[Impeachment of President William Jefferson Clinton - The Evidentiary Record Pursuant to S. Res. 16 - Index to Senate Document 106-3, Vols. I-XXIV]
[Volume XIII - Submission by Counsel for President Clinton to the Committee on the Judiciary. Committee Print Ser. No. 16, December 1998]
[From the U.S. Government Printing Office, www.gpo.gov]


106th Congress                                                 Document
1st Session                      SENATE                         106-3
_______________________________________________________________________

                                     


                       IMPEACHMENT OF PRESIDENT
                       WILLIAM JEFFERSON CLINTON

                               __________

 
                         THE EVIDENTIARY RECORD
                         PURSUANT TO S. RES. 16
                              VOLUME XIII

  Submission by Counsel for President Clinton to the Committee on the 
            Judiciary, Committee Print No. 16, December 1998

[GRAPHIC] [TIFF OMITTED] TONGRESS.#13


   Printed at the direction of Gary Sisco, Secretary of the Senate, 
         pursuant to S. Res. 16, 106th Cong., 1st Sess. (1999)

                January 8, 1999.--Ordered to be printed



105th Congress                                              Ser. No. 16
2d Session                  COMMITTEE PRINT                            
_______________________________________________________________________



 SUBMISSION BY COUNSEL FOR PRESIDENT CLINTON TO THE COMMITTEE ON THE 
        JUDICIARY OF THE UNITED STATES HOUSE OF REPRESENTATIVES

                               __________

                    IMPEACHMENT INQUIRY PURSUANT TO
                              H. RES. 581

                               __________

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED FIFTH CONGRESS

                        Henry J. Hyde, Chairman

[GRAPHIC] [TIFF OMITTED] TONGRESS.#13


                             DECEMBER 1998

                    U.S. GOVERNMENT PRINTING OFFICE
 53-452                    WASHINGTON : 1998


                       COMMITTEE ON THE JUDICIARY

                   HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        BARNEY FRANK, Massachusetts
BILL McCOLLUM, Florida               CHARLES E. SCHUMER, New York
GEORGE W. GEKAS, Pennsylvania        HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina         RICK BOUCHER, Virginia
LAMAR SMITH, Texas                   JERROLD NADLER, New York
ELTON GALLEGLY, California           ROBERT C. SCOTT, Virginia
CHARLES T. CANADY, Florida           MELVIN L. WATT, North Carolina
BOB INGLIS, South Carolina           ZOE LOFGREN, California
BOB GOODLATTE, Virginia              SHEILA JACKSON-LEE, Texas
STEPHEN E. BUYER, Indiana            MAXINE WATERS, California
ED BRYANT, Tennessee                 MARTIN T. MEEHAN, Massachusetts
STEVE CHABOT, Ohio                   WILLIAM D. DELAHUNT, Massachusetts
BOB BARR, Georgia                    ROBERT WEXLER, Florida
WILLIAM L. JENKINS, Tennessee        STEVEN R. ROTHMAN, New Jersey
ASA HUTCHINSON, Arkansas             THOMAS BARRETT, Wisconsin
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California



                             Majority Staff

         Thomas E. Mooney, Sr., General Counsel-Chief of Staff
          Jon W. Dudas, Deputy General Counsel-Staff Director
         Diana L. Schacht, Deputy Staff Director-Chief Counsel
               Daniel M. Freeman, Parliamentarian-Counsel
       Paul J. McNulty, Director of Communications-Chief Counsel
                    Joseph H. Gibson, Chief Counsel
                         Rick Filkins, Counsel
                       Sharee M. Freeman, Counsel
                       Peter J. Levinson, Counsel
                       John F. Mautz, IV, Counsel
                     William E. Moschella, Counsel
                        Stephen Pinkos, Counsel
George M. Fishman, Chief Counsel     David P. Schippers, Chief 
Mitch Glazier, Chief Counsel             Investigative Counsel
John H. Ladd, Chief Counsel          Susan Bogart, Investigative 
Raymond V. Smietanka, Chief Counsel      Counsel
Laura Ann Baxter, Counsel            John C. Kocoras, Counsel
Daniel J. Bryant, Counsel            Berle S. Littmann, Investigator
Cathleen A. Cleaver, Counsel         Stephen P. Lynch, Professional 
Vince Garlock, Counsel                   Staff Member
James W. Harper, Counsel             Charles F. Marino, Counsel
Susan Jensen-Conklin, Counsel        Jeffery J. Pavletic, Investigative 
Debra K. Laman, Counsel                  Counsel
Blaine S. Merritt, Counsel           Thomas M. Schippers, Investigative 
Nicole R. Nason, Counsel                 Counsel
Glenn R. Schmitt, Counsel            Albert F. Tracy, Investigator
Jim Y. Wilon, Counsel                Peter J. Wacks, Investigator
                                     Diana L. Woznicki, Investigator

                             Minority Staff

         Julian Epstein, Minority Chief Counsel-Staff Director
Perry H. Apelbaum, Minority General  Abbe D. Lowell, Minority Chief 
    Counsel                              Investigative Counsel
David G. Lachman, Counsel            Sampak P. Garg, Investigative 
Cynthia A. R. Martin, Counsel            Counsel
Stephanie J. Peters, Counsel         Steven F. Reich, Investigative 
Samara T. Ryder, Counsel                 Counsel
Brian P. Woolfolk, Counsel           Deborah L. Rhode, Investigative 
                                         Counsel
                                     Kevin M. Simpson, Investigative 
                                         Counsel
                                     Lis W. Wiehl, Investigative 
                                         Counsel



  SUBMISSION BY COUNSEL FOR PRESIDENT CLINTON TO THE COMMITTEE ON THE 
 JUDICIARY OF THE UNITED STATES HOUSE OF REPRESENTATIVES, DECEMBER 8, 
                                  1998

David E. Kendall, Nicole K. Seligman, Emmet T. Flood, Max 
        Stier, Alicia L. Marti, Williams & Connolly, 725 12th 
        Street, N.W., Washington, D.C. 20005
Gregory B. Craig, Special Counsel to the President, The White 
        House, Washington, D.C. 20502
Charles F.C. Ruff, Cheryl D. Mills, Lanny A. Breuer, Office of 
        the White House Counsel, The White House, Washington, 
        D.C. 20502



                                PREFACE

    In addition to the factual, legal and Constitutional 
defenses we present in this document, the President has asked 
us to convey a personal note: What the President did was wrong. 
As the President himself has said, publicly and painfully, 
``there is no fancy way to say that I have sinned.''
    The President has insisted that no legalities be allowed to 
obscure the simple moral truth that his behavior in this matter 
was wrong; that he misled his wife, his friends and our Nation 
about the nature of his relationship with Ms. Lewinsky. He did 
not want anyone to know about his personal wrongdoing. But he 
does want everyone--the Committee, the Congress and the 
country--to know that he is profoundly sorry for the wrongs he 
has committed and for the pain he has caused his family, his 
friends, and our Nation.
    But as attorneys representing the President in a legal and 
Constitutional proceeding, we are duty-bound to draw a 
distinction between immoral conduct and illegal or impeachable 
acts. And just as no fancy language can obscure the fact that 
what the President did was morally wrong, no amount of rhetoric 
can change the legal reality that the record before this 
Committee does not justify charges of criminal conduct or 
impeachable offenses.
    The Framers, in their wisdom, left this Body the solemn 
obligation of determining not what is sinful, but rather what 
is impeachable. The President has not sugar-coated the reality 
of his wrongdoing. Neither should the Committee ignore the high 
standards of the Constitution to overturn a national election 
and to impeach a President.


                           TABLE OF CONTENTS

                              ----------                              
                                                                   Page
PREFACE..........................................................   VII
I. INTRODUCTION..................................................     1
II. THE FACTUAL BACKGROUND.......................................     2
    A. The Whitewater Investigative Dead-End.....................     2
    B. The Paula Jones Litigation................................     5
    C. The President's Grand Jury Testimony About Ms. Lewinsky...     6
III. THE CONSTITUTION REQUIRES PROOF OF OFFICIAL MISCONDUCT FOR 
  IMPEACHMENT....................................................     7
    A. Under the Constitution the Conduct Alleged in the Referral 
      Does Not Reach the Level of ``High Crimes and 
      Misdemeanors''.............................................     7
        1. Historical Background of ``High Crimes and 
          Misdemeanors''.........................................     7
        2. The Framers Believed that Impeachment Redresses 
          Wrongful Public Conduct................................     9
        3. Our Constitution's Structure Does Not Permit 
          Impeachment for Reasons of the Sort Alleged in the 
          Referral...............................................    10
    B. American Presidential Impeachment Practice and 
      Contemporary Scholarship Confirm that Impeachment Is Only 
      for Political Offenses Against the State Itself, Not for 
      Private Wrongs.............................................    12
        1. Prior Impeachment Proceedings Against American 
          Presidents.............................................    12
        2. Contemporary Views Confirm that Impeachment Is Not 
          Appropriate Here.......................................    14
    C. Relevant Historical Precedents Demonstrate that No 
      Impeachable Offense Has Been Alleged Here..................    15
        1. Alexander Hamilton....................................    15
        2. The Failure of the Proposed Article of Impeachment 
          Against President Nixon Alleging Fraudulent Tax Filings    16
IV. THE CONSTITUTION REQUIRES CLEAR AND CONVINCING EVIDENCE TO 
  APPROVE ARTICLES OF IMPEACHMENT................................    18
    A. This Committee Should Apply the Same Clear and Convincing 
      Standard Observed by Its Predecessor in the Watergate 
      Proceedings................................................    18
    B. The Clear and Convincing Standard Is Commensurate with the 
      Grave Constitutional Power Vested in the House.............    20
V. THE COMMITTEE SHOULD NOT RELY ON THE REFERRAL'S ACCOUNT OF THE 
  EVIDENCE.......................................................    21
    A. The Information Presented to the Committee in the Referral 
      Has Not Been Subjected to the Most Basic Adversarial 
      Testing....................................................    22
    B. The Referral Differs Vastly From the Precedent of the 
      Watergate ``Road Map''.....................................    22
    C. The Resulting Referral Omitted a Wealth of Directly 
      Relevant Exculpatory Evidence..............................    23
    D. Mr. Starr's Conduct in the Lewinsky Investigation Has 
      Betrayed a Bias that Helps Explain the Lack of Neutrality 
      in the Referral............................................    25
VI. THE PRESIDENT DID NOT COMMIT PERJURY.........................    27
    A. Elements of Perjury.......................................    27
    B. Contradictory Testimony From Two Witnesses Does Not 
      Indicate That One Has Committed Perjury....................    28
        1. It Must Be Proven that a Witness Had the Specific 
          Intent to Lie..........................................    28
        2. A Perjury Case Must Not Be Based Solely Upon the 
          Testimony of a Single Witness..........................    29
    C. ``Literal Truth'' and Non-Responsive Answers Do Not 
      Constitute Perjury.........................................    30
    D. Fundamentally Ambiguous Questions Cannot Produce 
      Perjurious Answers.........................................    32
    E. It Is Expected and Proper for a Witness To Be Cautious 
      When Under Oath............................................    34
    F. Specific Claims of Perjury................................    35
        1. Civil Deposition of January 17, 1998..................    35
        2. Grand Jury Testimony of August 17, 1998...............    43
VII. THE PRESIDENT DID NOT OBSTRUCT JUSTICE......................    44
    A. The Elements of Obstruction of Justice....................    44
    B. Specific Claims of Obstruction............................    46
        1. There Is No Evidence that the President Obstructed 
          Justice in Connection with Gifts Given to Ms. Lewinsky.    46
        2. The President Did Not Obstruct Justice in Connection 
          with Ms. Lewinsky's Job Search.........................    57
        3. The President Did Not Have an Agreement or 
          Understanding with Ms. Lewinsky to Lie Under Oath......    70
        4. The President Did Not Obstruct Justice by Suggesting 
          Ms. Lewinsky Could File an Affidavit...................    72
        5. The President Did Not Attempt to Influence Betty 
          Currie's Testimony.....................................    75
        6. The President Did Not Attempt to Influence the 
          Testimony of ``Potential'' Grand Jury Witnesses Through 
          His Denials............................................    78
VIII. THE PRESIDENT DID NOT ABUSE POWER..........................    81
    A. The President Properly Asserted Executive Privilege to 
      Protect the Confidentiality of Communications with His 
      Staff......................................................    81
        1. The White House Made Every Effort at Accommodation and 
          Ultimately Asserted the Privilege as Narrowly as 
          Possible...............................................    81
        2. The Court's Ruling Upholding the White House's 
          Assertion of Executive Privilege Squarely Rebuts the 
          OIC's Abuse of Power Claim.............................    83
    B. The President Was Entitled to Assert Attorney-Client 
      Privilege to Protect the Right of Presidents to Request and 
      Receive Confidential and Candid Legal Advice from White 
      House Counsel..............................................    84
        1. The Governmental Attorney-Client Privilege Claim Was 
          Grounded in the Law of the D.C. Circuit and the Supreme 
          Court..................................................    85
        2. The Courts' Rulings Squarely Rebut the OIC's Claims of 
          Abuse of Power.........................................    85
    C. The Privilege Litigation Did Not Delay the OIC's 
      Investigation..............................................    86
    D. Mr. Starr Misrepresents the Record to Claim that the 
      President Deceived the American Public About the Executive 
      Privilege Litigation.......................................    88
    E. The President's Decision Not to Testify Before the Grand 
      Jury Voluntarily Was Not an Abuse of Power.................    89
    F. False Public Denials About an Improper Relationship Do Not 
      Constitute an Abuse of Office..............................    89
        1. Subjecting a President to Impeachment Would Disrupt 
          Our Constitutional Government..........................    90
        2. The President's Denial of an Improper Relationship Is 
          Not Comparable to President Nixon's Denials of 
          Involvement in the Watergate Burglary and Cover-up.....    91
IX. CONCLUSION...................................................    92
X. DOCUMENTARY APPENDIX TO SUBMISSION............................    94


[GRAPHIC] [TIFF OMITTED] T2643.312

  SUBMISSION BY COUNSEL FOR PRESIDENT CLINTON TO THE COMMITTEE ON THE 
        JUDICIARY OF THE UNITED STATES HOUSE OF REPRESENTATIVES

                            I. Introduction

    The President of the United States has not committed 
impeachable offenses. He repeatedly has acknowledged that what 
he did was wrong, he has apologized, and he has sought 
forgiveness. But his apologies, his acceptance of 
responsibility, and his contrition do not mean either that the 
President committed criminal acts or that the acts of which he 
is accused are impeachable offenses. Counsel for President 
Clinton respectfully submit this memorandum to demonstrate and 
document this contention.
    We offer this memorandum mindful of the fact that this body 
now confronts one of the most difficult questions our 
Constitution poses to Congress: whether to invalidate the 
popular will expressed in the election of the President. 
``Voting in the presidential election,'' as Professor Charles 
Black wrote, ``is certainly the political choice most 
significant to the American people.'' 1 Accordingly, 
``[n]o matter can be of higher political importance than our 
considering whether, in any given instance, this act of choice 
is to be undone.'' 2 Consideration both wise and 
deliberate must precede any decision to report articles of 
impeachment. For ``the power of impeachment and removal is a 
drastic one, not to be lightly undertaken . . . and especially 
sensitive with reference to the President of the United 
States.'' 3
---------------------------------------------------------------------------
    \1\ Charles L. Black, Impeachment: A Handbook 1 (1974).
    \2\ Id.
    \3\ Committee on Federal Legislation of the Bar Ass'n of the City 
of New York, The Law of Presidential Impeachment 44 (1974) (hereinafter 
``New York Bar Report'').
---------------------------------------------------------------------------
    We previously have submitted three memoranda 4 
to this Committee, addressing various issues arising out of the 
Independent Counsel's September 11, 1998, Referral.5 
In this submission, we comprehensively set out our response to 
the Referral based on the evidence now available to us; address 
certain questions stemming from the testimony of the 
Committee's sole witness, Independent Counsel Kenneth W. Starr 
6 and correct fundamental misconceptions about this 
matter arising from deeply unfair or unsupported inferences 
drawn in the Referral and significant misstatements about the 
evidence in the press and elsewhere. For example, it is widely 
alleged among those favoring impeachment that the President 
``lied under oath'' to the grand jury. But a review of the 
available evidence proves that this allegation often is based 
not on what the President actually said under oath but rather 
on what some of his accusers claim he said--such as that in the 
grand jury he categorically denied having a sexual relationship 
with Ms. Lewinsky, or that he denied being alone with her, when 
in fact he explicitly acknowledged to the grand jury both that 
he had had an inappropriate intimate relationship with Ms. 
Lewinsky and that he had been alone with her. There are 
numerous other examples of allegations, now commonly believed, 
that are wholly--not just somewhat--unsupported even by the 
evidence presented to the Committee in the OIC referral. It is 
in part the purpose of this memorandum to separate fact and 
fiction and demonstrate why the record supports neither the 
charges made nor impeachment. We ask that readers set aside 
their preconceptions of what they think the evidence is, based 
on the biased presentation in the Starr Referral and subsequent 
inaccurate coverage, and look instead at the evidence itself.
---------------------------------------------------------------------------
    \4\ Preliminary Memorandum Concerning Referral of Office of 
Independent Counsel (September 11, 1998)(73 pages); Initial Response to 
Referral of Office of Independent Counsel (September 12, 1998)(42 
pages); Memorandum Regarding Standards of Impeachment (October 2, 
1998)(30 pages).
    \5\ Referral from Independent Counsel Kenneth W. Starr in 
Conformity with the Requirements of Title 28, United States Code, 
Section 595(c), House Doc. 105-310 (Sept. 11, 1998)(105th Cong. 2d. 
Sess.)(hereinafter ``Ref.'').
    \6\ The Committee has heard from certain other witnesses on legal 
questions, but the Independent Counsel has been the only witness called 
by the Committee who even attempted to address the allegations in the 
Referral. As the Independent Counsel conceded, however, he had almost 
no first-hand knowledge of the facts, since the President was the only 
witness he interviewed. Transcript of November 19, 1998 Hearing at 339-
40.
---------------------------------------------------------------------------
    At the outset, let us be clear. Extraordinary as it must 
seem in a matter of this gravity, the President has not been 
specifically notified what allegations are at issue here. The 
Referral itself cites ``eleven possible grounds for 
impeachment'' of the President, Ref. at 129, although it does 
not identify the rationale for including these 
grounds.7 In his presentation to the Committee, Mr. 
Schippers identified a somewhat different set of ``fifteen 
separate events directly involving [the] President'' which 
``could constitute felonies which, in turn, may constitute 
grounds to proceed with an impeachment inquiry.'' 8 
The Chairman apparently has indicated that the Committee may 
consider only two charges,9 while recent newspaper 
articles variously state that the Committee staff is drafting 
three charges or four charges.10 We have been 
provided only the most limited and in some instances no access 
to significant evidence in the Committee's possession, 
elliptically referred to by Members at the November 19, 1998, 
testimony of the Independent Counsel.11 Without 
knowing what this evidence is, and being able to analyze and 
quote it, we cannot fairly or adequately rebut every allegation 
the Committee may later choose to bring forward from the 
Referral or elsewhere.
---------------------------------------------------------------------------
    \7\ The Referral states that ``[i]t is not the role of this Office 
to determine whether the President's actions warrant impeachment by the 
House,'' Ref. at 5, but, tellingly, the Referral nowhere recites the 
standard that the Independent Counsel in fact used to determine that 
there should be eleven (but not twelve, or three, or zero) grounds, a 
tacit acknowledgement of the impossibility of stating a constitutional 
or precedential standard that would justify impeachment on the basis of 
such alleged facts.
    \8\ Schippers Presentation at 11. Mr. Schippers' analysis was based 
entirely upon the documentary materials submitted by the Independent 
Counsel, and he acknowledged to the Committee that ``we did not seek to 
procure any additional evidence or testimony from any other source. . . 
. [M]y staff and I did not deem it necessary or even proper to go 
beyond the submission itself.'' Id. at 5-6.
    \9\ ``Hyde, according to informed sources, may consider 
streamlining those [fifteen Schippers allegations] into as few as two 
counts. . . . `I frankly don't see how we can deal with all 15 charges 
adequately,' Hyde said.'' ``Hyde May Narrow List Of Impeachment 
Charges,'' The Washington Post (Oct. 14, 1998) at A1.
    \10\ ``As the House Judiciary Committee moves into the final stages 
of its inquiry, Representative Henry J. Hyde's senior staff is 
beginning to draw up three articles of impeachment against President 
Clinton.'' ``Impeachment Panel Starts Work On 3 Articles Against 
President,'' The New York Times (Nov. 26, 1998) at A1; ``The committee 
could consider up to four articles of impeachment covering perjury, 
obstruction of justice, and abuse of power, committee Republicans said 
yesterday.'' ``Clinton Defense Is Given 2 Days; Panel May Vote Late in 
Week to Impeach,'' The Washington Post (Dec. 7, 1998) at A1.
    \11\ See Transcript of November 19, 1998 Hearing at 233-35 (remarks 
of Rep. Watt).
---------------------------------------------------------------------------
    Moreover, the Committee has recently launched new 
investigative forays in areas not covered by the Referral. It 
has taken depositions related to Ms. Kathleen Willey, and it 
has authorized (but now apparently withdrawn) subpoenas for 
depositions and documents related to fundraising for the 1996 
Presidential campaign. Simple fairness entitles us to an 
adequate opportunity to receive, review, and use the 
information in the Committee's possession (for example, the 
transcripts of depositions from which we were excluded), be 
apprised of the specific charges the Committee is considering, 
and have a fair chance to discover and present evidence in 
rebuttal.
    The present memorandum is thus necessarily limited in 
scope, and we will make a further submission to address any new 
or revised allegations the Committee may decide to pursue.

                       II. The Factual Background

    Certain undisputed facts are relevant to the legal analysis 
in this memorandum, in addition to those set forth in previous 
submissions.

