statements about sexual
misbehavior and (3) attempts to conceal the fact of sexual misbehavior.
kinds of wrongs are simply not subjects fit for impeachment. To remove
President on this basis would lower the impeachment bar to an
level and create a devastating precedent. As Professor Arthur
addressing this problem, has testified:
Lowering the bar for impeachment
creates a novel, . . .
revolutionary theory of impeachment, [and] . . . would send us on an
with ominous implications for the separation of powers that the
established as the basis of our political order. It would permanently
The lowering of the bar that Professor
Schlesinger described must stop here.
Professor Jack Rakove made a similar point when he stated that
[is] a remedy to be deployed only in . . . unequivocal cases where . .
insult to the constitutional system is grave."66
Indeed, he said, there "would have to be a high degree of consensus on
sides of the aisle in Congress and in both Houses to proceed."67
Bipartisan consensus was, of course, utterly
lacking in the House of
Representatives. No civil officer -- no President, no judge, no cabinet
-- has ever been impeached by so narrow a margin as supported the
exhibited here.68 The closeness and
partisan division of the vote reflect the constitutionally dubious
nature of the
When articles are based on sexual wrongdoing,
and when they have passed only
by the narrowest, partisan margin, the future of our constitutional
in the balance. The very stability of our Constitutional government may
upon the Senate's response to these articles. Nothing about this case
removal of a twice-elected President, because no "high Crimes and
Misdemeanors" are alleged.
5. Comparisons to Impeachment of Judges
The House Managers suggest that perjury per
se is an impeachable
offense because (1) several federal judges have been impeached and
perjury, and (2) those precedents control this case. See House
95-105. That notion is erroneous. It is blind both to the qualitative
differences among different allegations of perjury and the very basic
differences between federal judges and the President.
First, the impeachment and removal of a Federal
judge, while a very solemn
task, implicates very different considerations than the impeachment of
President. Federal judges are appointed without public approval and
tenure without public accountability. Consequently, they hold their
under our Constitution only "during good behavior." Under our system,
impeachment is the only way to remove a Federal judge from
even a Federal judge sitting in jail.69
By contrast, a President is elected by the Nation to a term, limited to
specified number of years, and he faces accountability in the form of
Second, whether an allegedly perjurious
statement rises to the level of an
impeachable offense depends necessarily on the particulars of that
and the relation of those statements to the fulfillment of official
responsibilities. In the impeachment of Judge Harry Claiborne, the
been convicted of filing false income tax returns.70
As a judge, Claiborne was charged with the responsibility of hearing
cases. Once convicted, he simply could not perform his official
because his personal probity had been impaired such that he could not
an arbiter of others' oaths. His wrongdoing bore a direct connection to
performance of his judicial tasks. The inquiry into President Nixon
similar wrongdoing, but the House Judiciary Committee refused to
article of impeachment against the President on that basis. The case of
Walter Nixon is similar. He was convicted of making perjurious
concerning his intervention in a judicial proceeding, which is
employing the power and prestige of his office to obtain advantage for
Although the proceeding at issue was not in his court, his use of the
office for the private gain of a party to a judicial proceeding
implicated his official functions. Finally, Judge Alcee Hastings was
and removed for making perjurious statements at his trial for
conspiring to fix
cases in his own court.72 As with Judges
Claiborne and Nixon, Judge Hastings' perjurious statements were
incurably detrimental to the performance of his official duties. The
against the President, which (as the Managers acknowledge) "do not
involve his official conduct," House Br. at 109, simply do not involve
wrongdoing of gravity sufficient to foreclose effective performance of
Impeachment scholar John Labovitz, writing of
the judicial impeachment cases
predating Watergate, observed that:
For both legal and practical reasons,
th[e] [judicial impeachment]
cases did not necessarily affect the grounds for impeachment of a
practical reason was that it seemed inappropriate to determine the
an elected chief executive on the basis of law developed in proceedings
at petty misconduct by obscure judges. The legal reason was that
Constitution provides that judges serve during good behavior. . . .
behavior] clause made a difference in judicial impeachments,
application of these cases to presidential impeachment.73
Thus, the judicial precedents relied upon by the
House Managers have only "limited
force when applied to the impeachment of a President."74
The most telling rejoinder to the House's
argument comes from President
Ford. His definition of impeachable offenses, offered as a congressman
in connection with an effort to impeach Associate Justice William O.
that it is, in essence, "whatever the majority of the House of
Representatives considers it to be"-- has been cited. Almost never
the more important aspect of then-Congressman Ford's statement -- that,
contrast to the life-tenure of judges, because presidents can be
removed by the
electorate, "to remove them in midterm . . . would indeed require
the magnitude of treason and bribery."75
B. The Standard of Proof
Beyond the question of what constitutes an
impeachable offense, each Senator
must confront the question of what standard the evidence must meet to
vote of "guilty." The Senate has, of course, addressed this issue
before -- most recently in the trials of Judge Claiborne and Judge
recognize that the Senate chose in the Claiborne proceedings, and
the Hastings trial, not to impose on itself any single standard of
rather, to leave that judgment to the conscience of each senator. Many
here today were present for the debate on this issue and chose a
which to test the evidence. For many Senators, however, the issue is a
And none previously has had to face the issue in the special context of
We argued before the House Judiciary Committee
that it must treat a vote to
impeach as, in effect, a vote to remove the President from office and
decision of such moment ought not to be based on anything less than
and convincing" evidence. That standard is higher than the
of the evidence" test applicable to the ordinary civil case but lower
the beyond a reasonable doubt test applicable to a criminal case.
we felt that the clear and convincing standard was consistent with the
responsibility of triggering a process that might result in the removal
president. In fact, it had been the standard agreed upon by both
Committee majority and minority counsel (as well as counsel for
twenty-four years ago.
Certainly no lesser standard should be applied
in the Senate. Indeed, we
submit that the gravity of the decision the Senate must reach should
Senator to go further and ask whether the House has established guilt
Both lawyers and laymen too often treat the
standard of proof as meaningless
legal jargon with no application to the real world of difficult
it is much more than that. In our system of justice, it is the
shows the way through the labyrinth of conflicting evidence. It tells
factfinder to look within and ask: "Would I make the most important
decisions of my life based on the degree of certainty I have about
In the unique legal-political setting of an impeachment trial, it
against partisan overreaching, and it assures the public that this
decision has been made with care. In sum, it is a disciplining force to
into the deliberations.
This point is given added weight by the language
of the Constitution.
Article I, section 3, clause 6 of the United States Constitution gives
Senate "the Power to try all Impeachments. . . . and no Person
shall be convicted without the Concurrence of two thirds of the
present." (Emphasis added.) Use of the words "try" and "convicted"
strongly suggests that an impeachment trial is akin to a criminal
that the beyond-a-reasonable-doubt standard of criminal proceedings
used. This position was enunciated in the Minority Views contained in
of the House Judiciary Committee on the impeachment proceedings against
President Nixon (H.Rep. 93-1305 at 377-381) and has been espoused as
standard by such Senators as Robert Taft, Jr., Sam Ervin, Strom
Even if the clear and convincing standard
nonetheless is appropriate for
judicial impeachments, it does not follow that it should be applied
Presidency itself is at stake. With judges, the Senate must balance its
for the independence of the judiciary against the recognition that,
judges hold life-time tenure, impeachment is the only available means
the public against those who are corrupt. On the other hand, when a
on trial, the balance to be struck is quite different. Here the Senate
in effect, to overturn the results of an election held two years ago in
the American people selected the head of one of the three coordinate
government. It is asked to take this action in circumstances where
there is no
suggestion of corruption or misuse of office -- or any other conduct
our system of government at risk in the two remaining years of the
term, when once again the people will judge who they wish to lead them.
setting, the evidence should be tested by the most stringent standard
we know --
proof beyond a reasonable doubt. Only then can the American people be
that this most serious of constitutional decisions has been given the
consideration it deserves.
IV. THE PRESIDENT SHOULD BE
ACQUITTED ON ARTICLE I
The evidence does not support the allegations of
A. Applicable Law
Article I alleges perjury, along with false and
before a federal grand jury. Perjury is a statutory crime that is set
the United States Code at 18 U.S.C. § 1623.77
Before an accused may be found guilty of perjury before a grand jury, a
prosecutor must prove all elements of the offense.
In the criminal law context, § 1623
requires proof beyond a
reasonable doubt of the following elements: that an accused (1) while
(2) knowingly (3) made a false statement as to (4) material facts. The
element is fundamental: it means that testimony given to a grand jury
found perjurious only if it had a tendency to influence, impede, or
grand jury's investigation. See, e.g., United
Reilly, 33 F.3d 1396, 1419 (3d Cir. 1994); United States v.
111 F.3d 947, 953 (D.C. Cir. 1997). If an answer provided to a grand
jury has no
impact on the grand jury's investigation, or if it relates to a subject
grand jury is not considering, it is incapable as a matter of law of
perjurious. Thus, alleged false testimony concerning details that a
is not investigating cannot as a matter of law constitute perjury,
testimony by definition is immaterial. See, e.g., United
States v. Lasater, 535 F.2d 1041, 1048 (8th Cir. 1976) (where
admitted signing letter and testified to its purpose, his denial of
writing letter was not material to grand jury investigation and was
supporting perjury charge); United States v. Pyle, 156 F.2d
(D.C. Cir. 1946) (details such as whether defendant "paid the rent on
Washington apartment, as she testified that she did" were "not
pertinent to the issue being tried;" therefore, "the false statement
attributed to [defendant] was in no way material in the case in which
it and did not constitute perjury within the meaning of the statute.")
other words, mere falsity -- even knowing falsity -- is not perjury if
statement at issue is not "material" to the matter under
An additional "element" of perjury prosecutions,
at least as a
matter of prosecutorial practice, is that a perjury conviction cannot
solely on the testimony of one witness. In United States v. Weiler,
U.S. 606, 608-09 (1945), the Supreme Court observed that the "special
which bars conviction for perjury solely upon the evidence of a single
is deeply rooted in past centuries." While § 1623 does not
incorporate the so-called "two-witness" rule, the case law makes clear
that perjury prosecutions under this statute require a high degree of
that prosecutors should not, as a matter of reason and practicality,
bring perjury prosecutions based solely on the testimony of a single
the Supreme Court has cautioned, perjury cases should not rest merely
oath against an oath." Id. at 609.
Indeed, that is exactly the point that
experienced former federal
prosecutors made to the House Judiciary Committee. A panel of former
prosecutors, some Republican, testified that they would not charge
upon the facts in this case. For example, Mr. Thomas Sullivan, a former
States Attorney for the Northern District of Illinois, told the
Committee that "the
evidence set out in the Starr report would not be prosecuted as a
by a responsible federal prosecutor." See Transcript of
Standards for Obstruction of Justice and Perjury" Hearing (Dec. 9,
see generally Minority Report at 340-47. As
Mr. Sullivan emphasized, "because
perjury and obstruction charges often arise from private dealings with
observers, the courts have required either two witnesses who testified
to the facts establishing the crime, or, if only one witness testifies
facts constituting the alleged perjury, that there be substantial
proof to establish guilt." See Transcript of "Prosecutorial
Standards for Obstruction of Justice and Perjury" Hearing (Dec. 9,
The other prosecutors on the panel agreed. Mr. Richard J. Davis, who
an Assistant United States Attorney for the Southern District of New
York and as
a Task Force Leader for the Watergate Special Prosecution Force,
"it is virtually unheard of to bring a perjury prosecution based solely
the conflicting testimony of two people." Id. A review of the
perjury alleged here thus requires both careful scrutiny of the
any alleged falsehood and vigilance against conviction merely on an
against an oath." Weiler, 323 U.S. at 609.
B. Structure of the Allegations
Article I charges that the President committed
perjury when he testified
before the grand jury on August 17, 1998. It alleges he "willfully
perjurious, false and misleading testimony to the grand jury concerning
or more of the following: (1) the nature and details of his
relationship with a
subordinate Government employee; (2) prior perjurious, false and
testimony he gave in a Federal civil rights action brought against him;
prior false and misleading statements he allowed his attorney to make
Federal judge in that civil rights action; and (4) his corrupt efforts
influence the testimony of witnesses and to impede the discovery of
that civil rights action." As noted above, the article does not provide
guidance on the particular statements alleged to be perjurious, false
misleading. But by reference to the different views in the House
Report, the presentation of House Majority Counsel David Schippers, the
Referral, and the Trial Memorandum of the House Managers, we have
identify certain statements from which members of the House might have
Subpart (1) alleges that the President committed
perjury before the grand
jury about the details of his relationship with Ms. Lewinsky --
apparently such insignificant matters as mis-remembering the precise
which certain inappropriate physical contact started, understating as
his infrequent inappropriate physical and telephone contacts with Ms.
over a period of many months, characterizing their relationship as
starting as a
friendship, and touching Ms. Lewinsky in certain ways and for certain
during their intimate encounters.
Subpart (2) of Article I alleges that the
President made perjurious, false
and misleading statements to the grand jury when he testified about
responses he had given in the Jones civil deposition. The House
erroneously suggest that in the grand jury President Clinton was asked
reaffirmed his entire deposition testimony, including his deposition
about whether he had been alone with Ms. Lewinsky. See House
Br. at 2,
60. That is demonstrably false. Those statements that the President did
make in the grand jury, by way of explaining his deposition testimony,
truthful. Moreover, to the extent this subpart repeats allegations of
of the original proposed articles of impeachment, the full House of
Representatives has explicitly considered and specifically rejected
charges, and their consideration would violate the impeachment
mandated by the Constitution.
Subparts (3) and (4) allege that the President
lied in the grand jury when
he testified about certain activities in late 1997 and early 1998. They
based on statements about conduct that the House Managers claim
obstruction of justice under Article II and in many respects track
Compare Article I (3) (perjury in the grand
jury concerning alleged "prior
false and misleading statements he allowed his attorney to make to a
judge") with Article II (5) (obstructing justice by "allow[ing]
his attorney to make false and misleading statements to a Federal
compare Article I (4) (perjury in the grand
jury concerning alleged "corrupt
efforts to influence testimony of witnesses and to impede the discovery
evidence") with Article II (3), (6), (7) (obstructing justice
he (3) "engaged in, encouraged, or supported a scheme to conceal
i.e., gifts; (6) "corruptly influence[d] the
Betty Currie; (7) "made false and misleading statements to potential
witnesses in a Federal grand jury proceeding in order to corruptly
testimony of those witnesses"). These perjury allegations are without
both because the obstruction charges upon which they are based are
because the statements that President Clinton made in the grand jury
charges are true. Because of the close parallel, and for sake of
brevity in this
submission, we have dealt comprehensively with these overlapping
the next section addressing Article II (obstruction of justice), and
them only briefly in this section.
C. Response to the Particular Allegations
The President testified truthfully before the
grand jury. There must be no
mistake about what the President said. He admitted to the grand jury
that he had
engaged in an inappropriate intimate relationship with Ms. Lewinsky
period of many months. He admitted to the grand jury that he had been
Ms. Lewinsky. He admitted to the grand jury that he had misled his
his friends and staff, and the entire Nation about the nature of that
relationship. No one who heard the President's August 17 speech or
President's videotaped grand jury testimony had any doubt that he had
to an ongoing physical relationship with Ms. Lewinsky.
The article makes general allegations about this
testimony but does not
specify alleged false statements, so direct rebuttal is impossible. In
this uncertainty, we set forth below responses to the allegations that
made by the House Managers, the House Committee, and the OIC, even
were not adopted in the article, in an effort to try to respond
to the charges.
1. The President denies that he made
materially false or misleading statements to the grand jury about "the
nature and details of his relationship" with Monica Lewinsky
a) Early in his grand jury testimony, the
acknowledged that he had had a relationship with Ms. Lewinsky that
intimate contact." App. at 461. He described how the relationship began
how it ended early in 1997 -- long before any public attention or
In response to the first question about Ms.
Lewinsky, the President read the
When I was alone with Ms. Lewinsky on certain
occasions in early 1996 and
once in early 1997, I engaged in conduct that was wrong. These
not consist of sexual intercourse. They did not constitute sexual
relations as I
understood that term to be defined at my January 17th, 1998 deposition.
did involve inappropriate intimate contact.
These inappropriate encounters ended, at my
insistence, in early 1997. I
also had occasional telephone conversations with Ms. Lewinsky that
inappropriate sexual banter.
I regret that what began as a friendship came
to include this conduct, and I
take full responsibility for my actions.
While I will provide the grand jury whatever
other information I can,
because of privacy considerations affecting my family, myself, and
in an effort to preserve the dignity of the office I hold, this is all
say about the specifics of these particular matters.
I will try to answer, to the best of my
ability, other questions including
questions about my relationship with Ms. Lewinsky; questions about my
understanding of the term "sexual relations," as I understood it to be
defined at my January 17th, 1998 deposition; and questions concerning
subornation of perjury, obstruction of justice, and intimidation of
App. at 460-62. The President occasionally
referred back to this statement
-- but only when asked very specific questions about his physical
with Ms. Lewinsky -- and he otherwise responded fully to four hours of
interrogation about his relationship with Ms. Lewinsky, his answers in
deposition, and his conduct surrounding the Jones deposition.
The articles are silent on precisely what
statements the President made
about his relationship with Ms. Lewinsky that were allegedly
between the House Brief and the Committee Report, both drafted by the
it appears there are three aspects of this prepared statement that are
to be false and misleading because Ms. Lewinsky's recollection differs
with respect to certain very specific, utterly immaterial matters: first,
when the President admitted that inappropriate conduct occurred "on
occasions in early 1996 and once in 1997," he allegedly
perjury because in the Managers' view, the first instance of
inappropriate conduct apparently occurred a few months prior to "early
1996," see House Br. at 53; second, when the President
admitted to inappropriate conduct "on certain occasions in early
1996 and once in 1997," he allegedly committed perjury because,
to the House Committee, there were eleven total sexual
the term "on certain occasions" implied something other than eleven,
see Committee Report at 34; and third,
when the President
admitted that he "had occasional telephone conversations with
Lewinsky that included sexual banter," he allegedly committed perjury
because, according to the House Committee (although not Ms. Lewinsky),
conversations may have included sexually explicit conversation, ibid.
Apart from the fact that the record itself refutes some of the
example, seven of the seventeen calls were only "possible," according
even to the OIC, App. at 116-26, and Ms. Lewinsky recalled fewer than
App. at 744), simply to state them is to reveal their utter
The President categorically denies that his
prepared statement was
perjurious, false and misleading in any respect. He offered his written
statement to focus the questioning in a manner that would allow the OIC
obtain the information it needed without unduly dwelling on the
details of his relationship. It preceded almost four hours of follow-up
questions about the relationship. It is utterly remarkable that the
find fault even with the President's very painful public admission of
In any event, the charges are totally without
merit. The Committee Report
takes issue with the terms "on certain occasions" and "occasional,"
but neither phrase implies a definite or maximum number. "On certain
occasions" -- the phrase introducing discussion of the physical
has virtually no meaning other than "it sometimes happened." It is
unfathomable what objective interpretation the Majority gives to this
suggest that it could be false. An attack on the phrase "occasional"
-- the phrase introducing discussion of the inappropriate telephone
is little different. Dictionaries define "occasional" to mean
at irregular or infrequent intervals" or "now and then."79
It is a measure of the Committee Report's extraordinary overreaching to
that the eleven occasions of intimate contact alleged by the House
well more than a year did not occur, by any objective reading, "on
occasions." And since even the OIC Referral acknowledges that the
inappropriate telephone contact occurred not "at least 17 times" (as
the Committee Report and the Managers suggest, Committee Report at 8;
at 11) but between 10 and 15 times over a 23-month period,80
"occasional" would surely seem not just a reasonable description but
the correct one.
Finally, these squabbles are utterly immaterial.
Even if the President and
Ms. Lewinsky disagreed as to the precise number of such encounters, it
is of no
consequence whatsoever to anything, given his admission of their
This is precisely the kind of disagreement that the law does not intend
capture as perjury.
The date of the first intimate encounter is also
totally immaterial. Having
acknowledged the relationship, the President had no conceivable motive
misstate the date on which it began. The Managers assert that the
committed perjury when he testified about when the relationship began,
offer no rationale for why he would have done so.81
The President had already made a painful admission. Any misstatement
the intimate relationship began (if there was a misstatement) cannot
charge of perjury, let alone the removal of the President from office.
Chairman Hyde himself stated in reference to this latter allegation,
doesn't strike me as a terribly serious count." Remarks of Chairman
Perjury Hearing of December 1, 1998.
b) The Managers also assert that the President
lied when, after admitting
that he had an inappropriate sexual relationship with Ms. Lewinsky, he
maintained that he did not touch Ms. Lewinsky in a manner that met the
definition used in the Jones deposition. See House Br.
The President admits that he engaged in inappropriate physical contact
Lewinsky, but has testified that he did not engage in activity that met
convoluted and truncated definition he was presented in the Jones
It is important to note that this Jones
definition was not of the
President's making. It was one provided to him by the Jones'
their questioning of him. Under that definition, oral sex performed by
Lewinsky on the President would not constitute sexual relations, while
certain areas of Ms. Lewinsky's body with the intent to arouse her
the definition. The President testified in the grand jury that believed
oral sex performed on him fell outside the Jones definition.
544.83 As strange as this may sound, a
totally reasonable reading of the definition supports that conclusion,
commentators have agreed.84
This claim comes down to an oath against an oath
about immaterial details
concerning an acknowledged wrongful relationship.
2. The President denies that he made
perjurious, false and misleading statements to the grand jury about
gave in the Jones case
First, it is important to understand that the
allegation of Article I that
the President "willfully provided false and misleading testimony to the
grand jury concerning ... prior perjurious, false and misleading
gave in" the Jones deposition is premised on a misunderstanding
the President's grand jury testimony. The President was not asked to,
and he did
not, reaffirm his entire Jones deposition testimony during his
jury appearance. For example, contrary to popular myth and the
assertion of the House Managers, House Br. at 2, the President was
asked in the grand jury about his answer to the deposition question
and Ms. Lewinsky had been "together alone in the Oval Office," Dep. at
52-53,85 and he therefore neither
reaffirmed it nor even addressed it. In fact, in the grand jury he was
only about a small handful of his answers in the deposition. As is
below, his explanations of these answers were not reaffirmations or in
respect evasive or misleading -- they were completely truthful, and
they do not
support a perjury allegation.