                A. The Whitewater Investigative Dead-End

    The Lewinsky investigation had its antecedent in the long-
running Whitewater investigation. On August 5, 1994, Kenneth W. 
Starr was appointed Independent Counsel by the Special Division 
to conduct an investigation centering on two Arkansas entities, 
Whitewater Development Company, Inc., and Madison Guaranty 
Savings and Loan Association. The Office of Independent 
Counsel's (``OIC'') investigation dragged on slowly 
12 and inconclusively, without any charges being 
lodged against either the President or Mrs. Clinton. The 
Independent Counsel himself announced his resignation in 
February 1997 to become Dean of the Pepperdine Law School 
13 but, after a firestorm of media 
criticism,14 he backtracked and resumed his 
duties.15
---------------------------------------------------------------------------
    \12\ For example, the OIC did not issue its report on the 1993 
death of Deputy White House Counsel Vincent Foster until October 10, 
1997. It concluded, as had several other earlier (and speedier) 
investigations, that Foster's death was a suicide.
    \13\ See Labaton, ``Special Counsel Intends to Leave Whitewater 
Case--White House Is Hopeful--Starr's Decision to Take Post in August 
Raises Questions About Status of Inquiry,'' The New York Times (Feb. 
18, 1997) at A1; Galvin, ``Clinton's Lucky Starr: Prober to Call It 
Quits--Ex-prosecutors Said They Think Starr's Decision Is a Sign That 
His Probe Will End With a Fizzle, Not a Bang,'' The New York Post (Feb. 
18, 1997) at 3.
    \14\ See, e.g., Shapiro, ``Starr Bails Out Of a Probe That's 
Adrift,'' USA Today (Feb. 19, 1997) at 2A; Safire, ``The Big Flinch: 
Ken Starr Betrays His Trust,'' The New York Times (Feb. 20, 1997) at 
A33; Editorial, ``Ken Starr's Flip-Flops,'' The Washington Times (Feb. 
24, 1997) at A16. The Washington Post editorialized, ``What Mr. Starr 
owes, before he goes anywhere, is a report on the propriety of the 
President's behavior. That's the subject he was hired to address,'' 
Editorial (Feb. 19, 1997) at A20, and it quoted James McKay, a former 
Independent Counsel, as stating: ``I'm just amazed someone given a 
specific job to do leaves before it is completed. It's like the captain 
jumping off the ship before everyone else gets off,'' Schmidt, ``Some 
Starr Allies Say Departure Means No Clinton Charges'' (Feb. 19, 1997) 
at A7. The New York Times asserted that the Independent Counsel's 
decision reflected ``a selfish indifference to [his] civic 
obligations''; he ``never fully appreciated the gravity of [his] 
role,'' ``should not have taken [the job] unless [he] were willing to 
see it through,'' and was ``behaving as if [he] had no greater 
responsibility than to tend to [his] career.'' Editorial, ``Just a 
Minute, Mr. Starr'' (Feb. 19, 1997) at A26.
    \15\ ``Starr seemed unprepared for and taken aback by the furor his 
departure announcement has generated.'' Schmidt, ``Starr Appears to 
Waver on Timing of Departure,'' The Washington Post (Feb. 20, 1997) at 
A1.
---------------------------------------------------------------------------
    Without any expansion of his jurisdiction, Mr. Starr then 
began to conduct an investigation into rumors of extramarital 
affairs involving the President. In the Spring of 1997, 
Arkansas state troopers who had once been assigned to the 
Governor's security detail were interviewed, and ``[t]he 
troopers said Starr's investigators asked about 12 to 15 women 
by name, including Paula Corbin Jones. . . .'' Woodward & 
Schmidt, ``Starr Probes Clinton Personal Life,'' The Washington 
Post (June 25, 1997) at A1 (emphasis added). ``The nature of 
the questioning marks a sharp departure from previous avenues 
of inquiry in the three-year old investigation. . . . Until 
now, . . . what has become a wide-ranging investigation of many 
aspects of Clinton's governorship has largely steered clear of 
questions about Clinton's relationships with women. . . .'' 
16 One of the most striking aspects of this new 
phase of the Whitewater investigation was the extent to which 
it focused on the Paula Jones case. One of the troopers 
interviewed declared, `` `They asked me about Paula Jones, all 
kinds of questions about Paula Jones, whether I saw Clinton and 
Paula together and how many times.' '' 17
---------------------------------------------------------------------------
    \16\ Ibid. Trooper Roger Perry, a 21-year veteran of the Arkansas 
state police, stated that he ``was asked about the most intimate 
details of Clinton's life:'' ``I was left with the impression that they 
wanted me to show he was a womanizer. . . . All they wanted to talk 
about was women.'' Ibid. (ellipsis in original).
    \17\ Ibid.
---------------------------------------------------------------------------
    At his testimony before this Committee on November 19, 
1998, Mr. Starr conceded that his agents had conducted these 
interrogations and acknowledged that he had not sought 
expansion of his jurisdiction from theAttorney General or the 
Special Division of the Court of Appeals,18 but he contended 
that these inquiries were somehow relevant to his Whitewater 
investigation: ``we were, in fact, interviewing, as good prosecutors, 
good investigators do, individuals who would have information that may 
be relevant to our inquiry about the President's involvement in 
Whitewater, in Madison Guaranty Savings and Loan and the 
like.''19 However, the OIC was obviously engaged in an 
effort to gather embarrassing information concerning the President. 
Indeed, a recent article in the New York Times Magazine notes that 
Deputy Independent Counsel Jackie Bennett was ``known among fellow 
prosecutors as the office expert on the President's sex life long 
before anyone had heard of Monica Lewinsky.'' 20
---------------------------------------------------------------------------
    \18\ Transcript of November 19, 1998 Hearing at 377-378.
    \19\ Ibid. at 378.
    \20\ Winerip, ``Ken Starr Would Not Be Denied,'' The New York Times 
Magazine (Sept. 6, 1998) at 64.
---------------------------------------------------------------------------

                     B. The Paula Jones Litigation

    In January 1998, the OIC finally succeeded in transforming 
its investigation from one focused on long-ago land deals and 
loans in Arkansas into one involving a different topic (sex) 
and more recent events in Washington, D.C. The Lewinsky 
investigation grew out of the pretrial discovery proceedings in 
the civil suit Ms. Paula Corbin Jones had filed against the 
President in May 1994, making certain allegations about events 
three years earlier when the President was Governor of 
Arkansas. Discovery had been stayed until the Supreme Court's 
decision on May 27, 1997, denying Presidential immunity. 
21 Shortly thereafter, Ms. Jones selected a new 
spokesperson, Ms. Susan Carpenter-McMillan, and retained new 
counsel affiliated with the conservative Rutherford 
Institute,22 who began a public relations offensive 
against the President. ``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, a staunch 
Republican.'' 23 While Ms. Jones' previous 
attorneys, Messrs. Gilbert Davis and Joseph Cammarata, had 
largely avoided the media, public personal attacks now became 
the order of the day as the Jones civil suit became a partisan 
vehicle to try to savage the President.24 Ms. Jones' 
husband, Steve, even announced his intention to use judicial 
process to obtain and disseminate pejorative personal 
information concerning the President:
---------------------------------------------------------------------------
    \21\ Clinton v. Jones, 526 U.S. 681 (1997).
    \22\ Ms. Jones was described as having ``accepted financial support 
of a Virginia conservative group,'' which intended to ``raise $100,000 
or more on Jones's behalf, although the money will go for expenses and 
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 also 
``Dallas Lawyers Agree to Take on Paula Jones' Case''--Their Small Firm 
Has Ties to Conservative Advocacy Group,'' The Los Angeles Times (Oct. 
2, 1997) (Rutherford Institute a ``conservative advocacy group,'' a 
``conservative religious-rights group'').
    \23\ ``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 role as ``flaming the White 
House'' and declared `Unless Clinton wants to be terribly embarrassed, 
he'd better cough up what Paula needs. Anybody that comes out and 
testifies against Paula better have the past of a Mother Teresa, 
because our investigators will investigate their morality.' ``Paula 
Jones' ``Team Not All About Teamwork,'' USA Today (Sept. 29, 1997) at 
4A.
    \24\ 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 beginning, many conservatives nurture the 
hope that the past will be Clinton's undoing. Jones's adviser, Susan 
Carpenter-McMillan, acknowledged on NBC's `Meet the Press' yesterday 
that her first reaction when she first heard Jones's claims about 
Clinton was, `Good, we're going to get that little slime ball.' 
(Harris, ``Jones Case Tests Political Paradox,'' The Washington Post 
(Jan. 19, 1998) at A1.)

    In a belligerent mood, Steve [Jones] warned that he was 
going to use subpoena power to reconstruct the secret life of 
Bill Clinton. Every state trooper used by the governor to 
solicit women was going to be deposed under oath. ``We're going 
to get names; we're going to get dates; we're going to do the 
job that the press wouldn't do,'' he said. ``We're going to go 
after Clinton's medical records, the raw documents, not just 
opinions from doctors, . . . we're going to find out 
everything.'' 25
---------------------------------------------------------------------------
    \25\ Evans-Pritchard, The Secret Life of Bill Clinton 363 (1997).

As is now well known, this effort led ultimately to the Jones 
lawyers being permitted to subpoena various women, to determine 
their relationship, if any, with the President, allegedly for 
the purpose of determining whether they had information 
relevant to the sexual harassment charge. Among these women was 
Ms. Lewinsky.
    By mid-January 1998, Ms. Tripp had brought to the attention 
of the OIC certain information she believed she had about Ms. 
Lewinsky's involvement in the Jones case and, as noted above, 
the OIC investigation then began to reach formally into the 
Jones case. The OIC met with Ms. Tripp through the week of 
January 12, and with her cooperation taped Ms. Lewinsky 
discussing the Jones case and the President. During the week, 
Ms. Tripp alerted the OIC that she had been taping Ms. Lewinsky 
in violation of Maryland law, and the OIC promised Ms. Tripp 
immunity from federal prosecution, and assistance in protecting 
her from state prosecution, in exchange for her cooperation. 
The OIC formalized that agreement in writing on Friday, January 
16, after it had received jurisdiction to do so from the 
Attorney General.
    The President's deposition in the Jones case was scheduled 
to take place the next day, on Saturday, January 17. As we now 
know, the night before that deposition Ms. Tripp had briefed 
the lawyers for Ms. Jones on her perception of the relationship 
between Ms. Lewinsky and the President--doing so based on 
confidences Ms. Lewinsky had entrusted to her.26 
(She was permitted to do so even though, having received 
immunity from the OIC, the OIC could have barred her from 
talking to any one about Ms. Lewinsky but failed to do so.) At 
the deposition the next day, the President unexpectedly was 
asked numerous questions about Ms. Lewinsky, even before he was 
questioned about Ms. Jones.
---------------------------------------------------------------------------
    \26\ Baker, ``Linda Tripp Briefed Jones Team on Tapes: Meeting 
Occurred Before Clinton Deposition,'' The Washington Post (Feb. 14, 
1998) at A1.
---------------------------------------------------------------------------
    The Jones case, of course, was not about Ms. Lewinsky. She 
was a peripheral player and, since her relationship with the 
President was concededly consensual, an irrelevant one. Shortly 
after the President's deposition, Chief Judge Wright ruled that 
evidence pertaining to Ms. Lewinsky would not be admissible at 
the Jones trial because ``it is not essential to the core 
issues in this case.'' 27 The Court also ruled that, 
given the allegations at issue in the Jones case, the Lewinsky 
evidence ``might be inadmissible as extrinsic evidence'' under 
the Federal Rules of Evidence because it involved merely the 
``specific instances of conduct'' of a witness.28
---------------------------------------------------------------------------
    \27\ Order, at 2, Jones v. Clinton, No. LR-C-94-290 (E.D. Ark.) 
(Jan. 29, 1998).
    \28\ Ibid.
---------------------------------------------------------------------------

       C. The President's Grand Jury Testimony About Ms. Lewinsky

    On August 17, 1998, the President specifically acknowledged 
to the grand jury that he had had a relationship with Ms. 
Lewinsky involving ``improper intimate contact.'' He described 
how the relationship began, and how it had ended early in 
1997--long before any public attention or scrutiny. He 
acknowledged this relationship to the grand jury, and he 
explained how he had tried to get through the deposition in the 
Jones case months earlier without admitting what he had had to 
admit to the grand jury--an improper relationship with Ms. 
Lewinsky. He further testified that the ``inappropriate 
encounters'' with Ms. Lewinsky had ended, at his insistence, in 
early 1997, and he stated: ``I regret that what began as a 
friendship came to include this conduct, and I take full 
responsibility for my actions.'' Id. at 461. He declined to 
describe, because of personal privacy and institutional dignity 
considerations, certain specifics about his conduct with Ms. 
Lewinsky,29 but he indicated his willingness to 
answer,30 and he did answer, the other questions put 
to him about his relationship with her. No one who watched the 
videotape of this grand jury testimony had any doubt that the 
President was admitting to an improper physical relationship 
with Ms. Lewinsky.
---------------------------------------------------------------------------
    \29\ ``While I will provide the grand jury whatever other 
information I can, because of privacy considerations affecting my 
family, myself, and others, and in an effort to preserve the dignity of 
the office I hold, this is all I will say about the specifics of these 
particular matters.'' App. at 461.
    \30\ ``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 alleged subornation of perjury, obstruction of 
justice, and intimidation of witnesses.'' App. at 461.
---------------------------------------------------------------------------

    III. The Constitution Requires Proof of Official Misconduct for 
                              Impeachment

    To date, the Judiciary Committee has declined to articulate 
or adopt standards of impeachable conduct. Its inquiry has 
proceeded and (it appears) its vote will occur with no 
consensus among Committee members as to the constitutional 
meaning of an impeachable act. That is regrettable. For even if 
the constitutional standard against which the Referral must be 
measured lacks the precision of a detailed statute, it 
nonetheless has a determined and limited content. The 
Committee's failure to define the applicable standard has 
necessarily created the perception that an ad hoc ``standard'' 
is being devised to fit the facts. A constitutional standard 
does in fact exist, and were the Committee to confront the 
question directly, it would be evident that the Constitution's 
rigorous showing has not been made here.

A. Under the Constitution the Conduct Alleged in the Referral Does Not 
          Reach the Level of ``High Crimes and Misdemeanors''

    The Constitution provides that the President shall be 
removed from office only upon ``Impeachment for, and Conviction 
of, Treason, Bribery, or other high Crimes and Misdemeanors.'' 
U.S. Const. Art. II, Sec. 4. The legal question confronting the 
Committee is whether the acts of the President alleged in the 
Starr Referral could conceivably amount to ``high Crimes and 
Misdemeanors.''
    The answer is that they could not. The syntax of the 
Constitution's formulation ``Treason, Bribery or other high 
Crimes and Misdemeanors'' (emphasis added) strongly suggests 
that, to be impeachable offenses, high crimes and misdemeanors 
must be of the seriousness of ``Treason'' and ``Bribery.'' Yet 
the Referral alleges nothing remotely similar in gravity to 
those high crimes.
    Moreover, both the historical background of the ``high 
Crimes and Misdemeanors'' concept and the Constitution itself 
make clear that the conduct alleged does not constitute an 
impeachable offense. To the contrary, cognizant that the 
impeachment process upsets the electoral will of the people, 
the Framers made the standard of impeachable offenses an 
especially high one, requiring a showing of injury to our very 
system of government.

1. Historical Background of ``High Crimes and Misdemeanors''

    The English precedents illustrate that impeachment was 
understood to apply only to fundamental offenses against the 
system of government. In English practice, the term ``high 
crimes and misdemeanors'' had been applied to offenses, the 
common elements of which were their severity and the fact that 
the wrongdoing was directed against the state.\31\ The English 
cases included misappropriation of public funds, interfering in 
elections, accepting bribes, and various forms of corruption. 
Ibid. These offenses all affected the discharge of public 
duties by public officials. In short, under the English 
practice, ``the critical element of injury in an impeachable 
offense was injury to the state.'' \32\
---------------------------------------------------------------------------
    \31\ See Raoul Berger, Impeachment: The Constitutional Problems 67-
73 (1973).
    \32\ Gerhardt, The Constitutional Limits to Impeachment and Its 
Alternatives, 68 Tex. L. Rev. 1, 82 (1989) (emphasis added). In fact, 
the first draft of what became Article II Section 4's impeachment 
provision actually set the standard of impeachment, in addition to 
treason and bribery, as ``other high crimes and misdemeanors against 
the State.'' 2 Farrand, The Records of the Federal Convention of 1787 
550 (Rev. ed. 1966) (emphasis added). That phrase was ultimately 
deleted, however, by the Committee on Style and Arrangement, which was 
charged with making only such changes as did not affect the meaning of 
the original language.
---------------------------------------------------------------------------
    The notion that ``injury to the state'' was the hallmark of 
the impeachable offense was also shared by the Staff of the 
Impeachment Inquiry when it researched the issue in connection 
with the investigation of President Richard Nixon in 1974. In 
early English impeachments, the Staff concluded, ``the thrust 
of the charge was damage to the state. . . . 
Characteristically, impeachment was used in individual cases to 
reach offenses, as perceived by Parliament, against the system 
of government.'' \33\
---------------------------------------------------------------------------
    \33\ Impeachment of Richard M. Nixon, President of the United 
States, Report by the Staff of the Impeachment Inquiry, House Comm. on 
the Judiciary, 93d Cong. 2d Sess. at 5 (Feb. 1974) (hereinafter 
``Impeachment Inquiry'') (emphasis added).
---------------------------------------------------------------------------
    The constitutional and ratification debates confirm that 
impeachment was limited to only the gravest political wrongs. 
The Framers plainly intended the impeachment standard to be a 
high one. They rejected a proposal that the President be 
impeachable for ``maladministration,'' for, as James Madison 
pointed out, such a standard would ``be equivalent to a tenure 
during the pleasure of the Senate.'' \34\ The Framers plainly 
did not intend to permit Congress to debilitate the Executive 
by authorizing impeachment for something short of the most 
serious harm to the state. In George Mason's apt language, 
impeachment was thought necessary to remedy ``great and 
dangerous offenses'' not covered by ``Treason'' or ``Bribery'' 
such as ``[a]ttempts to subvert the Constitution.'' \35\
---------------------------------------------------------------------------
    \34\ 2 Farrand, The Records of the Federal Convention of 1787 550 
(Rev. ed. 1966).
    \35\ Ibid.
---------------------------------------------------------------------------
    That is why, at the time of the ratification debates, 
Alexander Hamilton described impeachment as a ``method of 
National Inquest into the conduct of public men.'' \36\ No act 
touches more fundamental questions of constitutional government 
than does the process of Presidential impeachment. No act more 
directly affects the public interest. No act presents the 
potential for greater injustice--injustice both to the Chief 
Executive and to the people who elected him--and the Framers 
were fully aware of this.
---------------------------------------------------------------------------
    \36\ The Federalist No. 65 at 331 (Gary Wills ed. 1982).
---------------------------------------------------------------------------
    The specific harms the Framers sought to redress by 
impeachment are far more serious than those alleged in the 
Starr Referral. During the ratification debates, a number of 
the Framers addressed the Constitution's impeachment 
provisions. The following is a list of wrongs they believed the 
impeachment power was intended to address:
          receipt of emoluments from a foreign power in 
        violation of Article I, section 9; \37\
---------------------------------------------------------------------------
    \37\ Edmund Randolph, 3 Elliot, The Debate in the Several State 
Conventions on the Adoption of the Federal Constitution 486 (reprint of 
2d ed.) (Virginia Convention).
---------------------------------------------------------------------------
          summoning the representatives of only a few States to 
        ratify a treaty; \38\
---------------------------------------------------------------------------
    \38\ James Madison, 3 Elliot at 500 (Virginia Convention).
---------------------------------------------------------------------------
          concealing information from or giving false 
        information to the Senate so as to cause it to take 
        measures it otherwise would not have taken which were 
        injurious to the country; \39\
---------------------------------------------------------------------------
    \39\ James Iredell, 4 Elliot at 127 (North Carolina Convention).
---------------------------------------------------------------------------
          general failure to perform the duties of the 
        Executive.\40\
---------------------------------------------------------------------------
    \40\ Abraham Baldwin (Georgia), 1 Annals of Cong. 535-36 (debates 
on the President's removal power).
---------------------------------------------------------------------------
    Impeachment provisions in a number of late eighteenth 
century state constitutions reaffirm that the Framers' 
generation believed that impeachment's purpose was redress of 
official wrongdoing. The New Jersey Constitution's impeachment 
provision for ``misbehavior'' was interpreted to permit 
impeachment not for personal wrongdoing but for acts by public 
officials performed in their public capacity.41 
Delaware's first Constitution authorized impeachment for 
``offending against the state by maladministration, corruption, 
or other means, by which the safety of the commonwealth may be 
endangered.'' 42 And Virginia's Constitution of 1776 
provided for impeachment of those public officers who ``offend[ 
] against the state, either by maladministration, corruption or 
other means, by which the safety of the State may be 
endangered.'' 43
---------------------------------------------------------------------------
    \41\ N.J. Const., Art. XII (1776); Hoffer & Hull, Impeachment in 
America 1635-1805 80 (1984).
    \42\ Del. Const., Art. XXIII.
    \43\ See Hoffer & Hull at 70; Va. Const. of 1776, para.15.
---------------------------------------------------------------------------
    The history on which they relied, the arguments they made 
in Convention, the specific ills they regarded as redressable, 
and the State backgrounds from which they emerged--all these 
establish that the Framers believed that impeachment must be 
reserved for only the most serious forms of wrongdoing. They 
believed, in short, that impeachment ``reached offenses against 
the government, and especially abuses of constitutional 
duties.'' 44
---------------------------------------------------------------------------
    \44\ Impeachment Inquiry at 14-15.
---------------------------------------------------------------------------
    The Referral alleges no wrongs of that magnitude.

2. The Framers Believed That Impeachment Redresses Wrongful Public 
        Conduct

    The remedy of impeachment was designed only for those very 
grave harms not otherwise politically redressable. As James 
Wilson wrote, ``our President . . . is amenable to [the laws] 
in his private character as a citizen, and in his public 
character by impeachment.'' 45
---------------------------------------------------------------------------
    \45\ 2 Elliot at 480 (emphasis in original).
---------------------------------------------------------------------------
    That is why Justice Story described the harms to be reached 
by impeachment as those ``offensive acts which do not properly 
belong to the judicial character in the ordinary administration 
of justice, and are far removed from the reach of municipal 
jurisprudence.'' 46
---------------------------------------------------------------------------
    \46\ 2 Story, Commentaries on the Constitution of the United States 
Sec. 762 at 234 (reprint of 1st ed. 1833).
---------------------------------------------------------------------------
    For these reasons, impeachment is limited to certain forms 
of potential wrongdoing only, and it is intended to redress 
only certain kinds of harms. Again, in Hamilton's words:

    The subjects of [the Senate's impeachment] jurisdiction are 
those offenses which proceed from the misconduct of public men, 
or in other words from the abuse of violation of some public 
trust. They are of a nature which may with peculiar propriety 
be denominated Political, as they relate chiefly to injuries 
done to the society itself.47
---------------------------------------------------------------------------
    \ 47\ Federalist 65 at 330-31.
---------------------------------------------------------------------------
    Early commentators on the Constitution are in accord on the 
question of impeachment's intended purpose. In Justice James 
Wilson's words, impeachments are ``proceedings of a political 
nature . . . confined to political characters'' charging only 
``political crimes and misdemeanors'' and culminating only in 
``political punishments.'' 48 And as Justice Story 
put the matter, ``the [impeachment] power partakes of a 
political character, as it respects injuries to the society in 
its political character.'' 49 In short, impeachment 
was not thought to be a remedy for private wrongs--or even for 
most public wrongs. Rather, the Framers ``intended that a 
president be removable from office for the commission of great 
offenses against the Constitution.'' 50 Impeachment 
therefore addresses public wrongdoing, whether denominated a 
``political crime[ ] against the state,'' 51 or ``an 
act of malfeasance or abuse of office,'' 52 or a 
``great offense[ ] against the federal government.'' 
53 Ordinary civil and criminal wrongs can be 
addressed through ordinary judicial processes. And ordinary 
political wrongs can be addressed at the ballot box and 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.
---------------------------------------------------------------------------
    \48\ Wilson, Works 426 (R. McCloskey, ed. 1967).
    \ 49\ Story, Commentaries on the Constitution Sec. 744. And as a 
contemporary scholar has expressed it, ``[c]ognizable ``high Crimes and 
Misdemeanors'' in England . . . generally concerned perceived 
malfeasance--which may or may not be proscribed by common law or 
statute--that damaged the state or citizenry in their political 
rights.'' O'Sullivan, The Interaction Between Impeachment and the 
Independent Counsel Statute, 86 Geo. L.J. 2193, 2210 (1998) (emphasis 
added).
    \ 50\ Labovitz, Presidential Impeachment at 94.
    \ 51\ Berger, Impeachment at 61.
    \ 52\ Rotunda, An Essay on the Constitutional Parameters of Federal 
Impeachment, 76 Ky. L.J. 707, 724 (1987/1988).
    \ 53\ Gerhardt, 68 Tex. L. Rev. at 85.
---------------------------------------------------------------------------
    Private misconduct, or even public misconduct short of an 
offense against the state, is not redressable by impeachment 
because that solemn process, in Justice Story's words, 
addresses ``offences which are committed by public men in 
violation of their public trust and duties.'' 54 
Impeachment is a political act in the sense that its aims are 
public; it attempts to rein in abuses of the public trust 
committed by public officeholders in connection with conduct in 
public office. The availability of the process is commensurate 
with the gravity of the harm. As one scholar has put it, 
``[t]he nature of [impeachment] proceedings is dictated by the 
harms sought to be redressed--the misconduct of public men' 
relating to the conduct of their public office--and the 
ultimate issue to be resolved--whether they have forfeited 
through that conduct their right to continued public trust.'' 
55
---------------------------------------------------------------------------
    \54\ Story, Commentaries Sec. 744 (emphasis added).
    \55\ O'Sullivan, 86 Geo. L.J. at 2220.
---------------------------------------------------------------------------

3. Our Constitution's Structure Does Not Permit Impeachment for Reasons 
        of the Sort Alleged in the Referral

            a. Impeachment Requires a Very High Standard Because Ours 
                    Is a Presidential and Not a Parliamentary System
    Ours is a Constitution of separated powers. In that 
Constitution, the President does not serve at the will of 
Congress, but as the directly elected,56 solitary 
head of the Executive Branch. The Constitution reflects a 
judgment that a strong Executive, executing the law 
independently of legislative will, is a necessary protection 
for a free people.
---------------------------------------------------------------------------
    \56\ Of course, that election takes place through the mediating 
activity of the Electoral College. See U.S. Const. Art. II, Sec. 1, cl. 
2-3 and Amend. XII.
---------------------------------------------------------------------------
    These elementary facts of constitutional structure 
underscore the need for a very high standard of impeachable 
offenses. It was emphatically not the intention of the Framers 
that the President should be subject to the will of the 
dominant legislative party. Our system of government does not 
permit Congress to unseat the President merely because it 
disagrees with his behavior or his policies. The Framers' 
decisive rejection of parliamentary government is one reason 
they caused the phrase ``Treason, Bribery or other high Crimes 
and Misdemeanors'' to appear in the Constitution itself. They 
chose to specify those categories of offenses subject to the 
impeachment power, rather than leave 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 compelled to stand in for all the 
people and remove a President whose continuation in office 
threatens grave harm to the Republic. Impeachment for 
wrongdoing of lesser gravity involves a legislative usurpation 
of a power belonging only to the people (the power to choose 
and ``depose'' Presidents by election and a Legislative 
encroachment on the power of the Executive.
    The current process appears bent on ``mangling the system 
of checks and balances that is our chief safeguard against 
abuses of public power.'' 57 Impeachment of the 
President on the grounds alleged in the Referral would ignore 
this intentionally imposed limit on legislative power and would 
thereby do incalculable damage to the institution of the 
Presidency. Whether ``successful'' or not, the current drive 
``will leave the Presidency permanently disfigured and 
diminished, at the mercy as never before of the caprices of any 
Congress.'' 58 The undefined, but broad and lenient, 
standard under which the Committee is implicitly proceeding 
converts the impeachment power into something other than the 
drastic removal power of last resort intended by the Framers. 
This new impeachment weapon would be a permanent, extra-
constitutional power of Congress, a poison arrow aimed 
permanently at the heart of the Presidency. The inevitable 
effect of such a threat would be the weakening of that Office 
and an improper subservience of the President to the Congress, 
that was wholly unintended by the Framers.
---------------------------------------------------------------------------
    \57\ Statement of Historians in Defense of the Constitution (Oct. 
28, 1998); see also Schmitt, ``Scholars and Historians Assail Clinton 
Impeachment Inquiry,'' The New York Times (Oct. 19, 1998) at A18.
    \58\ Statement, ibid.
---------------------------------------------------------------------------
    That is not the impeachment power enshrined in the 
Constitution and defined by two hundred years of experience. 
The Constitution permits a single justification for 
impeachment--a demonstrated need to protect the people 
themselves.
            b. Impeachment Requires a Very High and Very Clear Standard 
                    Because It Nullifies the Popular Will
    The Framers made the President the sole nationally elected 
public official, responsible to all the people. He is the only 
person whose mandate is country-wide, extending to all 
citizens, all places, and all interests. He is the people's 
choice.
    Therefore, when the Congress raises the issue of 
impeachment, the House (and ultimately the Senate) confront 
this inescapable question: is the alleged misconduct so 
profoundly serious, so malevolent, that it justifies undoing 
thepeople's decision? Is the wrong alleged of a sort that not 
only demands removal of the President before the ordinary electoral 
cycle can do its work, but also justifies the national trauma that 
accompanies the impeachment process itself?
    The wrongdoing alleged here does not remotely meet that 
standard.

    B. American Presidential Impeachment Practice and Contemporary 
  Scholarship Confirm that Impeachment Is Only for Political Offenses 
            Against the State Itself, Not for Private Wrongs

1. Prior Impeachment Proceedings Against American Presidents

    Three American Presidents have been the subject of 
impeachment proceedings. Each was impeached (or threatened with 
impeachment) for allegedly wrongful official conduct and not 
for alleged misdeeds unrelated to the exercise of public 
office.
    John Tyler. In 1841, President Tyler succeeded William 
Henry Harrison after the latter's death in office. He 
immediately ran into political differences with the Whig 
majority in Congress. After Tyler vetoed a Whig-sponsored 
tariff bill, a Whig Congressman offered a resolution of 
impeachment against President Tyler. The resolution proffered 
nine impeachment articles, each alleging high crimes and 
misdemeanors constituting crimes against the government in the 
performance of official duties. The allegations included 
withholding assent to laws indispensable to the operation of 
government and assuming to himself the whole power of taxation, 
abuse of the appointment and removal power, and abuse of the 
veto power.59
---------------------------------------------------------------------------
    \59\ See Rehnquist, Grand Inquests: The Historical Impeachments of 
Justice Samuel Chase and President Andrew Johnson 256-58 (1992).
---------------------------------------------------------------------------
    The resolution was rejected. But the fundamental premise of 
each charge was that the President had committed crimes against 
the United States in the exercise of official duties.
    Andrew Johnson. President Johnson is, of course, the only 
president actually to have been impeached. President Johnson 
ran afoul of the Reconstruction Congress after the death of 
President Lincoln. After President Johnson notified Secretary 
of War Stanton that he was removed from office, the Congress 
voted an impeachment resolution in 1868 based on the 
President's supposed violation of the Tenure of Office Act. 
Ultimately, eleven articles were adopted against him and 
approved by the House.60
---------------------------------------------------------------------------
    \60\ Id. at 202-216.
---------------------------------------------------------------------------
    As in the case of President Tyler, all the allegations 
concerned allegedly wrongful official conduct said to be 
harmful to the processes of government. The leading House 
manager in the Senate trial was Rep. Benjamin Butler, who 
defined impeachable offenses as follows: ``We define, 
therefore, an impeachable high crime and misdemeanor to be one 
in its nature or consequences subversive of some fundamental or 
essential principle of government, or highly prejudicial to the 
public interest. . . .'' 61
---------------------------------------------------------------------------
    \61\ Trial of Andrew Johnson, v.1, 88 (March 30, 1868) (emphasis 
added).
---------------------------------------------------------------------------
    On May 26, 1868, President Johnson was acquitted by a 
single vote.62 Although the vote was overwhelmingly 
partisan, seven Republican Senators broke with the party and 
voted for acquittal. Sen. William Pitt Fessenden was one of 
those seven. He did not vote for impeachment because, as he put 
it, an impeachable offense must be ``of such a character to 
commend itself at once to the minds of all right thinking men, 
as beyond all question, an adequate cause for impeachment. It 
should leave no reasonable ground of suspicion upon the motives 
of those who inflict the penalty.'' 63
---------------------------------------------------------------------------
    \62\ Cong. Globe (Supp.) 412 (May 26, 1868).
    \63\ Congressional Quarterly: Impeachment and the U.S. Congress, 
March 1974.
---------------------------------------------------------------------------
    Richard Nixon. Five articles of impeachment were proposed 
against then-President Nixon by this Committee in 1974. Three 
were approved. Two were not.\64\ As with the charges against 
Presidents Tyler and Johnson, the approved articles alleged 
official wrongdoing. Article I charged President Nixon with 
``using the powers of his high office [to] engage[  ] . . . in 
a course of conduct or plan designed to delay, impede and 
obstruct'' the Watergate investigation.\65\ Article II 
described the President as engaging in ``repeated and 
continuing abuse of the powers of the Presidency in disregard 
of the fundamental principle of the rule of law in our system 
of government'' thereby ``us[ing] his power as President to 
violate the Constitution and the law of the land.'' \66\ 
Article III charged the President with refusing to comply with 
Judiciary Committee subpoenas in frustration of a power 
necessary to ``preserve the integrity of the impeachment 
process itself and the ability of Congress to act as the 
ultimate safeguard against improper Presidential conduct.'' 
\67\
---------------------------------------------------------------------------
    \64\ See discussion of the Income Tax Count against President Nixon 
in Part III.C.2, infra.
    \65\ Impeachment of Richard M. Nixon, President of the United 
States, Report of the Comm. on the Judiciary, 93rd Cong., 2d Sess., H. 
Rep. No. 93-1305 (Aug. 20, 1974) (hereinafter ``Nixon Report'') at 133.
    \66\ Nixon Report at 180.
    \67\ Id. at 212-13.
---------------------------------------------------------------------------
    The precedents speak clearly. The allegation against 
President Tyler and the articles actually approved against 
Presidents Johnson and Nixon all charged serious misconduct 
amounting to misuse of the authority of the Presidential 
office. As Professor Sunstein expressed it in his testimony 
before this body's Subcommittee on the Constitution, American 
presidential impeachment proceedings have targeted ``act[s] by 
the President, that amount[  ] to large-scale abuse of 
distinctly Presidential authority.'' \68\ The Referral contains 
nothing of the kind.
---------------------------------------------------------------------------
    \68\ Statement of Cass R. Sunstein to the House Subcommittee on the 
Constitution of the House Judiciary Committee, dated November 9, 1998, 
at 15.
---------------------------------------------------------------------------

2. Contemporary Views Confirm That Impeachment Is Not Appropriate Here

            a. Contemporary Scholarship Confirms That Impeachment Is 
                    Appropriate for Offenses Against Our System of 
                    Government
    Impeachable acts need not be criminal acts. As Professor 
Black has noted, it would probably be an impeachable act for a 
President to move to Saudi Arabia so he could have four wives 
while proposing to conduct the Presidency by mail and wireless 
from there; or to announce and adhere to a policy of appointing 
no Roman Catholics to public office; or to announce a policy of 
granting full pardons, in advance of indictment or trial, to 
federal agents or police who killed anyone in the line of duty 
in the District of Columbia.\69\ None of these acts would be 
crimes, but all would be impeachable. This, because they are 
all ``serious assaults on the integrity of government.'' \70\ 
And all of these acts are public acts having public 
consequences.
---------------------------------------------------------------------------
    \69\ Black, Impeachment at 34-35.
    \70\ Id. at 38.
---------------------------------------------------------------------------
    Holders of public office should not be impeached for 
conduct (even criminal conduct) that is essentially private. 
That is why scholars and otherdisinterested observers have 
consistently framed the test of impeachable offenses in terms of some 
fundamental attack on our system of government, describing impeachment 
as being reserved for:
          ``offenses against the government''; 71
---------------------------------------------------------------------------
    \71\ Labovitz, Presidential Impeachment at 26.
---------------------------------------------------------------------------
          ``political crimes against the state''; 72
---------------------------------------------------------------------------
    \72\ Berger, Impeachment at 61.
---------------------------------------------------------------------------
          ``serious assaults on the integrity of the processes 
        of government''; 73
---------------------------------------------------------------------------
    \73\ Black, Impeachment at 38-39.
---------------------------------------------------------------------------
          ``wrongdoing convincingly established [and] so 
        egregious that [the President's] continuation in office 
        is intolerable''; 74
---------------------------------------------------------------------------
    \74\ Labovitz, Presidential Impeachment at 110.
---------------------------------------------------------------------------
          ``malfeasance or abuse of office,'' 75 
        bearing a ``functional relationship'' to public office; 
        76
---------------------------------------------------------------------------
    \75\ Rotunda, 76 Ky. L.J. at 726.
    \76\ Ibid. 
---------------------------------------------------------------------------
          ``great offense[s] against the federal government''; 
        77
---------------------------------------------------------------------------
    \77\ Gerhardt, 68 Tex. L. Rev. at 85.
---------------------------------------------------------------------------
          ``acts which, like treason and bribery, undermine the 
        integrity of government.'' 78
---------------------------------------------------------------------------
    78 New York Bar Report at 18.
---------------------------------------------------------------------------
            b. Recent Statements by Historians and Constitutional 
                    Scholars Confirm that No Impeachable Offense Is 
                    Present Here
    In a recent statement, 400 historians warned of the threat 
to our constitutional system posed by these impeachment 
proceedings. The Framers, they wrote, ``explicitly reserved 
[impeachment] for high crimes and misdemeanors in the exercise 
of executive power.'' 79 Impeachment for anything 
short of that high standard would have ``the most serious 
implications for our constitutional order.'' 80
---------------------------------------------------------------------------
    \79\ Statement of Historians in Defense of the Constitution (Oct. 
28, 1998) (emphasis added).
    \80\ Ibid.
---------------------------------------------------------------------------
    That view accords with the position expressed by 430 legal 
scholars and communicated by letter to the House leadership and 
the leadership of this Committee. 81 The legal 
scholars' letter underscores that high crimes and misdemeanors 
must be of a seriousness comparable to ``treason'' and 
``bribery'' that are distinguished by a ``grossly derelict 
exercise of official power.'' That standard, as the law 
professors note, is simply not met here even on the facts 
alleged. ``If the President committed perjury regarding his 
sexual conduct, this perjury involved no exercise of 
Presidential power as such.'' 82 In other words, 
``making false statements about sexual improprieties is not a 
sufficient basis to justify the trial and removal from office 
of the President of the United States.'' 83 To 
continue an impeachment inquiry under such circumstances would 
pose a heavy cost to the Presidency with no return to the 
American people.
---------------------------------------------------------------------------
    \81\ Letter of 430 Law Professors to Messrs. Gingrich, Gephardt, 
Hyde and Conyers (released Nov. 6, 1998).
    \82\ Id. at 3.
    \83\ Ibid.
---------------------------------------------------------------------------
    Thus, as Professor Michael Gerhardt summarized the matter 
in his recent testimony before a subcommittee of this body, 
there is ``widespread recognition [of] a paradigmatic case for 
impeachment.'' 84 In such a case, ``there must be a 
nexus between the misconduct of an impeachable official and the 
latter's official duties.'' 85 The Referral presents 
no such case.
---------------------------------------------------------------------------
    \84\ Statement of Professor Michael J. Gerhardt Before the House 
Subcommittee on the Constitution of the House Judiciary Committee 
Regarding the Background and History of Impeachment, dated November 9, 
1998, at 13.
    \85\ Ibid. (emphasis added).
---------------------------------------------------------------------------

   C. Relevant Historical Precedents Demonstrate that No Impeachable 
                     Offense Has Been Alleged Here

1. Alexander Hamilton

    That impeachment was reserved for serious public wrongdoing 
of a serious political nature was no mere abstraction to the 
authors of the Constitution. The ink on the Constitution was 
barely dry when Congress was forced to investigate wrongdoing 
by one of the Framers. In 1792-93, Congress investigated then-
Secretary of the Treasury Alexander Hamilton for alleged 
financial misdealings with James Reynolds, a convicted 
securities swindler.86 Secretary Hamilton was 
interviewed by members of Congress, including the House Speaker 
and James Monroe, the future President. He admitted to making 
secret payments to Mr. Reynolds, whose release from prison the 
Treasury Department had authorized. Mr. Hamilton acknowledged 
that he had made the payments but explained that he had 
committed adultery with Reynolds wife; that he had made 
payments to Mr. Reynolds to cover it up; that he had had Mrs. 
Reynolds burn incriminating correspondence; and that he had 
promised to pay the Reynolds' travel costs if they would leave 
town.87
---------------------------------------------------------------------------
    \86\ See generally Rosenfeld, ``Founding Fathers Didn't Flinch,'' 
Los Angeles Times (Sept. 18, 1998) at A11.
    \87\ Ibid.
---------------------------------------------------------------------------
    The Members of Congress who heard Secretary Hamilton's 
confession concluded that the matter was private, not public; 
that as a result no impeachable offense had occurred; and that 
the entire matter should remain secret. Although President 
Washington, Vice-President Adams, Secretary of State Jefferson 
and House Minority leader James Madison (two of whom had signed 
the Constitution) all eventually became aware of the affair, 
they too maintained their silence. And even after the whole 
matter became public knowledge some years later, Mr. Hamilton 
was appointed to the second highest position in the United 
States Army and was speedily confirmed by the 
Senate.88
---------------------------------------------------------------------------
    \88\ Ibid.
---------------------------------------------------------------------------
    It is apparent from the Hamilton case that the Framers did 
not regard private sexual misconduct as creating an impeachable 
offense. It is also apparent that efforts to cover up such 
private behavior, including even paying hush money to induce 
someone to destroy documents, did not meet the standard. 
Neither Hamilton's very high position, nor the fact that his 
payments to a securities swindler created an enormous 
``appearance'' problem, were enough to implicate the standard. 
These wrongs were real, and they were not insubstantial, but to 
the Framers they were essentially private and therefore not 
impeachable.
    Some have responded to the argument that the conduct at 
issue in the Referral is private by contending that the 
President is charged with faithfully executing the laws of the 
United States and that perjury would be a violation of that 
duty. That argument, however, proves far too much. Under that 
theory, any violation of federal law would constitute an 
impeachable offense, no matter how minor and no matter whether 
it arose out of the President's private life or his public 
responsibilities. Lying in a deposition in a private lawsuit 
would, for constitutional purposes, be the equivalent of lying 
to Congress about significant conduct of the Executive Branch--
surely a result those advocates do not contemplate. More 
importantly, as the next section demonstrates, we know from the 
bipartisan defeat of the tax fraud article against President 
Nixon that the ``faithfully execute'' theory has been squarely 
rejected.

2. The Failure of the Proposed Article of Impeachment Against President 
        Nixon Alleging Fraudulent Tax Filings

    As previously indicated, this Committee's investigation of 
President Nixon in 1973-74 had to confront the question of just 
what constitutes an ``impeachable offense.'' That investigation 
resulted in the Committee's approval of three articles of 
impeachment alleging misuse of the Presidential Office 
andrejection of two others. Those decisions constitute part of the 
common law of impeachment, and they stand for the principle that abuse 
of the Presidential Office is at the core of the notion of impeachable 
offense.
    That conclusion was no happenstance. It resulted from a 
concordance among Committee majority and minority views as to 
the standard of impeachable offenses. One of the first tasks 
assigned to the staff of the Judiciary Committee when it began 
its investigation of President Nixon was to prepare a legal 
analysis of the grounds for impeachment of a President. The 
staff concluded that:

    Impeachment is a constitutional remedy addressed to serious 
offenses against the system of government. . . . It is not 
controlling whether treason and bribery are criminal. More 
important, they are constitutional wrongs that subvert the 
structure of government, or undermine the integrity of office 
and even the Constitution itself, and thus are `high' offenses 
in the sense that word was used in English impeachments. . . . 
The emphasis has been on the significant effects of the 
conduct--undermining the integrity of office, disregard of 
constitutional duties and oath of office, arrogation of power, 
abuse of the governmental process, adverse impact on the system 
of government. . . . Because impeachment of a President is a 
grave step for the nation, it is to be predicated only upon 
conduct seriously incompatible with either the constitutional 
form and principles of our government or the proper performance 
of constitutional duties of the president office.89
---------------------------------------------------------------------------
    \89\ Impeachment Inquiry at 26 (emphasis added).

A memorandum setting forth views of certain Republican Members 
similarly emphasized the necessarily serious and public 
---------------------------------------------------------------------------
character of any alleged offense:

    It is not a fair summary . . . to say that the Framers were 
principally concerned with reaching a course of conduct, 
whether or not criminal, generally inconsistent with the proper 
and effective exercise of the office of the presidency. They 
were concerned with preserving the government from being 
overthrown by the treachery or corruption of one man. . . . 
[I]t is our judgment, based upon this constitutional history, 
that the Framers of the United States Constitution intended 
that the President should be removable by the legislative 
branch only for serious misconduct dangerous to the system of 
government established by the Constitution.90
---------------------------------------------------------------------------
    \90\Nixon Report at 364-365 (Minority Views of Messrs. Hutchinson, 
Smith, Sandman, Wiggins, Dennis, Mayne, Lott, Moorhead, Maraziti and 
Latta) (final emphasis added).

Notwithstanding their many differences, the Judiciary Committee 
investigating President Nixon was in substantial agreement on 
the question posed here: an impeachable wrong is an offense 
against our very system, a constitutional evil subversive of 
the government itself.
    Against that backdrop, it is clear that the Committee's 
vote not to approve a proposed tax-fraud type article was every 
bit as significant a precedent as the articles it did approve. 
The proposed article the Committee ultimately declined to 
approve charged that President Nixon both ``knowingly and 
fraudulently failed to report certain income and claimed 
deductions [for 1969-72] on his Federal income tax returns 
which were not authorized by law.'' 91 The President 
had signed his returns for those years under penalty of 
perjury, 92 and there was reason to believe that the 
underlying facts would have supported a criminal prosecution 
against President Nixon himself.}93 Yet 
the article was not approved. And it was not approved because 
the otherwise conflicting views of the Committee majority and 
minority were in concord: submission of a false tax return was 
not so related to exercise of the Presidential Office as to 
trigger impeachment.
---------------------------------------------------------------------------
    \91\ Nixon Report at 220. The President was alleged to have failed 
to report certain income, to have taken improper tax deductions, and to 
have manufactured (either personally or through his agents) false 
documents to support the deductions taken.
    \92\ Given the underlying facts, that act might have provided the 
basis for multiple criminal charges; conviction on, for example, the 
tax evasion charge, could have subjected President Nixon to a 5-year 
prison term.
    \93\ See Nixon Report at 344 (``the Committee was told by a 
criminal fraud tax expert that on the evidence presented to the 
Committee, if the President were an ordinary taxpayer, the government 
would seek to send him to jail'') (Statement of Additional Views of Mr. 
Mezvinsky, et al.).
---------------------------------------------------------------------------
    Thus, by a bipartisan vote greater than a 2-1 margin, the 
Judiciary Committee rejected the tax-evasion article.\94\ Both 
Democrats and Republicans spoke against the idea that tax 
evasion constituted an impeachable offense. Congressman 
Railsback (R-IL) opposed the article saying that ``there is a 
serious question as to whether something involving his personal 
tax liability has anything to do with [the] conduct of the 
office of the President.'' \95\ Congressman Owens (D-UT) stated 
that, even assuming the charges were true in fact, ``on the 
evidence available, these offenses do not rise, in my opinion, 
to the level of impeachment.'' \96\ Congressman Hogan (R-MD) 
did not believe tax evasion an impeachable offense because the 
Constitution's phrase ``high crime signified a crime against 
the system of government, not merely a serious crime.'' \97\ 
And Congressman Waldie (D-CA) spoke against the article, saying 
that ``there had not been an enormous abuse of power,'' 
notwithstanding his finding ``the conduct of the President in 
these instances to have been shabby, to have been unacceptable, 
and to have been disgraceful even.'' \98\
---------------------------------------------------------------------------
    \94\ Nixon Report at 220.
    \95\ Debate on Articles of Impeachment: Hearings on H. Res. 803 
Before the House Comm. on the Judiciary, 93d Cong. 2d Sess., 524 
(1974).
    \96\ Id. at 549.
    \97\ Id. at 541 (quoting with approval conclusion of Impeachment 
Inquiry).
    \98\ Id. at 548.
---------------------------------------------------------------------------
    These voices, and the overwhelming vote against the tax 
evasion article, underscore the fact that the 1974 Judiciary 
Committee's judgment was faithful to its legal conclusions. It 
would not (and did not) approve an article of impeachment for 
anything short of a fundamental offense against our very system 
of government. In the words of the Nixon Impeachment Inquiry 
Report:

    Because impeachment of a President is a grave step for the 
nation, it is to be predicated only upon conduct seriously 
incompatible with either the constitutional form and principles 
of our government or the proper duties of the presidential 
office.\99\
---------------------------------------------------------------------------
    \99\ Impeachment Inquiry at 27.

This Committee should observe no less stringent a standard. If 
this Committee is faithful to its predecessor, it will conclude 
that the Referral's allegations (and the perjury allegations in 
particular) do not satisfy the high threshold required to 
approve articles of impeachment.

IV. The Constitution Requires Clear and Convincing Evidence To Approve 
                        Articles of Impeachment

    Even if a Member of Congress should conclude that ``high 
Crimes and Misdemeanors'' have actually and properly been 
alleged, that conclusion alone is not sufficient to support an 
article of impeachment. In addition, the Member must conclude 
that the allegations against the President have been 
established by ``clear and convincing'' evidence. This is a 
legal term of art requiring evidence greater than in the 
ordinary civil case. The suggestion that a vote for impeachment 
of a democratically elected President represents no more, and 
requires no more, than the threshold showing necessary for a 
grand jury indictment reflects a serious disregard for the 
significance of this process.

 A. This Committee Should Apply the Same Clear and Convincing Standard 
        Observed by Its Predecessor in the Watergate Proceedings

    This Committee should follow the lead of its predecessor in 
the Watergate proceedings. Twenty-four years ago, this 
Committee confronted the very same question presented here: 
what threshold of proof is required to approve articles of 
impeachment? Then, it was the consensus of all parties--
majority and minority counsel, as well as the attorney for the 
President--that approval of an article must rest on clear and 
convincing evidence.
    In the Watergate hearings, the President's counsel, Mr. St. 
Clair, put the threshold-of-proof question in this way:

    I think the American people will expect that this committee 
would not vote to recommend any articles of impeachment unless 
this committee is satisfied that the evidence to support it is 
clear, is clear and convincing. Because anything less than 
that, in my view, is going to result in recriminations, 
bitterness, and divisiveness among our people.100
---------------------------------------------------------------------------
    \100\ Statement of James St. Clair, III Impeachment Inquiry 
Hearings on H. Res. 803 Before the House Comm. on the Judiciary, 932 
Cong., 2d Sess., 1889 (1974). (emphasis added).

Majority counsel to this Committee, Mr. Doar, concurred that 
---------------------------------------------------------------------------
the clear-and-convincing measure was the appropriate gauge:

    Mr. St. Clair said to you you must have clear and 
convincing proof. Of course there must be clear and convincing 
proof to take the step that I would recommend this committee to 
take.101
---------------------------------------------------------------------------
    \101\ Statement of John Doar, id. at 1927 (emphasis added).

Emphasizing the political nature and consequences of 
impeachment, Mr. Doar reiterated that ``as a practical matter, 
proof must be clear and convincing.'' \102\
---------------------------------------------------------------------------
    \102\ Ibid.
---------------------------------------------------------------------------
    Minority counsel, Mr. Garrison, told the Committee that 
``when a member of the committee or a Member of the House votes 
to impeach, he should do so having made a judgment that the 
evidence convinces him that the President should be removed 
from office.'' 103 And in their ``Standard of Proof 
for Impeachment by the House'' section of the Impeachment 
Inquiry, the Republican authors of the Minority Views 
formulated the standard as follows:
---------------------------------------------------------------------------
    \103\ Statement of Samuel Garrison, III, id. at 2040.

    On balance, it appears that prosecution [of articles of 
impeachment by the House] is warranted if the prosecutor 
believes that the guilt of the accused is demonstrated by clear 
and convincing evidence. . . .
    [W]e therefore take the position that a vote of impeachment 
is justified if, and only if, the charges embodied in the 
articles are proved by clear and convincing evidence. Our 
confidence in this proposition is enhanced by the fact that 
both the President's Special Counsel and the Special Counsel to 
the Committee independently reached the same 
conclusion.104
---------------------------------------------------------------------------
    \104\ Impeachment Inquiry (Minority Views of Messrs. Hutchinson, 
Smith, Sandman, Wiggins, Dennis, Mayne, Lott, Moorhead, Maraziti, and 
Latta) at 381 (emphasis added).