The extent to which this allegation of the House
Majority misses the mark is
dramatically apparent when it is compared with the OIC's Referral. The
not charge that the President's statements about his prior deposition
were perjurious (apart from the charge discussed above concerning the
details of his relationship with Ms. Lewinsky). See OIC Ref. at
It would be remarkable to contemplate charges beyond those brought by
particularly in the context of a perjury claim where the OIC chose what
the President and itself conducted the grand jury session.
The House Managers point to a single statement
made by President Clinton in
the grand jury to justify their contention that every statement from
deposition is now fair game. House Br. at 60. Specifically, the House
rely on President Clinton's explanation in the grand jury of his state
during the Jones deposition: "My goal in this deposition was
truthful, but not particularly helpful ... I was determined to walk
mine field of this deposition without violating the law, and I believe
App. at 532. In addition to being a true statement of his belief as to
position, this single remark plainly was not intended as and was not a
reaffirmation of the accuracy of all the statements the President made
the Jones deposition. Indeed, given that he told the grand jury
had an intimate relationship with Ms. Lewinsky during which he was
her, no one who heard the grand jury testimony could have understood it
the unequivocal reaffirmation that is alleged.
The Managers charge that the President did not
really mean it when he told
the grand jury how he was trying to be literally truthful in the Jones
deposition without providing information about his relationship with
Lewinsky. The President had endeavored to navigate the deposition
to make embarrassing admissions about his inappropriate, albeit
relationship with Ms. Lewinsky. And to do this, the President walked as
the line between (a) truthful but evasive or non-responsive testimony
false testimony as he could without crossing it. He sought, as he
the grand jury, to give answers that were literally accurate, even if,
result, they were evasive and thus misleading. We repeat: what is at
is not the underlying statements made by the President in the
the President's explanations in the grand jury of his effort to
fine line. Anyone who reads or watches that deposition knows
President was in fact trying to do precisely what he has admitted -- to
lawyers grudging, unresponsive or even misleading answers without
lying. However successful or unsuccessful he might have been, there is
evidence that controverts the fact that this was indeed the President's
An examination of the statements that the
President actually did make in the
grand jury about his deposition testimony further demonstrates the lack
in this article. In the grand jury, the President only was asked about
areas of his deposition testimony that were covered in the failed
article alleging perjury in the civil deposition.87
The first topic was the nature of any intimate contact with Ms.
Lewinsky and has
already been addressed above.
The second topic was the President's testimony
about his knowledge of gifts
he exchanged with Ms. Lewinsky. In his grand jury testimony, the
the following exchange with the OIC:
Q: When you testified in the Paula Jones case,
this was only two and a half
weeks after you had given her these six gifts, you were asked, at page
your deposition, lines 2 through 5, "Well, have you ever given any
Monica Lewinsky?" And you answer, "I don't recall."
And you were correct. You pointed out that you
actually asked them, for
prompting, "Do you know what they were?"
A: I think what I meant there was I don't
recall what they were, not that I
don't recall whether I had given them. And then if you see, they did
these specifics, and I gave them quite a good explanation here. I
very clearly what the facts were about The Black Dog. ...
App. at 502-03. The President's explanation that
he could not recall the
exact gifts that he had given Ms. Lewinsky and that he affirmatively
prompting from the Jones lawyers is entirely consistent with
deposition testimony. This record plainly does not support a charge of
The third and last topic was the President's
deposition testimony that Ms.
Lewinsky's affidavit statement denying have a sexual relationship with
President was correct:
Q: And you indicated that it [Ms. Lewinsky's
affidavit statement that she
had no sexual relationship with him] was absolutely correct.
A: I did. ... I believe at the time that she
filled out this affidavit, if
she believed that the definition of sexual relationship was two people
intercourse, then this is accurate. And I believe that this is the
that most ordinary Americans would give it. ...
App. at 473. The President's grand jury
testimony was truthful. As Ms.
Lewinsky and Ms. Tripp discussed long before any of this matter was
was in fact Ms. Lewinsky's definition of "sex" and apparently the
President's as well. See Supp. at 2664 (10/3/97 Tape); see
App. at 1558 (Lewinsky FBI 302 8/19/98). There is no evidence whatever
President did not believe this definition of sexual relations, and his
finds support in dictionary definitions, the courts and commentators.88
Moreover, the record establishes that Ms. Lewinsky shared this view.89
Since the President's grand jury testimony about his understanding is
corroborated both by dictionaries and by his prior statements to Ms.
it simply cannot be labeled "wrong" or, more seriously, "perjurious."
The President did not testify falsely and
perjuriously in the grand jury
about his civil deposition testimony.
3. The President denies that he made
perjurious, false and misleading statements to the grand jury about the
statements of his attorney to Judge Wright during the Jones
It is remarkable that Article I contains
allegations such as this one that
even the OIC, which conducted the President's grand jury appearance,
to include in the Referral (presumably because there was no
and credible information" to support the claim). Subpart (3) appears to
allege that the President lied in his grand jury testimony when he
his state of mind in his civil deposition as his lawyer described the
affidavit as meaning "there is no sex of any kind in any manner, shape
form." Dep. at 53-54. Specifically, the House Managers appear to base
perjury claim on President Clinton's grand jury statement that "I'm not
even sure I paid attention to what he [Mr. Bennett] was saying." House
The House Brief takes issue with President
Clinton's statement that he was "not
paying a great deal of attention to this exchange" because, it alleges,
"videotape [of the deposition] shows the President looking directly at
Bennett, paying close attention to his argument to Judge Wright." Ibid.
While it is true that the videotape shows the President staring in what
presumably Mr. Bennett's direction, there is no evidence whatsoever
that he was
indeed "paying close attention" to the lengthy exchange. Notably
absent from the videotape is any action on the part of the President
be read as affirming Mr. Bennett's statement, such as a nod of the
head, or any
other activity that could be used to distinguish between a fixed stare
attention to the complicated sparring of counsel. The President was a
a difficult and complex deposition and, as he testified, he was
on [his] answers to the questions." App. at 477. It is a safe bet that
common law has never seen a perjury charge based on so little.90
4. The President denies that he made
perjurious, false and misleading statements to the grand jury when he
attempting "to influence the testimony of witnesses and to impede the
discovery of evidence" in the Jones case
The general language of the final proviso of
Article I, according to the
House Managers, is meant to signify a wide range of allegations, see
House Br. at 60-69, although none were thought sufficiently credible to
included in the OIC Referral. These allegations were not even included
summary of the Starr evidence presented to the Committee on October 5,
House Majority Counsel Schippers. They are nothing more than an effort
inflate the perjury allegations by converting every statement that the
made about the subject matter of Article II into a new count for
perjury. As the
discussion of Article II establishes, the President did not attempt to
justice. Thus, his explanations of his statements in the grand jury
The House Brief asserts that the President
committed perjury with respect to
three areas of his grand jury testimony about the obstruction
claims are addressed thoroughly in the next section along with the
Article II obstruction claims, and they are addressed in a short form
first claim is that the President committed perjury "when he testified
before the grand jury that he recalled telling Ms. Lewinsky that if Ms.
lawyers requested the gifts exchanged between Ms. Lewinsky and the
she should provide them." House Br. at 63. The House Managers contest
truthfulness of this statement by asserting that the President was
for Ms. Lewinsky's transfer of gifts to Ms. Currie in late December. In
words, if the obstruction claim is true, they allege, this statement is
true. As is laid out in greater detail in the next section, the House
view of this matter ignores a wealth of evidence establishing that the
conceal some of the gifts she had received originated with, and was
Ms. Lewinsky. See, e.g., Supp. at 557 (Currie GJ 1/27/98);
Supp. at 531
(Currie FBI 302 1/24/98); Supp. at 582 (Currie GJ 5/6/98); App. at 1122
(Lewinsky GJ 8/20/98); see also App. at 1481 ("LEWINSKY . . .
suggested to the President that Betty Currie hold the gifts.")
FBI 302 8/1/98).
Second, the House Managers contend that the
President provided perjurious
testimony when he explained to the grand jury that he was trying to
his recollection when he spoke with Betty Currie on January 18, 1998
relationship with Ms. Lewinsky. House Br. at 65. The House Managers
ignore the numerous statements that Ms. Currie makes in her testimony
support the President's assertion that he was merely trying to gather
information. For example, Ms. Currie stated in her first interview with
that "Clinton then mentioned some of the questions he was asked at his
deposition. Currie advised the way Clinton phrased the queries, they
statements and questions at the same time." Supp. at 534 (Currie FBI
1/24/98). Ms. Currie's final grand jury testimony on this issue also
the President' explanation of his questioning:
Q: Now, back again to the four statements that
you testified the President
made to you that were presented as statements, did you feel pressured
told you those statements?
A: None whatsoever.
Q: What did you think, or what was going
through your mind about what he was
A: At that time I felt that he was - I want
to use the word shocked or
surprised that this was an issue, and he was just talking.
Q: That was your impression that he wanted you
to say - because he would end
each of the statements with "Right?," with a question.
A: I do not remember that he wanted me to
say "Right." He
would say "Right" and I could have said, "Wrong."
Q: But he would end each of those questions
with a "Right?" and
you could either say whether it was true or not true?
Q: Did you feel any pressure to agree with
Supp. at 668 (Currie GJ 7/22/98) (emphasis
Ms. Currie's testimony supports the President's
assertion that he was
looking for information as a result of his deposition. There is no
doubt the President's explanation that his expectation of a media
prompted the conversation. See App. at 583. Indeed, neither
testimony of Ms. Currie nor that of the President -- the only two
in this conversation -- conceivably supports the inference that he had
intent. The House Managers' contention that the President's explanation
grand jury was perjurious totally disregards the testimony of the only
witnesses with first-hand knowledge and has no basis in fact or in the
Finally, the House Managers contend that
President Clinton "lied about
his attempts to influence the testimony of some of his top aides."
Br. at 68. The basis for this charge appears to be the President's
that, although he said misleading things to his aides about his
with Ms. Lewinsky, he tried to say things that were true. Id.
69. Once again, the record does not even approach a case for perjury.
President acknowledged that he misled; he tried, however, not to lie.
It is a
mystery how the Managers could try to disprove this simple statement of
V. THE PRESIDENT SHOULD BE
ACQUITTED ON ARTICLE II
The evidence does not support the allegations of
A. Applicable Law
Article II alleges obstruction of justice, a
statutory crime that is set
forth in 18 U.S.C. § 1503, the "Omnibus Obstruction Provision."
In the criminal law context, § 1503 requires proof of the
elements: (1) that there existed a pending judicial proceeding; (2)
accused knew of the proceeding; and (3) that the defendant acted
with the specific intent to obstruct or interfere with the proceeding
administration of justice. See, e.g., United States
876 F.2d 1297, 1314 (7th Cir. 1989). False statements alone cannot
conviction under § 1503. See United States v. Thomas,
F.2d 647, 652 (11th Cir. 1990).91
B. Structure of the Allegations
Article II exhibited by the House of
Representatives alleges that the
President "has prevented, obstructed, and impeded the administration of
justice, and has to that end engaged personally, and through his
and agents, in a course of conduct or scheme designed to delay, impede,
up, and conceal the existence of evidence and testimony" in the Jones
case. The Article alleges that the President did so by engaging in "one
more of the following acts": the President (1) corruptly encouraged Ms.
Lewinsky "to execute a sworn affidavit ... that he knew to be
false and misleading"; (2) "corruptly encouraged Ms. Lewinsky to give
perjurious, false, and misleading testimony if and when called to
personally" in the Jones case; (3) "corruptly engaged in,
encouraged, or supported a scheme to conceal evidence that had been
in the Jones case, namely gifts given by him to Ms. Lewinsky;
and succeeded in an effort to secure job assistance" for Ms. Lewinsky
between December 7, 1997 and January 14, 1998, "in order to corruptly
prevent [her] truthful testimony" in the Jones case; (5)
allowed his attorney to make false and misleading statements" to Judge
Susan Webber Wright at the Jones deposition; (6) "related a
and misleading account of events" involving Ms. Lewinsky to Betty
"potential witness" in the Jones case, "in order to
corruptly influence" her testimony; and (7) made false and misleading
statements to certain members of his staff who were "potential" grand
jury witnesses, in order to corruptly influence their testimony.
As noted above, this article essentially
duplicates some of the perjury
allegations of Article I (4): Article II alleges particular acts of
while Article I (4) alleges that the President lied in the grand jury
discussed those allegations.92 Both sets
of allegations are unsupported. Our discussion here of the details of
charges will, as well, serve in part as our response to the allegations
Article I (4).
C. Response to the Particular Allegations
in Article II
1. The President denies that on or about
December 17, 1997, he "corruptly encouraged" Monica Lewinsky "to
execute a sworn affidavit in that proceeding that he knew to be
false and misleading"
Article II (1) alleges that the President
Monica Lewinsky "to execute a sworn affidavit in that proceeding that
knew to be perjurious, false and misleading." The House Managers allege
that during a December 17 phone conversation, Ms. Lewinsky asked the
what she could do if she were subpoenaed in the Jones case and
President responded, "Well, maybe you can sign an affidavit." House
Br. at 22. This admitted statement by the President of totally lawful
the Managers' entire factual basis for the
allegation in Article II (1).
The Managers do not allege that the President
ever suggested to Ms. Lewinsky
she should file a false affidavit or otherwise told her what to
the affidavit. Indeed they could not, because Ms. Lewinsky has
forcefully denied any such suggestions:
- "Neither the Pres[ident] nor Mr. Jordan (or
anyone on their
behalf) asked or encouraged Ms. L[ewinsky] to lie." App. at 718 (2/1/98
- "[N]o one ever asked me to lie and I was
never promised a job for my
silence." App. at 1161 (Lewinsky GJ 8/20/98).
- "Neither the President nor Jordan ever told
Lewinsky that she had to
lie." App. at 1398 (Lewinsky FBI 302 7/27/98).
- "Neither the President nor anyone ever
directed Lewinsky to say
anything or to lie. . . ." App. at 1400 (Lewinsky FBI
- "I think I told [Linda Tripp] that -- you
know at various times the
President and Mr. Jordan had told me I have to lie. That wasn't true."
at 942 (Lewinsky GJ 8/6/98).
In an attempt to compensate for the total lack
of evidence supporting their
theory,93 the Managers offer their view
that "both parties knew the affidavit would have to be false and
in order to accomplish the desired result." House Br. at 22; see
Committee Report at 65 (the President "knew [the affidavit] would have
be false for Ms. Lewinsky to avoid testifying"). But there is no
to support such bald conjecture, and in fact the opposite is true. Both
Lewinsky and the President testified that, given the particular claims
Jones case, they thought a truthful, limited
affidavit might establish
that Ms. Lewinsky had nothing relevant to offer. The President
the grand jury why he believed that Ms. Lewinsky could execute a
limited affidavit that would have established that she was not relevant
- "But I'm just telling you that it's certainly
true what she says
here, that we didn't have -- there was no employment, no benefit in
there was nothing having to do with sexual harassment. And if she
relationship in the way I think most Americans do, meaning intercourse,
told the truth." App. at 474.
- "You know, I believed then, I believe now,
that Monica Lewinsky could
have sworn out an honest affidavit, that under reasonable
without the benefit of what Linda Tripp did to her, would have given
chance not to be a witness in this case." App. at 521.
- "I believed then, I believe today, that she
could execute an affidavit
which, under reasonable circumstances with fair-minded,
people, would result in her being relieved of the burden to be put
kind of testimony that, thanks to Linda Tripp's work with you and with
lawyers, she would have been put through. I don't think that's
don't think that's illegal." App. at 529.
- "But I also will tell you that I felt quite
comfortable that she could
have executed a truthful affidavit, which would not have disclosed the
embarrassing details of the relationship that we had had, which had
for many, many months by the time this incident occurred." App. at
- "I've already told you that I felt strongly
that she could issue, that
she could execute an affidavit that would be factually truthful, that
her out of having to testify. . . . And did I hope she'd
to get out of testifying on an affidavit? Absolutely. Did I want her to
a false affidavit? No, I did not." App. at 571.
The Jones case involved allegations of a
solicitation. Ms. Lewinsky's relationship with the President was
she knew nothing about the factual allegations of the Jones
Ms. Lewinsky similarly recognized that an
affidavit need not be false in
order to accomplish the purpose of avoiding a deposition:
- LEWINSKY told TRIPP that the purpose of the
affidavit was to avoid
being deposed. LEWINSKY advised that one does this by giving a
the whole story, so the attorneys do not think you have anything of
relevance to their case. App. at 1420 (Lewinsky FBI 302 7/29/98)
- LEWINSKY advised the goal of an affidavit is
to be as benign as
possible, so as to avoid being deposed. App. at 1421 (Lewinsky FBI
7/29/98) (emphasis added).
- I thought that signing an affidavit could
range from anywhere -- the point
of it would be to deter or to prevent me from being deposed and so that
could range from anywhere between maybe just somehow mentioning,
innocuous things or going as far as maybe having to deny any kind
relationship. App. at 842 (Lewinsky GJ 8/6/98) (emphasis added).
The Committee Report argued that Ms. Lewinsky
must have known that the
President wanted her to lie because he never told her to fully detail
relationship in her affidavit and because an affidavit fully detailing
nature" of their relationship would have been damaging to him in the Jones
case. Committee Report at 65. The Managers wisely appear to have
argument.95 Ms. Lewinsky plainly was
under no obligation to volunteer to the Jones lawyers every last detail
her relationship with the President -- and the failure of the President
instruct her to do so is neither wrong nor an obstruction of justice. A
truthful affidavit might have established that Ms. Lewinsky was not
the Jones case. The suggestion that perhaps Ms. Lewinsky could
affidavit in lieu of a deposition, as the President knew other
deponents in the Jones case had attempted to do, in order to
expense, burden, and humiliation of testifying in the Jones
entirely proper. The notion that the President of the United States
removal from office not because he told Monica Lewinsky to lie, or
her to do so, but because he did not affirmatively instruct her to
every detail of their relationship to the Jones lawyers is
Moreover, there is significant evidence in the
record that, at the time she
executed the affidavit, Ms. Lewinsky honestly believed that her denial
sexual relationship was accurate given what she believed to be the
a "sexual relationship":
- "I never even came close to sleeping with
[the President] . . .
We didn't have sex . . . Having sex is having intercourse. That's how
people would --" Supp. at 2664 (Lewinsky-Tripp tape 10/3/97).96
- "Ms. L[ewinsky] was comfortable signing the
affidavit with regard to
the sexual relationship because she could justify to herself that she
Pres[ident] did not have sexual intercourse." App. at 718 (2/1/98
- "Lewinsky said that her use of the term
`having sex' means having
intercourse. . . ." App. at 1558 (Lewinsky FBI 302 8/19/98).
The allegation contained in Article II (1) is
totally unsupported by
evidence. It is the product of a baseless hypothesis, and it should be
2. The President denies that on or about
December 17, 1997, he "corruptly encouraged" Monica Lewinsky "to
give perjurious, false and misleading testimony if and when called to
personally" in the Jones litigation
Article II (2) alleges that the President
encouraged Ms. Lewinsky to give
false testimony if and when she was called to testify personally in the
litigation. Again, Ms. Lewinsky repeatedly denied that anyone told her
encouraged her to lie:
- "Neither the Pres[ident] nor Mr. Jordan (or
anyone on their
behalf) asked or encouraged Ms. L[ewinsky] to lie." App. at 718 (2/1/98
- "[N]o one ever asked me to lie and I was
never promised a job for my
silence." App. at 1161 (Lewinsky GJ 8/20/98).
- "Neither the President nor Jordan ever told
Lewinsky that she had to
lie." App. at 1398 (Lewinsky FBI 302 7/27/98).
- "Neither the President nor anyone ever
directed Lewinsky to say
anything or to lie. . . ." App. at 1400 (Lewinsky FBI
- "I think I told [Linda Tripp] that -- you
know at various times the
President and Mr. Jordan had told me I have to lie. That wasn't true."
App. at 942 (Lewinsky GJ 8/6/98) (emphasis added).
The Managers allege that the President called
Ms. Lewinsky on December 17 to
inform her that she had been listed as a potential witness in the Jones
and that during this conversation, he "sort of said, `You know, you can
always say you were coming to see Betty or that you were bringing me
House Br. at 22; App. at 843 (Lewinsky GJ 8/6/98). Other than the fact
Lewinsky recalls this statement being made in the same conversation in
learned that her name was on the Jones witness list, the
no evidence whatsoever that supports their claim that the President
her to make such statements "if and when called to testify personally
the Jones case." They claim simply that Ms. Lewinsky had
such explanations for her visits with the President in the past.
the President and Ms. Lewinsky had been concerned about concealing
improper relationship from others while it was ongoing.
Ms. Lewinsky's own testimony and proffered
statements undercut their case:
- When asked what should be said if anyone
questioned Ms. Lewinsky
about her being with the President, he said she should say she was
letters (when she worked in Legislative Affairs) or visiting Betty
she left the WH). There is truth to both of these statements.... [This]
prior to the subpoena in the Paula Jones
case. App. at 709 and 718
(2/1/98 Proffer) (emphasis added).
- After Ms. Lewinsky was informed, by the
Pres[ident], that she was
identified as a possible witness in the Jones case, the Pres[ident] and
L[ewinsky] discussed what she should do. The President told her he was
she would be subpoenaed, but in the event that she was, she should
contact Ms. Currie.
When asked what to do if she was subpoenaed, the Pres[ident] suggested
sign an affidavit to try to satisfy their inquiry and not be deposed. In
general, Ms. L[ewinsky] should say she visited the WH to see
and, on occasion when working at the WH, she brought him letters when
else was around. Neither of those statements untrue. App. at 712
Proffer) (emphasis added).