    Finally, this Committee expressly found clear and 
convincing evidence supporting the obstruction-of-justice and 
abuse-of-power charges against President Nixon.105 
See, e.g., Impeachment Inquiry at 33 (``[t]his report . . .  
contains clear and convincing evidence that the President 
caused action . . . to cover up the Watergate break-in''); id. 
at 136 (``[t]he Committee finds, based upon of [sic] clear and 
convincing evidence, that th[e] conduct[ ] detailed in the 
foregoing pages of this report constitutes `high crimes and 
misdemeanors' ''); id. at 141 (``[t]he Committee finds clear 
and convincing evidence that a course of conduct was carried 
out [by President Nixon and his subordinates] to violate the 
constitutional rights of citizens'').106
---------------------------------------------------------------------------
    \105\ The third Watergate article of impeachment, based on 
President Nixon's refusal to comply with this Committee's subpoenas, 
was based on ``undisputed facts,'' Impeachment Inquiry at 213, so there 
was no need to articulate or apply an evidentiary standard to the 
factfinding process on which that article was based.
    \106\ Representative Caldwell Butler (R-Va.) explicitly applied the 
clear and convincing standard when he announced in Committee he would 
vote for impeachment. ``Butler said . . . [t]he evidence was `clear, 
direct, and convincing'--St. Clair's words--that Richard Nixon had 
abused power.'' Kutler, the Wars of Watergate 522 (1990).
---------------------------------------------------------------------------

  B. The Clear and Convincing Standard Is Commensurate with the Grave 
                Constitutional Power Vested in the House

    As the Watergate precedent indicates, this Committee should 
not approve an article of impeachment for which the record 
evidence, taken as a whole, is anything less than clear and 
convincing. Put differently, each member must have a firm 
conviction, clearly and convincingly grounded in record 
evidence, that the President is guilty of the wrongdoing 
alleged. As former Attorney General Elliott Richardson warned 
on December 1, ``[a] vote to impeach is a vote to remove. If 
members of the Committee believe that should be the outcome, 
they should vote to impeach. If they think that is an excessive 
sentence, they should not vote to impeach because if they do 
vote to impeach the matter is out their hands, and if the 
Senate convicts, out of its hands.'' 107
---------------------------------------------------------------------------
    \107\ Marcus, ``Panel Unclear About Impeachment Role,'' The 
Washington Post (Dec. 6, 1996) at A8.
---------------------------------------------------------------------------
    This clear-and-convincing standard is not the highest 
degree of proof known to our law,108 but the 
substantial showing it demands is commensurate with the gravity 
of impeachment itself. Exercise of the House's accusatory 
impeachment power is itself an act that weakens the Presidency. 
Unlike the grand juror's vote to indict, which affects a sole 
individual, affirmative votes on articles of impeachment 
jeopardize an entire branch of our national government and 
threaten the political viability of the single person (except 
for the Vice President) elected by the entire electorate. The 
clear-and-convincing requirement ensures that this momentous 
step is not lightly taken. Lower standards (probable cause or 
apparent preponderance of the evidence) are simply not 
demanding enough to justify the fateful step of an impeachment 
trial. They pose a genuine risk of subjecting the President, 
the Senate, and most of all the people who elected the 
President to a trial ``on the basis of one-sided or incomplete 
information or insufficiently persuasive evidence.'' 
109 Moreover, those lower standards would be 
particularly inappropriate here, where this Committee has 
itself neither independently investigated the evidence nor 
heard from a single witness with first-hand knowledge of such 
facts. The respected impeachment scholar Michael Gerhardt has 
declared: ``This idea that all [this Committee] need[s] to have 
is probable cause is in my mind ahistorical . . . . I do think 
that members, at least historically, have demanded more in 
terms of the kind of evidence that has to exist to initiate 
formal impeachment proceedings against the President and also 
to trigger a trial.'' 110
---------------------------------------------------------------------------
    \108\ In criminal cases, proof beyond a reasonable doubt is 
required to convict. In re Winship, 397 U.S. 358, 363-64 (1970).
    \109\ Labovitz, Presidential Impeachment at 192.
    \110\ Marcus, ``Panel Unclear About Impeachment Role,'' The 
Washington Post (Dec. 6, 1996) at A8.
---------------------------------------------------------------------------
    Exercise of the impeachment power by the House is a matter 
of the utmost seriousness. No member of this Committee or of 
the House as a whole should approve articles of impeachment 
unless that member is personally persuaded that a high crime or 
misdemeanor has been proven to have occurred by clear and 
convincing evidence.111 The precedent created in the 
Watergate proceedings could not be clearer. To break with that 
precedent and proceed on something less demanding would 
properly be viewed as a partisan effort to lower the 
impeachment bar. The President, the Constitution, and the 
American people deserve more. Proof by clear and convincing 
evidence, and nothing less, is necessary to justify each 
member's affirmative vote for articles of impeachment.
---------------------------------------------------------------------------
    \111}\Thus, a member would act in derogation of a solemn 
constitutional duty if he or she approved an article of impeachment 
without having concluded that the President had been shown, by clear 
and convincing evidence, to have performed an impeachable act. The 
House has its own independent constitutional obligation to weigh the 
evidence presented. It is not a matter of merely voting for the article 
on the theory that the Senate will determine the truth.
---------------------------------------------------------------------------

   V. The Committee Should Not Rely on the Referral's Account of the 
                                Evidence

    The Committee is now in the process of completing its 
deliberations on this question of the utmost national gravity: 
whether to approve articles of impeachment against the 
President of the United States. Voting in favor of such 
articles would commence the somber process of annulling the 
electoral choice of the people of this country. Before 
analyzing, in the next three sections, with as much specificity 
as possible the charges the Committee apparently is 
considering, it is appropriate to examine the evidentiary 
record that serves as the basis for these grave judgments.
    The record here is strikingly different from that on which 
the Committee acted twenty-four years ago in the Watergate 
proceedings. There, over several months of investigation, the 
Committee examined numerous fact witnesses and obtained and 
analyzed documents and other evidence; while it received a 
transmission of testimony and documents from the Watergate 
grand jury, it made its own independent evaluation of the 
evidence it had gathered. See Nixon Report at 9 (Judiciary 
Committee received statements of information from inquiry staff 
in which ``a deliberate and scrupulous abstention from 
conclusions, even by implication, was 
observed'').112
---------------------------------------------------------------------------
    \112\ See also Kutler, The Wars of Watergate 477-89 (1990); 
Labovitz, Presidential Impeachment at 189.
---------------------------------------------------------------------------
    Here, however, the Committee is almost wholly relying on 
the work of the Independent Counsel. Neither the Committee, its 
staff, nor counsel for the President have had the opportunity 
to confront the witnesses who have appeared before the OIC's 
grand jury: to cross-examine them, assess their credibility, 
and elicit further information that might affect the testimony 
the witnesses gave. Indeed, the very genesis of this 
impeachment inquiry differs radically from the Watergate 
proceedings. Twenty-four years ago, this Committee itself made 
a decision to embark upon an impeachment inquiry.113 
In the present case, however, this inquiry was generated by the 
judgment of Mr. Starr that he had identified ``substantial and 
credible information . . . that may constitute grounds for 
impeachment.'' 28 U.S.C. Sec. 595(c).
---------------------------------------------------------------------------
    \113\ Id. at 471.
---------------------------------------------------------------------------
    The Referral represents Mr. Starr's effort to support that 
conclusion. The grand jury never authorized the transmission of 
or even reviewed the Referral, November 19, 1998 Testimony at 
324-25 (Testimony of Mr. Starr) and, while Mr. Starr declined 
to address the question in his public testimony, we do not 
believe that the Referral itself was ever presented for 
substantive approval to Chief Judge Johnson or the Special 
Division of the Court of Appeals for the Purpose of Appointing 
Independent Counsels.114 Instead, the Referral 
reflects Mr. Starr's own version of the vast amount of evidence 
gathered by the grand jury and the conclusions he draws from 
that evidence.
---------------------------------------------------------------------------
    \114\ We are not privy to all of the relevant documentation, but it 
appears that Mr. Starr secured from the Special Division in early July 
a general authorization to disseminate grand jury information in a 
referral which would later be drafted and submitted to Congress. App. 
at 10 (July 7, 1998 Order of Special Division). The OIC also apparently 
``advised'' Chief Judge Johnson that it was submitting the Referral, 
Ref. at 4 n.18, but as we point out in the text above, this is quite a 
different procedure from the careful review that Chief Judge Sirica 
performed in 1974 before the Watergate grand jury information was 
submitted to this Committee.
---------------------------------------------------------------------------
    Unlike the impartial presentation to the Watergate 
committee from Special Prosecutor Jaworski, the Referral is a 
document advocating impeachment. It sets forth Mr. Starr's best 
case for impeachment, not a neutral presentation of the facts. 
It reflects a careful selection and presentation of the 
evidence designed to portray the President in the worst 
possible light. It is being presented as a good faith summary 
of reliable evidence when it is in fact nothing of the kind. 
While we will address the specific allegations of perjury, 
obstruction of justice, and abuse of office (as best we can 
discern them) in the next sections, it is appropriate here to 
sketch out the untested nature of the underlying evidence, the 
material omissions in the Referral, and the indications of bias 
and overreaching that have characterized the OIC's 
investigation. To demonstrate this is not to make an irrelevant 
ad hominem attack on the Independent Counsel but to point out 
howunreliable is the record before this Committee, and the 
caution and skepticism with which the narrative and conclusions of the 
Referral must therefore be viewed.

 A. The Information Presented to the Committee in the Referral Has Not 
          Been Subjected to the Most Basic Adversarial Testing

    The Referral is based on grand jury information and as such 
has not been subjected to cross-examination--the adversarial 
testing our system of justice employs for assessing the 
reliability of evidence. As the Supreme Court has stated, 
``Cross-examination is `the principal means by which the 
believability of a witness and the truth of his testimony are 
tested.' '' Kentucky v. Stincer, 482 U.S. 730, 736 (1987) 
(citations omitted). Absent such testing, it is extremely 
difficult to make necessary judgments about the credibility of 
grand jury witnesses and the weight to be given their 
testimony.

  B. The Referral Differs Vastly From the Precedent of the Watergate 
                              ``Road Map''

    Instead of transmitting to the Committee the information 
gathered by the OIC, Mr. Starr chose to give it his own spin. 
Had he sat across the table from the witnesses, it might have 
been that he based his judgments on such scrutiny. Since he did 
not, the grounds on which he credited some evidence and 
rejected other evidence are unknown. The decision to proceed in 
this way was a sharp departure from Special Prosecutor Leon 
Jaworski's submission to Congress of ``a simple and 
straightforward compilation of information gathered by the 
Grand Jury, and no more.'' In re Report and Recommendation of 
June 5, 1972 Grand Jury, 370 F. Supp. 1219, 1226 (D.D.C. 
1974).\115\ As drafted, the Referral impedes the search for 
truth by cherry-picking the evidence and presenting (as we 
demonstrate in the next sections) a deeply misleading portrait 
of the record.
---------------------------------------------------------------------------
    \115\ The Jaworski report was ``[o]nly 55 pages long, . . . set 
forth the relevant evidence without any commentary, made no conclusions 
about whether the President had committed ordinary crimes or 
impeachable offenses, and contained a single piece of evidence on each 
page.'' Jeffrey Rosen, ``Starr Crossed,'' The New Republic (Dec. 14, 
1998).
---------------------------------------------------------------------------

    C. The Resulting Referral Omitted a Wealth of Directly Relevant 
                          Exculpatory Evidence

    The Referral repeatedly and demonstrably omitted or 
mischaracterized directly relevant evidence that exonerates the 
President of the very allegations leveled by the OIC. For 
example:
    The concealment-of-gifts-accusation. The Referral claims 
that the President and Ms. Lewinsky ``discussed'' concealing 
gifts at their December 28 visit, and that the President 
therefore orchestrated the pick-up of those gifts. The Referral 
ignores evidence to the contrary, such as: Asked if President 
Clinton discussed concealment with her, Ms. Lewinsky said, 
``[H]e really didn't--he didn't really discuss it.'' App. at 
1122 (8/20/98 grand jury testimony of Ms. Lewinsky). As to who 
first conceived of the idea of involving Ms. Currie, the 
Referral omitted the key passage:

    ``A Juror: Now, did you bring up Betty's name or did the 
President bring up Betty's name?
    [Ms. Lewinsky]: I think I brought it up. The President 
wouldn't have brought up Betty's name because he really 
didn't--he didn't really discuss it.''

App. at 1122 (8/20/98 grand jury testimony of Ms. Lewinsky). 
And as to who broached the idea of actually picking up the 
gifts, the Referral again omitted this important testimony by 
Ms. Currie:

    Q. . . . Just tell us from moment one 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 would pick up a box. She said Isikoff 
had been inquiring about gifts.

Supp. at 582 (5/6/98 grand jury testimony of Ms. Currie) 
(emphasis added).
    The jobs-for-silence-accusation. The allegation that the 
President obstructed justice by procuring a job for Ms. 
Lewinsky in exchange for silence or false testimony rests on 
the Referral's account of Ms. Lewinsky's job search that simply 
excluded the contradictory evidence. Both Ms. Lewinsky and Mr. 
Jordan flatly denied that the job assistance had anything at 
all to do with Ms. Lewinsky's testimony:

    ``I was never promised a job for my silence.'' App. at 1161 
(8/20/98 grand jury testimony of Ms. Lewinsky).
    ``As far as I was concerned, [the job and the affidavit] 
were two very separate matters.'' Supp. at 1737 (3/5/98 grand 
jury testimony of Vernon Jordan).
    Q. Did [Ms. Lewinsky] ever directly indicate to you that 
she wanted her job in New York before she could finish [her 
affidavit] up with Mr. Carter?
    A. Unequivocally, no.
    Q. . . . Is there anything about the way she acted when 
speaking with you . . . that, as you sit here now, makes you 
think that perhaps she was attempting not to finalize whatever 
she was doing with Mr. Carter until she had a job in New York?
    A. Unequivocally, indubitably, no.

Supp. at 1827 (5/5/98 grand jury testimony of Vernon Jordan). 
And as to the circumstantial evidence, we demonstrate in Part 
VI.B.2 that the Referral omitted a host of probative and 
exculpatory facts that negate the existence of any improper 
quid pro quo.
    The influencing-Betty-Currie-accusation. The Referral 
asserts that the President's January 18 conversation was an 
attempt to influence Ms. Currie's testimony. But the Referral 
omitted Ms. Currie's clear testimony that this discussion did 
no such thing:

    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 when he told you those 
statements?
    A. None whatsoever.
    Q. Did you feel any pressure to agree with your boss?
    A. None.

Supp. at 668 (7/22/98 grand jury testimony of Ms. Currie) 
(emphasis added).

    Q. You testified with respect to the statements as the 
President made them, and, in particular, the four statements 
that we've already discussed. You felt at the time that they 
were technically accurate? Is that a fair assessment of your 
testimony?
    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 (7/22/98 grand jury testimony of Ms. Currie).
    The false-affidavit-accusation. The OIC accused the 
President of obstructing justice by suggesting that Ms. 
Lewinsky file an affidavit that he knew would be false. Ref. at 
173. However, the OIC inexplicably never once quoted Ms. 
Lewinsky's repeated, express denials that anyone had told or 
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 Proffer).
    ``I think I told [Tripp] that--you know, at various times 
the President and Mr. Jordan had told me I had to lie. That 
wasn't true.'' App. at 942 (8/6/98 grand jury testimony of Ms. 
Lewinsky).
    ``I think because of the public nature of how this 
investigation has been and what the charges aired, that I would 
just like to say that no one ever asked me to lie and I was 
never promised a job for my silence.'' App. at 1161 (8/20/98 
grand jury testimony of Ms. Lewinsky).
    ``Neither the President nor Jordan ever told Lewinsky that 
she had to lie.'' App. at 1398 (7/27/98 FBI Form 302 Interview 
of Ms. Lewinsky).
    ``Neither the President nor anyone ever directed Lewinsky 
to say anything or to lie. . .'' App. at 1400 (7/27/98 FBI Form 
302 Interview of Ms. Lewinsky).

    The denying-knowledge-of executive-privilege-accusation. 
The Referral states that the President deceived the public by 
feigning ignorance of the executive privilege litigation. 
According to the Referral, while in Africa, the President ``was 
asked about the assertion of Executive Privilege, he responded 
`You should ask someone who knows.' He also stated, `I haven't 
discussed that with the lawyers. I don't know.' ''
    To achieve the desired effect, the Referral first misstates 
the actual question posed. This is the actual exchange:

    Q. Mr. President, we haven't yet had the opportunity to ask 
you about your decision to invoke executive privilege, sir. Why 
shouldn't the American people see that as an effort to hide 
something from them?
    The President. Look, that's a question that's being 
answered back home by the people who are responsible to do 
that. I don't believe I should be discussing that here.
    Q. Could you at least tell us why you think the first lady 
might be covered by that privilege, why her conversation might 
fall under that?
    The President. All I know is--I saw an article about it in 
the paper today. I haven't discussed it with the lawyers. I 
don't know. You should ask someone who does.\116\

    \116\ White House Press Release: Remarks by the President in Photo 
Opportunity with President Museveni of Uganda (March 21, 1998).

    The foregoing are just examples of a technique employed 
throughout the Referral, which systematically omits or 
mischaracterizes material evidence that would have undermined 
its allegations.

  D. Mr. Starr's Conduct in the Lewinsky Investigation Has Betrayed a 
     Bias that Helps Explain the Lack of Neutrality in the Referral

    Mr. Starr's conduct in the Lewinsky investigation has 
demonstrated a bias against the President. Understanding that 
bias is critical to evaluating the Referral--to inform a proper 
weighing of the judgments Mr. Starr has made in selecting the 
evidence, presenting the evidence, and drawing conclusions from 
it.

Mr. Starr actively sought jurisdiction in the Lewinsky matter, despite 
        his representations to the contrary

    After four years of fruitless investigation of the 
President and Mrs. Clinton on a variety of topics generically 
referred to in the news media as ``Whitewater,'' the Starr 
investigation was at a standstill in early 1998 (the 
Independent Counsel himself had sought to resign in 1997). 
However, a telephone call from Ms. Tripp with allegations of 
obstruction and witness tampering in the Paula Jones case 
(which turned out to be false) offered Mr. Starr a dramatic way 
to vindicate his long, meandering, and costly investigation. 
Mr. Starr seized his chance energetically, promising Ms. Tripp 
immunity and using her to surreptitiously tape Ms. Lewinsky 
even before he made his request for jurisdiction to the 
Department of Justice.

Mr. Starr misrepresented how far he was willing to go in his attempts 
        to obtain evidence against the President

    The fervor with which Mr. Starr has pursued President 
Clinton is manifest in his denial, under oath, that his agents 
sought on January 16th to have Ms. Lewinsky wear a wire to 
surreptitiously record the President and Mr. Jordan. See, e.g., 
Transcript of November 19, 1998 Hearing at 286 (testimony of 
Mr. Starr). Mr. Starr's vehement denials notwithstanding, the 
evidence the OIC submitted with the Referral runs very much 
contrary to his version of the facts. Ms. Lewinsky's testimony 
plainly contradicts Mr. Starr's account, see App. at 1147 
(``they told me that . . . I'd have to place calls or wear a 
wire to see--to call Betty and Mr. Jordan and possibly the 
President''); id. at 1159 (``I didn't allow him [President 
Clinton] to be put on tape that night''), as does statements by 
her attorneys, Time (Feb. 16, 1998) at 49, and an interview 
memorandum of an FBI agent working for Mr. Starr himself, see 
App. at 1379 (1/16/98 FBI 302 Form Interview of Ms. Lewinsky). 
It is evident that Mr. Starr wanted Ms. Lewinsky to help set up 
the President or those close to him, but denied doing so in an 
effort to maintain a semblance of impartiality.

Mr. Starr gave immunity to anyone he thought could help him go after 
        the President

    He granted immunity to one witness who had admitted 
engaging in illegal activity over a period of several months 
(Ms. Tripp), and another witness who was, as he stated, ``a 
felon in the middle of committing another felony'' (Ms. 
Lewinsky), Transcript of November 19, 1998 Hearing at 140 
(testimony of Mr. Starr), all in an effort to gather 
information damaging to the President.

The OIC leaked grand jury information hurtful to the President

    The OIC investigation has been characterized by a flagrant 
and highly prejudicial (to the President) campaign of grand 
jury leaks. Mr. Starr and his office have been ordered by Chief 
Judge Johnson to ``show cause'' why they should not be held in 
contempt in light of ``serious and repetitive prima facie 
violations of Rule 6(e).'' Order (September 25, 1998) at 20. 
Leaks aresignificant not simply because they are illegal, but 
also because the leaks themselves were often inaccurate and represented 
an effort to use misinformation to put pressure on the President. For 
example, early leaks discussed the OIC's view that the ``talking 
points'' were an effort to obstruct justice coming out of the White 
House:

    [S]ources in Starr's office have told NBC News that the 
information Lewinsky's lawyers were offering was simply not 
enough. . . . Sources in Starr's office and close to Linda 
Tripp say they believe the instructions (or talking points) 
came from the White House. If true, that could help support a 
case of obstruction of justice.

NBC Nightly News (Feb. 4, 1998) (emphasis added). The Referral 
barely mentions the ``Talking Points'' and makes no allegation 
that the President in fact had anything to do with this 
document.117
---------------------------------------------------------------------------
    \117\ The absence of the ``Talking Points'' from the Referral is 
particularly striking given that that document was considered to be 
``the backbone of the independent counsel's inquiry into whether anyone 
lied or obstructed justice over Ms. Lewinsky's relationship with the 
President.'' The New York Times (June 11, 1998). As emphasized by OIC 
press spokesman Charles Bakaly:
---------------------------------------------------------------------------
        Tim Russert: How important is it that we find out who is 
      the author of those talking points?
        Charles Bakaly: Well, in the grant of jurisdiction that 
      the special division of the D.C. Circuit Court of Appeals 
      gave to Judge Starr after the request of the Attorney 
      General, that was the key mandate to look into, those kinds 
      of issues of subornation of perjury and obstruction of 
      justice.
NBC Meet the Press (July 5, 1998) (emphasis added). The document was 
also described as ``the only known physical evidence of witness 
tampering,'' Chicago Tribune (April 3, 1998), and the ``smoking gun,'' 
NBC News (Jan. 22, 1998).
    The flaws in the Referral and the evidentiary record before 
the Committee are not academic. They reveal in concrete terms 
the weaknesses of the charges of perjury, obstruction of 
justice, and abuse of office that have been presented to the 
Committee. These charges are addressed in detail in the 
sections that follow.

                IV. The President Did Not Commit Perjury

    Will Rogers is reported to have said of a contemporary: 
``It's not what he doesn't know that bothers me, it's what he 
knows for sure that just ain't so.'' Defending what the 
President actually said under oath is much easier than 
defending phantom allegations based on what some claim the 
President said. In analyzing the allegation of perjury, we urge 
the Committee and the Congress to focus only on what is 
actually in the record, not on popular mythology, conventional 
(but incorrect) wisdom, or political spin.
    For example, it has variously been asserted that in the 
grand jury the President denied that he had a ``sexual 
relationship'' with Ms. Lewinsky and that he broadly reaffirmed 
his earlier deposition testimony. In fact, in the grand jury, 
the President admitted to an ``inappropriate intimate 
relationship'' with Ms. Lewinsky that was physical in nature. 
In other words, any consideration of charges of perjury 
requires a focused look at the actual statements at issue. 
Again, we ask the Committee: Please, do not assume the 
conventional wisdom. Look, instead, at the actual record.

                         A. Elements of Perjury

    Given the difficulties of testifying under oath with 
precision, proof of perjury requires meeting a very high 
standard. A vast range of testimony that is imprecise, 
unresponsive, vague, and literally truthful, even if it is not 
completely forthcoming, simply is not perjury. The law is aware 
of human foibles andshortcomings of memory. Dissatisfaction 
with the President's answers because they may be narrow, ``hair 
splitting,'' or formalistic does not constitute grounds for alleging 
perjury.
    Perjury requires proof that a defendant, while under oath, 
knowingly made a false statement as to material facts.\118\ 
See, e.g., United States v. Dunnigan, 507 U.S. 87, 94 (1993). 
The ``knowingly'' requirement is a high burden: the government 
must prove the defendant had a subjective awareness of the 
falsity of his statement at the time he made it. See, e.g., 
United States v. Dowdy, 479 F.2d 213, 230 (4th Cir. 1973); 
United States v. Markiewicz, 978 F.2d 786, 811 (2d Cir. 1992). 
Moreover, it is (of course) clear that a statement must be 
false in order to constitute perjury. It is equally beyond 
debate that certain types of answers are not capable of being 
false and are therefore by definition non-perjurious, no matter 
how frustrating they may be to the proceeding in which they are 
given: literally truthful answers that imply facts that are not 
true, see, e.g., United States v. Bronston, 409 U.S. 352, 358 
(1973); truthful answers to questions that are not asked, see, 
e.g., United States v. Corr, 543 F.2d 1042, 1049 (2d Cir. 
1976); and answers that fail to correct misleading impressions, 
see, e.g., United States v. Earp, 812 F.2d 917, 919 (4th Cir. 
1987). The Supreme Court has made abundantly clear that it is 
not relevant for perjury purposes whether the witness intends 
his answer to mislead, or indeed intends a ``pattern'' of 
answers to mislead, if the answers are truthful or literally 
truthful.
---------------------------------------------------------------------------
    \118\  There are two basic federal perjury statutes: 18 U.S.C. 
Sec. 1621 and 18 U.S.C. Sec. 1623. Section 1621 applies to all material 
statements or information provided under oath ``to a competent 
tribunal, officer, or person, in any case in which a law of the United 
States authorizes an oath to be administered,'' Section 1623, in 
contrast, applies only to testimony given before a grand jury and other 
court proceedings. Although there are differences between the two 
statutes, the four basic elements of each are substantially the same.
---------------------------------------------------------------------------
    In explaining the law of perjury, the Supreme Court and 
numerous lower federal courts have set forth four clear 
standards. These core principles, discussed below in some 
detail, must inform the Committee's analysis here. First, the 
mere fact that recollections differ does not mean one party is 
committing perjury. Few civil cases arise where testimony about 
events is not in conflict--even as to core matters at the heart 
of a case. When one party wins a case, the other is not 
routinely indicted for perjury. Common sense and the stringent 
requirements of perjury law make clear that much more is 
needed. Second, a perjury conviction under 18 U.S.C. Sec. 1621 
cannot rest solely on the testimony of a single witness and, at 
the very least as a matter of practice, no reasonable 
prosecutor would bring any kind of perjury case based on the 
testimony of one witness without independent corroboration--
especially if the witness is immunized, or is of questionable 
credibility. As the Supreme Court has made clear, a perjury 
case ``ought not to rest entirely upon `an oath against an 
oath.' '' United States v. Weiler, 323 U.S. 606, 608-09 (1945). 
Third, answers to questions under oath that are literally true 
but unresponsive to the questions asked do not, as a matter of 
law, fall under the scope of the federal perjury statute. That 
is so even if the witness intends to mislead his questioner by 
his answer and even if the answer is false by ``negative 
implication.'' And fourth, answers to questions that are 
fundamentally ambiguous cannot, as a matter of law, be 
perjurious.

 B. Contradictory Testimony From Two Witnesses Does Not Indicate That 
                       One Has Committed Perjury

1. It Must Be Proven that a Witness Had the Specific Intent to Lie

    The ``knowingly'' element of perjury is not satisfied by 
the mere showing that the testimony of two witnesses differs, 
or that the testimony of a witness is, in fact, not correct. 
Rather, it must be proven that a witness had a subjective 
awareness that a statement was false at the time he provided 
it. See, e.g., United States v. Dowdy, 479 F.2d 213, 230 (4th 
Cir. 1973); United States v. Markiewicz, 978 F.2d 786, 811 (2d 
Cir. 1992). This is an extremely high standard. That standard 
is not satisfied when incorrect testimony is provided as a 
result of confusion, mistake, faulty memory, carelessness, 
misunderstanding, mistaken conclusions, unjustified inferences 
testified to negligently, or even recklessness. See, e.g., 
Dunnigan, 507 U.S. at 94; United States v. Dean, 55 F.3d 640, 
659 (D.C. Cir. 1995); see also Department of Justice Manual, 
1997 Supplement, at 9-69.214. As Professor Stephen A. Saltzburg 
testified to this Committee on December 1, 1998, ``American 
judges and lawyers . . . know that [perjury] is a crime that we 
purposely make difficult to prove. We make it difficult to 
prove because we know that putting any person under oath and 
forcing that person to answer `under penalty of perjury' is a 
stressful experience. . . . Honest mistakes are made, memories 
genuinely fail, nervous witnesses say one thing and in their 
minds hear themselves saying something different, and deceit in 
answers to questions about relatively trivialmatters that could 
not affect the outcome of a proceeding but that intrude deeply into the 
most private areas of a witness's life causes little harm.'' Perjury 
Hearing of December 1, 1998 (Statement of Professor Stephen A. 
Saltzburg at 1). Indeed, Mr. Starr has recognized that people who have 
experienced the same event--even the same significant event--may emerge 
with conflicting recollections, and that that does not necessarily mean 
one of them is committing perjury:

    Mr. Lowell. . . . do you not think it would have been a 
less distorted picture, to use your words, to know that when 
[Ms. Lewinsky] left the room, she was followed by agents, and 
that she swore under an oath that she, quote, ``felt threatened 
that when she left, she would be arrested,'' end quote? Don't 
you think that completes the picture a little bit?
    Mr. Starr. I think her perception was incorrect.

Transcript of November 19, 1998 Hearing at 139 (emphasis 
added).

    Mr. Starr . . . we talked at a high level of generality, as 
I understand it, not in a person-specific way, with respect to 
what a cooperating witness would do.
    Representative Delahunt. You realize that Ms. Lewinsky's 
testimony contradicts you.
    Mr. Starr. I am aware that there may be other perceptions, 
but that is what we, in fact, asked.

Id. at 288 (emphasis added). The OIC's press spokesman Charles 
Bakaly, appearing on a television program immediately after Mr. 
Starr's testimony, attempted to explain this conflict between 
Ms. Lewinsky's sworn testimony and Mr. Starr's sworn testimony 
this way: ``Well, you know, again, people have different 
versions of things.'' ABC Nightline, November 19, 1998 
(emphasis added). The law, in short, gives ample breathing 
space to conflicting testimony or recollection before leaping 
to allegations of perjury.

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

    In a perjury prosecution under 18 U.S.C. Sec. 1621, the 
falsity of a statement alleged to be perjurious cannot be 
established by the testimony of just one witness. This ancient 
common law rule, referred to as the ``two-witness rule,'' has 
survived repeated challenges to its legitimacy and has been 
judicially recognized as the standard of proof for perjury 
prosecutions brought under Sec. 1621. See, e.g., Weiler v. 
United States, 323 U.S. 606, 608-610 (1945) (discussing the 
history and policy rationales of the two-witness rule); United 
States v. Chaplin, 25 F.3d 1373, 1377-78 (7th Cir. 1994) (two-
witness rule applies to perjury prosecutions). The Department 
of Justice recognizes the applicability of the two-witness rule 
to perjury prosecutions brought under Sec. 1621. See Department 
of Justice Manual, 1997 Supplement, at 9-69.265.
    The crux of the two-witness rule is that ``the falsity of a 
statement alleged to be perjurious must be established either 
by the testimony of two independent witnesses, or by one 
witness and independent corroborating evidence which is 
inconsistent with the innocence of the accused.'' Department of 
Justice Manual, 1997 Supplement, at 9-69.265 (emphasis in 
original). The second witness must give testimony independent 
of the first which, if believed, would ``prove that what the 
accused said under oath was false.'' Id.; United States v. 
Maultasch, 596 F.2d 19, 25 (2d Cir. 1979). Alternatively, the 
independent corroborating evidence must be inconsistent with 
the innocence of the accused and ``of a quality to assure that 
a guilty verdict is solidly founded.'' Department of Justice 
Manual, 1997 Supplement, at 9-69.265; United States v. Forrest, 
639 F.2d 1224, 1226 (5th Cir. 1981). It is therefore clear that 
a perjury conviction under Sec. 1621 cannot lie where there is 
no independent second witness who corroborates the first, or 
where there is no independent evidence that convincingly 
contradicts the testimony of the accused.
    Section 1623 does not literally incorporate the ``two-
witness rule,'' but it is nonetheless clear from the case law 
that perjury prosecutions under this statute require a high 
degree of proof, and that prosecutors should not, as a matter 
of reason and practicality, even try to bring perjury 
prosecutions based solely on the testimony of a single witness. 
In Weiler v. United States, 323 U.S. 606, 608-09 (1945), the 
Supreme Court observed that ``[t]he special rule which bars 
conviction for perjury solely upon the evidence of a single 
witness is deeply rooted in past centuries.'' The Court further 
observed that ``equally honest witnesses may well have 
differing recollections of the same event,'' and hence ``a 
conviction for perjury ought not to rest entirely upon ``an 
oath against an oath.'' '' Id. at 609 (emphasis added). Indeed, 
the common law courts in seventeenth-century England required 
the testimony of two witnesses as a precondition to a perjury 
conviction, when the testimony of a single witness was in 
almost all other cases sufficient. See Chaplin, 25 F.3d at 1377 
(citing Wigmore on Evidence Sec. 2040(a) at 359-60 (Chadbourne 
rev. 1978)). The common law courts actually adopted the two-
witness rule from the Court of Star Chamber, which had followed 
the practice of the ecclesiastical courts of requiring two 
witnesses in perjury cases. Id. The English rationale for the 
rule is as resonant today as it was in the seventeenth century: 
``[I]n all other criminalcases the accused could not testify, 
and thus one oath for the prosecution was in any case something as 
against nothing; but on a charge of perjury the accused's oath was 
always in effect evidence and thus, if but one witness was offered, 
there would be merely . . . an oath against an oath.'' Id. And, as 
noted above, no perjury case should rest merely upon ``an oath against 
an oath.'' As a practical matter, the less reliable the single witness, 
the more critically the independent corroboration is required.

   C. ``Literal Truth'' and Non-Responsive Answers Do Not Constitute 
                                Perjury

    A third guiding principle is that literal truth, no matter 
how frustrating it may be, is not perjury. In United States v. 
Bronston, 409 U.S. 352 (1973), the leading case on the law of 
perjury, the Supreme Court addressed ``whether a witness may be 
convicted of perjury for an answer, under oath, that is 
literally true but not responsive to the question asked and 
arguably misleading by negative implication.'' Id. at 352. The 
Court directly answered the question ``no.'' It made absolutely 
clear that a literally truthful answer cannot constitute 
perjury, no matter how much the witness may have intended by 
his answer to mislead.
    Bronston involved testimony taken under oath at a 
bankruptcy hearing. At the hearing, the sole owner of a 
bankrupt corporation was asked questions about the existence 
and location of both his personal assets and the assets of his 
corporation. The owner testified as follows:

    Q: Do you have any bank accounts in Swiss banks, Mr. 
Bronston?
    A: No, sir.
    Q: Have you ever?
    A: The company had an account there for about six months in 
Zurich.
    Q: Have you any nominees who have bank accounts in Swiss 
banks?
    A: No, sir.
    Q: Have you ever?
    A: No, sir.

    Id. at 354. The government later proved that Bronston did 
in fact have a personal Swiss bank account that was terminated 
prior to his testimony. The government prosecuted Bronston ``on 
the theory that in order to mislead his questioner, [Bronston] 
answered the second question with literal truthfulness but 
unresponsively addressed his answer to the company's assets and 
not to his own --thereby implying that he had no personal Swiss 
bank account at the relevant time.'' Id. at 355.
    The Supreme Court unanimously rejected this theory of 
perjury. It assumed for purposes of its holding that the 
questions referred to Bronston's personal bank accounts and not 
his company's assets. Moreover, the Court stated, Bronston's 
``answer to the crucial question was not responsive,'' and 
indeed ``an implication in the second answer to the second 
question [is] that there was never a personal bank account.'' 
Id. at 358. The Court went so far as to note that Bronston's 
answers ``were not guileless but were shrewdly calculated to 
evade.'' Id. at 361. However, the Court emphatically held that 
implications alone do not rise to the level of perjury, and 
that Bronston therefore could not have committed perjury. 
``[W]e are not dealing with casual conversation and the statute 
does not make it a criminal act for a witness to willfully 
state any material matter that implies any material matter that 
he does not believe to be true.'' Id. at 357-58. The Court 
tookpains to point out the irrelevance of the witness's intent: ``A 
jury should not be permitted to engage in conjecture whether an 
unresponsive answer, true and complete on its face, was intended to 
mislead or divert the examiner.'' Id. at 359.
    The Supreme Court in Bronston provided several rationales 
for its holding that literally true, non-responsive answers are 
by definition non-perjurious, regardless of their implications. 
First, the Court noted that the burden always rests squarely on 
the interrogator to ask precise questions, and that a witness 
is under no obligation to assist the interrogator in that task. 
The Court ``perceive[d] no reason why Congress would intend the 
drastic sanction of a perjury prosecution to cure a testimonial 
mishap that could readily have been reached with a single 
additional question by counsel alert--as every counsel ought to 
be--to the incongruity of petitioner's unresponsive answer.'' 
Id. at 359. Moreover, the Court noted that because of the 
adversarial process, perjury is an extraordinary and unusual 
sanction, since ``a prosecution for perjury is not the sole, or 
even the primary safeguard against errant testimony.'' Id. at 
360. The perjury statute cannot be invoked ``simply because a 
wily witness succeeds in derailing the questioner--so long as 
the witness speaks the literal truth.'' Id.
    Bronston is just one of scores of cases across the federal 
circuits that make clear that the definition of perjury must be 
carefully limited because perjury prosecutions are dangerous to 
the public interest since they ``discourage witnesses from 
appearing or testifying.'' Id. at 359.119 For 
instance, in United States v. Earp, 812 F.2d 917 (4th Cir. 
1987), the defendant, a member of the Ku Klux Klan, had stood 
guard during the attempted burning of a cross on the lawn of an 
interracial couple, and further evidence demonstrated that he 
had personally engaged in other attempts to burn crosses. 
During questioning before a grand jury, however, he denied ever 
having burned crosses on anyone's lawn. He was convicted of 
perjury, but the United States Court of Appeals for the Fourth 
Circuit reversed his conviction, because ``like the witness in 
Bronston, [the defendant's] answers were literally true 
although his second answer was unresponsive.'' Id. at 919. That 
is, the defendant had not actually succeeded in his cross-
burning attempts, so it was literally true that he had never 
burned crosses on anyone's lawn. The court noted that ``while 
he no doubt knew full well that he had on that occasion tried 
to burn a cross, he was not specifically asked either about any 
attempted cross burnings.'' Id. Every federal court of appeals 
in the nation concurs in this reading of 
Bronston.120
---------------------------------------------------------------------------
    \119\ While Bronston involved a perjury conviction under the 
general perjury statute, 18 U.S.C. Sec. 1621, lower federal courts have 
uniformly relied on it in reviewing perjury convictions under 
Sec. 123(a), which makes it unlawful to make any false material 
declaration ``in any proceeding before or ancillary to any court or 
grand jury of the United States,'' See e.g., United States v. Porter, 
994 F.2d 470, 474n.7 (8th Cir. 1993), United States v. Reverson 
Martinez, 836 F.2d 684, 689 (1st Cir. 1988), United States v. Lighte, 
782 F.2d 367, 372 (2d Cir.1985).
    \120\ See also United States v. Finucan, 708 F.2d 838, 847 (1st 
Cir. 1983) (intent to mislead is insufficient to support conviction for 
perjury); United States v. Lighte, 782 F.2d 367, 374 (2d Cir. 1986) 
(literally true answers by definition non-perjurious even if answers 
were designed to mislead); United States v. Tonelli, 577 F.2d 194, 198 
(3d Cir. 1978) (perjury statute is not to be invoked because a ``wily 
witness succeeds in derailing the questioner''); United States v. 
Abroms, 947 F.2d 1241, (5th Cir. 1991) (unambiguous and literally true 
answer is not perjury, even if there was intent to mislead); United 
States v. Eddy, 737 F.2d 564, (6th Cir. 1984) (``An `intent to mislead' 
or `perjury by implication' is insufficient to support a perjury 
conviction,''), United States v. Williams, 536 F.2d 1202, 1205 (7th Cir 
1976) (literally true statement cannot form basis of perjury conviction 
even if there was intent to mislead); United States v. Robbins, 997 
F.2d 390, 394 (8th Cir. 1993), United States v. Boone, 951 F.2d 1526, 
1536 (9th Cir. 1991) (literally true statement is not actionable); 
United States v. Larranaga, 787 F.2d 489, 497 (10th Cir. 1986) (no 
perjury where answer literally truthful and prosecutor's questioning 
imprecise); United States v. Shotts, 145 F.3d 1289, 1297 (11th Cir. 
1998) (``An answer to a question may be non-responsive, or may be 
subject to conflicting interpretations, or may even be false by 
implication. Nevertheless, if the answer is literally true, it is not 
perjury.''); United States v. Dean, 55 F.3d 640, 662 (D.C. Cir. 1995) 
(perjury charge cannot be based upon evasive answers or even misleading 
answers so long as such answers are literally true).
---------------------------------------------------------------------------

 D. Fundamentally Ambiguous Questions Cannot Produce Perjurious Answers

    A fourth guiding principle is that ambiguous questions 
cannot produce perjurious answers. When a question or a line of 
questioning is ``fundamentally ambiguous,'' the answers to the 
questions posed are insufficient as a matter of law to support 
a perjury conviction.'' See, e.g., United States v. Finucan, 
708 F.2d 838, 848 (1st Cir. 1983); United States v. Lighte, 782 
F.2d 367, 375 (2d Cir. 1986); United States v. Tonelli, 577 
F.2d 194, 199 (3d Cir. 1978); United States v. Bell, 623 F.2d 
1132, 1337 (5th Cir. 1980); United States v. Wall, 371 F.2d 
398, 400 (6th Cir. 1967); United States v. Williams, 552 F.2d 
226, 229 (8th Cir. 1977). In other words, when there is more 
than one way of understanding the meaning of a question, and 
the witness has answered truthfully as to his understanding, he 
cannot commit perjury. Many courts have emphasized that 
``defendants may not be assumed into thepenitentiary'' by 
``sustain[ing] a perjury charge based on [an] ambiguous line of 
questioning.'' Tonelli, 577 F.2d at 199.
    United States v. Lattimore, 127 F. Supp. 405 (D.D.C. 1955), 
is the key case dealing with ambiguous questions in the perjury 
context. In Lattimore, a witness was questioned before the 
Senate Internal Security Subcommittee about his ties to the 
Communist party. He was asked whether he was a ``follower of 
the Communist line,'' and whether he had been a ``promoter of 
Communist interests.'' He answered ``no'' to both questions, 
and was subsequently indicted for committing perjury. The 
United States District Court for the District of Columbia found 
that the witness could not be indicted on ``charges so formless 
and obscure as those before the Court.'' Id. at 413. The court 
held that `` `follower of the Communist line' is not a phrase 
with a meaning about which men of ordinary intellect could 
agree, nor one which could be used with mutual understanding by 
a questioner and answerer unless it were defined at the time it 
were sought and offered as testimony.'' Id. at 110. As the 
court explained further:

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

Id. at 109.
    Many other cases stand for the proposition that a witness 
cannot commit perjury by answering an inherently ambiguous 
question. For instance, in United States v. Wall, 371 F.2d 398 
(6th Cir. 1967), a witness was asked whether she had ``been on 
trips with Mr. X,'' and she answered ``no.'' The government 
could prove that in fact the witness, who was from Oklahoma 
City, had been in Florida with ``Mr. X.'' However, the 
government could not prove that the witness had traveled from 
Oklahoma City to Florida with ``Mr. X.'' The court noted (and 
the government conceded) that the phrase ``been on trips'' 
could mean at least two different things: ``That a person 
accompanied somebody else travelling with, or it can mean that 
they were there at a particular place with a person.'' The 
court then stated that ``[t]he trouble with this case is that 
the question upon which the perjury charge was based was 
inarticulately phrased, and, as admitted by the prosecution, 
was susceptible of two different meanings. In our opinion, no 
charge of perjury can be based upon an answer to such a 
question.'' Id. at 399-400.
    Similarly, in United States v. Tonelli, 577 F.2d 194 (3d 
Cir. 1978), the defendant answered negatively a question 
whether he had ``handled any pension fund checks.'' The 
government then proved that the defendant had actually handled 
the transmission of pension fund checks by arranging for others 
to send, mail, or deliver the checks. The government charged 
the defendant with perjury. The court held that perjury could 
not result from the government's ambiguous question. The court 
explained:

    It is clear that the defendant interpreted the prosecutor's 
questions about `handling' to mean `touching' . . . To sustain 
a perjury charge based on the ambiguous line of questioning 
here would require us to assume [defendant] interpreted 
`handle' to include more than `touching.' The record will not 
allow us to do so and as the Court of Appeals for the Fifth 
Circuit has observed `[e]specially in perjury cases defendants 
may not be assumed into the penitentiary.'

Id. at 199-200.
    United States v. Bell, 623 F.2d 1132, 1137 (5th Cir. 1980), 
is yet another example of this doctrine. In Bell, a witness was 
asked before a grand jury, ``Whether personal or business do 
you have records that are asked for in the subpoena,'' and the 
witness answered, ``No, sir, I do not.'' It was later 
established that the witness's files clearly contained relevant 
records. Nonetheless, the court held that the question was 
ambiguous, and therefore incapable of yielding a perjurious 
answer. The witness interpreted the question to ask whether he 
had brought the records with him that day, and not whether he 
had any records anywhere else in the world.121
---------------------------------------------------------------------------
    \121\ Many other cases as well hold that ambiguous questions cannot 
produce perjurious answers. See, e.g., Lighte, 782 F.2d at 376 
(questions fundamentally ambiguous because of imprecise use of ``you,'' 
``that,'' and ``again''); United States v. Farmer, 137 F.3d 1265, 1270 
(10th Cir. 1998) (question ``Have you talked to Mr. McMahon, the 
defendant about your testimony here today?'' ambiguous because phrase 
``here today'' could refer to ``talked'' or to ``testimony''; 
conviction for perjury could not result from the question); United 
States v. Ryan, 828 F.2d 1010, 1015-17 (3d Cir. 1987) (loan application 
question asking for ``Previous Address (last 5 years)'' fundamentally 
ambiguous because unclear whether ``address'' refers to residence or 
mailing address, and ``previous'' could mean any previous address, the 
most recent previous address, or all previous addresses; based on 
ambiguity, perjury cannot result from answer to question); United 
States v. Markiewicz, 978 F.2d 786, 809 (2d Cir. 1992) (question 
``[D]id you receive any money that had been in bingo hall'' ambiguous, 
and incapable of producing perjurious answer, when it did not 
differentiate between witness's personal and business capacities). See 
also United States v. Manapat, 928 F.2d 1097, 1099 (11th Cir. 1991); 
United States v. Eddy, 737 F.2d 564, 565-71 (6th Cir. 1984); United 
States v. Hilliard, 31 F.3d 1509 (10th Cir. 1994).
---------------------------------------------------------------------------

 E. It Is Expected and Proper for a Witness to be Cautious When Under 
                                  Oath

    Every lawyer knows that in preparing a witness for a 
deposition one important task is to counsel the witness to be 
cautious in answering questions under oath, not to guess or 
give an answer as to which the witness is not sure, and not to 
volunteer information to opposing counsel that is not 
specifically sought by the question. For example, one legal 
text advises, ``[C]ounsel will want to drill the deponent to 
answer questions as she would at the deposition: short and to 
the point, with nothing volunteered.'' 122 Lawyers 
are advised they should instruct a client: ``If you do not know 
or do not remember, say that. You do not get extra points by 
guessing. If you are pretty sure of the answer but not 100% 
sure, say that. . . . You do not get extra points for giving 
perfectly clear and complete answers. Normally if there is some 
ambiguity in your answer, that will be a problem for the 
opposing party, not for you.'' Id. at 222. As Mr. Starr 
testified to the Judiciary Committee at one point, ``I have to 
be careful of what I say, because of not having universal 
facts.'' Transcript of November 19, 1998 Hearing at 386. And 
Mr. Starr declined repeatedly to answer questions under oath, 
stating on numerous occasions that he would have to ``search 
his recollection,'' and qualifying many of the answers he did 
give with such phrases as ``to the best of my recollection'' 
and ``if my recollection serves me.'' See, e.g., Transcript of 
November 19, 1998 Hearing at 107 (``But the letter, if my 
recollection serves me, goes to the circumstances with respect 
to the events of the evening of January 16th.'') (emphasis 
added); Id. at 122 (``. . . But they were only conversations, 
and it never ripened--I'm talking about with Mr. Davis--and it 
never ripened into an arrangement, an agreement, to the best of 
my recollection, to do anything because of the circumstances 
that then occurred.'') (emphasis added); Id. at 247 (``I'm 
unable to answer that question without--you know, I will have 
to approach--you're saying any information relating to any--and 
I would have to search my recollection. I've prepared today for 
questions that go to this referral. So I will have to search my 
recollection.'') (emphasis added); Id. at 343 (``With respect 
to the travel office I would frankly have to search my 
recollection to see exactly where we were and when we were 
there.'') (emphasis added); Id. at 358 (``We discussed with Sam 
[Dash] a variety of issues. I would have to search my 
recollection with respect to any specific observations that Sam 
gave us with respect to this.'') (emphasis added). This is what 
a well-prepared witness does when testifying under oath. No 
amount of pressure should force a witness to assert recall 
where there is none, or to answer a question not asked. A 
failure to do so is neither remarkable nor criminal.
---------------------------------------------------------------------------
    \122\ Dennis R. Suplee and Diana S. Donaldson, The Deposition 
Handbook at 161 (2d ed.).
---------------------------------------------------------------------------

                     F. Specific Claims of Perjury

    With these principles in mind, it is apparent that there is 
no basis for a charge of perjury here, either with respect to 
the President's Jones deposition or his subsequent grand jury 
testimony.