- To the best of Ms. L[ewinsky]'s memory,
she does not believe they
discussed the content of any deposition that Ms. L[ewinsky] might
involved in at a later date. App. at 712 (2/1/98 Proffer) (emphasis
- LEWINSKY advised, though they did not
discuss the issue in specific
relation to the JONES matter, she and CLINTON had discussed what to
asked about LEWINSKY's visits to the White House. App. at 1466
(Lewinsky FBI 302
7/31/98) (emphasis added).
Ms. Lewinsky's statements indicate that she
asked the President what to say
if "anyone" asked about her visits, that the President said "in
general" she could give such an explanation, and that they "did not
discuss the issue in specific relation to the Jones matter."
This is consistent with the President's
testimony that he and Ms. Lewinsky "might
have talked about what to do in a non-legal context at some point in
although he had no specific memory of that conversation. App. at 569.
President also stated in his grand jury testimony that he did not
anything like that in connection with Ms. Lewinsky's testimony in the Jones
Q. And in that conversation, or in any
conversation in which you informed
her she was on the witness list, did you tell her, you know, you can
that you were coming to see Betty or bringing me letters? Did you tell
anything like that?
A. I don't remember. She was coming to see
Betty. I can tell you this. I
absolutely never asked her to lie.
App. at 568. Ms. Lewinsky does not testify that
this discussion was had in
reference to testimony she may or may not have been called to give
and the Managers' implication is directly contradicted by Ms.
statement that she and the President did not discuss her
testimony in that conversation. See App. at 712 (2/1/98
the best of Ms. L[ewinsky's] memory, she does not believe they
discussed [in the
December 17 conversation] the content of any deposition that Ms.
might be involved in at a later date.").
In support of this allegation, the Managers also
cite Ms. Lewinsky's
testimony that she told the President she would deny the relationship
the President made some encouraging comment. House Br. at 23. Ms.
stated that she told the President any such thing on December 17, or at
other time after she had been identified as a witness. Indeed, Ms.
testified that that discussion did not take place after she learned she
witness in the Jones case:
Q: It is possible that you also had these
discussions [about denying the
relationship] after you learned that you were a witness in the Paula
A: I don't believe so. No.
Q: Can you exclude that possibility?
A: I pretty much can. I really don't
remember it. I mean, it would
be very surprising for me to be confronted with something that would
different, but I -- it was 2:30 in the -- I mean, the conversation I'm
of mainly would have been December 17th, which was --
Q: The telephone call.
A: Right. And it was -- you know, 2:00, 2:30
in the morning. I remember the
gist of it and I -- I really don't think so.
App. at 1119-20 (Lewinsky GJ 8/20/98) (emphasis
Moreover, Ms. Lewinsky has stated several times
that neither of these
so-called "cover stories" was untrue. In her handwritten proffer, Ms.
Lewinsky stated that she asked that the President what to say if anyone
her about her visits to the Oval Office and he said that she could say
was bringing him letters (when she worked in Legislative Affairs) or
Betty Currie (after she left the White House)." App. at 709 (Lewinsky
2/1/98 Proffer). Ms. Lewinsky expressly stated: "There is truth to
of these statements." Id. (emphasis added); see also App.
at 712 (2/1/98 Proffer) ("[n]either of those statements [was] untrue.")
(emphasis added). Indeed, Ms. Lewinsky testified to the grand jury that
in fact bring papers to the President and that on some occasions, she
the Oval Office only to see Ms. Currie:
Q: Did you actually bring [the President]
papers at all?
Q: All right. Tell us a little about that.
A: It varied. Sometimes it was just actual
copies of letters. . . .
App. at 774-75 (Lewinsky GJ 8/6/98).
I saw Betty on every time that I was there ...
most of the time my purpose
was to see the President, but there were some times when I did just go
but the President wasn't in the office.
App. at 775 (Lewinsky GJ 8/6/98). The Managers
assert that these stories
were misleading. House Br. at 23; see also Committee Report at
(delivering documents to the President was a "ruse that had no
business purpose."). In other words, while the so-called
stories" were literally true, such explanations might have been
But literal truth is a critical issue in perjury and obstruction cases,
Ms. Lewinsky's belief that the statements were, in fact, literally
The allegation contained in Article II (2) is
unsupported by the evidence
and should be rejected.
3. The President denies that he "corruptly
engaged in, encouraged, or supported a scheme to conceal evidence" --
he had given to Monica Lewinsky -- in the Jones case
This allegation charges that the President
participated in a scheme to
conceal certain gifts he had given to Monica Lewinsky. It apparently
two events allegedly occurring in December 1997: (a) a conversation
President and Ms. Lewinsky in which the two allegedly discussed the
President had given Ms. Lewinsky, and (b) Ms. Currie's receipt of a box
from Ms. Lewinsky and storage of them under her bed. The evidence does
support the charge.
a. Ms. Lewinsky's December 28 Meeting with
Monica Lewinsky met with the President on
December 28, 1997, sometime
shortly after 8:00 a.m. to pick up Christmas presents. App. at 868
8/6/98). According to Ms. Lewinsky, she raised the subject of gifts she
received from the President in relation to the Jones subpoena,
was the first and only time that this subject arose. App. at 1130
8/20/98); App. at 1338 (Lewinsky Depo. 8/26/98).
The House Trial Brief and the Committee Report
quote one version of Ms.
Lewinsky's description of that December 28 conversation:
"[A]t some point I said to him, `Well, you
know, should I -- maybe I
should put the gifts away outside my house somewhere or give them to
maybe Betty.' And he sort of said -- I think he responded, `I don't
`Let me think about that.' And left that topic." App. at 872 (Lewinsky
In fairness, the Senate should be aware that Ms.
Lewinsky has addressed this
crucial exchange with prosecutors on at least ten different occasions,
lay out in the margin for review.97 The
accounts varied -- in some Ms. Lewinsky essentially recalled that the
gave no response, but the House Managers, like the Committee Report and
Referral, cite only the account most favorable to their case, failing
take note of the other inconsistent recollections. But the important
Ms. Lewinsky's various descriptions of this conversation is that, at
most, the President stated "I don't know" or "Let me think about
it" when Ms. Lewinsky raised the issue of the gifts. Even by the
most unfavorable to the President, the record is clear and unambiguous
President never initiated any discussion about the gifts nor
tell or even suggest to Ms. Lewinsky that she should conceal the gifts.
Indeed, on several occasions, Ms. Lewinsky's
accounts of the President's
reaction depict the President as not even acknowledging her
Among those versions, ignored by the Committee Report and the Managers,
- "And he -- I don't remember his response. I
think it was
something like, `I don't know," or `Hmm,' or -- there really was no
response." App. at 1122 (Lewinsky GJ 8/20/98) (emphasis added).
- "[The President] either did not respond
or responded `I don't
know.' LEWINSKY is not sure exactly what was said, but she is certain
whatever CLINTON said, she did not have a clear image in her mind
of what to
do next." App. at 1566 (Lewinsky FBI 302 8/24/98) (emphasis added).
- "The President wouldn't have brought up
Betty's name, because he
really didn't -- he really didn't discuss it . . ." App. at 1122
(Lewinsky GJ 8/20/98) (emphasis added).
- "A JUROR: You had said that the President had
called you initially to
come get your Christmas gift, you had gone there, you had a talk, et
there was no -- you expressed concern, the President didn't really
anything." App. at 1126 (Lewinsky GJ 8/20/98) (emphasis added).98
Thus, the evidence establishes that there was
essentially no discussion of
gifts. That December 28 meeting provides no evidence of any "scheme . .
designed to . . . conceal the existence" of any gifts.
b. Ms. Currie's Supposed Involvement in
Because the record is devoid of any evidence of
obstruction by the President
at his December 28 meeting with Monica Lewinsky, Article II (3)
depends on the added assumption that, after the December 28 meeting,
President must have instructed his secretary, Ms. Betty Currie, to
gifts from Ms. Lewinsky, thereby consummating the obstruction of
justice. As the
following discussion will demonstrate, the record is devoid of any
evidence that the President discussed this subject with Ms. Currie. At
conflicted on the question of whether Ms. Currie or Ms. Lewinsky
We begin with what is certain. The record is
undisputed that Ms. Currie
picked up a box containing gifts from Ms. Lewinsky and placed them
under her bed
at home. The primary factual dispute, therefore, is which of the two
the pick-up. According to the logic of the Committee Report, if Ms.
initiated the retrieval, she must have been so instructed by the
Committee Report at 69 ("there is no reason for her to do so
instructed by the President").
But the facts are otherwise. Both Ms.
Currie and the President have
denied ever having any such conversation wherein the President
Currie to retrieve the gifts from Ms. Lewinsky. App. at 502 (President
GJ 8/17/98); Supp. at 581 (Currie GJ 5/6/98). In other words, the only
parties who could have direct knowledge of such an instruction by the
have denied it took place.
In the face of this direct evidence that the
President did not ask Ms.
Currie to pick up these gifts, the Committee Report's obstruction
on the inference that Ms. Currie called Ms. Lewinsky and must have done
the direction of the President. To be sure, Ms. Lewinsky has stated on
occasions that Ms. Currie initiated a call to her to inquire about
something. The Managers and the Committee Report cited the following
from Ms. Lewinsky's grand jury testimony:
Q: What did [Betty Currie] say?
A: She said, "I understand you have something
to give me." Or, "The
President said you have something to give me." Along those lines. . . .
Q: When she said something along the lines of
"I understand you have
something to give me," or "The President says you have something for
me," what did you understand her to mean?
A: The gifts.
App. at 874 (Lewinsky GJ 8/6/98). See also
App. at 715
(2/1/98 Proffer) ("Ms. Currie called Ms. L later that afternoon and
that the Pres. had told her Ms. L wanted her to hold onto to something
However, Ms. Lewinsky acknowledged that it was
she who first raised the
prospect of Ms. Currie's involvement in holding the gifts:
A JUROR: Now, did you bring up Betty's name or
did the President bring up
[MS. LEWINSKY]: I think I brought it up. The
President wouldn't have brought
up Betty's name because he really didn't -- he really didn't discuss it.
App. at 1122 (Lewinsky GJ 8/20/98). And contrary
to the Committee Report's
suggestion that Lewinsky's memory of these events has been "consistent
unequivocal" and she has "recited the same facts in February, July,
and August," Committee Report at 69, Ms. Lewinsky herself acknowledged
her last grand jury appearance that her memory of the crucial
less than crystal clear:
A JUROR: . . . Do you remember Betty Currie
saying that the President had
told her to call?
[MS. LEWINSKY]: Right now. I don't. I don't
remember. . . .
App. at 1141 (Lewinsky GJ 8/20/98).
Moreover, Ms. Currie has repeatedly and
unvaryingly stated that it was Ms.
Lewinsky who contacted Ms. Currie about the gifts, not the other way
few examples include:
- "LEWINSKY called CURRIE and advised she had
to return all gifts
CLINTON had given LEWINSKY as there was talk going around about the
Supp. at 531 (Currie FBI 302 1/24/98);
- "Monica said she was getting concerned, and
she wanted to give me the
stuff the President had given her -- or give me a box of stuff. It was
a box of
stuff." Supp. at 557 (Currie GJ 1/27/98);
- Q: . . . Just tell us for a moment how this
issue first arose and what you
did about it and what Ms. Lewinsky told you.
- A: The best I remember it first arose with a
conversation. I don't know if
it was over the telephone or in person. I don't know. She asked me if I
pick up a box. She said Isikoff had been inquiring about gifts." Supp.
582 (Currie GJ 5/6/98);
- "The best I remember she said that she wanted
me to hold these gifts
-- hold this -- she may have said gifts, I'm sure she said gifts, box
-- I don't remember --because people were asking questions. And I said,
Supp. at 581 (Currie GJ 5/6/98).
- "The best I remember is Monica calls me and
asks me if she can give me
some gifts, if I'd pick up some gifts for her." Supp. at 706 (Currie GJ
The Committee Report attempts to portray Ms.
Currie's memory as faulty on
the key issue of whether Ms. Lewinsky initiated the gift retrieval by
referencing Ms. Currie's answer to a completely different question.
Currie was asked whether she had discussed with the President Ms.
over to [her]" the gifts he had given her. Ms. Currie indicated that
could remember no such occasion. "If Monica said [Ms. Currie] talked to
President about it," she was then asked, "would that not be true?"
Then, only on the limited question of whether Ms. Currie ever talked to
President about the gifts -- wholly separate from the issue of who made
initial contact -- did Ms. Currie courteously defer, "Then she may
better than I. I don't remember." Supp. at 584 (Currie GJ 5/6/98).
Ironically, it is the substance of this very allegation -- regarding
conversations between Ms. Currie and the President -- that Ms. Lewinsky
grand jury she could not recall. (In later testimony, referring
conversation she had with the President on January 21, Ms. Currie
she was "sure" that she did not discuss the fact that she had a box of
Ms. Lewinsky's belongings under her bed. Supp. at 705 (Currie GJ
To support its theory that Ms. Currie initiated
a call to Ms. Lewinsky, the
House Managers place great reliance on a cell phone record of Ms.
calling it "key evidence that Ms. Currie's fuzzy recollection is wrong"
and which "conclusively proves" that "the President directed Ms.
Currie to pick up the gifts." House Br. at 33. There is record of a
one-minute call on December 28, 1998 from Ms. Currie's cell phone to
Lewinsky's home at 3:32 p.m. Even assuming Ms. Lewinsky is correct that
Currie picked up the gifts on December 28, her own testimony refutes
possibility that the Managers' mysterious 3:32 p.m. telephone call
been the initial contact by Ms. Currie to retrieve the gifts. To the
the timing and duration of the call strongly suggest just the opposite.
undisputed that Ms. Lewinsky entered the White House on the morning of
28 at 8:16 a.m. App. at 111 (White House entry records). While no exit
Ms. Lewinsky was recorded because she inadvertently left her visitor
the White House, she has testified that the visit lasted around an
hour. App. at
870-72 (Lewinsky GJ 8/6/98). Consistent with this timing, records also
that the President left the Oval Office at 9:52 a.m., thus placing Ms.
Lewinsky's exit around 9:30 to 9:45 a.m. App. at 111. Ms. Lewinsky has
on several occasions that her discussion with Betty Currie occurred
hours" after she left. App. at 875 (Lewinsky GJ 8/6/98); App. at 1395
(Lewinsky FBI 302 7/27/98). Ms. Lewinsky three times placed the timing
actual gift exchange with Ms. Currie "at about 2:00 p.m." App at 1127
(Lewinsky GJ 8/20/98); App. at 1396 (Lewinsky FBI 302 7/27/98); App. at
(Lewinsky FBI 302 8/1/98). Thus, in light of undisputed documentary
Ms. Lewinsky's own testimony, it becomes clear that the 3:32 p.m.
record relied upon by the Committee Report in fact is unlikely to
reflect a call
placed to initiate the pick-up.
Apart from this conspicuous timing defect, there
is another, independent
reason to conclude that the 3:32 p.m. telephone call could not have
conversation Ms. Lewinsky describes. The 3:32 p.m. call is documented
lasted no longer than one minute, and because such calls are
to the nearest minute, it quite conceivably could have been much
duration. It is difficult to imagine that the conversation reflected in
Lewinsky's statements could have taken place in less than one minute.
Currie and Ms. Lewinsky have described the various matters that were
in their initial conversation: not only was this the first time the
returning gifts was discussed, which quite likely generated some
between the two, but they also had to discuss and arrange a convenient
Ms. Currie to make the pick-up.99
What, then, to make of this call so heavily
relied upon by the House
Managers? The record is replete with references that Ms. Currie and Ms.
communicated very frequently, especially during this December
time period. See, e.g., Supp. at 554 (Currie GJ 1/27/98) (many
around Christmas-time). They often called or paged each other to
discuss a host
of topics, including Ms. Lewinsky's pending job search, Ms. Currie's
illness, and her contacts with Mr. Jordan. There is simply no reason to
this call was anything other than one of the many calls and exchanges
that these two shared during the period.
c. The Obstruction-by-Gift-Concealment
Charge Is at Odds With the President's Actions
Ultimately, and irrespective of the absence of
evidence implicating the
President in Ms. Lewinsky's gift concealment, the charge fails because
inconsistent with other events of the very same day. There is
dispute that the President gave Ms. Lewinsky numerous additional gifts
their December 28 meeting. It must therefore be assumed that on the
very day the
President and Ms. Lewinsky were conspiring to hide the gifts he had
given to her, the President added to the pile. No stretch of logic will
such an outlandish theory.
From the beginning, this inherent contradiction
has puzzled investigators.
If there were a plot to conceal these gifts, why did the President give
Lewinsky several more gifts at the very moment the concealment
allegedly hatched? The House Managers OIC prosecutors, grand jurors,
Ms. Lewinsky hopelessly searched for an answer to that essential
Q: Although, Ms. Lewinsky, I think what is
sort of -- it seems a little
odd and, I guess really the grand jurors wanted your impression of
on the same day that you're discussing
basically getting the gifts to Betty
to conceal them, he's giving you a new set of gifts.
A: You know, I have come recently to look at
that as sort of a strange
situation, I think, in the course of the past few weeks. . . .
App. at 887-88 (Lewinsky GJ 8/6/98) (emphasis
added). See House Br. at 34.
The Committee Report fails to resolve this
significant flaw in its theory.100
The report admits that Ms. Lewinsky "can't answer" why the President
would in one breath give her gifts and in the next hatch a plan to take
back. But it cites only to Ms. Lewinsky's understanding of the
pattern of concealment and how she contemplated it must apply to the
creates the erroneous impression that the President gave Ms. Lewinsky
instructions to conceal the gifts in the December 28 meeting by quoting
testimony that "from everything he said to me" she would conceal the
gifts. But we know that Ms. Lewinsky has repeatedly testified that no
discussion ever occurred. Her reliance on "everything he said
must, therefore, reflect her own plan to implement discussions the two
about concealing the relationship long before her role in the Jones
What this passage confirms is that Ms. Lewinsky
had very much in her mind
that she would do what she could to conceal the relationship -- a modus
operandi she herself acknowledged well pre-dated the Jones
litigation. That she took such steps does not mean that the President
knew of or
participated in them. Indeed, it appears that the entire
arose not from any plan suggested by the President -- which the
so desperately struggles to maintain -- but rather more innocently from
actions of a young woman taking steps she thought were best.101
In any event, the record evidence is abundantly
clear that the President has
not obstructed justice by any plan or scheme to conceal gifts he had
Ms. Lewinsky, and logic and reason fully undercut any such theory.
4. The President denies that he obstructed
justice in connection with Monica Lewinsky's efforts to obtain a job in
in an effort to "corruptly prevent" her "truthful testimony"
in the Jones case
Again, in the absence of specifics in Article II
itself, we look to the
Committee Report for guidance on the actual charges. The Committee
like to portray this claim in as sinister a light as possible, and it
that the President of the United States employed his close friend
to get Monica Lewinsky a job in New York to influence her testimony or
get her away from the Jones lawyers. To reach this conclusion,
without the benefit of a single piece of direct evidence to support the
it ignores the direct testimony of several witnesses, assigns
purposes to a series of innocuous events, and then claims that "[i]t is
logical to infer from this chain of events" that the job efforts "were
motivated to influence the testimony of" Ms. Lewinsky. Committee Report
71. Again, the evidence contradicts the inferences the Committee Report
to draw. Ms. Lewinsky's New York job search began on her own initiative
before her involvement in the Jones case. By her own forceful
her job search had no connection to the Jones case. Mr. Jordan
help Ms. Lewinsky not at the direction of the President but upon the
Betty Currie, Mr. Jordan's long-time friend. And bizarrely, the idea to
Mr. Jordan (which arose well before Ms. Lewinsky became a possible Jones
witness) came not from the President but
apparently emanated from Ms. Tripp.
In short, the facts directly frustrate the House Majority's theory.102
a. The Complete Absence of Direct Evidence
Supporting This Charge
It is hard to overstate the importance of the
fact that -- by the House
Managers', the Committee Report's and the OIC's own admission --
not one single piece of direct evidence to support this charge. Not
Indeed, just the contrary is true. Both Ms. Lewinsky and Mr. Jordan
repeatedly testified that there was never an explicit or
agreement, suggestion, or implication that Ms. Lewinsky would be
rewarded with a
job for her silence or false testimony. One need look no further than
"[N]o one ever asked me to lie and I was never
promised a job for my
silence."App. at 1161 (Lewinsky GJ 8/20/98);
"There was no agreement with the President,
JORDAN, or anyone else that
LEWINSKY had to sign the Jones affidavit before getting a job in New
LEWINSKY never demanded a job from Jordan in exchange for a favorable
Neither the President nor JORDAN ever told LEWINSKY that she had to
App. at 1398 (Lewinsky FBI 302 7/27/98).
"As far as I was concerned, [the job and the
affidavit] were two very
separate matters." Supp. at 1737 (Jordan GJ 3/5/98).
"Unequivocally, indubitably, no." -- in
response to the question
whether the job search and the affidavit were in any way connected.
1827 (Jordan GJ 5/5/98). 103
This is the direct evidence. The House Managers'
of events" case, House Br. at 39-41, cannot overcome the hurdle the
b. Background of Ms. Lewinsky's New York
By its terms, Article II (4) would have the
Senate evaluate Ms. Lewinsky's
job search by considering only the circumstances "[b]eginning on or
December 7, 1997." Article II (4). Although barely mentioned in the
Committee Report's "explanation" of Article II (4), the
significant events occurring before December 7, 1997 cannot
ignored because they are inconsistent with the Majority's theory.
reciting every detail, the undisputed record establishes that the
facts occurred long before Ms. Lewinsky was involved in the Jones
First, Ms. Lewinsky had contemplated
looking for a job in New York
as early as July 1997. App. at 1414 (Lewinsky FBI 302 7/29/98) (July 3
time [Lewinsky] mentioned the possibility of moving to New York"); App.
787-88 (on July 4, 1997, Ms. Lewinsky wrote the President a letter
her interest in a job "in New York at the United Nations"); Committee
Report at 10 ("Ms. Lewinsky had been searching for a highly paid job in
York since the previous July.") She conveyed that prospect to a friend
September 2, 1997. App. at 2811 (Lewinsky e-mail).