1. Civil Deposition of January 17, 1998

            a. Nature of Relationship
    The primary allegation of perjury arising from President 
Clinton's deposition testimony of January 17, 1998, appears to 
be that he lied under oath about the nature of his relationship 
with Ms. Lewinsky when he denied in that civil case that he had 
a ``sexual affair,'' a ``sexual relationship,'' or ``sexual 
relations'' with Ms. Lewinsky. See Ref. at 131; Schippers 
Presentation at 25. In the deposition, President Clinton 
asserted: (1) that he did not have a ``sexual affair'' with Ms. 
Lewinsky within the undefined meaning of that term, Dep. at 78; 
(2) that Ms. Lewinsky was correct in her statement that she did 
not have a ``sexual relationship'' with the President within 
the undefined meaning of that term, id. at 204; and (3) that he 
did not have ``sexual relations'' with Ms. Lewinsky as that 
term was defined by the Jones lawyers and limited by Judge 
Wright, ibid. The allegation that President Clinton perjured 
himself with respect to any of these deposition statements is 
without merit.
    First, it is by now more than clear that the undefined 
terms ``sexual affair,'' ``sexual relations'' and ``sexual 
relationship'' are at best ambiguous, meaning different things 
to different people, and that President Clinton's belief that 
the terms refer to sexual intercourse is supported by courts, 
commentators, and numerous dictionaries--a point ignored in the 
Referral and Mr. Schippers' presentation to the Committee 
despite the obvious problem with premising a perjury claim on 
such ambiguous terms. As one court has stated, ``[i]n common 
parlance the terms ``sexual intercourse'' and ``sexual 
relations'' are often usedinterchangeably.'' J.Y. v. D.A., 381 
N.E.2d 1270, 1273 (Ind. App. 1978). Dictionary definitions make the 
same point. For example,
     Webster's Third New International Dictionary (1st 
ed. 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.''
    The President's understanding of these terms, which is 
shared even by several common dictionaries, could not possibly 
support a prosecution for perjury. How would a prosecutor prove 
these dictionaries ``wrong?'' \123\
---------------------------------------------------------------------------
    \123\ For the same reason as that set forth herein, the allegation 
by Mr. Schippers that the President's sworn answers to 
interrogatories--in which he denied a ``sexual relatiosnip''--were 
false is without merit.
---------------------------------------------------------------------------
    Irrespective of the view that ``sexual relations'' means 
intercourse, the evidence is indisputable that this is indeed 
what President Clinton believed. Perjury requires more than 
that a third party believes President Clinton was wrong about 
the meaning of these terms (a point on which the allegation 
plainly founders); it also requires proof that President 
Clinton knew he was wrong and intentionally lied about it. But 
the evidence demonstrates that the President honestly held that 
belief well before the Jones deposition. The genuineness of 
President Clinton's beliefs on this subject is even supported 
by the OIC's account of Ms. Lewinsky's testimony during an 
interview with the FBI:

    [A]fter having a relationship with him, Lewinsky deduced 
that the President, in his mind, apparently does not consider 
oral sex to be sex. Sex to him must mean intercourse.

App. at 1558 (8/19/98 FBI 302 Form Interview of Ms. Lewinsky).
    And finally, Ms. Lewinsky herself took the position that 
her contact with the President did not constitute ``sex'' and 
reaffirmed that position even after she had received immunity 
and began cooperating with the OIC. For example, in one of the 
conversations surreptitiously taped by Ms. 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 Neysa 
Erbland stating that Ms. Lewinsky had said that the President 
and she ``didn't 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 (8/19/98 FBI 302 Form 
Interview of Ms. Lewinsky). Likewise, in her original proffer 
to the OIC, she wrote, ``Ms. L[ewinsky] was comfortable signing 
the affidavit with regard to the ``sexual relationship'' 
because she could justify to herself that she and the 
Pres[ident] did not have sexual intercourse.'' App. at 718 (2/
1/98 Proffer). In short, the evidence supports only the 
conclusion that the President's responses with respect to these 
undefined terms were truthful and at worst good faith responses 
to indisputably ambiguous questions. \124\ The Referral and the 
Committee have adduced no evidence to the contrary.
---------------------------------------------------------------------------
    \124\ For the sake of clarity, it should be understood that the 
President's affirmation of paragraph eight of Ms. Lewinsky's affidavit, 
Dep. at 204, was made many hours after his counsel, Mr. Bennett, 
characterized the affidavit as ``saying there is absolutely no sex of 
any kind.'' Dep. at 54.
---------------------------------------------------------------------------
    Second, the President's statement in his deposition that he 
had not had ``sexual relations'' with Ms. Lewinsky as that term 
was defined by the Jones lawyers and substantially narrowed by 
Judge Wright also is correct. Neither the OIC in its Referral 
nor Mr. Schippers in his presentation to the Committee laid out 
the sequence of events that led to the limited definition of 
``sexual relations'' which was ultimately presented to 
President Clinton and which he was required to follow. 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 he understood it to have been amended by the 
Court): \125\
---------------------------------------------------------------------------
    \125\ Counsel for Ms. Jones stated, ``Mr. President, in light of 
the Court's ruling, you may consider subparts two and three of the 
Deposition Exhibit 1 [the definition of sexual relations] to be 
stricken, and so when in my questions I use the term `sexual 
relations,' sir, I'm talking only about part one in the definition of 
the body.'' Dep. at 23 (emphasis added).
---------------------------------------------------------------------------

                     Definition of Sexual Relations

      For the purposes of this deposition, a person engages in 
``sexual relations'' when the person knowingly engages in or 
causes--
          (1) contact with the genitalia, anus, groin, breast, 
        inner thigh, or buttocks of any person with an intent 
        to arouse or gratify the sexual desire of any person;
          (2) contact between any part of the person's body or 
        an object and the genitals and anus of another person; 
        or
          (3) contact between the genitals or anus of the 
        person and any part of another person's body.
          ``Contact'' means intentional touching, either 
        directly or through clothing.
    This definition substantially narrowed the meaning of the 
term as it was used by the Jones lawyers. It rendered an overly 
broad definition bizarrely narrow and contorted. But despite 
that narrowing, and the resulting peculiarity of what was and 
was not covered, the Jones lawyers chose to stick with it 
rather than ask direct questions, see Dep. at 23, as they were 
invited to do by the President's counsel. Dep. at 25. When they 
asked the President about ``sexual relations'' with Ms. 
Lewinsky in the deposition, they did so with explicit reference 
to this definition. See Dep. at 78 (``And so the record is 
completely clear, have you ever had sexual relations with 
Monica Lewinsky, as that term is defined in Deposition Exhibit 
1, as modified by the Court?'') (emphasis added).
    It is plain that this narrow definition did not include 
certain physical acts--an interpretation shared by many 
commentators, journalists, and others. See, e.g., Perjury 
Hearing of December 1, 1998 (Statement of Professor Stephen A. 
Saltzburg at 2) (``That definition defined certain forms of 
sexual contact as sexual relations but, for reasons known only 
to the Jones lawyers, limited the definition to contact with 
any person for the purpose of gratification.''); MSNBC 
Internight, August 12, 1998 (Cynthia Alksne) (``[W]hen the 
definition finally was put before the president, it did not 
include the receipt of oral sex''); ``DeLay Urges a Wait For 
Starr's Report,'' The Washington Times (August 31, 1998) (``The 
definition of sexual relations, used by lawyers for Paula Jones 
when they questioned the president, was loosely worded and may 
not have included oral sex''); ``Legally Accurate,'' The 
National Law Journal (August 31, 1998) (``Given the narrowness 
of the court-approved definition in [the Jones] case, Mr. 
Clinton indeed may not have perjured himself back then if, say, 
he received oral sex but did not reciprocate sexually''). This 
interpretation may be confusing to some. It may be counter-
intuitive. It may lead to bizarre answers. But it certainly was 
not objectively wrong. And it was not the President's doing.
    Moreover, the Jones lawyers had the opportunity to ask 
questions which would have elicited details about the 
President's relationship with Ms. Lewinsky but chose not to 
develop the issue. As an alternative to relying on the 
definition provided by the Jones lawyers, the President's 
counsel invited the Jones lawyers to ``ask the President what 
he did, [and] what he didn't do. . . .'' Dep. at 21. The Jones 
lawyers ignored the invitation and stuck with their definition 
even as it was limited. As the Supreme Court has explained, 
``[i]f a witness evades, it is the lawyer's responsibility to 
recognize the evasion and to bring the witness back to the 
mark, to flush out the whole truth with the tools of adversary 
examination.'' Bronston v. United States, 409 U.S. 352, 358-59 
(1973).126
---------------------------------------------------------------------------
    \126\ A specific allegation is made with respect to a difference 
between the President's and Ms. Lewinsky's recollection of the precise 
nature of the physical contract in their admittedly inappropriate 
intimate relationship. That issue is addressed below in the context of 
the allegation that the President committed perjury in his August 17 
grand jury testimony. See Section VI.F.2 infra.
---------------------------------------------------------------------------
            b. Being Alone with Ms. Lewinsky
    President Clinton's deposition testimony regarding whether 
he was alone with Ms. Lewinsky at various times and places does 
not constitute perjury. The fundamental flaw in the charge is 
that it is based on a mischaracterization of the President's 
testimony--the President did not testify that he was never 
alone with Ms. Lewinsky.
    Both the Starr Referral and Mr. Schippers' presentation to 
the Committee start from the incorrect premise that the 
President testified that he was never alone with Ms. Lewinsky. 
See Ref. at 154 (``[T]he President lied when he said ``I don't 
recall'' in response to the question whether he had ever been 
alone with Ms. Lewinsky.''); \127\ Schippers Presentation at 29 
(``[T]he President may have given false testimony under oath . 
. . regarding his statement that he could not recall being 
alone with Monica Lewinsky.''). In fact, the President did not 
deny that he had been alone with Ms. Lewinsky. For example, the 
President answered ``yes'' to the question ``your testimony is 
that it was possible, then, that you were alone with her . . . 
?''. Dep. at 53.\128\
---------------------------------------------------------------------------
    \127\ The Referral's mischaracterization of the President's 
testimony appears to come from Mr. Starr's transformation of a question 
about being alone with Ms. Lewinsky in the Oval Office, Dep. at 52 into 
being alone more generally.
    \128\ In his grand jury testimony the President stated that he had 
been alone with Ms. Lewinsky. See, e.g., App. at 481. The term 
``alone'' is vague unless a particular geographic space is identified. 
For example, Ms. Currie testified that ``she considers the term alone 
to mean that no one else was in the entire Oval Office area,'' Supp. at 
534-35 (1/24/98 FBI Form 302 Interview of Ms. Currie; see also Supp. at 
665 (7/22/98 grand jury testimony of Ms. Currie) (``I interpret being 
`alone' as alone . . . [W]e were around, so they were never alone.''). 
Ms. Currie also acknowledged that the President and Ms. Lewinsky were 
``alone'' on certain occasions if alone meant that no one else was in 
the same room. Supp. at 552-53 (1/27/98 grand jury testimony of Ms. 
Currie).
---------------------------------------------------------------------------
    Whatever confusion or incompleteness there may have been in 
the President's testimony about when and where he was alone 
with Ms. Lewinsky cannot be charged against the President. The 
Jones lawyers failed to follow up on incomplete or unresponsive 
answers. They were free to ask specific follow-up questions 
about the frequency or locale of any physical contact, but they 
did not do so. This failure cannot be used to support a charge 
of perjury. Bronston, 409 U.S. at 360.
            c. ``Minimizing'' Gifts that Were Exchanged
    A separate perjury charge is based on the assertion that in 
his deposition the President ``minimized'' the number of gifts 
he exchanged with Ms. Lewinsky. Ref. at 151; Schippers 
Presentation at 29. Again, the evidence simply does not support 
this allegation. To start with, even the charge of 
``minimizing'' the number of gifts concedes the only 
potentially material issue--the President acknowledged that he 
did exchange gifts with Ms. Lewinsky. There is not much that is 
safe from a perjury prosecution if mere ``minimization'' 
qualifies for the offense.
    As weak as the ``minimization'' charge is, it is also 
wrong. A fair reading of the President's deposition testimony 
makes clear that, when asked about particular gifts, the 
President honestly stated his recollection of the particular 
item. See Dep. at 75 (``Q. Do you remember giving her an item 
that had been purchased from The Black Dog store at Martha's 
Vineyard? A. I do remember that . . .''). Moreover, when the 
President could not recall the precise items that he had 
exchanged, he asked the Jones lawyers to tell him so that he 
could confirm or deny as the facts required.\129\ See ibid.
---------------------------------------------------------------------------
    \129\ The videotape of the President's January 17 deposition makes 
clear that the cold transcript can be somewhat misleading. When the 
President is asked, ``Well, have you ever given any gifts to Monica 
Lewinsky?'', the transcript records his response as, ``I don't recall. 
Do you know what they were?'' Dep. at 75. The videotape reveals the 
President's response, however, was run-on sentence, as though the 
punctuation were omitted, for the real communicative gist of his quoted 
response (as it appears on the videotape) was, ``Yes--I know there were 
some--please help remind me.'' In succeeding questions, the President 
states that he ``could have'' given her a hat pin and a book, does not 
believe he gave her a ``gold broach,'' and does recall giving her some 
Black Dog memorabilia. Dep. at 75-76.
---------------------------------------------------------------------------
    In essence, this allegation is yet another complaint that 
President Clinton was not more forthcoming (or that he did not 
have a more precise memory on these issues), which is plainly 
not a ground for alleging perjury.
            d. Conversations with Ms. Lewinsky About Her Involvement in 
                    the Jones Case
    Both the Referral and Mr. Schippers' presentation allege 
perjury in the Jones deposition with respect to President 
Clinton's conversations with Ms. Lewinsky about her involvement 
in the Jones case. See Ref. at 160; Schippers Presentation at 
32. Specifically, it is alleged that the President committed 
perjury in his deposition when he failed to (1) acknowledge 
that he knew that Ms. Lewinsky had been subpoenaed at the time 
he had last seen and spoken to her; and (2) acknowledge that he 
had spoken to Ms. Lewinsky about the possibility that shewould 
testify in the Jones case. Ibid. Once again, the charge of false 
testimony is based on a wholly inaccurate reading of the President's 
deposition. The President acknowledged that he knew that Ms. Lewinsky 
had been subpoenaed, that he was not sure when was the last time he had 
seen and spoken with her (but that it was sometime around Christmas), 
and that he had discussed with her the possibility that she would have 
to testify.
    (1) The allegation that the President denied knowing that 
Ms. Lewinsky had been subpoenaed the last time he spoke to her 
illustrates the problem of taking selected pieces of testimony 
out of context. Messrs. Starr and Schippers isolate the 
following exchange in the deposition:

    Q. Did she tell you she had been served with a subpoena in 
this case?
    A. No. I don't know if she had been.

Dep. at 68. From this incomplete excerpt, they claim that the 
President perjured himself by denying that he knew that Ms. 
Lewinsky had been subpoenaed the last time he had spoken with 
her. See Ref. at 163.
    The charge is unsupported by the evidence. First, the 
testimony immediately following this exchange demonstrates both 
that the President was not hiding that he knew Ms. Lewinsky had 
been subpoenaed by the time of the deposition and that the 
Jones lawyers were well aware that this was the President's 
position:

    Q. Did anyone other than your attorneys ever tell you that 
Monica Lewinsky had been served with a subpoena in this case?
    A. I don't think so.

           *       *       *       *       *       *       *

    A. Bruce Lindsey, I think Bruce Lindsey told me that she 
was, I think maybe that's the first person [who] told me she 
was. I want to be as accurate as I can.
    Q. Did you talk to Mr. Lindsey about what action, if any, 
should be taken as a result of her being served with a 
subpoena?
    A. No.

Dep. at 68-70. It is evident from the complete exchange on this 
subject that the President was not generally denying that he 
knew that Ms. Lewinsky had been subpoenaed in the Jones 
case.\130\ The questions that the Jones lawyers were asking the 
President also make clear that this is what they understood the 
President's testimony to be.
---------------------------------------------------------------------------
    \130\ It also is not clear why he would want to deny such 
knowledge, since parties to a lawsuit generally and properly are aware 
of the witnesses in the case.
---------------------------------------------------------------------------
    Second, the President's testimony cannot fairly be read as 
an express denial of knowledge that Ms. Lewinsky had been 
subpoenaed the last time he had spoken to her before the 
deposition. Most importantly, the President was not asked 
whether he knew that Ms. Lewinsky had been subpoenaed on 
December 28th, which was the last time he had seen her. When 
the President answered the question, ``Did she tell you she had 
been served with a subpoena in this case?'', he plainly was not 
thinking about December 28th. To the contrary, the President's 
testimony indicates that he was totally confused about the 
dates of his last meetings with Ms. Lewinsky, and he made that 
abundantly clear to the Jones lawyers:

    Q. When was the last time you spoke with Monica Lewinsky?
    A. I'm trying to remember. Probably sometime before 
Christmas. She came by to see Betty sometime before Christmas. 
And she was there talking to her, and I stuck my head out, said 
hello to her.
    Q. Stuck your head out of the Oval Office?
    A. Uh-huh, Betty said she was coming by and talked to her, 
and I said hello to her.
    Q. Was that shortly before Christmas or--
    A. I'm sorry, I don't remember. Been sometime in December, 
I think, and I believe--that may not be the last time. I think 
she came to one of the, one of the Christmas parties.

Dep. at 68 (emphasis added). His statement that he did not know 
whether she had been subpoenaed directly followed this confused 
exchange and was not tied to any particular meeting with her. 
By that time it is totally unclear what date the answer is 
addressing.
    The Referral ignores this confusion by selectively quoting 
the President as testifying ``that the last time he had spoken 
to Ms. Lewinsky was in December 1997 . . . `probably sometime 
before Christmas.' '' Ref. at 163 (quoting Dep. at 68).\131\ 
Given his confusion, which the Jones lawyers made no attempt to 
resolve, it is difficult to know what was being said, much less 
to label it false and perjurious.
---------------------------------------------------------------------------
    \131\ In fact, Ms. Lewinsky did come to the White House for a 
Christmas party on December 5, 1997, well before she was subpoenaed. 
See App. at 125 (OIC log of Ms. Lewinsky's visits); App. at 3140 (photo 
of Ms. Lewinsky at Christmas party).
---------------------------------------------------------------------------
    (2) The claim that President Clinton did not acknowledge 
speaking with Ms. Lewinsky about whether she might have to 
testify similarly is not a fair or accurate reading of the 
deposition. In response to the question, ``Have you ever talked 
to Ms. Lewinsky about the possibility that she might have to 
testify in this lawsuit?'', the President's answer did not end 
with the statement ``I'm not sure.'' Instead, the President 
continued with the statement ``and let me tell you why I'm not 
sure,'' at which point he described his recollection of having 
spoken with Ms. Lewinsky about how Ms. Jones' lawyers and the 
Rutherford Institute were going to call every woman to whom he 
had ever talked. Ibid. It is evident the President's answer 
referred to the time period before Ms. Lewinsky was on a 
witness list--i.e., when her participation was still a 
``possibility'' only. Indeed, Ms. Lewinsky confirmed the 
accuracy of the President's recollection of this conversation 
in her testimony, a fact that also is missing from the 
Referral. See App. at 1566 (8/24/98 FBI 302 Form Interview of 
Ms. Lewinsky) (``LEWINSKY advised CLINTON may have said during 
this conversation that every woman he had ever spoken to was 
going to be on the witness list.'').
    Thus, the President did in fact accurately describe a 
conversation with Ms. Lewinsky about potential testimony. That 
the Jones lawyers failed to follow-up with questions that would 
elicit whether that was the only conversation, or whether there 
were additional conversations once Ms. Lewinsky was on the 
witness list and her testimony was no longer a mere 
possibility, is not perjury. It is simply a confused deposition 
record that could have been clarified contemporaneously.
            e. Conversations with Mr. Jordan About Ms. Lewinsky
    The pattern of mischaracterizing the President's deposition 
testimony to construct a perjury charge is repeated in a final 
perjury allegation regarding the President's deposition answers 
to questions about conversations with Mr. Jordan about Ms. 
Lewinsky. The Referral alleges that the President was ``asked 
during his civil deposition whether he had talked to Mr. Jordan 
about Ms. Lewinsky's involvement in the Jones case'' and that 
he ``stated that he knew Mr. Jordan had talked to Ms. Lewinsky 
about her move to New York, but stated that he did not recall 
whether Mr. Jordan had talked to Ms. Lewinsky about her 
involvement in the Jones case.'' Ref. at 186; see also 
Schippers Presentation at 40. The problem with this allegation 
is that President Clinton was never asked ``whether he had 
talked to Mr. Jordan about Ms. Lewinsky's involvement in the 
Jones case,'' and he did not deny doing so.
    In support of the charge, the Referral quotes the following 
exchange from the President's deposition about who told the 
President that Ms. Lewinsky had been subpoenaed:

    Q. Did anyone other than your attorneys ever tell you that 
Monica Lewinsky had been served with a subpoena in this case?
    A. I don't think so.

Ref. at 186 (emphasis added in Referral). This exchange does 
not address whether the President spoke with Mr. Jordan about 
Ms. Lewinsky's involvement in the Jones suit. And the excerpt 
is itself misleading. The Referral omits the President's next 
answer, even though it is obvious from the text, and the OIC 
was told by the President in his grand jury testimony, App. at 
518-19, that this answer was intended to finish the President's 
response to the previous question:

    A. Bruce Lindsey, I think Bruce Lindsey told me that she 
was, I think maybe that's the first person told me she was. I 
want to be as accurate as I can.

Plainly, the President was not testifying that no one other 
than his attorneys had told him that Ms. Lewinsky had been 
subpoenaed. The Jones lawyers did not pursue this by asking 
logical follow-up questions, such as whether, if Mr. Lindsey 
was the first person were there others, or whether Mr. Jordan 
had subsequently shared that information with him. The bottom 
line is that President Clinton did not deny, in the quoted 
passage or elsewhere, knowing that Mr. Jordan had spoken to Ms. 
Lewinsky about the Jones matter.
    Nor do the other two cited passages of the President's 
deposition testimony help the OIC's case. In response to a 
question about whether in the two weeks before January 17 
anyone had reported to him that they had had a conversation 
with Ms. Lewinsky about the Jones case, the President replied 
``I don't believe so.'' Dep. at 72. The President was not 
questioned specifically about whether he had ever spoken to Mr. 
Jordan or anyone else about Ms. Lewinsky's involvement in the 
Jones case. The President's response, accordingly, did not rule 
out all conversations with Mr. Jordan about Ms. Lewinsky's 
involvement in the case, as the Referral suggests, but only in 
the two-week period prior to the deposition and only 
conversations relaying accounts of conversations with Ms. 
Lewinsky. Even conversations with Mr. Jordan about her 
involvement in the casewould not have been covered. The 
Referral does not identify any reports to the President about any 
conversation that Mr. Jordan had with Ms. Lewinsky in that time 
period--instead, it recounts only that, ten days before the deposition, 
Mr. Jordan may have told the President that the affidavit was signed. 
See Ref. at 187.
    Finally, the President's answer to the question whether it 
had been reported to him that Mr. Jordan had ``met with Monica 
Lewinsky and talked about [the Jones] case,'' Dep. at 72 
(emphasis added), obviously cannot be read to support this 
charge of perjury. In response to this question, the President 
acknowledged that he knew that Mr. Jordan and Ms. Lewinsky had 
met. The President's further response--that he believed Mr. 
Jordan met with Ms. Lewinsky to give her advice about her move 
to New York was fully accurate. Again, the President was not 
asked whether he was aware that Mr. Jordan had talked to Ms. 
Lewinsky about her involvement in the Jones case. Since he was 
not asked the question, it is implausible to suggest that he 
lied in the answer.