Second, in early October, at the request
of Ms. Currie, then-Deputy
Chief of Staff John Podesta asked U.N. Ambassador Bill Richardson to
Ms. Lewinsky for a position at the U.N. Supp. at 3404 (Richardson GJ
Ms. Currie testified that she was acting on her own in this effort.
Supp. at 592
(Currie GJ 5/6/98).
Third, around October 6, Ms. Tripp told
Ms. Lewinsky that an
acquaintance in the White House reported that it was unlikely Ms.
ever be re-employed at the White House. After this disclosure, Ms.
mostly resolved to look for a job in the private sector in New York."
at 1543-44 (Lewinsky FBI 302) 8/13/98; see also App. at 1460
FBI 302 7/31/98) (remarks by the Linda Tripp acquaintance were the
that broke the camel's back").
Fourth, sometime prior to October 9,
1997, Ms. Tripp and Ms.
Lewinsky discussed the prospect of enlisting Mr. Vernon Jordan to
Lewinsky in obtaining a private sector job in New York. App. at 822-24
GJ 8/6/98); see also App. at 1079 (Lewinsky GJ 8/20/98) ("I
remember . . . if [enlisting Jordan] was my idea or Linda's idea. And I
that that came up in discussions with her, I believe, before I
discussed it with
the President"). On either October 9 or 11, Ms. Lewinsky conveyed to
President this idea of asking Mr. Jordan for assistance. Id.
Fifth, in mid-October, 1997, Ms. Lewinsky
purchased a book on jobs
in New York. App. at l462 (Lewinsky FBI 302 7/31/98). Ms. Lewinsky
sent to Betty Currie at the White House a packet of jobs-related
October 15 or 16. Supp. at 735 (Lewinsky Tripp tape of 10/15/97
Sixth, on October 31, 1997, Ms. Lewinsky
interviewed for a position
with Ambassador Bill Richardson at the United Nations in New York.
Richardson was "impressed" with Ms. Lewinsky and, on November 3,
offered her a position, which she ultimately rejected. Supp. at 3411
GJ 4/30/98); Supp. at 3731 (Sutphen GJ 5/27/98). Ms. Currie informed
President that Ms. Lewinsky had received a job offer at the U.N. Supp.
(Currie GJ 5/6/98). Ambassador Richardson never spoke to the President
Jordan about Ms. Lewinsky, and he testified emphatically and repeatedly
one pressured him to hire her. Supp. at 3422-23 (Richardson GJ
at 3418 (same); Supp. at 3429 (same).
Seventh, as of late October or November,
Ms. Lewinsky had told Mr.
Kenneth Bacon, her boss at the Pentagon, that she wanted to leave the
and move to New York. In a series of conversations, she enlisted his
in obtaining a private sector job in New York. Supp. at 11 (Kenneth
302 2/26/98). In response, Mr. Bacon contacted Howard Paster, CEO of
relations firm Hill & Knowlton about Ms. Lewinsky. Id.
Eighth, in November, Ms. Lewinsky gave
notice to the Pentagon that
she would be leaving her Pentagon job at year's end. Supp. at 116
Bernath GJ 5/21/98).
Ninth, Ms. Lewinsky apparently had a
preliminary meeting with Mr.
Jordan on November 5, 1997 to discuss her job search. During this
meeting, Ms. Lewinsky and Mr. Jordan discussed a list of potential
had compiled. App. at 1464-65 (Lewinsky FBI 302 7/31/98). In that
Lewinsky never informed Mr. Jordan of any time constraints on her need
assistance. Supp. at 2647 (Lewinsky-Tripp Tape of 11/8/97
Jordan had to leave town the next day. App. at 1465 (Lewinsky FBI 302
7/31/98). Ms. Lewinsky had a follow-up telephone conversation with Mr.
around Thanksgiving wherein he advised her that he was "working on her
search" and instructed her to call him again "around the first week of
December." App. at 1465 (Lewinsky FBI 302 7/31/98); see also
at 825 (Lewinsky GJ 8/6/98) ("And so Betty arranged for me to speak
[Jordan] again and I spoke with him when I was in Los Angeles before --
before Thanksgiving.") 104
Inexplicably, the Committee Report, the presentation by its chief
the Starr Referral all choose to ignore this key piece of testimony --
contact resumed in early December because Ms. Lewinsky and Mr. Jordan
November) that it would. See Committee Report at 10 ("Ms.
had no further contacts with Mr. Jordan at that time [early November to
December]."); Schippers Dec. 10, 1998 Presentation at 38 ("Vernon
Jordan, who, by the way, had done nothing from early November to
Referral at 182 ("Ms. Lewinsky had no contact with . . . Mr. Jordan for
another month [after November 5].").
In sum, the record is clear that Ms. Lewinsky
decided on her own to seek a
job in New York many months before her involvement in the Jones
She had asked her Pentagon boss to help, as well as Ms. Currie, who
indirectly for Ms. Lewinsky to interview with Ambassador Richardson at
United Nations. Mr. Jordan became involved in the job search at the
Ms. Currie (apparently at the suggestion of Ms. Tripp) and,
travels in November, Supp. at 1811 (Jordan GJ 5/5/98), kept in contact
Lewinsky with plans to reconvene early in December.
c. The Committee Report's Circumstantial
Article II ignores this background and merely
alleges that efforts to aid
Ms. Lewinsky's job search "intensified and succeeded" in December
1997. While not adopted in the article, the House Brief, the Committee
and the accompanying final presentation by Majority Counsel Schippers
guidance as to the meaning of the actual charge. They cite three events
Jordan's December 11 meeting with Ms. Lewinsky to discuss job prospects
York, Ms. Lewinsky's execution of her Jones affidavit, and her
of a job -- in an effort to portray Ms. Lewinsky's job search as
the full record easily dispels any suggestion that there were any
1) Monica Lewinsky's December 11 meeting
with Vernon Jordan
The House Managers and the Committee Report
suggest that Mr. Jordan took
action on Ms. Lewinsky's job search request only after, and because,
Lewinsky's name appeared on the witness list on December 5 and only
because, Judge Wright ordered the President to answer certain questions
women" on December 11. See House Br. at 21. Consider the
"[T]he effort to obtain a job for Monica
Lewinsky in New York
intensified after the President learned, on December 6, 1997, that
Lewinsky was listed on the witness list for the case Jones v. Clinton.105
On December 7, 1997, President Clinton met
with Vernon Jordan at the White
House. Ms. Lewinsky met with Mr. Jordan on December 11 to discuss
contacts in New York. Mr. Jordan then made calls to certain New York
on Ms. Lewinsky's behalf. Jordan telephoned President Clinton to keep
informed of the efforts to get Ms. Lewinsky a job." Committee Report at
"Something happened that changed the priority
assigned to the job
search. On the morning of December 11, 1997, Judge Susan Webber Wright
President Clinton to provide information regarding any state or federal
with whom he had, proposed, or sought sexual relations. To keep Ms.
satisfied was now of critical importance." Committee Report at 11.
The unmistakable intention of this narrative is
to suggest that, after the
President learned Ms. Lewinsky's name was on the witness list on
December 6, he
(1) contacted Mr. Jordan on December 7 to engage his assistance for Ms.
Lewinsky, and only then did Mr. Jordan agree to meet with Ms. Lewinsky,
further, that (2) Mr. Jordan met with Ms. Lewinsky on December 11 and
concrete steps to help Ms. Lewinsky only after and as a result of Judge
December 11 order. Both suggestions are demonstrably false.
The President had nothing to do with arranging
the December 11 meeting
between Mr. Jordan and Ms. Lewinsky. As the record indicates, after
request from Ms. Currie on December 5 that he meet with Ms. Lewinsky,
telling Ms. Currie to have Ms. Lewinsky call him, Ms. Lewinsky called
on December 8. Supp. at 1705 (Jordan GJ 3/3/98). As noted above, that
been presaged by a conversation between Mr. Jordan and Ms. Lewinsky
Thanksgiving in which Jordan told her "he was working on her job
and asked her to contact him again "around the first week of December."
App. at 1465 (Lewinsky FBI 302 7/31/98). In the December 8 call, the
arranged for Ms. Lewinsky to come to Mr. Jordan's office on December
11; on the
same day, Ms. Lewinsky sent Mr. Jordan via courier a copy of her
at 1705 (Jordan GJ 3/3/98). At the time of that contact, Mr. Jordan did
know that Ms. Lewinsky knew President Clinton. Id.
In the intervening period before Ms. Lewinsky's
December 11 meeting with Mr.
Jordan, the President met with Mr. Jordan on December 7. As the
acknowledges, that meeting had nothing to do with Ms. Lewinsky.
at 11. Yet the House Managers' Brief, like the Committee Report before
states that "the sudden interest [in helping Ms. Lewinsky obtain a job]
inspired by a court order entered on December 11, 1997" in the Jones
case.106 House Br. at 21. No evidence
supports that supposition. The December 11 meeting had been scheduled
December 8. Neither the OIC Referral nor the Committee Report nor the
Brief cites any evidence that the President or Mr. Jordan had
knowledge of the contents of that Order at the time of the December 11
Mr. Jordan met with Ms. Lewinsky shortly after
1:00 p.m. on December 11.
Supp. at 1863 (Akin Gump visitor log); Supp. at 1809 (Jordan GJ
anticipation of that meeting, Mr. Jordan had made several calls to
employers about Ms. Lewinsky. Supp. at 1807-09 (Jordan GJ 5/5/98). Mr.
spoke about Ms. Lewinsky with Mr. Peter Georgescu of Young &
Rubicam at 9:45
a.m. that morning, and with Mr. Richard Halperin of Revlon around 1:00
immediately before meeting with Ms. Lewinsky. Supp. at 1807-09 (Jordan
5/5/98). Again, there is no evidence that any of this occurred after
learned of Judge Wright's order.
Although the Committee Report claims that a
heightened sense of urgency
attached in December which "intensified" the job search efforts, it
ignores the sworn testimony of Mr. Jordan denying any such
no. I do not recall any heightened sense of urgency [in December]. What
recall is that I dealt with it when I had time to do it." Supp. at 1811
(Jordan GJ 5/5/98).107
The "heightened urgency" theory also is
undermined by the simple
fact that Mr. Jordan indisputably placed no pressure on any
give Ms. Lewinsky a job and suggested no date by which Ms. Lewinsky had
hired. The first person Mr. Jordan contacted, Mr. Georgescu of Young
Rubicam/Burson-Marsteller, told investigators that Mr. Jordan did not
a "sales pitch" for Lewinsky. Supp. at 1222 (Georgescu FBI 302
3/25/98). Mr. Georgescu told Mr. Jordan that the company "would take a
at [Ms. Lewinsky] in the usual way," Supp. at 1219 (Georgescu FBI 302
1/29/98), and that once the initial interview was set up, Ms. Lewinsky
"on [her] own from that point." Supp. at 1222 (Georgescu FBI 302
3/25/98). The executive who interviewed Ms. Lewinsky at
that Ms. Lewinsky's recruitment process went `by the book" and, "while
somewhat accelerated," the process "went through the normal steps."
Supp. at 111 (Berk FBI 302 3/31/98).
At American Express, Mr. Jordan contacted Ms.
Ursula Fairbairn, who stated
that Mr. Jordan exerted "no . . . pressure" to hire Lewinsky. Supp. at
1087 (Fairbairn FBI 302 2/4/98). Indeed, she considered it "not unusual
board members" like Mr. Jordan to recommend talented people for
and noted that Mr. Jordan had recently recommended another person just
months earlier. Id. The person who interviewed Ms. Lewinsky
he felt "absolutely no pressure" to hire her and indeed told her she
did not have the qualifications necessary for the position. Supp. at
(Schick FBI 302 1/29/98).
Perhaps most telling of the absence of pressure
applied by Mr. Jordan is the
fact that neither Young & Rubicam/Burson-Marsteller or American
offered Ms. Lewinsky a job.
Similarly, at MacAndrews & Forbes/Revlon,
where Ms. Lewinsky ultimately
was offered a job (see below), Mr. Jordan initially contacted Mr.
has stated that is was not unusual for Mr. Jordan to make an employment
recommendation. Supp. at 1281 (Halperin FBI 302 1/26/98). Moreover, he
emphasized that Mr. Jordan did not "ask [him] to work on any particular
timetable," Supp. at 1294 (Halperin GJ 4/23/98), and that "there was
no implied time constraint or requirement for fast action." Supp. at
(Halperin FBI 3/27/98.)
2) The January job interviews and the
Revlon employment offer
The Committee Report attempts to conflate
separate and unrelated acts -- the
signing of the affidavit and the Revlon job offer -- to sustain its
unsustainable obstruction theory. The Committee Report's description of
events is deftly misleading:
"The next day, January 7, Monica Lewinsky
signed the false affidavit.
She showed the executed copy to Mr. Jordan that same day. She did this
Mr. Jordan could report to President Clinton that it had been signed
mission had been accomplished.
On January 8, Ms. Lewinsky had an interview
arranged by Mr. Jordan with
MacAndrews & Forbes in New York. The interview went poorly.
Lewinsky called Mr. Jordan and informed him. Mr. Jordan, who had done
from early November to mid-December, then called the chief executive
MacAndrews & Forbes, Ron Perelman, to "make things happen, if they
could happen." Mr. Jordan called Ms. Lewinsky back and told her not to
worry. That evening, MacAndrews & Forbes called Ms. Lewinsky and
that she would be given more interviews the next morning.
The next morning, Ms. Lewinsky received her
reward for signing the false
affidavit. After a series of interviews with MacAndrews & Forbes
she was informally offered a job. Committee Report at 18 (citations
By this portrayal, the Committee Report suggests
two conclusions: first,
that Ms. Lewinsky was "reward[ed]" with a job for her signing of the
affidavit; second, that the only reason Ms. Lewinsky was given a second
interview and ultimately hired at Revlon was Mr. Jordan's intervention
Perelman. Once again, both conclusions are demonstrably false.
Mr. Jordan and Ms. Lewinsky have testified under
oath that there was no
causal connection between the job search and the affidavit. The only
draw (or, actually, recommend) any such linkage was Ms. Tripp. The
record easily debunks the second insinuation -- that Ms. Lewinsky was
hired as a
direct result of Mr. Jordan's call to Mr. Perelman. One fact is
dispositive: the Revlon executive who scheduled Ms. Lewinsky's January
interview and decided to hire her that same day never even knew about
Jordan's call to Mr. Perelman, or any interest Mr. Perelman might have
Lewinsky, and thus could not have been acting in furtherance of such a
Ms. Lewinsky initially interviewed with Mr.
Halperin of MacAndrews &
Forbes (Revlon's parent company) on December 18, 1997. (Mr. Jordan had
with Mr. Halperin on December 11.) Prior to interviewing Ms. Lewinsky,
Halperin forwarded a copy of her resume to Mr. Jaymie Durnan, also of
& Forbes, for his consideration. Supp. at 1286-87 (Halperin FBI 302
3/27/98). Following his interview of Ms. Lewinsky, Mr. Halperin thought
would likely be "shipped to Revlon" for consideration. Id.
Mr. Durnan received Ms. Lewinsky's resume from
Mr. Halperin in mid-December
and, after reviewing it, decided to interview Ms. Lewinsky after the
the year. (He was going on vacation the last two weeks of December).
1053 (Durnan FBI 302 3/27/98). When he returned from vacation, his
scheduled an interview with Ms. Lewinsky for January 7, 1998, but,
scheduling problems, he rescheduled the interview for the next day,
1998. Supp. at 1049 (Durnan FBI 302 1/26/98). Mr. Durnan's decision to
Ms. Lewinsky was made independently of the decision by Mr. Halperin to
her. Indeed, only when Mr. Durnan interviewed Ms. Lewinsky in January
discover that she had had a December interview with Mr. Halperin. Id.
It was this interview with Mr. Durnan that Ms.
Lewinsky later described as
having gone poorly in her view. App. at 926 (Lewinsky GJ 8/6/98). The
Managers ("[t]he interview went poorly," House Br. at 38), the
Committee Report ("The interview went poorly", id. at 21), and
the OIC Referral ("The interview went poorly," id. at 184) all
emphasize only Ms. Lewinsky's impression of the job interview
obvious reasons: it tends to heighten the supposed relevance of the
to Mr. Perelman. In other words, under this theory, Ms. Lewinsky had no
of a job at MacAndrews & Forbes/Revlon until Mr. Jordan resurrected
chances with Mr. Perelman.
Unfortunately, like so much other "evidence" in
case, the facts do not bear out this sinister theory. Mr. Durnan
similar impression that his interview with Ms. Lewinsky had gone
In fact, just the opposite was true: he was "impressed" with Ms.
Lewinsky and thought that she would "fit in" with MacAndrews &
Forbes but "there was nothing available at that time which suited her
interests." Supp. at 1054 (Durnan FBI 302 3/27/98). Mr. Durnan
decided to forward Ms. Lewinsky's resume to Ms. Allyn Seidman of
the interview, he called Ms. Seidman and left her a voicemail message
interview with Ms. Lewinsky and explained that, while there was no
opening at MacAndrews & Forbes, "perhaps there was something
at Revlon." Id.
In the meantime, Mr. Jordan had called Mr.
Perelman about Ms. Lewinsky. Mr.
Perelman described this conversation as "very low key and casual."
Supp. at 3273 (Perelman FBI 302 1/26/98). Mr. Jordan "made no specific
requests and did not request" him "to intervene"; nonetheless,
Mr. Perelman agreed to "look into it." Id. Later that day, Mr.
Durnan spoke to Mr. Perelman, who mentioned that he had received a call
Jordan about a job candidate. Mr. Perelman told Mr. Durnan "let's see
we can do," Supp. at 3276 (Perelman FBI 302 3/27/98), but Mr. Durnan
concluded that hiring Ms. Lewinsky was "mandatory." Supp. at 1055
(Durnan FBI 302 3/27/98). Mr. Perelman later called Mr. Jordan and said
would do what they could; Mr. Jordan expressed no urgency to Mr.
at 3276 (Perelman FBI 302 3/27/98).
By the time Mr. Durnan had discussed Ms.
Lewinsky with Mr. Perelman, he had
already forwarded her resume to Ms. Seidman
at Revlon. Supp. at 1049-50
(Durnan FBI 302 1/26/98). After speaking with Mr. Perelman, Mr. Durnan
with Ms. Seidman, following up on the voicemail message he had left
day. Supp. at 1055 (Durnan FBI 302 3/27/98). Upon speaking to Ms.
Ms. Lewinsky, however, Mr. Durnan did not tell Ms. Seidman that CEO
has expressed any interest in Ms. Lewinsky. Id. Rather, he
said that if she liked Ms. Lewinsky, she should hire her. Supp. at 1050
FBI 302 1/26/98).
For her part, Ms. Seidman has testified that she
had no idea that Mr.
Perelman had expressed interest in Ms. Lewinsky:
Q: Did [Mr. Durnan] indicate to you that he
had spoken to anyone else
within MacAndrews or Revlon about Monica Lewinsky?
A: Not that I recall, no.
Q: Do you have any knowledge as to whether or
not Mr. Perelman spoke with
anyone either on the MacAndrews & Forbes side or the Revlon side
Supp. at 3642 (Seidman Depo. 4/23/98). Rather,
Ms. Seidman's consideration
of Ms. Lewinsky proceeded on the merits. Indeed, as a result of the
Ms. Seidman concluded that Ms. Lewinsky was "bright, articulate and
polished," Supp. at 3635 (Seidman FBI 302 1/26/98), and "a talented,
enthusiastic, bright young woman" who would be a "good fit in [her]
department." Supp. at 3643 (Seidman Depo. 4/23/98). She decided after
interview to hire Ms. Lewinsky, and thereafter called Mr. Durnan "and
him I thought she was great." Id.
In sum, Ms. Seidman made the decision to grant
an interview and hire Ms.
Lewinsky on the merits. She did not even know that Mr. Perelman had
any interest in Ms. Lewinsky or that Mr. Jordan had spoken to Mr.
day before. As amply demonstrated, the House Managers' Jordan-Perelman
intervention theory just doesn't hold water.
From the preceding discussion of the factual
record, two conclusions are
inescapable. First, there is simply no direct evidence to support the
job-for-silence obstruction theory. From her initial proffer to the
of her grand jury appearance, the testimony of Ms. Lewinsky has been
consistent: she was never asked or encouraged to lie or promised a job
silence or for a favorable affidavit. Mr. Jordan has been equally
this point. Second, the "chain of events" circumstantial case upon
which this obstruction allegation must rest falls apart after
inspection of the
full evidentiary record. Ms. Lewinsky's job search began on her own
long before she was ever a witness in the Jones case. Mr.
assistance originated with a request from Ms. Currie, which had no
events in the Jones litigation. No pressure was applied to
anyone at any
time. And Ms. Lewinsky's ultimate hiring had absolutely no connection
signing of the affidavit in the Jones case. Viewed on this
record, the job-search allegations are plainly unsupportable.
5. The President denies that he "corruptly
allowed his attorney to make false and misleading statements to a
concerning Monica Lewinsky's affidavit
Article II (5) charges that the President
engaged in an obstruction of
justice because he "did not say anything" during his Jones
deposition when his attorney cited the Lewinsky affidavit to Judge
stated that "there is no sex of any kind in any manner, shape, or
Committee Report at 72. The rationale underlying this charge of
justice hinges on an odd combination of a bizarrely heightened legal
a disregard of the actual record testimony, and a good dose of amateur
psychology. This claim is factually and legally baseless.
The law, of course, imposes no obligation on a
client to monitor every
statement and representation made by his or her lawyer. Particularly in
confines of an ongoing civil deposition, where clients are routinely
to focus on the questions posed of them and their responses and ignore
distractions, it is totally inappropriate to try to remove a President
office because of a statement by his attorney. Indeed, the President
explained to the grand jury that he was not focusing on the exchange
lawyers but instead concentrating on his own testimony:
- "I'm not even sure I paid much attention to
what he was saying. I
was thinking, I was ready to get on with my testimony here and they
these constant discussions all through the deposition." App. at 476;
- "I was not paying a great deal of attention
to this exchange. I was
focusing on my own testimony." App. at 510;
- "I'm quite sure that I didn't follow all the
interchanges between the
lawyers all that carefully." App. at 510;
- "I am not even sure that when Mr. Bennett
made that statement that I
was concentrating on the exact words he used." App. at 511;
- "When I was in there, I didn't think about my
lawyers. I was, frankly,
thinking about myself and my testimony and trying to answer the
App. at 512;
- "I didn't pay any attention to this colloquy
that went on. I was
waiting for my instructions as a witness to go forward. I was worried
own testimony." App. at 513.
The Committee Report ignores the President's
repeated and consistent
description of his state of mind during the deposition exchange.
Committee Report and majority counsel's final presentation undertake a
exercise in video psychology, claiming that by studying the President's
expressions and by noting that he was "looking in Mr. Bennett's
during the exchange, it necessarily follows that the President was in
listening to and concentrating on every single word uttered by his
and knowingly made a decision not to correct his attorney.
The futility of such an exercise is manifest. It
is especially unsettling
when set against the President's adamant denials that he harbored any
contemporaneous or meaningful realization of his attorney's colloquy
Judge. The theory is factually flimsy, legally unfounded, and should be
6. The President denies that he obstructed
justice by relating "false and misleading statements" to "a
potential witness," Betty Currie, "in order to corruptly influence
There is no dispute that the President met with
his secretary, Ms. Currie,
on the day after his Jones deposition and discussed questions
been asked about Ms. Lewinsky. The Managers cast this conversation
most sinister light possible and alleges that the President attempted
influence the testimony of a "witness" by pressuring Ms. Currie to
agree with an inaccurate version of facts about Ms. Lewinsky. The
claim that "the President essentially admitted to making these
when he knew they were not true." House Br. at 47. That is totally
The President admitted nothing of the sort and the Managers cite
support. The President has adamantly denied that he had any intention
influence Ms. Currie's recollection of events or her testimony in any
The absence of any such intention is further fortified by the
record establishing that to the President's knowledge, Ms. Currie was
actual nor contemplated witness in the Jones litigation at the
the conversation. And critically, Ms. Currie testified that, during the
conversation, she did not perceive any pressure "whatsoever" to agree
with any statement made by the President.
The President's actions could not as a matter of
law support this
allegation. To obstruct a proceeding or tamper with a witness, there
both a known proceeding and a known witness. In the proceeding
President certainly knew about -- the Jones case -- Ms. Currie
neither an actual nor prospective witness. As for the only proceeding
Ms. Currie ultimately became a witness -- the OIC investigation -- no
asserts the President could have known it existed at that time.
At the time of the January 18 conversation,109
Ms. Currie was not a witness in the Jones case, as even Mr.
acknowledged: "The evidence is not that she was on the witness list,
have never said that she was." Transcript of November 19, 1998
Nor was there any reason to suspect Ms. Currie
would play any role in the
Jones case. The discovery period was, at the
time of this conversation,
in its final days, and a deposition of Ms. Currie scheduled and
that deadline would have been highly unlikely.
Just as the President could not have intended to
influence the testimony of "witness"
Betty Currie because she was neither an actual nor a prospective
witness, so too
is it equally clear that the President never pressured Ms. Currie to
recollection. Such lack of real or perceived pressure also fatally
this charge. Despite the prosecutor's best efforts to coax Ms. Currie
saying she was pressured to agree with the President's statements, Ms.
adamantly denied any such pressure. As she testified:
Q: Now, back again to the four statements that
you testified the President
made to you that were presented as statements, did you feel pressured
told you those statements?
A: None whatsoever.
Q: What did you think, or what was going
through your mind about what he was
A: At the time I felt that he was -- I want to
use the word shocked or
surprised that this was an issue, and he was just talking.
* * *
Q: That was your impression, that he wanted
you to say -- because he would
end each of the statements with "Right?", with a question.
A: I do not remember that he wanted me to say
would say "Right" and I could have said, "Wrong."
Q: But he would end each of those questions
with a "Right?" and
you could either say whether it was true or not true?
Q: Did you feel any pressure to agree with
Supp. at 668 (Currie GJ 7/22/98). Ms. Currie
explained that she felt no
pressure because she basically agreed with the President's statements:
Q: You testified with respect to the
statements as the President made them,
and, in particular, the four statements that we've already discussed.
at the time that they were technically accurate? Is that a fair
A: That's a fair assessment.
Q: But you suggested that at the time. Have
you changed your opinion about
it in retrospect?
A: I have not changed my opinion, no.
Supp. at 667 (Currie GJ 7/22/98); see also
Supp. at 534 (Currie FBI
302 1/24/98) ("Currie advised that she responded "right" to each
of the statements because as far as she knew, the statements were
right."); Supp. at 665 (Currie GJ 7/22/98) ("I said `Right' to him
because I thought they were correct, `Right, you were never really
What, then, to make of this conversation if
there was no effort to influence
Ms. Currie's testimony? Well, to understand fully the dynamic, one must
the memory of all that has transpired since January 21 and place
oneself in the
President's position after the Jones deposition. The President
faced unexpectedly detailed questions about Ms. Lewinsky. The questions
addressed, at times, minute details and at other times contained
inaccuracies about the relationship. As the President candidly admitted
grand jury testimony, he had long thought the day would come when his
relationship with Ms. Lewinsky would become public:
"I formed an opinion early in 1996, once I got
into this unfortunate
and wrong conduct, that when it stopped, which I knew I'd have to do
and which I
should have done long before I did, that she would talk about it.
because Monica Lewinsky is a bad person. She's basically a good girl.
good young woman with a good heart and a good mind. . . . But I knew
minute there was no longer any contact, she would talk about this.
would have to. She couldn't help it. It was, it was part of her psyche.
App. at 575-76 (emphasis added). Now, with the
questioning about Ms.
Lewinsky in the Jones case and the publication of the first
report article about Ms. Lewinsky, the President knew that a media
about to erupt. And erupt it did.
So it was hardly surprising that the President
reached out to Ms. Currie at
this time. He was trying to gather all available information and assess
political and personal consequences that this revelation would soon
he did not confide fully in Ms. Currie, he knew Ms. Currie was Ms.
main contact and thus could have additional relevant information to
assess and respond to the impending media scrutiny. As the President
I do not remember how many times I talked to
Betty Currie or when. I don't.
I can't possibly remember that. I do remember, when I first heard about
story breaking, trying to ascertain what the facts were, trying to
what Betty's perception was. I remember that I was highly agitated,
understandably, I think.
App. at 593. And further, "[W]hat I was trying
to determine was whether
my recollection was right and that she was always in the office complex
Monica was there. . . . I thought what would happen is that it
in the press, and I was trying to get the facts down." App. at
(emphasis added). As the President concluded: "I was not trying to get
Betty Currie to say something that was untruthful. I was trying to get
information as quickly as I could." App. at 508.
Ms. Currie's grand jury testimony confirms the
state of mind and information-gathering purpose for the discussion. She
testified that the President appeared, in her words, to be "shocked or
surprised that this was an issue, and he was just talking." Supp. at
(Currie GJ 7/22/98). She described the President's remarks as "both
statements and questions at the same time." Supp. at 534 (Currie FBI
Finally, the inference that the President
intended to influence Ms. Currie's
testimony before she ever became a witness is firmly undercut by the
President gave to her when she ultimately did become a witness in the
And then I remember when I knew she was going
to have to testify to the
grand jury, and I, I felt terrible because she had been through this
loss of her
sister, this horrible accident Christmas that killed her brother, and
was in the hospital. I was trying to do -- to make her understand that
want her to, to be untruthful to the grand jury. And if her memory was
than mine, it was fine, just go in there and tell them what she
that's all I remember.
App. at 593; see also App. at 508 ("I
think Ms. Currie would
also testify that I explicitly told her, once I realized you were
the Jones case -- you, the Office of Independent Counsel -- and that
have to be called as a witness, that she should just go in there and
truth, tell what she knew, and be perfectly truthful.").110
In sum, neither the testimony of Ms. Currie nor
that of the President -- the
only two participants in this conversation -- supports the inference
conversation had an insidious purpose. The undisputed evidence shows
Currie was neither an actual nor contemplated witness in the Jones
And when Ms. Currie did ultimately become a witness in the Starr
the President told her to tell the truth, which she did.
7. The President denies that he obstructed
justice when he relayed allegedly "false and misleading statements" to
This final allegation of Article II should be
rejected out of hand. The
President has admitted misleading his family, his staff, and the Nation
his relationship with Ms. Lewinsky, and he has expressed his profound
such conduct. But this Article asserts that the President should be
and removed from office because he failed to be candid with his friends
aides about the nature of his relationship with Ms. Lewinsky. These
impeachable denials took place in the immediate aftermath of the
publicity -- at the very time the President was denying any
relationship with Ms. Lewinsky in nearly identical terms on national
Having made this announcement to the whole country on television, it is
absurd to believe that he was somehow attempting corruptly to influence
testimony of aides when he told them virtually the same thing at the
Rather, the evidence demonstrates that the President spoke with these
individuals regarding the allegations because of the longstanding
and personal relationships he shared with them and the corresponding
responsibility he felt to address their concerns once the allegations
aired. The Managers point to no evidence -- for there is none
the President spoke to these individuals for any other reason, and
that he spoke with them intending to obstruct any proceeding.112
They simply assert that since he knew there was an investigation, his
to be that they relate his remarks to the investigators and grand
Br. at 80.
However, there is no allegation that the
President attempted to influence
these aides' testimony about their own personal knowledge or
Nor is there any evidence that the President knew any of these
would ultimately be witnesses in the grand jury when he spoke with
was under subpoena at the time the denials took place and none had any
independent knowledge of any sexual activity between the President and
Lewinsky. Indeed, the only evidence these witnesses could offer on this
was the hearsay repetition of the same public denials that the members
grand jury likely heard on their home television sets. Under the
of this article, every person who heard the President's public denial
been called to the grand jury to create still additional obstructions
To bolster this otherwise unsupportable charge,
the Managers point to an
excerpt of the President's testimony wherein he acknowledged that, to
he shared with anyone any details of the facts of his
Ms. Lewinsky, they could conceivably be called before the grand jury --
for the sake of his friends the President wanted to avoid:
"I think I was quite careful what I said after
[January 21]. I may have
said something to all of these people to that effect [denying an
relationship], but I'll also -- whenever anybody asked me any details,
look, I don't want you to be a witness or I turn you into a witness or
information that could get you in trouble. I just wouldn't talk. I, by
large, didn't talk to people about this."
App. at 647. The point was not that the
President believed these people
would be witnesses and so decided to mislead them, but rather that he
provide as little information as possible (consistent with his
obligation to address their legitimate concerns) in order to keep them
becoming witnesses solely because of what he told them.
In conclusion, this Article fails as a matter of
law and as a matter of
common sense. It should be soundly rejected.
VI. THE STRUCTURAL
DEFICIENCIES OF THE ARTICLES PRECLUDE A CONSTITUTIONALLY SOUND VOTE
The Constitution prescribes a strict and
exacting standard for the removal
of a popularly elected President. Because each of the two articles
multiple unspecified wrongs, each is unconstitutionally flawed in two
First, by charging multiple wrongs in one
article, the House of
Representatives has made it impossible for the Senate to comply with
Constitutional mandate that any conviction be by the concurrence of
of the members. Since Senate Rules require that an entire article be
voted as a
unit, sixty-seven Senators could conceivably vote to convict while in
disagreement as to the alleged wrong committed -- for example, they
completely disagree on what statement they believe is false -- in
violation of the Constitutional requirements of "Concurrence" and due
Second, by charging perjury without identifying
a single allegedly
perjurious statement, and charging obstruction of justice without
single allegedly obstructive action by the President, the House of
Representatives has failed to inform the Senate either of the
agreed were perjurious (if it agreed), or of the actual conduct by the
that it agreed constituted obstruction of justice (again, if it
result is that the President does not have the most basic notice of the
against him required by due process and fundamental fairness. He is not
position to defend against anything other than a moving target. The
involved even in identifying the charges to be addressed in this Trial
Memorandum highlights just how flawed the articles are.113
The result is a pair of articles whose structure
does not permit a
constitutionally sound vote to convict. If they were counts in an
these articles would not survive a motion to dismiss. Under the unique
circumstances of an impeachment trial, they should fail.
A. The Articles Are Both Unfairly Complex
and Lacking in Specificity
A cursory review of the articles demonstrates
that they each allege multiple
and unspecified acts of wrongdoing.
1. The Structure of Article I
Article I accuses the President of numerous
different wrongful actions. The
introductory paragraph charges the President with (i) violating his
constitutional oath faithfully to execute his office and defend the
Constitution; (ii) violating his constitutional duty to take care that
be faithfully executed; (iii) willfully corrupting and manipulating the
process; and (iv) impeding the administration of justice.
The second paragraph charges the President with
(a) perjurious, (b) false,
and (c) misleading testimony to the grand jury concerning "one or more"
of four different subject areas:
(1) the nature and details of his relationship
with a subordinate government
(2) prior perjurious, false and misleading
testimony he gave in a Federal
civil rights action brought against him;
(3) prior false and misleading statements he
allowed his attorney to make to
a federal judge in that action;
(4) his corrupt efforts to influence the
testimony of witnesses and to
impede the discovery of evidence in that civil rights action.
The third paragraph alleges that, as a
consequence of the foregoing, the
President has, to the manifest injury of the people of the United
- undermined the integrity of his office;
- brought disrepute on the Presidency;
- betrayed his trust as President; and
- acted in a manner subversive of the rule of
law and justice.
It is imperative to note that although Article I
false and misleading" testimony concerning "one or more" of four
general subject areas, it does not identify the particular sworn
the President that were allegedly "perjurious," (and therefore
potentially illegal), or "false" or "misleading" (and
therefore not unlawful). In fact, contrary to the most basic rules of
and due process, Article I does not identify a single specific
statement that is
In sum, Article I appears to charge the
President with four general forms of
wrongdoing (violations of two oaths, manipulation of legal process,
justice), involving three (perjurious, false, misleading) distinct
statements, concerning different subjects (relationship to Ms.
deposition testimony, prior statements of his attorney, obstruction of
resulting in four species of harms either to the Presidency
integrity, bringing it into disrepute) or to the people (acting in a
subversive of the rule of law and to the manifest injury of the
people). And it
alleges all of this without identifying a single, specific perjurious,
Absent a clear statement of which statements are
alleged to have been
perjurious, and which specific acts are alleged to have been undertaken
purpose of obstructing the administration of justice, it is impossible
prepare a defense. It is a fundamental tenet of our jurisprudence that
accused must be afforded notice of the specific charges against which
defend. Neither the Referral of the Office of the Independent Counsel,
Committee Report of the Judiciary Committee, nor the House Managers'
Memorandum was adopted by the House, and none of them can provide the
particulars. It is impossible to know whether the different statements
charged in the Referral, or the Report, or the Trial Memorandum, or
none, are what the House had in mind when it passed the Articles.
2. The Structure of Article II
Article II accuses the President of a variety of
wrongful acts. The
introductory paragraph charges the President with (i) violating his
constitutional oath faithfully to execute his office and defend the
and (ii) violating his constitutional duty to take care that the laws
faithfully executed by (iii) preventing, obstructing and impeding the
administration of justice by engaging (personally and through
agents) in a scheme designed to delay impede, cover up, and conceal the
existence of evidence and testimony related to a Federal civil rights
The second paragraph specifies the various ways
in which the violations in
the first paragraph are said to have occurred. It states that the harm
effectuated by "means" that are not expressly defined or delimited,
but rather are said to include "one or more" of seven "acts"
attributed to the President:
(1) corruptly encouraging a witness to execute a
perjurious, false and
(2) corruptly encouraging a witness to give
perjurious, false and misleading
testimony if called to testify;
(3) corruptly engaging in, encouraging or
supporting a scheme to conceal
(4) intensifying and succeeding in an effort to
secure job assistance to a
witness in order to corruptly prevent the truthful testimony of that
a time when that witness's truthful testimony would have been harmful;
(5) allowing his attorney to make false and
misleading statements to a
federal judge in order to prevent relevant questioning;
(6) relating a false and misleading account of
events to a potential witness
in a civil rights action in order to corruptly influence the testimony
(7) making false and misleading statements to
potential witnesses in a
Federal grand jury proceeding in order to corruptly influence their
and causing the grand jury to receive false and misleading information.
The third paragraph alleges that, as a result of
the foregoing, the
President has, to the manifest injury of the people of the United
- undermined the integrity of his office;
- brought disrepute on the Presidency;
- betrayed his trust as President; and
- acted in a manner subversive of the rule of
law and justice.
As with the first article, Article II does not
set forth a single specific
act alleged to have been performed by the President. Instead, it
"encourage[ment]" to execute a false affidavit, provide misleading
testimony, and conceal subpoenaed evidence. This Article also includes
allegations that the President undertook to "corruptly influence"
and/or "corruptly prevent" the testimony of potential witnesses and
that he "engaged in . . . or supported" a scheme to conceal evidence.
Again, the Senate and the President have been left to guess at the
any) actually agreed upon by the House.
B. Conviction on These Articles Would
Violate the Constitutional Requirement That Two-Thirds of the Senate
Agreement that Specific Wrongdoing Has Been Proven
1. The Articles Bundle Together Disparate
Allegations in Violation of the Constitution's Requirements of
a. The Articles Violate the Constitution's
Two-Thirds Concurrence Requirement
Article I, section 3 of the Constitution
provides that "no person shall
be convicted [on articles of impeachment] without the Concurrence of
of the Members present." U.S. Const. Art. I, § 3, cl. 6. The
Constitution's requirement is plain. There must be "Concurrence,"
which is to say genuine, reliably manifested, agreement, among those
convict. Both the committing of this task to the Senate and the
requirement are important constitutional safeguards reflecting the
intent that conviction not come easily. Conviction demands real and
verifiable agreement among a substantial supermajority.
Indeed, the two-thirds supermajority requirement
is a crucial constitutional
safeguard. Supermajority provisions are constitutional exceptions115
to the presumption that decisions by legislative bodies shall be made
majority rule.116 These exceptions serve
exceptional ends. The two-thirds concurrence rule serves the
purpose of protecting the people who chose the President by election.
a "veto" to a minority of Senators, the Framers sought to ensure the
rights of an electoral majority -- and to safeguard the people in their
of Executive. Only the Senate and only the requirement of a two-thirds
concurrence could provide that assurance.
The "Concurrence" required is agreement that the
charges stated in
specific articles have in fact been proved, and the language of those
is therefore critical. Since the House of Representatives is vested
with the "sole
Power of Impeachment," U.S. Const. Art. I, § 2, cl. 5, the form of
those articles cannot be altered by the Senate. And Rule XXIII of The
Procedure and Practice in the Senate when Sitting on Impeachment Trials
Rules") provides that "[a]n article of impeachment shall not be
divisible for the purpose of voting thereon at any time during the
It follows that each Senator may vote on an
article only in its totality. By
the express terms of Article I, a Senator may vote for impeachment if
he or she
finds that there was perjurious, false and misleading testimony in any
or more" of four topic areas. But that prospect creates the very real
possibility that "conviction" could occur even though fewer than
two-thirds of the Senators actually agree that any particular false
was made.117 Put differently, the
article's structure presents the possibility that the President could
convicted on Article I even though he would have been acquitted if
votes were taken on individual allegedly perjurious statements. To
the point, consider that it would be possible for conviction to result
as few as seventeen Senators agreeing that any single statement was
because seventeen votes for one statement in each of four categories
68 votes, one more than necessary to convict. The problem is even worse
Senators agree that there is a single perjurious statement but
disagree as to which statement within the 176 pages of transcript they
is perjurious. Such an outcome would plainly violate the Constitution's
requirement that there be conviction only when a two-thirds majority
The very same flaw renders Article II
unconstitutional as well. That Article
alleges a scheme of wrongdoing effected through "means" including "one
or more" of seven factually and logically discrete "acts." That
compound structure is fraught with the potential to confuse. For
Article alleges both concealment of gifts on December 28, 1997, and
statements to aides in late January 1998. These two allegations involve
completely different types of behavior. They are alleged to have
different months. They involved different persons. And they are alleged
obstructed justice in different legal proceedings. In light of Senate
XXIII's prohibition on dividing articles, the combination of such
different types of alleged wrongdoing in a single article creates the
possibility that votes for conviction on this article would not reflect
two-thirds agreement whatsoever.
The extraordinary problem posed by such compound
articles is well-recognized
and was illustrated by the proceedings in the impeachment of Judge
Article III of the Nixon proceedings, like the articles here, was
phrased in the
disjunctive and charged multiple false statements as grounds for
Judge Nixon moved to dismiss Article III on a number of grounds,
the basis of its compound structure.118
Although that motion was defeated in the full Senate by a vote of 34-63,119
the 34 Senators who voted to dismiss were a sufficient number to block
conviction on Article III.
Judge Nixon (although convicted on the first two
articles) was ultimately
acquitted on Article III by a vote of 57 (guilty) to 40 (not guilty).120
Senator Biden, who voted not guilty on the article, stated that the
the article made it "possible . . . for Judge Nixon to be convicted
article III even though two-thirds of the members present did not agree
made any one of the false statements."121
Senator Murkowski concurred: "I don't appreciate the omnibus nature of
article III, and I agree with the argument that the article could
easily be used
to convict Judge Nixon by less than the super majority vote required by
Constitution." Id. at 464.122
And Senator Dole stated that "Article III is redundant, complex and
unnecessarily confusing. . . . It alleges that Judge Nixon committed
different offenses in connection with each of fourteen separate events,
of seventy charges. . . .[I]t was virtually impossible for Judge Nixon
attorneys to prepare an adequate defense."123
In his written statement filed after the voting
was completed, Senator Kohl
pointed out the dangers posed by combining multiple accusations in a
Article III is phrased in the disjunctive. It
says that Judge Nixon
concealed his conversations through "one or more" of 14 false
statements. This wording presents a variety of problems. First of all,
that Judge Nixon can be convicted even if two thirds of the Senate does
agree on which of his particular statements were false . . . . .