2. Grand Jury Testimony of August 17, 1998

    Proponents of impeachment repeatedly contend in the most 
general terms that President Clinton committed perjury in the 
grand jury on August 17, 1998. When this allegation is framed 
in specific terms, it is often based on the false belief that 
President Clinton denied in the grand jury having had any 
sexual contact with Ms. Lewinsky. For example, in the 
Committee's perjury hearing held last week, Chairman Hyde 
discounted the Referral's charge that President Clinton had 
lied to the grand jury about the commencement date of his 
relationship with Ms. Lewinsky and then stated, ``I don't rank 
that up with lying to the grand jury, saying he didn't have a 
sexual relationship.'' Remarks of Chairman Hyde at Perjury 
Hearing of December 1, 1998; see also Statement of Judge 
Charles Wiggins at 2 (``the President was called as a witness 
before the grand jury and he repeated his story that he did not 
have a sexual relationship with Monica Lewinsky. Subsequently 
the President acknowledged that his story was false or 
misleading and that he in fact had such a relationship with Ms. 
Lewinsky.'')
    These accounts of President Clinton's grand jury testimony 
are not accurate. In his August 17, 1998 grand jury testimony, 
President Clinton acknowledged that he had engaged in 
``inappropriate intimate contact'' with Ms. Lewinsky. Section 
II.C, supra. He also acknowledged that his conduct was 
``wrong.'' Ibid. What the President denied in the grand jury 
was having ``sexual relations'' with Ms. Lewinsky only as that 
term was defined by the Jones lawyers and substantially 
restricted by Judge Wright. He did not go into the details of 
those encounters because of privacy considerations, although he 
did testify that they did not involve either sexual intercourse 
or ``sexual relations'' as defined at the Jones deposition 
after Judge Wright struck two-thirds of it. Ms. Lewinsky, on 
the other hand, was forced by the OIC to describe in graphic 
detail her recollection of these encounters. See Schippers 
Presentation at 27.132
---------------------------------------------------------------------------
    \132\ Mr. Schippers analyzed the Referral and cited a discrepancy 
between the testimony of President Clinton and Ms. Lewinsky over the 
precise nature of the physical contact involved in their relationship 
as the basis for an allegation that President Clinton perjured himself 
before the grand jury. Schippers Presentation at 27. Mr. Starr, in his 
Referral, advocated two additional bases: first, explaining his 
deposition testimony as based on his belief that the terms ``sexual 
relationship'' ``sexual affair,'' and ``sexual relations'' required 
intercourse; and second, testifying that he recalled his inappropriate 
relationship with Ms. Lewinsky beginning early in 1996, rather than in 
mid-November of 1995 as Ms. Lewinsky recalled. As Mr. Schippers 
evidently concluded, these alternative claims have no merit. One need 
look no further than the common dictionary definition of terms such as 
``sexual relations'' to find the President's views validated, see supra 
at Section VI.F.1a, and it is not credible to believe that the slim 
difference between the President's and Ms. Lewinsky's recollections of 
the commencement date of their relationship (mid-November 1995 as 
opposed to early 1996) was in any way material to the grand jury's 
investigation whatsoever. As Chairman Hyde himself stated in reference 
to this latter allegation, ``It doesn't strike me as a terribly serious 
count.'' Remarks of Chairman Hyde at Perjury Hearing of December 1, 
1998.
---------------------------------------------------------------------------
    This simply is not a case of perjury. In addition to the 
inconsequential subject matter of the allegation--the precise 
nature of the admitted physical contact between the President 
and Ms. Lewinsky--the factual record would not support a 
prosecution for perjury. That record is one essentially of 
``oath against oath,'' a formula that centuries of common law 
jurisprudence has rejected as the basis for perjury. As the 
Supreme Court has stated, ``equally honest witnesses may well 
have differing recollections of the same event,'' and hence ``a 
conviction for perjury ought not to rest entirely upon ``an 
oath against an oath.'' United States v. Weiler, 323 U.S. 606, 
609 (1945); see also Griswold v. Hazard, 141 U.S. 260, 280 
(1891) (Harlan, J.) (``The difference in recollection of 
gentlemen . . . often happens, without any reason to suspect 
that any of them would intentionally deviate from the line of 
absolute truth.''). Mr. Starr admitted in his testimony before 
the Judiciary Committee on November 19, 1998, that the OIC 
credited Ms. Lewinsky's testimony only where there was 
corroboration. Transcript of November 19, 1998 Hearing at 235-
36. On the narrow point at issue here, however, there can be no 
independent corroboration.133
---------------------------------------------------------------------------
    \133\ Ms. Lewinsky's statements to her friends about the nature of 
the contact between herself and the President do not constitute 
independent corroboration. These statements obviously are not 
independent as they were made by Ms. Lewinsky. They also appear to be 
inconsistent, a fact which is even noted, albiet quietly, in Mr. 
Starr's Referral. See Ref. at 17 n.39 (noting conflicting accounts of 
oral sex); see also Supp. at 1083 (statement by Kathleen Estep that Ms. 
Lewinsky told her that President Clinton was brought to her apartment 
by the Secret Service at 2 a.m.).
---------------------------------------------------------------------------
    In sum, the facts do not support a perjury count based on 
the President's grand jury testimony. It is hard to imagine how 
what is at most a difference of recollection over the precise 
details of the admitted physical contact between President 
Clinton and Ms. Lewinsky could be considered grounds for a 
perjury charge, much less grounds for impeachment.

              VII. The President Did Not Obstruct Justice

               A. The Elements of Obstruction of Justice

    The term ``obstruction of justice'' usually refers to 
violations of 18 U.S.C. Sec. 1503, the ``Omnibus Obstruction 
Provision,'' which prohibits the intimidation of and 
retaliation against grand and petit jurors and judicial 
officers and contains a catch-all clause making it unlawful to 
``influence, obstruct, or impede the due administration of 
justice.'' It may also refer to 18 U.S.C. Sec. 1512, which 
proscribes intimidating, threatening, or corruptly persuading, 
through deceptive conduct, a person in connection with an 
official proceeding.
    For a conviction under Sec. 1503, the government must prove 
that there was a pending judicial proceeding, that the 
defendant knew of the proceeding, andthat the defendant acted 
``corruptly'' with the specific intent to obstruct or interfere with 
the proceeding or due administration of justice. See, e.g., United 
States v. Bucey, 876 F.2d 1297, 1314 (7th Cir. 1989); United States v. 
Smith, 729 F. Supp. 1380, 1383-84 (D.D.C. 1990). Thus, if a defendant 
is unaware of a pending grand jury proceeding, he cannot be said to 
have obstructed it in violation of Sec. 1503. See, e.g., United States 
v. Brown, 688 F.2d 1391, 1400 (9th Cir. 1992). Perhaps more significant 
is the ``acting corruptly'' element of the offense. Some courts have 
defined this term as acting with ``evil and wicked purposes,'' see 
United States v. Banks, 942 F.2d 1576, 1578 (11th Cir. 1991), but at 
the very least to ``act corruptly'' under the statute, a defendant must 
have acted with the specific intent to obstruct justice. See United 
States v. Moon, 718 F.2d 1219, 1236 (2d Cir. 1983); United States v. 
Bashaw, 982 F.2d 168, 170 (6th Cir. 1992); United States v. Anderson, 
798 F.2d 919, 928 (7th Cir, 1986); United States v. Rasheed, 663 F.2d 
843, 847 (9th Cir. 1981). That is, it is not enough to prove that the 
defendant knew that a result of his actions might be to impede the 
administration of justice, if that was not his intent.
    It is critical to note which actions cannot fall under the 
ambit of Sec. 1503. First, false statements or testimony alone 
cannot sustain a conviction under Sec. 1503. See United States 
v. Thomas, 916, F.2d 647, 652 (11th Cir. 1990); United States 
v. Rankin, 870 F.2d 109, 111 (3d Cir. 1989).134 
Moreover, Sec. 1503 does not apply to a party's concealing or 
withholding discoverable documents in civil 
litigation.135 Most cases that have found Sec. 1503 
applicable to civil cases do not involve the production or 
withholding of documents. See United States v. London, 714 F.2d 
1558 (11th Cir. 1983) (attorney forged court order and 
attempted to enforce it), cited in Richmark, 730 F. Supp. at 
1532; Sneed v. United States, 298 F. 911 (5th Cir. 1924) 
(influencing juror in civil case); cited in Richmark, 730 F. 
Supp at 1532. While Sec. 1503 can apply to concealment of 
subpoenaed documents in a grand jury investigation, the 
defendant must have knowledge of the pending grand jury 
investigation, must know that the particular documents are 
covered by a subpoena, and must willfully conceal or endeavor 
to conceal them from the grand jury with the specific intent to 
interfere with its investigation. See United States v. McComb, 
744 F.2d 555 (7th Cir. 1984).
---------------------------------------------------------------------------
    \134\ For instance, in United States v. Wood, 6 F.3d 692, 697 (10th 
Cir. 1993), the United States Court of Appeals for the Tenth Circuit 
found that a defendant's false statements to the Federal Bureau of 
Investigation during a grand jury investigation did not violate 
Sec. 1503, because they did not have the natural and probable effect of 
impeding the due administration of justice.
    \135\ See, e.g., Richmark v. Timber Falling Consultants, 730 F. 
Supp. 1525, 1532 (D. Ore. 1990) (because of the remedies afforded by 
the Federal Rules of Civil Procedure, Sec. 1503 does not cover party 
discovery in civil cases, and ``[t]he parties have not cited and the 
court has not found any case in which a person was charged with 
obstruction of justice for concealing or withholding discovery in a 
civil case'') See also United States v. Lundwall, 1 F. Supp. 2d 249, 
251-54 (S.D.N.Y. 1998) (noting that ``[c]ases involving prosecutions 
for document destruction during civil pre-trial discovery are notably 
absent from the extensive body of reported Sec. 1503 case law,'' and 
that ``there are a great many good reasons why federal prosecutors 
should be reluctant to bring criminal charges relating to conduct in 
ongoing civil litigation,'' but concluding that systematic destruction 
of documents sought during discovery should satisfy Sec. 1503).
---------------------------------------------------------------------------
    Section 1512 specifically applies to ``witness tampering.'' 
To obtain a conviction under Sec. 1512, the government must 
prove that a defendant knowingly engaged in intimidation, 
physical force, threats, misleading conduct, or 
corruptpersuasion with intent to influence, delay, or prevent testimony 
or cause any person to withhold objects or documents from an official 
proceeding. It is clear that a defendant must also be aware of the 
possibility of a proceeding and his efforts must be aimed specifically 
at obstructing that proceeding, whether pending or not; Sec. 1512 does 
not apply to defendants' innocent remarks or other acts unintended to 
affect a proceeding. See United States v. Wilson, 565 F. Supp. 1416, 
1431 (S.D.N.Y. 1983).
    Moreover, it is important to define the terms ``corruptly 
persuade'' and ``misleading conduct,'' as used in Sec. 1512. 
The statute itself explains that ``corruptly persuades'' does 
not include ``conduct which would be misleading conduct but for 
a lack of a state of mind.'' 18 U.S.C. Sec. 1515(a)(6). It is 
also clear from the case law that ``misleading conduct'' does 
not cover scenarios where the defendant urged a witness to give 
false testimony without resorting to coercive or deceptive 
conduct. See, e.g., United States v. Kulczyk, 931 F.2d 542, 547 
(9th Cir. 1991) (no attempt to mislead; witnesses knew 
defendant was asking them to lie); United States v. King, 762 
F.2d 232, 237 (2d Cir. 1985) (defendant who attempts to 
persuade witness to lie but not to mislead trier of fact does 
not violate Sec. 1512).
    Subornation of perjury is addressed in 18 U.S.C. Sec. 1622. 
The elements of subornation are that the defendant must have 
persuaded another to perjure himself, and the witness must have 
actually committed perjury. See, e.g. United States v. 
Hairston, 46 F.3d 361, 376 (4th Cir. 1959), rev'd on other 
grounds, 361 U.S. 529 (1960). If actual perjury does not occur, 
there is simply no subornation. See id. at 376 (reversing 
conviction for subornation because of conclusion that, in 
applying Bronston, witness did not commit perjury due to his 
literally truthful testimony). Moreover, Sec. 1622 requires 
that the defendant know that the testimony of witness will be 
perjurious--i.e., knowing and willful procurement of false 
testimony is a key element of subornation of perjury. See Rosen 
v. NLRB, 735 F.2d 564, 575 n.19 (D.C. Cir. 1984) (``a necessary 
predicate of the charge of subornation of perjury is the 
suborner's belief that the testimony sought is in fact 
false'').

                   B. Specific Claims of Obstruction

    The Referral alleges various actions that it claims amount 
to obstruction of justice. Evidence that is contained in the 
Appendices and Supplements--although omitted from the 
Referral--thoroughly undermines each of these claims.

1. There Is No Evidence that the President Obstructed Justice in 
        Connection with Gifts Given to Ms. Lewinsky

    ``The President and Ms. Lewinsky met and discussed what 
should be done with the gifts subpoenaed from Ms. Lewinsky.'' 
(Independent Counsel Kenneth Starr 11/19/98 Statement Before 
the Committee on the Judiciary U.S. House of Representatives at 
15.)
    [H]e really didn't--he really didn't discuss it.'' (Monica 
Lewinsky's 8/20/98 grand jury testimony. App. at 1122.)
    The Referral claims that President Clinton endeavored to 
obstruct justice by engaging in a pattern of activity to 
conceal evidence, particularly gifts,regarding his relationship 
with Monica Lewinsky. Ref. at 165. See also Schippers Presentation at 
34-35.
    The Appendices and Supplements contain a wealth of 
information contradicting this claim. Upon review, it is clear 
that the full record simply does not support an obstruction-by-
gift-concealment charge at all.
    First, among Ms. Lewinsky's ten different accounts of the 
meeting at which she and the President allegedly ``discussed'' 
concealing gifts, the Referral selectively and prejudicially 
chooses to cite the version most hurtful to the President 
(without disclosing the existence of other, exculpatory 
accounts of the same events). Second, the Referral omits other 
relevant statements by Ms. Lewinsky that would place the OIC's 
account in a sharply different light. Third, the Referral 
suppresses uncontested statements made by the President and by 
Ms. Betty Currie that contradict the OIC's concealment theory. 
Fourth, the Referral appropriates for itself the role of 
factfinder and--by misleading characterizations of testimony--
attempts to deceive the Committee into adopting Ms. Lewinsky's 
version of events where it appears to conflict with Ms. 
Currie's version. Finally, the Referral suppresses the OIC's 
doubts about its own theory--doubts manifest in grand jury 
questioning but not acknowledged in the Referral itself.
    Two events form the core of the OIC's allegation that the 
President orchestrated the concealment of gifts he had given 
Ms. Lewinsky. The first is Ms. Lewinsky's December 28, 1997, 
early morning meeting with the President. The second is Ms. 
Currie's receipt of a box of gifts from Ms. Lewinsky, 
supposedly on the afternoon of that day.
    The Referral presents these events in a manner that is 
grossly one-sided and deeply prejudicial to the President.
            a. Ms. Lewinsky's December 28 Meeting with the President
    On December 28, 1997, Ms. Lewinsky came to the White House 
and met with the President to pick up her holiday gifts. 
According to Ms. Lewinsky, that was the only occasion on which 
an issue of the gifts' relation to her subpoena was raised. See 
App. at 1130 (8/20/98 grand jury testimony of Ms. Lewinsky); 
see also App. at 1338 (8/26/98 deposition of Ms. Lewinsky).
    Ms. Lewinsky was asked several times by the OIC about her 
December 28, 1997, meeting with the President, and in 
particular about discussions she may have had with the 
President about gifts she had received from him. In response, 
Ms. Lewinsky made at least ten distinct statements 
136 during the course of her original proffer, 
interviews, grand jury testimony and deposition. Although the 
OIC claims that there was a discussion between Ms. Lewinsky and 
the President on this subject,137 the actual 
testimony does not support the OIC's contention.
---------------------------------------------------------------------------
    \136\ Ms. Lewinsky herself explicitly made nine such statements and 
the tenth (number 8 in the sequence listed above in the text) was made 
by a juror restating Ms. Lewinsky's earlier statement. Ms. Lewinsky 
appeared to agree with, and did not correct, that restatement.
    \137\ Independent Counsel Kenneth Starr (Nov. 19, 1998) Statement 
Before the Committee on the Judiciary U.S. House of Representatives at 
15.
---------------------------------------------------------------------------
    Ms. Lewinsky's statements are set forth below, listed in 
the order in which they were given, from earliest to latest in 
time:
    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 else.'' App. at 715.
    2. Lewinsky 7/27/98 Interview Statement: ``LEWINSKY 
expressed her concern about the gifts that the President had 
given LEWINSKY and specifically the hat pin that had been 
subpoenaed by PAULA JONES. The President seemed to know what 
the JONES subpoena 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 LEWINSKY denied that 
she had, but may have said that she gave some of the gifts to 
FRANK CARTER. . . . LEWINSKY asked the President if she should 
give the gifts to someone and the President replied `I don't 
know.' '' App. at 1395.
    3. Lewinsky 8/1/98 Interview Statement: ``LEWINSKY said 
that she was concerned about the gifts that the President had 
given her and suggested to the President that BETTY CURRIE hold 
the gifts. The President said something like, `I don't know,' 
or `I'll think about it.' The President did not tell LEWINSKY 
what to do with the gifts at that time.'' App. at 1481.
    4. Lewinsky 8/6/98 Grand Jury Testimony: ``[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 
someone, maybe Betty.' And he sort of said--I think he 
responded, `I don't know' or `Let me think about that.' And 
left that topic.'' App. at 872.
    5. Lewinsky 8/13/97 Interview Statement: ``During their 
December 28, 1997 meeting, CLINTON did not specifically mention 
which gifts to get rid of.'' App. at 1549.
    6. Lewinsky 8/20/98 Grand Jury Testimony: ``It was December 
28th and I was there to get my Christmas gifts from him. . . . 
And we spent maybe about five minutes or so, not very long, 
talking about the case. And I said to him, `Well do you think' 
. . . And at one point, I said, `Well, do you think I should--' 
I don't think I said `get rid of,' I said, `But do you think I 
should put away or maybe give to Betty or give to someone the 
gifts?' 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 1121-22.
    7. Lewinsky 8/20/98 Grand Jury Testimony: ``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 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.
    8. Lewinsky 8/20/98 Grand Jury Testimony: ``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 
cetera, and there was no--you expressed concern, the President 
really didn't say anything.'' App. at 1126.
    9. Lewinsky 8/24/98 Interview Statement: ``LEWINSKY advised 
that CLINTON was sitting in the rocking chair in the Study. 
LEWINSKY asked CLINTON what she should do with the gifts 
CLINTON had given her and he either did not respond or 
responded `I don't know.'' LEWINSKY is not sure exactly what 
was said, but she is certain that whatever CLINTON said, she 
did not have a clear image in her mind of what to do next.'' 
App. at 1566.
    10. Lewinsky 9/3/98 Interview Statement: ``On December 28, 
1997, in a conversation between LEWINSKY and the President, the 
hat pin given to LEWINSKY by the President was specifically 
discussed. They also discussed the general subject of the gifts 
the President had given Lewinsky. However, they did not discuss 
other specific gifts called for by the PAULA JONES subpoena. 
LEWINSKY got the impression that the President knew what was on 
the subpoena.'' App. at 1590.
    These statements contain certain striking inconsistencies 
with the version of events presented by the OIC--that the 
President and Ms. Lewinsky ``met and discussed what should be 
done with the gifts subpoenaed from Ms. Lewinsky'':
     In none of the statements did the President 
initiate a discussion relating to concealment of gifts.
     In none of the statements did the President tell 
Ms. Lewinsky to conceal gifts.
     In none of the statements did the President 
suggest to Ms. Lewinsky that she conceal gifts.
     In none of the statements is the President alleged 
to have mentioned any gift other than a hat pin.
    The statements also display numerous internal 
inconsistencies and anomalies that are significant in light of 
the charge and that caution against selecting any particular 
one:
     In seven of the ten statements (numbers 1, 5, 6, 
7, 8, 9 and 10) the President either did not respond at all to 
Ms. Lewinsky's concealment concerns or was described by Ms. 
Lewinsky as having given ``no response'' or ``didn't really say 
anything'' about what to do with the subpoenaed gifts.
     In two statements (numbers 6 and 9), Ms. Lewinsky 
described the President as both responding to her concealment 
comments (``saying something like `I don't know' or `Hmm,' '' 
6; ``responded `I don't know,' '' 9) and as not responding 
(there really was no response,'' 6; ``he . . . did not 
respond,'' 9).
     In five of the ten statements (numbers 2, 3, 4 and 
6 and 9) the President responded ``I don't know'' to a Lewinsky 
suggestion that she give someone the gifts.
     In two of the ten statements (numbers 3 and 4), 
the President was made to appear to contemplate further thought 
by saying in response to a suggestion of possible action that 
he will ``think about it'' or ``Let me think about that.''
     In one statement (number 6), Ms. Lewinsky said 
that ``I don't remember his response'' to her suggestion that 
she conceal gifts.
     In Ms. Lewinsky's first statement (the 2/1/98 
Proffer), she did not describe the President as having made any 
response to her suggestion of possible action or as having 
mentioned Ms. Currie.
     In Ms. Lewinsky's final statement (her 9/3/98 
interview), she described no statement by the President 
whatsoever pertaining to any possible action with respect to 
the gifts.
    With all these statements to draw on, the Starr Referral 
relied on number 4 above as if it were Ms. Lewinsky's only 
statement on the matter and thus characterized this pivotal 
conversation as follows: According to Ms. Lewinsky, she and the 
President discussed the possibility 138 of moving 
some of the gifts out of her possession:

    \138\ This statement contains a subtle, but important (and 
illustrative) distortion. Ms. Lewinsky might possibly be said to have 
``discussed'' concealment of the gifts (at least in some of her 
accounts of the December 28 meeting). But there is no evidence that the 
President himself ever ``discussed'' concealment.

    [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 someone, maybe Betty.'' And he sort of said--I 
think he responded ``I don't know'' or ``Let me think about 
---------------------------------------------------------------------------
that.'' And [we] left that topic.

Ref. at 166 (quoting App. at 872 (8/6/98 grand jury testimony 
of Ms. Lewinsky)). In making the above statement the 
centerpiece of the President's supposed assent to engage in 
concealment, the OIC selected one}139 of 
only two (of Ms. Lewinsky's ten) accounts in which the 
President's alleged comments might support the inference that 
he was even contemplating further thought (though not action) 
in response to Ms. Lewinsky's suggestion.
---------------------------------------------------------------------------
    \139\ Number 4 above.
---------------------------------------------------------------------------
    In so doing, the Referral failed to inform Congress that, 
in more than two-thirds of the different accounts given by Ms. 
Lewinsky, Ms. Lewinsky either described no response by the 
President at all or described his comment as ``no response'' or 
``didn't really say anything.''}140 In 
other words, to the best of Ms. Lewinsky's recollection he 
evidenced no intent to give the subject any thought. The OIC 
also failed to acknowledge that in one of her accounts, Ms. 
Lewinsky stated that she did not really remember the 
President's response. The OIC did not tell Congress that in 
several accounts, Ms. Lewinsky reported that the President both 
did and did not respond to her suggestion. The OIC did not tell 
Congress that the only person ever to link Betty Currie's name 
with the idea of concealment (and that in only three of her ten 
accounts) in the December 28 conversation was Ms. Lewinsky 
herself. The OIC did not tell Congress that in none--not one--
of Ms. Lewinsky's accounts did the President initiate 
discussion relating to concealment of gifts. The OIC did not 
tell Congress that in none of Ms. Lewinsky's accounts did the 
President ask or tell Ms. Lewinsky to conceal gifts. The OIC 
did not tell Congress that in none of Ms. Lewinsky's accounts 
does the President suggest to Ms. Lewinsky that she conceal 
gifts. The OIC did not tell Congress that in only two of Ms. 
Lewinsky's ten accounts was there even the suggestion that the 
President wanted even to ``think about it.'' And finally, the 
OIC did not tell Congress that in Ms. Lewinsky's earliest and 
latest accounts of the December 28, 1997 meeting, she never 
mentioned any statement by the President suggesting any 
concealment of gifts from the Jones subpoena. Instead the OIC 
simply picked the one account it liked best, misrepresented it, 
and presented it as though it were the whole truth.
---------------------------------------------------------------------------
    \140\ The Referral's concealment discussion (Ref. at 165-172) makes 
but a single mention of any of Ms Lewinsky's other accounts of the 
December 28 conversation. See Ref. at 166 n.226 (quoting App. at 1122 
(8/20/98 grand jury testimony Ms. Lewinsky) (number 6 in the list 
above)).
---------------------------------------------------------------------------
    Those omissions and the resulting account of this 
``concealment'' meeting result in a skewed version of events 
that professional prosecutors would not condone. Yet the Starr 
Referral not only presents a distorted picture of the evidence, 
it recommends that this Committee vote to impeach the President 
of the United States on this demonstrably thin record.
            b. Betty Currie's Supposed Involvement in Concealing Gifts
    The other incident said to support the obstruction-by-
concealment theory was Ms. Currie's receipt of a box of gifts 
from Ms. Lewinsky. Again, to support its position the Starr 
Referral presents a highly selective and deceptively one-sided 
account of the evidence. That account is distinguished by: (1) 
minimization of evidence favorable to the President concerning 
the origin of the idea of picking up gifts; (2) an outright 
falsehood as to the date of the gift pickup--a falsehood 
obviously intended to suggest deep Presidential involvement in 
the events; and (3) a deceptive attempt to elevate the 
Referral's theory through misleading and improper bolstering of 
one witness's credibility.
    (1) Whether Gifts Were Picked Up at the Suggestion of Ms. 
Lewinsky or the President. Mr. Starr takes the position that 
the President told or suggested to Ms. Currie that she contact 
Ms. Lewinsky and pick up the gifts. Ref. at 167. But the 
President twice denied ever telling Ms. Currie to contact Ms. 
Lewinsky about the gifts. App. at 502 (President's 8/17/98 
grand jury testimony); App. at 565-66 (same). Ms. Currie 
herself has repeatedly said that it was Ms. Lewinsky (not the 
President) who asked her to pick up the gifts. Supp. at 581 (5/
6/98 grand jury testimony of Betty Currie); Supp. at 582 
(same); Supp. at 706 (7/22/98 grand jury testimony of Betty 
Currie); Supp. at 531 (1/24/98 FBI Form 302 Interview of Betty 
Currie). In short, the only two parties who could possibly have 
direct knowledge of such an instruction by the President have 
denied it.
    Ms. Lewinsky stated that Ms. Currie told her that the 
President had told her to contact Ms. Lewinsky. See App. at 715 
(2/1/98 Proffer): ``Ms. Currie called Ms. L later that 
afternoon and said that the Pres. had told her Ms. L wanted her 
to hold onto something for her.'' 141 But this 
statement was contradicted by Ms. Currie's repeated statements 
that Ms. Lewinsky called her and asked her to pick up the gifts 
because people were asking ``questions about stuff she had 
gotten.'' Supp. at 557 (1/27/98 grand jury testimony of Ms. 
Currie). The Referral does acknowledge one occasion on which 
Ms. Currie contradicted Ms. Lewinsky on this point, see Ref. at 
167 (citing Supp. at 557 (1/27/98 grand jury testimony of Ms. 
Currie)):
---------------------------------------------------------------------------
    \141\ See also App. at 874 (8/6/98 grand jury testimony of Ms. 
Lewinsky); App. at 1127 (8/20/98 grand jury testimony of Ms. Lewinsky).