The House is telling us that it's OK to
convict Judge Nixon on Article III
even if we have different visions of what he did wrong. But that's
to Judge Nixon, to the Senate, or to the American people. Let's say
convict on Article III. The American people -- to say nothing of
would never know exactly which of Judge Nixon's statements we regarded
untrue. They'd have to guess. What's more, this ambiguity would prevent
being totally accountable to the voters for our decision.124
As noted, the Senate acquitted Judge Nixon on
the omnibus article -- very
possibly because of the constitutional and related due process and
concerns articulated by Senator Kohl and others.125
The constitutional problems identified by those
Senators are significant
when a single federal judge (one of roughly 1000) is impeached. But
Chief Executive and sole head of one entire branch of our government
accused, those infirmities are momentous. Fairness and the appearance
fairness require that the basis for any action this body might take be
specific. The Constitution clearly forbids conviction unless two thirds
Senate concurs in a judgment. Any such judgment would be meaningless in
absence of a finding that specific, identifiable, wrongful conduct has
occurred. No such conclusion is possible under either article as
b. Conviction on the Articles Would
Due Process Protections that Forbid Compound Charges in a Single
Even apart from the Constitution's clear
requirement of "Concurrence"
in Article I, section 3, the fundamental principles of fairness and due
that underlie our Constitution and permeate our procedural and
compel the same outcome. In particular, the requirement that there be
agreement by the deciding body before an accused is denied life,
property is a cornerstone of our jurisprudence.126
While in the federal criminal context due
process requires that there be
genuine agreement among the entire jury, see United States
137 F.3d 458, 470 (7th Cir. 1998), Schad v. Arizona,
U.S. 624 (1991) (plurality), in the impeachment context, that
genuine agreement must be expressed by a two-thirds supermajority. But
underlying due process principle is the same in both settings. This
principle is bottomed on two fundamental notions: (1) that there be
agreement -- mutuality of understanding -- among those voting to
(2) that the unanimous verdict be understood (by the accused and by the
to have been the product of genuine agreement.
This principle is given shape in the criminal
law in the well-recognized
prohibition on "duplicitous" charges. "Duplicity is the joining
in a single count of two or more distinct and separate offenses." United
States v. UCO Oil, 546 F.2d 833, 835 (9th Cir. 1976). In
of criminal pleading, a single count that charges two or more separate
is duplicitous. See United States v. Parker, 991 F.2d
1497-98 (9th Cir. 1993); United States v. Hawkes,
355, 357 (4th Cir. 1985).127
A duplicitous charge in an indictment violates the due process
principle that "the
requisite specificity of the charge may not be compromised by the
separate offenses." Schad v. Arizona, 501 U.S. 624, 633 (1991)
More specifically, a duplicitous charge poses
the acute danger of conviction
by a less-than-unanimous jury; some jurors may find the defendant
guilty of one
charge but not guilty of a second, while other jurors find him guilty
second charge but not the first. See United States v. Saleh,
535, 537 (6th Cir. 1989); United States v. Stanley,
866, 871 (4th Cir. 1979); Bins v. United States, 331
390, 393 (5th Cir. 1964).128
Our federal system of justice simply does not permit conviction by less
unanimous agreement concerning a single, identified charge. See
States v. Fawley, 137 F.3d 471 (7th Cir. 1998)
requires unanimous agreement as to particular statements); United
Holley, 942 F.2d 916, 929 (5th Cir. 1991) (reversal
where no instruction was given to ensure that all jurors concur in
that at least one particular statement was false); see also United
Gipson, 553 F.2d 453, 458-59 (5th Cir. 1977) (right to
verdict violated by instruction authorizing conviction if jury found
committed any one of six acts proscribed by statute).129
The protection against conviction by less than full agreement by the
is enshrined in Rule 31(a) of the Federal Rules of Criminal Procedure
dictates that "[t]he verdict shall be unanimous."130
Thus, where the charging instrument alleges
multiple types of wrongdoing,
the unanimity requirement "means more than a conclusory agreement that
defendant has violated the statute in question; there is a
substantial agreement as to the principal factual elements underlying a
specified offense." United States v. Ferris, 719 F.2d 1405,
1407 (9th Cir. 1983) (emphasis added). Accordingly, although
need not be unanimity as to every bit of underlying evidence, due
require unanimous agreement as to the nature of the defendant's
simply that a violation has occurred." McKoy v. North Carolina,
U.S. 433, 449 n.5 (1990) (Blackmun, J., concurring). Such agreement is
to fulfill the demands of fairness and rationality that inform the
of due process. See Schad, 501 U.S. at 637.131
Where multiple accusations are combined in a
single charge, neither the
accused nor the factfinder can know precisely what that charge means.
factfinding body cannot agree upon the meaning of the charge, it cannot
genuine agreement that conviction is warranted. These structural
preclude a constitutionally sound vote on the articles.
C. Conviction on These Articles Would
Violate Due Process Protections Prohibiting Vague and Nonspecific
1. The Law of Due Process Forbids Vague
Impermissibly vague indictments must be
dismissed, because they "fail
to sufficiently apprise the defendant `of what he must be prepared to
United States v. Russell, 369 U.S. 749, 764
(1962) (internal quotation
omitted). In Russell, the indictment at issue failed to specify
subject matter about which the defendant had allegedly refused to
questions before a Congressional subcommittee. Instead, the indictment
only that the questions to which the answers were refused "were
to the question then under inquiry" by the Subcommittee. Id. at
752. The Court held that because the indictment did not provide
specificity, it was unduly vague and therefore had to be dismissed. Id.
at 773. The Supreme Court explained that dismissal is the only
remedy for an unduly vague indictment, because only the charging body
elaborate upon vague charges:
To allow the prosecutor, or the court, to make
a subsequent guess as to what
was in the minds of the grand jury at the time they returned the
would deprive the defendant of a basic protection which the guaranty of
intervention of a grand jury was designed to secure. For a defendant
be convicted on the basis of facts not found by, and perhaps not even
to, the grand jury which indicted him. This underlying principle is
the settled rule in the federal courts that an indictment may not be
except by resubmission to the grand jury . . .
Id. at 771. See also Stirone v.
United States, 361 U.S. 212,
216 (1960); see also United States v. Lattimore, 215
(D.C. Cir. 1954) (perjury count too vague to be valid cannot be cured
bill of particulars); United States v. Tonelli, 577 F.2d 194,
Cir. 1978) (vacating perjury conviction where "the indictment . . . did
`set forth the precise falsehood[s] alleged").
Under the relevant case law, the two exhibited
Articles present paradigmatic
examples of charges drafted too vaguely to enable the accused to meet
accusations fairly. More than a century ago, the Supreme Court stated
is an elementary principle of criminal pleading, that where the
definition of an
offence, whether it be at common law or by statute, includes generic
is not sufficient that the indictment shall charge the offence in the
generic terms as in the definition; but it must state the species -- it
descend to particulars." United States v. Cruikshank, 92 U.S.
558 (1875). The Court has more recently emphasized the fundamental
of nonspecific indictments: that they "fail to sufficiently apprise
defendant `of what he must be prepared to meet.'" Russell, 369
The Supreme Court emphasized in Russell
that specificity is
important not only for the defendant, who needs particulars to prepare
defense, but also for the decision-maker, "so it may decide whether
facts] are sufficient in law to support a conviction, if one should be
Id. at 768 (internal citation and quotation
marks omitted). An
unspecific indictment creates a "moving target" for the defendant
exposing the defendant to a risk of surprise through a change in the
prosecutor's theory. "It enables his conviction to rest on one point
the affirmance of the conviction to rest on another. It gives the
free hand on appeal to fill in the gaps of proof by surmise and
Russell, 369 U.S. at 766. Ultimately, an
unspecific indictment creates a
risk that "a defendant could . . . be convicted on the basis of facts
found by, and perhaps not even presented to, the grand jury which
Id. at 770.
2. The Allegations of Both Articles Are
Article I alleges that in his August 17, 1998
grand jury testimony,
President Clinton provided "perjurious, false and misleading"
testimony to the grand jury concerning "one or more" of four subject
areas. Article I does not, however, set forth a single specific
statement by the
President upon which its various allegations are predicated. The
haphazardly intermingles alleged criminal conduct with totally lawful
and its abstract generalizations provide no guidance as to actual
Article I thus violates the most fundamental
requirement of perjury
indictments. It is fatally vague in three distinct respects: (1) it
identify any statements that form the basis of its allegations,132
(2) it therefore does not specify which of the President's statements
grand jury were allegedly "perjurious," which were allegedly "false,"
and which were allegedly "misleading," and (3) it does not even
specify the subject matter of any alleged perjurious
The first defect is fatal, because it is
axiomatic that if the precise
perjurious statements are not identified in the indictment, a defendant
possibly prepare his defense properly. See, e.g., Slawik,
548 F.2d 75, 83-84 (3d Cir. 1977). Indeed, in past impeachment trials
Senate where articles of impeachment alleged the making of false
false statements were specified in the Articles. For example, in the
trial of Alcee L. Hastings, Articles of Impeachment II-XIV specified
statements that formed the bases of the false statement allegations
Judge Hastings.133 Similarly, in the
impeachment trial of Walter L. Nixon, Jr., Articles of Impeachment
specified the exact statements that formed the bases of their false
allegations.134 In this case, Article I
falls far short of specificity standards provided in previous
in the Senate.
As to the second vagueness defect, there is a
significant legal difference
between, on the one hand, statements under oath which are "perjurious,"
and those, on the other hand, which are simply "false" or "misleading."
Only the former could form the basis of a criminal charge. The Supreme
emphatically held that "misleading" statements alone cannot
form the basis of a perjury charge. In Bronston v. United States,
U.S. 352 (1973), the Court held that literally true statements are by
non-perjurious, and "it is no answer to say that here the jury found
[the defendant] intended to mislead his examiner," since "[a]
jury should not be permitted to engage in conjecture whether an
answer . . . was intended to mislead or divert the examiner." Id.
at 358-60 (emphasis added). The Court emphasized that "the perjury
is not to be loosely construed, nor the statute invoked simply because
witness succeeds in derailing the questioner so long as the witness
literal truth." Id. Thus, specification of the exact statements
alleged to be perjurious is required, because "to hold otherwise would
permit the trial jury to inject its inferences into the grand jury's
and would allow defendants to be convicted for immaterial falsehoods or
`intent to mislead' or `perjury by implication,' which Bronston
specifically prohibited." Slawik,
538 F.2d at 83-84
(emphasis added). Thus, if the House meant that certain statements were
misleading but literally truthful, they might be subject to a motion to
on the ground that the offense was not impeachable.
The same is true for allegedly "false" answers,
because it is
clear that mere "false" answers given under oath, without more, are
not criminal. 18 U.S.C. § 1623, the statute proscribing perjury
federal grand jury, requires additional elements beyond falsity,
defendant's specific intent to testify falsely and the statement's
to the proceeding. A defense to a perjury charge is therefore tied
the specific statement alleged to have been perjurious. Did the
the particular answer was false? Was it material?135
Article I's third vagueness defect is that it
does not specify the subject
matter of the alleged perjurious statements.
Instead, it simply alleges
that the unspecified statements by the President to the grand jury were
concerning "one or more" of four enumerated areas. The "one or
more" language underscores the reality that the President -- and,
critically, the Senate -- cannot possibly know what the House majority
mind, since it may have failed even to agree on the subject matter of
alleged perjury. The paramount importance of this issue may be seen by
to court decisions holding that a jury has to "unanimously agree
that a particular statement contained in the indictment
falsely made." United States v. Fawley, 137 F.3d 458, 471 (7th
1998) (emphasis added); see also discussion of unanimity
Section VI.B, supra.
Article II is also unconstitutionally vague. It
alleges that the President "obstructed
and impeded the administration of justice . . . in a course of conduct
designed to delay, impede, cover up and conceal" unspecified evidence
testimony in the Jones case. It sets forth seven instances in
President allegedly "encouraged" false testimony or the concealment of
evidence, or "corruptly influenced" or "corruptly prevented"
various other testimony, also unspecified. In fact, not only does
fail to identify a single specific act performed by the President in
alleged scheme to obstruct justice, it does not even identify the
witnesses" whose testimony the President allegedly sought to "corruptly
The President cannot properly defend against
Article II without knowing, at
a minimum, which specific acts of obstruction and/or concealment he is
to have performed, and which "potential witnesses" he is alleged to
have attempted to influence. For example, it is clear that, in order to
the federal omnibus obstruction of justice statute, 18 U.S.C. §
accuser must prove that there was a pending judicial proceeding, that
defendant knew of the proceeding, and that the defendant acted
with the specific intent to obstruct or interfere with the proceeding
administration of justice. See, e.g., United
Bucey, 876 F.2d 1297, 1314 (7th Cir. 1989); United States v.
729 F. Supp. 1380, 1383-84 (D.D.C. 1990). Without knowing which
witnesses" he is alleged to have attempted to influence, and the
manner in which he is alleged to have attempted to obstruct justice,
President cannot prepare a defense that would address the elements of
offense with which he has been charged -- that he had no intent to
that there was no pending proceeding, or that the person involved was
It follows that the requisite vote of two-thirds
of the Senate required by
the Constitution cannot possibly be obtained if there are no specific
whatsoever alleged to be perjurious, false
or misleading in Article I or
no specific acts of obstruction alleged in Article II. Different
decide that different statements or different acts were unlawful
concurrence by two-thirds of the Senate as to any particular statement
Such a scenario is antithetical to the Constitution's due process
notice of specific and definite charges and it threatens conviction
and uncertain grounds. As currently framed, neither Article I nor
provides a sufficient basis for the President to prepare a defense to
unspecified charges upon which the Senate may vote, or an adequate
D. The Senate's Judgment Will Be Final and
That Judgment Must Speak Clearly and Intelligibly.
An American impeachment trial is not a
parliamentary inquiry into fitness
for office. It is not a vote of no confidence. It is not a mechanism
legislative majority may oust a President from a rival party on
grounds. To the contrary, because the President has a limited term of
can be turned out in the course of ordinary electoral processes, a
impeachment trial is a constitutional measure of last resort designed
This Senate is therefore vested with an
extremely grave Constitutional task:
a decision whether to remove the President for the protection of the
themselves. In the Senate's hands there rests not only the fate of one
the integrity of our Constitution and our democratic process.
Fidelity to the Constitution and fidelity to the
electorate must converge in
the impeachment trial vote. If the Senate is to give meaning to the
Constitution's command, any vote on removal must be a vote on one or
specifically and separately identified "high Crimes and Misdemeanors,"
as set forth in properly drafted impeachment articles approved by the
the people are to have their twice-elected President removed by an act
Senate, that act must be intelligible. It must be explainable and
the people who first chose the President and then chose him again. The
must ensure that it has satisfied the Constitution's requirement of a
two-thirds concurrence that specific, identified wrongdoing has been
Senate must also assure the people, through the sole collective act the
is required to take, that its decision has a readily discernible and
As matters stand, the Senate will vote on two
highly complex Articles of
Impeachment. Its vote will not be shaped by narrowing instructions. Its
preclude a vote on divisible parts of the articles. There will be no
review, no correction of error, and no possibility of retrial. The
decision will be as conclusive as any known to our law -- judicially,
politically, historically, and most literally, irrevocable.
Under such circumstances, the Senate's judgment
must speak clearly and
intelligibly. That cannot happen if the Senate votes for conviction on
articles. Their compound structure and lack of specificity make genuine
agreement as to specific wrongs impossible, and those factors
the electorate from understanding why the Senate as a whole voted as it
formulated, these articles satisfy neither the plain requirement of the
Constitution nor the rightful expectations of the American people. The
cannot support a constitutionally sound vote for conviction.
VII. THE NEED FOR DISCOVERY
The Senate need not address the issue of
discovery at this time, but because
the issue may arise at a later date, it is appropriate to remark here
present status. Senate Resolution 16 provides that the record for
the presentation by the House Managers and the President is the public
record established in the House of Representatives.136
Since this record was created by the House itself and is ostensibly the
for the House's impeachment vote, and because this evidence has been
identified and available for scrutiny, comment, and rebuttal, it is
and fair that this be the basis for any action by the Senate. Moreover,
Resolution 16 explicitly prohibits the President and the House Managers
filing at this time any "motions to subpoena witnesses or to present
evidence not in the record."
In the event, however, that the Senate should
later decide, pursuant to the
provisions of Senate Resolution 16, to allow the House Managers to
record in some way, our position should be absolutely clear. At such
President would have an urgent need for the discovery of relevant
because at no point in these proceedings has he been able to subpoena
or summon and cross-examine witnesses. He would need to use the
process authorized by Senate Impeachment Rules V and VI137
to obtain documentary evidence and witness depositions. While the
access to some of the grand jury transcripts and FBI interview
witnesses called by the OIC, the President's own lawyers were not
entitled to be
present when these witnesses were examined. The grand jury has
the engine of the prosecution, and it was used in that fashion in this
OIC sought discovery of evidence with the single goal of documenting
it believed were prejudicial to the President. It did not examine
a view toward establishing there was no justification for impeachment;
not follow up obvious leads when they might result in evidence helpful
President; and it did not seek out and document exculpatory evidence.
It did not
undertake to disclose exculpatory information it might have identified.
Nor did the House of Representatives afford the
President any discovery
mechanisms to secure evidence that might be helpful in his defense.
House called no fact witnesses at all, and at the few depositions it
counsel for the President were excluded. Moreover, the House made
a selected portion of the evidence it received from the OIC. While it
five volumes of the OIC materials (two volumes of appendices and three
of supplements), it withheld a great amount of evidence, and it denied
for the President access to this material. It is unclear what the
for selecting evidence to include in the published volumes, but there
appear to have been an attempt to include all evidence that may have
relevant to the President's defense. The President has not had access
to a great
deal of evidence in the possession of (for example) the House of
and the OIC which may be exculpatory or relevant to the credibility of
on whom the OIC and the House Managers rely.
Should the Senate decide to authorize the House
Managers to call witnesses
or expand the record, the President would be faced with a critical need
discovery of evidence useful to his defense -- evidence which would
available to any civil litigant involved in a garden-variety automobile
case. The House Managers have had in their possession or had access at
to significant amounts of non-public evidence, and they have frequently
their intention to make use of such evidence. Obviously, in order to
against such tactics, counsel for the President are entitled to
discovery and a
fair opportunity to test the veracity and reliability of this
using compulsory process as necessary to obtain testimony and
by surprise obviously has no place in the Senate of the United States
issue in the balance is the removal of the one political leader who,
Vice-President, is elected by all the citizens of this country.138
The need for discovery does not turn on the
number of witnesses the House
Managers may be authorized to depose.139
If the House Managers call a single witness, that will initiate a
leaves the President potentially unprepared and unable to defend
without proper discovery. The sequence of discovery is critical. The
first needs to obtain and review relevant
documentary evidence not now
in his possession. He then needs to be able to depose
helpful witnesses, whose identity may only emerge from the documents
the depositions themselves. Obviously, he also needs to depose
witnesses identified by the House Managers. Only at that point
President be able intelligently to designate his own trial witnesses.
both a logical procedure and one which is the product of long
designed to maximize the search for truth and minimize unfair surprise.
no conceivable reason it should not be followed here -- if the
record is opened.
Indeed, it is simply impossible to ascertain how
a witness designated by the
House Managers could fairly be rebutted without a full examination of
available evidence. It is also the case that many sorts of helpful
testimony emerge in the discovery process that may at first blush
irrelevant or tangential. In any event, the normal adversarial process
best guarantor of the truth. The President needs discovery here not
obtain evidence to present at trial but also in order to make an
judgment about what to introduce in response to the Managers' expanded
President's counsel must be able to make a properly knowledgeable
what evidence may be relevant and helpful to the President's defense,
cross-examination and during the President's own case.
The consequences of an impeachment trial are
immeasurably grave: the removal
of a twice-elected President. Particularly given what is at stake,
fairness dictates that the President be given at least the same right
ordinary litigant to obtain evidence necessary for his defense,
when a great deal of that evidence is presently in the hands of his
the OIC and the House Managers. The Senate has wisely elected to
proceed on the
public record established by the House of Representatives, and this
wholly adequate basis for Senate decision-making. In the event the
choose to expand this record, affording the President adequate
As the Senate considers these Articles of
Impeachment and listens to the
arguments, individual Senators are standing in the place of the Framers
Constitution, who prayed that the power of impeachment and removal of a
President would be invoked only in the gravest of circumstances, when
stability of our system of government hung in the balance -- to protect
Republic itself from efforts to subvert our Constitutional system.
The Senate has an obligation to turn away an
unwise and unwarranted misuse
of the awesome power of impeachment. If the Senate removes this
President for a
wrongful relationship he hoped to keep private, for what will the House
Senate to remove the next President, and the next? Our Framers wisely
gave us a
constitutional system of checks and balances, with three co-equal
Removing this President on these facts would substantially alter the
constitutional balance, and move us closer to a quasi-parliamentary
which the President is elected to office by the choice of the people,
continues in office only at the pleasure of Congress.
In weighing the evidence and assessing the
facts, we ask that Senators
consider not only the intent of the Framers but also the will and
the people. It is the citizens of these United States who will be
and stand in judgment of this process. It is not simply the President
-- but the
vote the American people rendered in schools, church halls and other
centers all across the land twenty-six months ago -- that is hanging in
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1 For example, the House Managers add a charge
that the President engaged in "legalistic hair-splitting [in his
to the 81 questions] in an obvious attempt to skirt the whole truth and
deceive and obstruct" the Committee. This charge was specifically
by the full House of Representatives when it rejected Article IV.
2 Ibid. Trooper Roger Perry, a 21-year
veteran of the Arkansas state police, stated that he "was asked about
most intimate details of Clinton's life: `I was left with the
they wanted me to show he was a womanizer . . . . All they wanted to
was women.'" Ibid. (ellipsis in original).
4 Transcript of November 19, 1998 House
Committee Hearing at 377-378.
5 Ibid. at 378.
6 Clinton v. Jones, 520 U.S. 681
7 Ms. Jones was described as having "accepted
financial support of a Virginia conservative group," which intended to
$100,000 or more on Jones's behalf, although the money will go for
not legal fees." "Jones Acquires New Lawyers and Backing," The
Washington Post (October 2, 1998) at A1. Jones' new law firm, the
Dallas-based Rader, Campbell, Fisher and Pyke, had "represented
conservatives in antiabortion cases and other causes." Ibid. See
"Dallas Lawyers Agree to Take on Paula Jones' Case -- Their Small Firm
Ties to Conservative Advocacy Group," The Los Angeles Times
2, 1997) (Rutherford Institute a "conservative advocacy group.").
8 "Cause Celebre: An Antiabortion Activist
Makes Herself the Unofficial Mouthpiece for Paula Jones," The
Washington Post (July 23, 1997) at C1. Ms. Carpenter-McMillan, "a
cause-oriented, self-defined `conservative feminist'", described her
as "flaming the White House" and declared "`Unless Clinton wants
to be terribly embarrassed, he'd better cough up what Paula needs.
comes out and testifies against Paula better have the past of a Mother
because our investigators will investigate their morality.'" "Paula
Jones' Team Not All About Teamwork," USA Today (Sept. 29, 1997)
9 After Ms. Jones' new team had been in action
for three months, one journalist commented:
In six years of public controversy over
Clinton's personal life, what is
striking in some ways is how little the debate changes. As in the
many conservatives nurture the hope that the past will be Clinton's
Jones's adviser, Susan Carpenter-McMillan, acknowledged on NBC's `Meet
Press' yesterday that her first reaction when she first heard Jones's
about Clinton was, "Good, we're going to get that little slime ball."
Harris, "Jones Case Tests Political Paradox," The
Post (Jan. 19, 1998) at A1.
10 Supplemental Materials to the Referral to
United States House of Representatives Pursuant to Title 28, United
Section 595(c), H. Doc. 105-316 (hereinafter "Supp.") at 3758-3759,
4371-4373 (House Judiciary Committee) (Sept. 28, 1998).
11 Baker, "Linda Tripp Briefed Jones Team on
Tapes: Meeting Occurred Before Clinton Deposition," The Washington
(Feb. 14, 1998) at A1.
12 Order, at 2, Jones v. Clinton, No.
LR-C-94-290 (E.D. Ark.) (Jan. 29, 1998).
14 Jones v. Clinton, No. LR-C-94-290
(E.D. Ark.), Memorandum Opinion and Order (April 1, 1998), at 3 n.3.
15 Appendices to the Referral to the United
States House of Representatives Pursuant to Title 28, United States
595(c), H. Doc. 105-311 (hereinafter "App.") at 461 (House Judiciary
Committee) (Sept. 18, 1998).
16 "While I will provide the grand jury
whatever other information I can, because of privacy considerations
family, myself, and others, and in an effort to preserve the dignity of
office I hold, this is all I will say about the specifics of these
matters." App. at 461.
17 "I will try to answer, to the best of my
ability, other questions including questions about my relationship with
Lewinsky, questions about my understanding of the term `sexual
relations,' as I
understood it to be defined at my January 17th, 1998
questions concerning alleged subornation of perjury, obstruction of
intimidation of witnesses." App. at 461.
18 Referral from Independent Counsel Kenneth W.
Starr in Conformity with the Requirements of Title 28, United States
Section 595(c), at 1 (House Judiciary Committee) (printed September 11,
19 Also incorporated by reference into this
Memorandum are the four prior submissions of the President to the House
Representatives: Preliminary Memorandum Concerning Referral of Office
Independent Counsel (September 11, 1998) (73 pages); Initial Response
Referral of Office of Independent Counsel (September 12, 1998) (42
Memorandum Regarding Standards of Impeachment (October 2, 1998) (30
Submission by Counsel for President Clinton to the Committee on the
Judiciary of the United States House of Representatives (December 8,
20 See Baker & Eilperin, "GOP
Blocks Democrats' Bid to Debate Censure in House: Panel Votes Final,
Article of Impeachment," The Washington Post (Dec. 13, 1998) at
21 Associated Press (March 25, 1998).
22 "This whole proceeding will fall on its
face if it's not perceived by the American people to be fair." Financial
Times (Sept. 12, 1998).
23 "The next House Speaker, Robert
Livingston, said the coming impeachment debate should allow lawmakers
to make a
choice between ousting President Clinton and imposing a lesser penalty
censure. The Louisiana Republican said the House can't duck a vote on
of impeachment if reported next month by its Judiciary Committee. But
`alternative measure is possible' he said, and the GOP leadership
everybody have a chance to vote on the option of their choice.'" Wall
Street Journal (Nov. 23, 1998).
24 In the impeachment trial of Andrew Johnson,
the President's counsel answered (to at least one article) that the
alleged "do not charge or allege the commission of any act whatever by
respondent, in his office of President of the United States, nor the
this respondent of any act of official obligation or duty in his office
President of the United States." 1 Trial of Andrew Johnson
25 See Statement of Rep. Bill
these impeachable offenses, which I think has already been resolved by
House. I think constitutionally that's our job to do." Fox News Sunday
(January 3, 1999).
26 Closing argument of Manager John H. Logan, 2
TAJ 18 (emphasis added). See also Office of Senate Legal
on Impeachment Issues at 25-26 (Oct. 7, 1988) ("Because the Senate
as both judge and jury in an impeachment trial, the Senate's conviction
particular article of impeachment reflects the Senate's judgment not
the accused engaged in the misconduct underlying the article but also
article stated an impeachable offense").
27 For a more complete discussion of the
Standards for Impeachment, please see Submission by Counsel for
Clinton to the House Judiciary of the United States House of
at 24-43 (December 8, 1998); Memorandum Regarding Standards of
(October 2, 1998); and Impeachment of William Jefferson, President
United States, Report of the Committee on the Judiciary to
Accompany H. Res.
611, H. Rpt. 105-830, 105th Cong., 2d Sess. at 332-39
Minority Report). References to pages 2-203 of the Committee Report
cited hereinafter as "Committee Report." References to pages 329-406
of the Committee Report will be cited hereinafter as "Minority Report."
28 "`It is known from its associates' . . .
the meaning of a word is or may be known from the accompanying words." Black's
Law Dictionary 1209 (4th ed. 1968).
29 Of course, that election takes place through
the mediating activity of the Electoral College. See U.S.
II, § 1, cl. 2-3 and Amend. XII.
30 Statement of Historians in Defense of the
Constitution (Oct. 28, 1998) ("Statement of Historians"); see
also Schmitt, "Scholars and Historians Assail Clinton Impeachment
Inquiry," The New York Times (Oct. 19, 1998) at A18.
31 Statement of Historians.
32 George Mason, 2 Farrand, The Records of
the Federal Convention of 1787 550 (Rev. ed. 1966).
33 As the 1975 Watergate staff report concluded
is the first step in a remedial process -- removal from office and
disqualification from holding future office. The purpose of impeachment
personal punishment; its function is primarily to maintain
government. . . . In an impeachment proceeding a President is called to
for abusing powers that only a President possesses." Constitutional
Grounds for Presidential Impeachment, Report by the Staff of the
Inquiry, House Comm. on Judiciary, 93d Cong., 2d Sess. at 24 (1974)
34 Minority Report at 337.
35 2 Elliot, The Debate in the Several
State Conventions on the Adoption of the Federal Constitution 480
(reprint of 2d
36 The Federalist No. 65 at 331 (Gary
Wills ed. 1982). As one of the most respected of the early commentators
explained, the impeachment "power partakes of a political character, as
respects injuries to the society in its political character." Story, Commentaries
on the Constitution, Sec. 744. (reprint of 1st ed. 1833).
37 John Labovitz, Presidential Impeachment
38 Raoul Berger, Impeachment 61 (1973)
39 Rotunda, An Essay on the Constitutional
Parameters of Federal Impeachment, 76 Ky. L.J. 707, 724 (1987/1988).
40 Gerhardt, The Constitutional Limits to
Impeachment and Its Alternatives, 68 Tex. L. Rev. 1, 85 (1989).
41 Impeachment of Richard M. Nixon,
President of the United States, Report of the Comm. on the
93rd Cong., 2d Sess., H. Rep. 93-1305 (Aug. 20, 1974)
(hereinafter "Nixon Report") at 133.
42 Nixon Report at 180.
43 Id. at 212-13.
44 Id. at 220. The President was
to have failed to report certain income, to have taken improper tax
and to have manufactured (either personally or through his agents)
documents to support the deductions taken.
45 Given the underlying facts, that act might
have provided the basis for multiple criminal charges; conviction on,
example, the tax evasion charge, could have subjected President Nixon
5-year prison term.
46 See Nixon Report at 344
Committee was told by a criminal fraud tax expert that on the evidence
to the Committee, if the President were an ordinary taxpayer, the
would seek to send him to jail") (Statement of Additional Views of Mr.
Mezvinsky, et al.).
47 Nixon Impeachment Inquiry at 26
48 Nixon Report at 364-365 (Minority
Views of Messrs. Hutchinson, Smith, Sandman, Wiggins, Dennis, Mayne,
Moorhead, Maraziti and Latta).
49 Id. (quoting with approval
of Nixon Impeachment Inquiry).
50 Nixon Report at 220.
51 See generally Rosenfeld, "Founding
Fathers Didn't Flinch," The Los Angeles Times (September 18,
52 Statement of Professor Michael J. Gerhardt
Before the House Subcommittee on the Constitution of the House
Committee Regarding the Background and History of Impeachment (November
at 13 ("Subcommittee Hearings").
53 Ibid. (emphasis added).
54 Statement of Historians.
55 See Letter of 430 Law Professors to
Messrs. Gingrich, Gephardt, Hyde and Conyers (released Nov. 6, 1998).
56 Labovitz, Presidential Impeachment
57 Berger, Impeachment at 61.
58 Charles L. Black, Jr., Impeachment: A
Handbook 38-39 (1974).
59 Labovitz, Presidential Impeachment
60 Rotunda, 76 Ky. L.J. at 726.
62 Gerhardt, 68 Tex. L. Rev. at 85.
63 Committee on Federal Legislation of the Bar
Ass'n of the City of New York, The Law of Presidential Impeachment
64 House Br. at 109.
65 Subcommittee Hearings (Written
Statement of Arthur Schlesinger, Tr. at 2).
66 Subcommittee Hearings (Written
Statement of Professor Jack Rakove at 4).
67 Subcommittee Hearings (Oral
of Professor Rakove).
68 The present articles were approved by
of 228-206 (Article I) and 221-212 (Article II). All prior resolutions
approved by substantially wider margins in the House of
Impeachments of the following civil officers: Judge John Pickering
(45-8); Justice Samuel Chase (1804) (73-32); Judge James Peck (1830)
Judge West Humphreys (1862) (no vote available, but resolution of
voted "without division," see 3 Hinds Precedents of the House
of Representatives § 2386); President Andrew Johnson (1868)
James Belknap (1876) (unanimous); Judge Charles Swayne (1903)
Robert Archbald (1912) (223-1); Judge George English (1925) (306-62);
Harold Louderback (1932) (183-143); Judge Halsted Ritter (1933)
Harry Claiborne (1986) (406-0); Judge Walter L. Nixon, Jr. (1988)
Alcee L. Hastings (1988) (413-3). The impeachment resolution against
William Blount in 1797 was by voice vote and so no specific count was
69 Former House Judiciary Committee Chairman
Peter Rodino, during a recent judicial impeachment proceeding, cogently
explained the unique position that Federal judges hold in our
The judges of our Federal courts occupy a unique
position of trust and
responsibility in our government: They are the only members of any
hold their office for life; they are purposely insulated from the
pressures and shifting currents of the body politic. But with the
prerogative of judicial independence comes the most exacting standard
and private conduct. . . . The high standard of behavior for judges
inscribed in article III of the Constitution, which provides that
hold offices during good behavior. . . ."
132 Cong. Rec. H4712 (July 22, 1986)
(impeachment of Judge Harry E.
Claiborne) (emphasis added).
70 Proceedings of the United States Senate in
Impeachment Trial of Harry E. Claiborne, 99th Cong., 2d
Doc. 99-48 at 291-98 (1986) ("Claiborne Proceedings").
71 Proceedings of the United States Senate in
Impeachment Trial of Walter L. Nixon, Jr., 101st Cong., 1st
Sess., S. Doc. 101-22 at 430-440 (1989) ("Judge Nixon Proceedings").
72 See Proceedings of the United
Senate in the Impeachment Trial of Alcee L. Hastings, 101st
Sess., S. Doc. 101-18 (1989).
73 Labovitz, Presidential Impeachment
92-93 (emphasis added).
74 Office of Senate Legal Counsel, Memorandum
on Impeachment Issues at 26 (Oct. 7, 1988) (summarizing view of
75 116 Cong. Rec. 11912, 11913 (1970).
76 Claiborne Proceedings at 106-107.
77 Section 1623 provides in relevant part:
(a) Whoever under oath . . . in any proceeding
before or ancillary to any
court or grand jury of the United States knowingly makes any false
declaration or makes or uses any other information . . . knowing the
contain any false material declaration, shall be fined under this title
imprisoned not more than five years, or both.
18 U.S.C. § 1623(a) (1994).
78 Even the OIC Referral did not allege perjury
based on these latter two theories and mentioned the first only
79 Webster's Collegiate Dictionary
ed. 1997) p. 803; see also Webster's II New Riverside Dictionary
p. 812 ("occurring from time to time; infrequent"); Chambers
English Dictionary (1988 ed.) p. 992 ("occurring infrequently,
irregularly, now and then"); The American Heritage Dictionary
Coll. ed.) ("occurring from time to time"); Webster's New World
Dictionary (3d Coll. ed.) p. 937 ("of irregular occurrence;
now and then; infrequent").
80 The OIC chart of contacts between Ms.
and the President identifies ten phone conversations "including phone
and seven phone conversations "possibly" including phone sex. App. at
81 The Committee Report did not adopt the
baseless surmise of the OIC Referral, i.e., that the President
about the starting date of his relationship because Ms. Lewinsky was
intern at the time, whereas she later became a paid employee. For good
The only support offered by the Referral for this conjecture is a
Lewinsky attributes to the President in which he purportedly said that
"intern pass" "might be a problem." Referral at 149-50. But
even Ms. Lewinsky indicated that the President was not referring to her
status, but rather was noting that, as an intern with a pink "intern
she had only limited access to the West Wing of the White House. App.
(Lewinsky FBI 302 8/24/98). Moreover, Ms. Lewinsky had in fact become
employee by late 1995, so even under the OIC theory the President could
acknowledged such intimate contact in 1995.
82 At the deposition, the Jones attorneys
presented a broad, three-part definition of the term "sexual relations"
to be used by them in the questioning. Judge Wright ruled that two
parts of the
definition were "too broad" and eliminated them. Dep. at 22. The
President, therefore, was presented with the following definition (as
understood it to have been amended by the Court):
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
(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
83 The Managers erroneously suggest that the
President's explanation of his understanding of the Jones
definition of "sexual relations" is a recent fabrication rather than
an accurate account of his view at the time of the deposition. House
54-55. To support this contention, the Managers, among other meritless
arguments, point to a document produced by the White House entitled
24, 1998 Talking Points," stating that oral sex would constitute a
relationship for the President. Id. at 55. This document,
not created, reviewed or approved by the President and did not
views. It is irrelevant to the issue at hand for the additional reason
does not speak by its own terms to the meaning of the contorted
definition of "sexual
relations" used in the Jones deposition.
84 See, e.g., Perjury Hearing of
December 1, 1998 (Statement of Professor Stephen A. Saltzburg at 2)
definition defined certain forms of sexual contact as sexual relations
reasons known only to the Jones lawyers, limited the definition to
any person for the purpose of gratification."); MSNBC Internight,
12, 1998 (Cynthia Alksne) ("[W]hen the definition finally was put
the president, it did not include the receipt of oral sex"); "DeLay
Urges a Wait For Starr's Report," The Washington Times (August
1998) ("The definition of sexual relations, used by lawyers for Paula
when they questioned the president, was loosely worded and may not have
oral sex"); "Legally Accurate," The National Law Journal
(August 31, 1998) ("Given the narrowness of the court-approved
in [the Jones] case, Mr. Clinton indeed may not have perjured
back then if, say, he received oral sex but did not reciprocate
85 The only questions the OIC asked the
about being alone with Ms. Lewinsky did not reference the deposition at
Instead, the OIC asked the President to elaborate on his
acknowledgement in his
prepared statement before the grand jury that he had been alone with
Lewinsky, App. at 481, and to explain why he made a statement, "I was
alone with her" to Ms. Currie on January 18th. See,
e.g., App. at 583.
86 Specifically, the Referral alleges that the
President lied when he testified (1) that "he believed that oral sex
not covered by any of the terms and definitions for sexual activity
used at the
Jones deposition;" (2) that their physical
contact was more limited
than Ms. Lewinsky's testimony suggests; and (3) that their intimate
began in early 1996 and not late 1995. Id. at 148-49.
87 The proposed article of impeachment alleging
perjury in the civil deposition, like the two that are before the
not identify any specific instances of false testimony, but we have
comparison with the Committee Report's elaboration of the deposition
article as it undoubtedly represents the largest universe of alleged
88 As one court has stated, "[i]n common
parlance the terms `sexual intercourse' and `sexual relations' are
interchangeably." J.Y. v. D.A, 381 N.E.2d 1270, 1273 (Ind. App.
1978). Dictionary definitions make the same point:
- Webster's Third New International Dictionary
1981) at 2082, defines "sexual relations" as "coitus;"
- Random House Webster's College Dictionary (1st
ed. 1996) at
1229, defines "sexual relations" as "sexual intercourse; coitus;"
- Merriam-Webster's Collegiate Dictionary (10th
ed. 1997) at
1074, defines "sexual relations" as "coitus;"
- Black's Law Dictionary (Abridged 6th
ed. 1991) at 560, defines "intercourse"
as "sexual relations;" and
- Random House Compact Unabridged Dictionary
(2d ed. 1996) at 1755, defines "sexual
relations" as "sexual intercourse; coitus."
89 Ms. Lewinsky took the position early on that
her contact with the President did not constitute "sex" and reaffirmed
that position even after she had received immunity and began
the OIC. For example, in one of the conversations surreptitiously taped
Tripp, Ms. Lewinsky explained to Ms. Tripp that she "didn't have sex"
with the President because "[h]aving sex is having intercourse." Supp.
at 2664; see also Supp. at 1066 (grand jury testimony of Ms.
Erbland stating that Ms. Lewinsky had said that the President and she
have sex"). Ms. Lewinsky reaffirmed this position even after receiving
immunity, stating in an FBI interview that "her use of the term `having
sex' means having intercourse. . . ." App. at 1558 (Lewinsky FBI 302
8/19/98). Likewise, in her original proffer to the OIC, she wrote, "Ms.
L[ewinsky] was comfortable signing the affidavit with regard to the
relationship' because she could justify to herself that she and the
did not have sexual intercourse." App. at 718 (2/1/98 Proffer).
90 This allegation is nearly identical to the
allegation of Article II (5), and, for the sake of brevity, it is
greater length in the response to Article II, below.
91 18 U.S.C. § 1512 covers witness
tampering. It is clear that the allegations in Article II could not
elements of § 1512. That provision requires proof that a
knowingly engaged in intimidation, physical force, threats, misleading
or corrupt persuasion with intent to influence, delay, or prevent
cause any person to withhold objects or documents from an official
It is clear from the case law that "misleading conduct" as
contemplated by § 1512 does not cover scenarios where an accused
witness to give false testimony without resorting to coercive or
conduct. See, e.g., United States v. Kulczyk,
542, 547 (9th Cir. 1991) (reversing conviction under § 1512
is simply no support for the argument that [defendant] did anything
ask the witnesses to lie"); United States v. King, 762 F.2d
237 (2d Cir. 1985) ("Since the only allegation in the indictment as to
means by which [defendant] induced [a witness] to withhold testimony
[the defendant] misled [the witness], and since the evidence failed
support any inference that [the witness] was, or even could have been,
the conduct proven by the government was not within the terms of §
Deceit is thus the gravamen of an obstruction of justice charge that is
predicated on witness tampering.
92 Compare Article I (4) (perjury in
the grand jury concerning alleged "corrupt efforts to influence
of witnesses and to impede the discovery of evidence") with Article II
(1)-(3), (6) (obstructing justice when he (1) "encouraged a witness
. . .
to execute a [false] sworn affidavit"; (2) "encouraged a witness
. . .
to give perjurious, false and misleading testimony"; (3) "engaged in,
encouraged, or supported a scheme to conceal evidence"; (6) "corruptly
influence[d] the testimony" of Betty Currie). Compare also
I (3) (perjury in the grand jury concerning alleged "prior false and
misleading statements he allowed his attorney to make to a Federal
with Article II (5) (obstructing justice by "allow[ing] his attorney to
make false and misleading statements to a Federal judge).
93 The myth that the President told Ms.
to lie in her affidavit springs not from the evidence but from the
surreptitiously recorded Tripp tapes. But as Ms. Lewinsky explained to
jury, many of the statements she made to Ms. Tripp -- including on this
-- were not true: "I think I told [Linda Tripp] that -- you know at
times the President and Mr. Jordan had told me I have to lie. That
true." App. at 942 (Lewinsky GJ 8/6/98).
94 Indeed, the Committee Report alleges without
support that the President lied to the grand jury when he indicated his
that Ms. Lewinsky could indeed have filed a truthful but limited
might have gotten her out of testifying in the Jones case.
(4). This claim fails for the reasons discussed in the text.
95 The Committee Report argued that Ms.
"contextually understood that the President wanted her to lie" because
he never told her to file an affidavit fully detailing the "true
of their relationship. Committee Report at 65. The only support cited
for this "contextual
understanding" obstruction theory advanced by the Committee Report was
reference back to the OIC Referral. The OIC Referral, in turn, advanced
theory, citing only the testimony of Ms. Lewinsky that, while the
never encouraged her to lie, he remained silent about what she should
do or say,
and by such silence, "I knew what that meant." App. at 954 (Lewinsky
GJ 8/6/98) (cited in Referral at 174). It is extraordinary that the
the United States could face removal from office not because he
Lewinsky to lie, or said anything of the sort, but instead because he
silent -- and Ms. Lewinsky thought she "knew what that meant."
96 A friend of Ms. Lewinsky's also testified
that, based on her close relationship with her, she believed that Ms.
did not lie in her affidavit based on her understanding that when Ms.
referred to "sex" she meant intercourse. Supp. at 4597 (6/23/98 grand
jury testimony of Ms. Dale Young). See also Supp. at 1066
testimony of Ms. Neysa Erbland stating that Ms. Lewinsky had said that
President and she "didn't have sex").
97 Those statements, from earliest to latest in
1. Proffer (2/1/98): " Ms. L then asked if she
should put away (outside
her home) the gifts he had given her or, maybe, give them to someone
App. at 715.
2. FBI 302 (7/27/98): "LEWINSKY expressed her
concern about the gifts
that the President had given LEWINSKY and specifically the hat pin that
subpoenaed by PAULA JONES. The President seemed to know what the JONES
called for in advance and did not seem surprised about the hat pin. The
President asked LEWINSKY if she had told anyone about the hat pin and
denied that she had, but may have said that she gave some of the gifts
CARTER. ...LEWINSKY asked the President if she should give the gifts to
and the President replied `I don't know.'" App. at 1395.
3. FBI 302 (8/1/98): "LEWINSKY said that she
was concerned about the
gifts that the President had given her and suggested to the President
CURRIE hold the gifts. The President said something like, `I don't
`I'll think about it.' The President did not tell LEWINSKY what to do
gifts at that time." App. at 1481.
4. Grand Jury (8/6/98): "[A]t some point I
said to him, `Well, you
know, should I -- maybe I should put the gifts away outside my house
or give them to someone, maybe Betty.' And he sort of said -- I think
responded, `I don't know' or `Let me think about that.' And left that
App. at 872.
5. FBI 302 (8/13/97): "During their December
28, 1997 meeting, CLINTON
did not specifically mention which gifts to get rid of." App. at 1549.
6. Grand Jury (8/20/98): "It was December 28th
and I was there to get
my Christmas gifts from him... And we spent maybe about five minutes or
very long, talking about the case. And I said to him, `Well, do you
And at one point, I said, `Well do you think I should--' I don't think
`get rid of,' I said, `But do you think I should put away or maybe give
or give someone the gifts?' And he -- I don't remember his response. I
was something like, `I don't know,' or `Hmm,' or -- there really was no
response." App. at 1121-22.
7. Grand Jury (8/20/98): "A JUROR: Now, did
you bring up Betty's name
[at the December 28 meeting during which gifts were supposedly
discussed] or did
the President bring up Betty's name? THE WITNESS: I think I brought it
President wouldn't have brought up Betty's name because he really
didn't -- he
really didn't discuss it..." App. at 1122.
8. Grand Jury (8/20/98): "A JUROR: You had
said that the President had
called you initially to come get your Christmas gift, you had gone
had a talk, et cetera, and there was no -- you expressed concern, the
really didn't say anything." App. at 1126.
9. FBI 302 (8/24/98): "LEWINSKY advised that
CLINTON was sitting in the
rocking chair in the Study. LEWINSKY asked CLINTON what she should do
gifts CLINTON had given her and he either did not respond or responded
know.' LEWINSKY is not sure exactly what was said, but she is certain
whatever CLINTON said, she did not have a clear image in her mind of
what to do
next." App. at 1566.
10. FBI 302 (9/3/98): "On December 28, 1997,
in a conversation between
LEWINSKY and the President, the hat pin given to Lewinsky by the
specifically discussed. They also discussed the general subject of the
President had given Lewinsky. However, they did not discuss other
called for by the PAULA JONES subpoena. LEWINSKY got the impression
President knew what was on the subpoena." App. at 1590.
98 Here a grand juror is restating Ms.
Lewinsky's earlier testimony, with which Ms. Lewinsky appeared to agree
not dispute the accuracy of the grand juror's recapitulation).
99 The OIC Referral, which took great pains to
point out every allegedly incriminating piece of evidence, made no
this telephone record, perhaps because the OIC knew it tended not
corroborate Ms. Lewinsky's time line. In its place, the Referral rested
corroboration hopes in the following bizarre analysis: "More generally,
person making the extra effort (in this case, Ms. Currie) is ordinarily
person requesting the favor." Referral at 170. Wisely, the House
chose not to pursue this groundless speculation.
100 Incredibly, not only does the Committee
Report fail to offer a sensible answer to this perplexity, but without
factual or logical support it accuses the President of lying to the
when he testified that he was not particularly concerned about the
gifts he had
given Ms. Lewinsky and thus had no compunction about giving her
on December 28. Article I (4). For whatever reason, neither the
nor the OIC Referral acknowledges the most reasonable explanation for
events: as the President has testified repeatedly, he was not concerned
the gifts he had given Ms. Lewinsky:
- "I was never hung up about this gift issue.
Maybe it's because I
have a different experience. But, you know, the President gets hundreds
a year, maybe more. I have always given a lot of gifts to people,
they give me gifts. And this was no big deal to me." App. at 495.
- "this gift business . . . didn't bother me."
App. at 496.
- "I wasn't troubled by this gift issue." App.
- "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 a
gift, or a woman giving a man a gift, that necessarily connotes an
relationship. So, it didn't bother me." App. at 498.
101 As the President has stated about this
potentiality, "I didn't then, I don't now see this [the gifts] as a
problem. And if she thought it was a problem, I think it -- it must
from a, really, a misapprehension of the circumstances. I
never encouraged her not to, to comply lawfully with a subpoena." App.
497-98 (emphasis added.)
102 This allegation has gone through several
iterations. As initially referred to the House of Representatives, the
was that the President "help[ed] Ms. Lewinsky obtain a job in New York
time when she would have been a witness against him" in the Jones
case. OIC Referral at 181. Faced with the significant evidence that Ms.
Lewinsky's job efforts had originated long before she became involved
Jones case and were in fact entirely
unrelated to the Jones case,
the Judiciary Committee Majority was forced to recraft this claim.
implying a complete connection between the job search and the Jones
litigation, the article now oddly charges that the President "intensified
and succeeded in an effort to secure job assistance" for Ms.
a time when the truthful testimony of [Ms. Lewinsky] would have been
him," Article II (5) (emphasis added) -- thereby admitting that
initial effort was motivated by appropriate concerns.
103 The only person who suggested any such quid
pro quo was Ms. Tripp, who repeatedly urged Ms. Lewinsky to demand
linkage. App. at 1493 (Lewinsky FBI 302 8/2/98) ("TRIPP told LEWINSKY
to sign the affidavit until LEWINSKY had a job."). To appease Linda
repeated demands on this point, Ms. Lewinsky ultimately told Ms. Tripp
had told Mr. Jordan she wouldn't sign the affidavit until she had a
job. But as
she later emphasized to the grand jury, "That was definitely a lie,
on something Linda had made me promise her on January 9th." App. at
(Lewinsky GJ 8/20/98).
104 Mr. Jordan was then out of the country from
the day after Thanksgiving until December 4. Supp. at 1804 (Jordan GJ
105 Committee Report at 70. That portrayal
flatly contradicts the Committee Report's earlier statement that on
December 6 "there
was still no urgency to help Lewinsky." Committee Report at 10-11.
106 That Order authorized Paula Jones'
to obtain discovery relating to certain government employees "with whom
President had sexual relations, proposed sexual relations, or sought to
sexual relations." House Br. at 21.
107 Mr. Jordan explained that not much activity
occurred in November because "I was traveling." Supp. at 1811 (Jordan
108 It is upon this same fanciful methodology
that the Committee Report premises the allegation of Article I (3) that
President lied to the grand jury in providing these responses. Citing
President's oft-criticized response about Mr. Bennett's use of the
in his statement "there is no sex of any kind" ("It depends on
what the meaning of the word `is' is." App. at 510), the Committee
claims that such parsing contradicts the President's claim that he was
paying close attention to the exchange. But contrary to the Committee
suggestion, the President's response to this question did not purport
describe the President's contemporaneous thinking at the deposition,
only in retrospect whether he agreed with the questioner that it was
utterly false statement." Id. The President later emphasized
he "wasn't trying to give . . . a cute answer" in his earlier
explanation, but rather only that the average person thinking in the
tense would likely consider that Mr. Bennett's statement was accurate
relationship had ended long ago. App. at 513..
109 Ms. Currie remembers a second conversation
similar in substance a few days after the January 18 discussion, but
advance of the public disclosure of this matter on January 21, 1998.
561 (Currie GJ 1/27/98).
110 Only groundless speculation and unfounded
inferences support the Committee Report's mirror allegation of Article
that the President lied to the grand jury when he described his
discussing these matters with Ms. Currie. That allegation should be
the same reasons discussed more fully in the text of this section.
111 As the Supreme Court has held, to
obstruction of justice such actions must be taken "with an intent to
influence judicial or grand jury proceedings." United States v.
Aguilar, 515 U.S. 592, 599 (1995).
112 The Committee Report's allegation under
Article I (4) that the President committed perjury before the grand
in the course of admitting that he misled his close aides, he stated
endeavored to say to his aides "things that were true," App. at
557-60, without disclosing the full nature of the relationship is
113 The House Managers cannot constitutionally
unbundle the charges in the articles or provide the missing specifics.
because the Constitution provides that only the House of
amend articles of impeachment, and judicial precedent demonstrates that
vague indictments cannot be cured by a prosecutor providing a
particulars. Only the charging body -- here, the House -- can
impermissibly vague charge.
Indeed, Senate precedent confirms that the
entire House must grant
particulars when articles of impeachment are not sufficiently specific
fair trial. During the 1933 impeachment trial of Judge Harold
counsel for the Judge filed a motion to make the original Article V,
or "catchall" article, more definite. 77 Cong. Rec. 1852, 1854 (1933).
The House Managers unanimously consented to the motion, which they
be akin to a motion for a bill of particulars, and the full House
Article V to provide the requested specifics. Id. Thereafter,
of the House informed the Senate that the House had adopted an
Article V. Id. Judge Louderback was then tried on the amended
Judge Louderback was subsequently acquitted on all five articles.
Richard M. Nixon, President of the United States, Report by Staff of
Impeachment Inquiry, House Comm. on the Judiciary, 93d Cong., 2d Sess.,
B at 55 (Feb. 1974).
The power to define and approve articles of
impeachment is vested by the
Constitution exclusively in the House of Representatives. U.S. Const.
Art I, §
2, cl. 5. It follows that any alteration of an Article of Impeachment
performed only by the House. The House cannot delegate (and has not
to the Managers the authority to amend or alter the Articles, and
precedent demonstrates that only the House (not the Managers
effect an amendment to articles of impeachment.
Case law is consistent with this precedent. When
unconstitutionally vague, they cannot be cured by a prosecutor's
provision of a
bill of particulars, because only the charging body can elaborate upon
charges. As the Supreme Court noted in Russell v. United States,
U.S. 749, 771 (1962):
It is argued that any deficiency in the
indictments in these cases could
have been cured by bills of particulars. But it is a settled rule that
a bill of
particulars cannot save an invalid indictment . . . To allow the
the court, to make a subsequent guess as to what was in the minds of
jury at the time they returned the indictment would deprive the
defendant of a
basic protection which the guaranty of the intervention of a grand jury
designed to secure. For a defendant could then be convicted on the
facts not found by, and perhaps not even presented to, the grand jury
indicted him. This underlying principle is reflected by the settled
rule in the
federal courts that an indictment may not be amended except by
the grand jury . . . .
See also Stirone v. United States, 361
U.S. 212, 216 (1960) quotingEx
Parte Bain, 121 U.S. 1 (1887) ("If it lies within the province of a
court to change the charging part of an indictment to suit its own
what it ought to have been or what the grand jury would probably have
made it if
their attention had been called to suggested changes, the great
the common law attaches to an indictment by a grand jury . . . may be
away until its value is almost destroyed.").
114 It appears that each of these topic areas
includes various, unspecified allegedly perjurious, false and
115 See, e.g., U.S. Const. Art. I,
7, cl. 2 (two thirds vote required to override Presidential veto); U.S.
Art. II, § 2, cl. 2 (two thirds required for ratification of
U.S. Const. Art. V (two thirds required to propose constitutional
U.S. Const. Art. I, § 5, cl. 2 (two thirds required to expel
116 Madison referred to majority voting as "the
fundamental principal of free government." Federalist No. 58 at
(G. Wills ed. 1982).
117 There remains the additional problem that
the articles allege not specific perjurious statements, but perjury
topic area. Perjury as to a category (rather than as to
statements) is an incomprehensible notion.
118 See Report of the Senate
Impeachment Trial Committee on the Articles of Impeachment Against
L. Nixon, Jr., Hearings Before the Senate Impeachment Trial Committee,
Cong., 1st Sess. at 257, 281-84 (1989).
119 Judge Nixon Proceedings at 430-32.
120 Id. at 435-36.
121 Statement of Senator Joseph R. Biden, Jr.,
id. at 459.
122 See also Statement of Senator
Bailey, Impeachment of Judge Harold Louderback, 77 Cong. Rec. 4238 (May
1933) (respondent should be tried on individual articles and not on all
assembled into one article).
123 Statement of Senator Robert Dole, Judge
Nixon Proceedings at 457.
124 Statement of Senator Herbert H. Kohl,id.
at 449 (emphasis added). Senator Kohl did not believe that the
question concerning two-thirds concurrence had to be answered in the
proceedings because he believed that the bundling problem created an
(in effect, a due process violation) that precluded conviction. Id.
125 See also Constitutional Grounds
Presidential Impeachment: Modern Precedents, Report by the Staff of the
Impeachment Inquiry, Comm. on Judiciary, 105th Cong., 2d
Sess. at 12
(1998) (discussing Sen. Kohl's position).
126 Judicial precedent is persuasive here on
these due process and fairness questions. Indeed, in prior impeachment
the Senate has been guided by decisions of the courts, because they
cumulative wisdom concerning fairness and the search for justice.
impeachment trial of Judge Alcee L. Hastings, Senator Specter stated:
[T]he impeachment process  relies in
significant measure on decisions of
the court and the opinion of judges . . . [T]he decisions and
the courts should be highly instructive to us. In our system of
has been the courts that through the years have been called upon to
define and apply the provisions of our Constitution. Their decisions
values and our evolving notions of justice . . . Although we are a
Government coequal with the judiciary, and by the Constitution vested
with the "sole"
power to try impeachments, I believe that the words and reasoning of
have struggled with the meaning and application of the Constitution and
provisions ought to be given great heed because that jurisprudence
values of fairness and justice that ought to be the polestar of our own
S. Doc. 101-18, 101st Cong., 1st Sess. at
740-41. As Senator Specter
observed, judicial rules have been developed and refined over the years
assure that court proceedings are fair, and that an accused is assured
necessary tools to prepare a proper defense, including proper notice.
127 See also Federal Rules of Criminal
Procedure, Rule 8(a): "Two or more offenses may be charge in the same
indictment or information in a separate count for each offense
offenses charged . . . are of the same or similar character or are
based on the
same act or transaction or on two or more acts or transactions
together or constituting parts of a common scheme or plan." (emphasis
128 Each of the four categories charged here
actually comprises multiple allegedly perjurious statements. Thus, the
of duplicitousness are increased exponentially.
129 The Supreme Court has stated that
in jury verdicts is required where the Sixth and Seventh Amendments
Andres v. United States, 333 U.S. 740, 748
(1948); Apodaca v. Oregon,
406 U.S. 404 (1972) (same).
130 That rule gives expression to a criminal
defendant's due process right to a unanimous verdict. See United
Fawley, 137 F.2d 458, 4771 (7th Cir. 1988). Because the
Constitution does not tolerate the risk of a less than unanimous
verdict in the
criminal setting, "where the complexity of a case or other factors
the potential for confusion as to the legal theory or factual basis
sustains a defendant's conviction, a specific unanimity instruction is
United States v. Jackson, 879 F.2d 85, 88
(3d Cir. 1989) (citing United
States v. Beros, 833 F.2d 455, 460 (3d Cir. 1987)). Such
required where the government charges several criminal acts, any of
could have supported the offense charged, because of the need to
sufficient guidance to assure that all members of the jury were
unanimous on the
same act or acts of illegality. Id. at 88. As the Seventh
recently concluded in a case alleging multiple false statements, "the
should have been advised that in order to have convicted [the
had to unanimously agree that a particular statement contained in the
was falsely made." Fawley, 137 F.2d at 470.
131 In our federal criminal process, a
duplicitous pleading problem may sometimes be cured by instructions to
requiring unanimous agreement on a single statement, see Fawley,
but that option is not present here. Not only do the Senate Rules not
for the equivalent of jury instructions, they expressly rule out
prospect of subdividing an article of impeachment for purposes of
Senate Impeachment Rule XXIII. Nor is the duplicitousness problem
cured by any specific enumeration of elements necessary to be found by
factfinder. See, e.g., Santarpio v. United States, 560 F.2d 448
Cir. 1977) (duplicitous charge harmless because indictments adequately
the elements of the federal crime; appellants were not misled or
Article I does not enumerate specific elements to be found by the
the contrary, the Article combines multiple types of wrong, allegedly
by different types of statements, the different types occurring in
subject matter areas, and all having a range of allegedly harmful
132 One of the cardinal rules of perjury cases
is that "[a] conviction under 18 U.S.C. § 1623 may not stand
where the indictment fails to set forth the precise falsehood alleged
factual basis of its falsity with sufficient clarity to permit a jury
determine its verity and to allow meaningful judicial review of the
of those falsehoods." United States v. Slawik, 548 F.2d 75,
(3d Cir. 1977). Courts have vacated convictions for perjury in
instances where "the
indictment . . . did not `set forth the precise falsehood(s) alleged." Tonelli,
577 F.2d at 200.
133 Proceedings of the United States Senate in
the Impeachment Trial Alcee L. Hastings, 101st Cong., 1st. Sess., S.
at 4-7 (1989). See, e.g., Id. at 2 (Article II
that the false statement was "that Judge Hastings and William Borders,
Washington, D.C., never made any agreement to solicit a bribe from
United States v. Romano, a case tried before
134 Proceedings of the United States Senate in
the Impeachment Trial of Walter L. Nixon, Jr., 101st Cong., 1st Sess.,
101-22 at 430-32 (1989). See, e.g., Id. at 432
I alleging that the false statement was "Forrest County District
Paul Holmes never discussed the Drew Fairchild case with Judge Nixon.").
135 Not surprisingly, courts have specifically
held that because of these additional elements (the lack of which may
a perjury prosecution), a defendant must know exactly which statements
alleged to form the basis of a perjury indictment to test whether the
elements are present. See, e.g., United States v.
215 F.2d 847, 850 (D.C. Cir. 1954) ("The accused is entitled under the
Constitution to be advised as to every element in respect to which it
necessary for him to prepare a defense"). For example, because of the
intent requirement, one potential defense to a perjury prosecution is
question to which the allegedly perjurious
statement was addressed was
fundamentally ambiguous, as courts have held that fundamentally
questions cannot as a matter of law produce perjurious answers. See,
e.g., Tonelli, 577 F.2d at 199; United
States v. Wall,
371 F.2d 398 (6th Cir. 1967). A separate defense to a perjury
that the statement alleged to have been perjurious was not material to
proceeding. Thus, "false" statements alone are not perjurious if they
were not material to the proceeding. By not specifying which statements
alleged to be "false" or "misleading,'" Article I precludes
the President from preparing a materiality defense, and it also fails
distinguish allegedly criminal conduct from purely lawful conduct. As
It is to be observed that . . . it is not
sufficient to constitute the
offense that the oath shall be merely false, but that it must be false
`material matter.' Applying that definition to the facts stated in
of this indictment, and it would seem that there is an entire lack in
essential sense to disclose that the particulars as to which the oath
to have been false were material in the essential sense required for
an indictment for this offense.
United States v. Cameron, 282 F. 684, 692
(D. Ariz. 1922).
136 S. Res. 16 defined the record for the
presentations as "those publicly available materials that have been
submitted to or produced by the House Judiciary Committee, including
of public hearings or mark-ups and any materials printed by the House
Representatives or House Judiciary Committee pursuant to House
137 Rules of Procedure and Practice in the
Senate When Sitting on Impeachment Trials (Senate Manual 99-2, as
revised by S.
Res. 479 (Aug. 16, 1986)). There is ample precedent for liberal
Senate impeachment trials. For example, in the trial of Judge Alcee
the Senate issued numerous orders addressing a range of pretrial issues
several months including:
- requiring the parties to provide witness
lists along with a
description of the general nature of the testimony that was expected
witness months in advance of the scheduled evidentiary hearing;
- requiring the House Managers to turn over
exculpatory materials, certain
prior statements of witnesses, and documents and other tangible
intended to introduce into evidence;
- requiring the production from the House
Managers of other documents in the
interest of allowing the Senate to develop "a record that fully
the matters that it must consider in rendering a judgment;"
- setting a briefing schedule for stipulations
of facts and documents;
- setting a number of pretrial conferences;
- designating a date for final pretrial
- permitting a number of pre-trial depositions.
Report of the Senate Impeachment Trial Committee
on the Articles of
Impeachment Against Judge Alcee L. Hastings, Hearings Before the Senate
Impeachment Trial Committee, 101st Cong. 1st
281, 286-87, 342-43, 606-07, 740.
The need for discovery in this case is in fact
greater than in prior
impeachment proceedings. In all other impeachment trials, there were
substantive investigations by the House or prior judicial proceedings
the accused had a full opportunity to develop the evidentiary record
cross-examine witnesses. See Id. at 163-64 (pre-trial
138 In another context, the Supreme Court has
observed that "the ends of justice will best be served by a system of
liberal discovery which gives both parties the maximum possible amount
information from which to prepare their cases and thereby reduces the
possibility of surprise at trial." Wardius v. Oregon, 412 U.S.
139 It is not sufficient that counsel for the
President have the right to depose the witnesses called by the
essential as that right is. The testimony of a single witness may have
refuted indirectly, circumstantially, or by a number of witnesses; it
necessary to depose several witnesses in order to identify the one or
January 13, 1999