    Q. Did Ms. Lewinsky tell you why she wanted to give you 
this box of items?
    A. I think she was just getting concerned. I think people 
were asking questions about stuff she had gotten.

But the Referral fails to quote Ms. Currie's repeated 
contradicting of Ms. Lewinsky on this point. First, in her 
January 24 interview Ms. Currie said that: LEWINSKY called 
CURRIE and advised she had to return all the gifts CLINTON had 
given LEWINSKY as there was talk going around about the 
gifts.'' Supp. at 531 (1/24/98 FBI 302 Form Interview of Ms. 
Currie). Then, before the grand jury:

    Q. What exactly did Monica say when--
    A. 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 of gifts--I don't remember--because people were 
asking questions. And I said, ``Fine.''

Supp. at 581 (5/6/98 grand jury testimony of Ms. Currie). And 
then again before the grand jury:

    Q. . . . Just tell us from moment one 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 would pick up a box. She said Isikoff 
had been inquiring about gifts.

Supp. at 582 (5/6/98 grand jury testimony of Ms. Currie). This 
fact--that Ms. Currie early on and then thereafter repeatedly 
insisted that Ms. Lewinsky raised the issue of the gifts--is 
not to be found in the Referral.
    The Referral also omits Ms. Lewinsky's own testimony that 
it was she, and not the President, who first raised the 
prospect of Ms. Currie's involvement.

    A Juror: Now, did you bring up Betty's name or did the 
President bring up Betty's name?
    [Ms. Lewinsky]: I think I brought it up. The President 
wouldn't have brought up Betty's name because he really 
didn't--he didn't really discuss it. . . .

App. at 1122 (8/20/98 grand jury testimony of Ms. Lewinsky); 
see also App. at 1481 (8/1/98 FBI Form 302 Interview of Ms. 
Lewinsky) (``LEWINSKY . . . suggested to the President that 
Betty Currie hold the gifts.'') This fundamental and important 
fact--that Ms. Lewinsky herself testified that the idea of Ms. 
Currie's involvement originated with Ms. Lewinsky (and not with 
the President)--is nowhere to be found in the Referral's 
obstruction discussion.
    Finally, as to whether Ms. Currie ever spoke of gifts to 
the President after she had picked up the gifts, the President 
denied ever speaking with Ms. Currie and as to Ms. Currie, she 
recalled only one circumstance relevant to this issue. In the 
course of questioning Ms. Currie about a January 21, 1998 
telephone call she received from the President, a juror (not 
the OIC) put the following question to Ms. Currie:

    A Juror: During this conversation with the President, did 
you discuss the fact that you had a box of Monica's belongings 
under your bed?
    The Witness: I'm sure not.
    By [The OIC]: Why didn't you tell him that.
    A. I didn't see any reason to. . . .

Supp. at 705 (7/22/98 grand jury testimony of Ms. Currie). This 
exchange, and the fact that Ms. Currie stated her recollection 
with palpable certainty, are also entirely missing from the 
Referral.
    In view of the foregoing distortions and omissions, no 
fair-minded factfinder could conclude from the evidence that 
the President instructed Ms. Currie to retrieve gifts from Ms. 
Lewinsky.142
---------------------------------------------------------------------------
    \142\ The Referral's further musings on the subject of the gifts, 
Ref. at 170-71, are based on conjecture, not evidence. See, e.g., Ref. 
at 170. (``[m]ore generally, the person making the extra effort [here, 
picking up the gifts] . . . is ordinarily the person requesting the 
favor''). As to the Referral's credibility judgments, see Part 
V.B.1.b.3 below.
---------------------------------------------------------------------------
    (2) Whether Gifts Were Picked Up on December 28. The 
Referral implies that the President told Ms. Currie to retrieve 
the gifts on Sunday, December 28, 1997, Ref. at 166 (and that 
she in fact retrieved the gifts on December 28), the same day 
he supposedly discussed the gifts issue at a morning meeting 
with Ms. Lewinsky. Ref. at 167. The plain purpose of this 
allegation is to suggest prompt action by the President to 
effectuate a concealment plan supposedly hatched with Ms. 
Lewinsky at that morning's visit.
    In support of that theory, the Referral makes the following 
assertion: According to both Ms. Currie and Ms. Lewinsky, Ms. 
Currie drove to Ms. Lewinsky's home [to pick up the box of 
gifts] later on December 28. Ref. at 167 & n.237. This 
assertion--that ``[a]ccording to . . . Ms. Currie'' she picked 
up gifts on December 28--is not true. The Referral's (only) 
authority is page 108 of Ms. Currie's May 6, 1998 grand jury 
testimony. That page of transcript reads as follows:

    A. . . . [108] I drove to her--outside of her residence and 
picked up the box.
    Q. How many times had you been to her residence before?
    A. Twice. I took her home one day after work, but never 
inside her residence. I just dropped her off in front of the 
Watergate. And then when I picked up the box. So twice, that I 
remember, just twice.
    Q. Did you go with anyone to pick up the box?
    A. It was after work and I was by myself.
    Q. So it would be fair to say it was pretty important to 
pick it up.
    A. I wouldn't say that.
    Q. And it was the only other time you'd ever been to her 
apartment.
    A. I could have picked it up probably any time, but I was--
she called me and asked me to come by on my way home and pick 
it up.
    Q. And then what did you do with it?
    A. Put it under my bed?
    Q. What was the occasion when you took Monica home?
    A. What was the occasion?
    Q. Yes.
    A. After one of her meetings. The best I remember, if she 
was leaving and I was leaving at the same time, I'd offer [109] 
to give her a ride home.

Supp. at 581 (5/6/98 grand jury testimony of Ms. Currie). 
Nowhere on that page or anywhere else does Ms. Currie say that 
she picked up the gifts on December 28.
    This was no mere typographical error. For in Ms. Currie's 
first interview with the OIC, she recalled that Ms. Lewinsky 
called her to pick up the gifts sometime in December. Supp. at 
531 (1/24/98 FBI Form 302 Interview of Ms. Currie). And just a 
few pages earlier in her grand jury testimony, Ms. Currie told 
the grand jury that her best estimate was that she had 
retrieved the gifts ``a couple weeks'' after Ms. Lewinsky's 
December 28 visit to the President. Supp. at 581 (5/6/98 grand 
jury testimony of Ms. Currie). Additionally, in her first 
(late-January 1998) appearance before the grand jury, Ms. 
Currie's best recollection was that the gifts were picked up 
sometime within the previous six months. Supp. at 556-57 (1/27/
98 grand jury testimony of Ms. Currie). Finally, Ms. Currie 
told the grand jury that she picked up the gifts on a workday, 
Supp. at 582, and December 28 was a Sunday. Although Ms. Currie 
never pinpointed a date, the record is clear that--contrary to 
the Referral's false assertion--she never placed the date of 
the gift pickup on December 28.
    The Referral's deceptive attempts to bind Ms. Currie to its 
version of events--effected by misstatement and omission--are 
significant. They are explainable only by a willful attempt to 
bend the facts to fit the Referral's theory. Other than Ms. 
Lewinsky's own (as shown below, uncertain) accounts, the notion 
that the gifts were picked up on December 28 has no foundation 
in the record.
    (3) The Referral's Deceptive Attempt to Bolster the 
Credibility of One Witness to the Detriment of Others Is 
Improper. The Referral usurps the role of the fact-finder and 
substitutes its judgment for Congress' by resolving evidentiary 
conflicts in favor of Ms. Lewinsky's recollection and against 
Ms. Currie's where that resolution hurts the President. The 
Referral states that Ms. Currie's memory of the crucial 
conversation ``generally has been hazy and uncertain,'' Ref. at 
170, while Ms. Lewinsky's testimony ``is consistent and 
unequivocal.'' Ref. at 169. The statement that Ms. Lewinsky's 
testimony was consistent and unequivocal is just not true. 
Indeed, Ms. Lewinsky actually told the grand jurors at one 
point that she could not remember Ms. Currie saying that the 
President told her to call about the gifts:

    A Juror: At the top of page 7 [of the 2/1/98 Proffer, App. 
715], where you say in your proffer that when Ms. Currie called 
later that afternoon she said, at least I think you mean that 
she said that the President had told her Ms. L wanted her to 
hold on to something for her. Do you remember Betty Currie 
saying that the President had told her to call?
    The Witness: Right now. I don't. I don't remember . . . .

App. at 1141 (8/20/98 grand jury testimony of Ms. Lewinsky) 
(emphasis added). The Referral's assertion to the contrary--
that ``Ms. Lewinsky's testimony on the issue is consistent and 
unequivocal''--is utterly untrue. Ms. Lewinsky simply did not 
have the unwavering conviction the Referral attributes to her.
    Indeed Ms. Lewinsky's testimony concerning her February 1, 
1998 proffer (which was not, as the OIC characterizes it, 
``testimony,'' Ref. at 169) was fraught with uncertainty. As 
Ms. Lewinsky herself told the grand jury:

    The other thing, and this is something that I was thinking 
about this morning in relation to the proffer, that I had 
written this proffer obviously being truthful, but I think that 
when I wrote this, it was my understanding that this was to 
bring me to the step of getting an immunity agreement, and so I 
think that sometimes to--that I didn't know this was going to 
become sort of this staple document, I think, for everything, 
and so there are things that can be misinterpreted from in 
here, even from me re-reading it, the conditions--some of the 
conditions maybe under which I wrote it.

App. at 1141 (8/20/98 grand jury testimony of Ms. Lewinsky) 
(emphasis added). Yet neither the Referral, nor any of its 
supporting materials, reflect any effort by the OIC to have Ms. 
Lewinsky clarify the ``things that can be misinterpreted'' in 
her proffer. Nor did the Referral inform the House of Ms. 
Lewinsky's own doubts about the February 1 proffer.
    The Referral then aggravates its own deceptions and 
omissions still further by twice quoting a statement of Ms. 
Currie to the effect that ``[Ms.Lewinsky] may remember better 
than I. I don't remember.'' Ref. at 167, 170. That quotation is 
thoroughly misleading in view of the foregoing statements by Ms. 
Lewinsky (omitted from the Referral) which made clear that her memory 
was certainly no better than Ms. Currie's.
    Finally, the OIC's account of the differences in Ms. 
Currie's and Ms. Lewinsky's recollections is aggravated by 
another, very curious fact. As the Referral once mentions, and 
as Ms Currie repeatedly stated, Ms. Lewinsky had said that she 
``was uncomfortable retaining the gifts'' not because the 
President asked her to conceal them from Paula Jones' lawyers, 
but ``because people were asking questions about the stuff she 
had gotten.'' Ref. at 167 and citations in Part VI.B.1.b.1, 
above. That statement presents a rather different explanation 
then the one offered up in the Referral. Yet neither the 
Referral, nor 3183 pages of Appendices, nor 4610 pages of 
Supplement contain any evidence that Ms. Lewinsky has ever 
contradicted Ms. Currie's account of that statement. The 
absence of contradictory evidence is itself a significant piece 
of evidence supportive of the view that Ms. Currie's 
recollection is the correct one.
    But the importance of this runs much deeper. 
Notwithstanding that she testified twice before the grand jury, 
was deposed once, and was interviewed by the OIC at least 18 
different times,143 Ms. Lewinsky was apparently 
never asked whether she ever stated to Ms. Currie that people 
were asking questions about the President's gifts. Indeed, in 
all the time following Ms. Currie's January 27 testimony, the 
OIC apparently never asked Ms. Lewinsky to reconcile the basic 
tensions in the conflicting accounts. Rather than attempting to 
determine the truth of this important issue, the OIC preferred 
to leave this crucial difference unexplored and then argue the 
relative credibility of the witnesses to Congress and conclude 
without reason that Ms. Lewinsky's recollection ``makes more 
sense.'' In view of the OIC's statutory duty to provide any 
``substantial and credible information'' pertaining to 
impeachment, the insidious refusal to elicit direct evidence on 
this sensitive point is extraordinary--and wholly unfair.
---------------------------------------------------------------------------
    \143\ Summaries of Ms. Lewinsky's 18 different interviews with the 
OIC appear at App. at 1389-1603.
---------------------------------------------------------------------------
            c. The Referral Suppresses Other Evidence Casting Doubt on 
                    Its Concealment-of-Gifts Obstruction Theory
    The Referral says, and it is not disputed, that the 
President gave Ms. Lewinsky a number of gifts during their 
December 28, 1997 meeting. Ref. at 166. This fact alone 
obviously undermines the Referral's theory that he sought to 
conceal gifts to her on that same day. The Referral goes on to 
say that Ms. Lewinsky was ``asked why the President gave her 
more gifts on December 28 when he understood she was under an 
obligation to produce gifts in response to the subpoena.'' 
Ibid. But the actual question posed was this: ``What do you 
think the President was thinking when he is giving you gifts 
when there's a subpoena covering the gifts? I mean, does he 
think in any way, shape or form that you're going to be turning 
these gifts over?'' App. at 886 (8/6/98 grand jury testimony of 
Ms. Lewinsky).
    In response, the Starr Referral inserted Ms. Lewinsky's 
speculation about why the President may have given her the 
gifts, quoting from her August 6 testimony, and adding a 
certain emphasis:

    You know, I can't answer what [the President] was thinking, 
but to me, it was--there was never a question in my mind and 
I--from everything he said to me, I never questioned him, that 
we were never going to do anything but keep this private, so 
that meant deny it and that meant do--take whatever appropriate 
steps needed to be taken, you know for that to happen.

Ref. at 166 (quoting App. at 886-87 (8/6/98 grand jury 
testimony of Ms. Lewinsky) (emphasis added by OIC)).
    This explanation of the December 28 gift-giving is severely 
unfair. First, the addition of the emphasis suggests that the 
President had explained to Ms. Lewinsky that gifts, including 
gifts given on December 28, were going to be concealed. There 
is no support for this, and as we have established above, all 
the evidence is to the contrary.
    Second, the OIC's account relies on Ms. Lewinsky's 
speculation when the President's own testimony was available. 
In that testimony, given before the grand jury on August 17, 
the President--responding to questions about the December 28 
meeting--stated that ``this gift business . . . didn't bother 
me,'' App. at 496, and that ``I wasn't troubled by this gift 
issue,'' App. at 497. The President went on to say that he 
``fe[lt] comfortable giving [Ms. Lewinsky] gifts in the middle 
of discovery in the Paula Jones case'' because ``there was no 
existing improper relationship at that time'' and that he 
``wasn't worried about it [and] thought it was an all right 
thing to do.'' App. at 498. The Referral obscures these direct 
statements in favor of Ms. Lewinsky's speculation.
    Strikingly absent from the Referral is any discussion of 
the fact that, under its own misleading theory, the President 
was both giving gifts and taking them back on the very same 
day. The Referral makes no effort to explain this dramatic 
anomaly and does not convey to Congress any sense of the fact 
that such behavior is--and must seem--very odd under the 
Referral's theory.
    That omission is all the more conspicuous in view of the 
OIC's questions and comments on this issue during the 
President's and Ms. Lewinsky's grand jury testimony. Sensing 
the difficulty for its own theory, the OIC asked: ``Mr. 
President, if your intent was, as you earlier testified, that 
you didn't want anybody to know about this relationship you had 
with Ms. Lewinsky, why would you feel comfortable giving her 
gifts in the middle of discovery in the Paula Jones case?'' 
App. at 498. The President answered that he was not troubled by 
the gifts because at the time he gave them there was no 
improper relationship. App. at 498. No mention of this exchange 
appears in the Referral.
    Again, during Ms. Lewinsky's first grand jury appearance 
the OIC prosecutor remarks: ``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 it, was 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.'' App. at 
887-88 (emphasis added).144 And again, no mention is 
made in the Referral of the fact that the OIC and the grand 
jurors regarded it as ``odd'' that there was gift-giving on the 
same day the President allegedly caused his gifts to be 
recovered. A fair prosecutor would have acknowledged this 
``oddity'' and reported the President's answers to this 
``oddity,'' answers which resolve the apparent ``oddity,'' and 
undermine the prosecutor's theory. The OIC did neither.
---------------------------------------------------------------------------
    \144\ Ms. Lewinsky replies, ``You know, I have come recently to 
look at that as sort of a strange situation. . . .'' App. at 888.
---------------------------------------------------------------------------
    The Referral concludes that ``[g]iven his desire to conceal 
the relationship, it makes no sense that the President would 
have given Ms. Lewinsky more gifts on the 28th 
unless he and Ms. Lewinsky understood that she would not 
produce all of her gifts in response to her subpoena.'' Ref. at 
171. This statement is directly contrary to the only available 
evidence touching on this issue--namely the President's own 
testimony that he simply was not troubled by the gifts. App. at 
494-98. The OIC has suppressed relevant direct evidence and 
then asked Congress to draw negative inferences from 
circumstantial theorizing.
    Ultimately, the Referral's failure to include or even refer 
to the President's directly material testimony in the 
``impeachable acts'' discussion of supposed ``concealment'' of 
gifts has no legitimate explanation. The obstruction-by-gift-
concealment charge rests on an unjustifiable six-prong strategy 
unworthy of any fair prosecutor. The Referral first presents a 
highly argumentative and one-sided account of disputed facts. 
Second, it flatly misrepresents certain key dates and events in 
an effort to heighten that prejudicial effect. Third, it 
suppresses numerous facts contradicting the Referral's 
concealment theory. Fourth, the Referral artificially engineers 
the impression that one witness is more credible than the 
other--in stark defiance of record facts and in the apparent 
hope that its sophistries would go unnoticed by the factfinder. 
Fifth, the Referral suggests a false clarity about important 
evidentiary issues which are in fact fundamentallyambiguous. 
The Referral's authors clearly chose to leave these ambiguities 
unexplored where honest investigation would have resolved them. 
Finally, the Referral suppresses record evidence reflecting its 
authors' own doubts about the theory advanced.
    Impeachment on such distorted ``evidence'' of obstruction 
as the Referral presents would be a travesty.

2. The President Did Not Obstruct Justice in Connection With Ms. 
        Lewinsky's Job Search

            a. The Direct Evidence Contradicts the Referral's Jobs--
                    Obstruction Theory and the Referral Presents a 
                    Misleading Picture Based on Carefully Selected 
                    Circumstantial Evidence
    The OIC alleges that the President ``endeavored to obstruct 
justice by helping [Ms.] Lewinsky obtain a job in New York at a 
time when she would have been a witness against him were she to 
tell the truth during the Jones case.'' Ref. at 181. To support 
this claim, the OIC has created a wholly misleading chronology 
of events that omits crucial facts, presents only partial 
accounts of others, and places artificial weight on selected 
events occurring in late December 1997 and early January 1998. 
The OIC's account relies almost exclusively on the testimony of 
one witness yet conceals that witness' contradictory 
statements. The effect is to try to create a sense that Ms. 
Lewinsky's interest in a New York job arose in reaction to her 
involvement in the Jones suit and that the President's efforts 
to help her were excessive and performed with intent somehow to 
buy her silence, when the actual evidence is to the contrary.
    There is no direct evidence that the President or Mr. 
Jordan assisted Ms. Lewinsky with her job search in exchange 
for silence or false testimony. Indeed, all the direct evidence 
is to the contrary. As Ms Lewinsky unequivocally stated: ``[N]o 
one ever asked me to lie and I was never promised a job for my 
silence.'' App. at 1161 (8/20/98 grand jury testimony of Ms. 
Lewinsky). Mr. Jordan's testimony was also clear and 
unequivocal:145 ``As far as I was concerned, [the 
job and the affidavit] were two very separate matters.'' Supp. 
at 1737 (3/5/98 grand jury testimony of Vernon 
Jordan).146 The Referral must therefore resort to 
selective citation to circumstantial evidence to try to make 
its case. But, as we establish in detail below, the 
circumstantial ``evidence'' does not support the notion that a 
job was procured for Ms. Lewinsky in an effort to obstruct 
justice in the Jones litigation. It supports the direct 
evidence to the contrary.
---------------------------------------------------------------------------
    \145\ From his standpoint, Mr. Jordan's assistance to Ms. Lewinsky 
was not in the least unusual. Mr. Jordan testified repeatedly that he 
is often asked to help people get jobs and often provides such help. 
See Supp. at 1707 (3/3/98 grand jury testimony of Vernon Jordan) (Mr. 
Jordan is ``asked frequently by people to help . . . get jobs''); id. 
at 1711-12 (noting referring of other individuals for jobs at Revlon, 
Young & Rubicam, American Express and other companies and stating ``to 
the extent you think [assisting Ms. Lewinsky was] out of the ordinary, 
it is not out of the ordinary, given what I do''); see also January 22, 
1998 Statement of Vernon Jordan: (``For many years now . . . I am 
consulted by individuals, young and old, male and female, black and 
white, Hispanic and Asian, rich and poor, cabinet members and 
secretaries, for assistance.'').
    \146\ See also Supp. at 1827 (5/5/98 grand jury testimony of Vernon 
Jordan):
---------------------------------------------------------------------------
        Q. Did [Ms. Lewinsky] ever directly indicate to you that 
      she wanted her job in New York before she could finish [her 
      affidavit] up with Mr. Carter?
        A. Unequivocally, no.
        Q. . . . Is there anything about the way she acted when 
      speaking to you that, as you sit here now, makes you think 
      that perhaps she was attempting not to finalize whatever 
      she was doing with Mr. Carter until she had a job in New 
      York?
        A. Unequivocally, indubitably, no.
    The Referral poses the job-search issue as ``whether the 
President's efforts in obtaining a job for Ms. Lewinsky were to 
influence her testimony or simply to help an ex-intimate 
without concern for her testimony.'' Ref. at 185. Mr. Starr 
acknowledges that there is no direct evidence that the 
President assisted Ms. Lewinsky in obtaining a job in exchange 
for her lying or remaining silent. Ref. at 185 n.361. The OIC 
also acknowledges that the ``case'' is entirely circumstantial; 
rests on an interpretation of selected circumstances it 
describes as ``key events.'' Ref. at 181. The centerpiece of 
the charge is the notion that the President employed Mr. Vernon 
Jordan to place Ms. Lewinsky in an out-of-town job so as to 
induce Ms. Lewinsky either to leave town, to file a false 
affidavit, or to remain silent in such a way as to obstruct 
justice in the Jones case.147
---------------------------------------------------------------------------
    \147\ As we will establish below, the omitted facts are flatly at 
odds with that theory. Had the President intended to ensure Ms. 
Lewinsky's silence concerning their relationship, it was surely within 
his power--at any time--to secure a job for Ms. Lewinsky at the White 
House. It appears from the record that she desperately wanted such a 
position. Given Ms. Lewinsky's repeatedly expressed desire for such a 
job, any jobs-for-silence scheme could have been readily implemented by 
giving her a White Hoouse position. No such position was ever offered, 
because there was never an effort to silence or buy off Ms. Lewinsky.
---------------------------------------------------------------------------
    Here is the Referral's key passage, a chronology manifestly 
constructed to create a false impression of obstruction:

    On January 5, 1998, Ms. Lewinsky declined the United 
Nations job. On January 7, 1998, Ms. Lewinsky signed the 
affidavit denying the relationship with President Clinton (she 
had talked on the phone to the President on January 5 about 
it). Mr. Jordan informed the President of her action.
    The next day, on January 8, 1998, Ms. Lewinsky interviewed 
with MacAndrews & Forbes, a company recommended by Vernon 
Jordan. The interview went poorly. Mr. Jordan then called 
Ronald Perelman, the Chairman of the Board of MacAndrews & 
Forbes. Mr. Perelman said Ms. Lewinsky should not worry, and 
that someone would call her back for another interview. Mr. 
Jordan relayed this message to Ms. Lewinsky, and someone called 
back that day.
    Ms. Lewinsky interviewed again the next morning, and a few 
hours later received an informal offer for a position. She told 
Mr. Jordan of the offer, and Mr. Jordan then notified President 
Clinton with the news: ``Mission accomplished.''

Ref. at 183-84 (footnotes omitted) (emphasis in original). As 
we will show, this passage is woefully misleading. In fact, the 
timing of Ms. Lewinsky's January 8th interview had nothing to 
do with the Jones matter. And the fact of Mr. Jordan's January 
8 call to Mr. Perelman was never communicated to the Revlon 
executive who scheduled Ms. Lewinsky's January 9 interview and 
who decided to hire her that very day.

    Indeed, closer inspection of the evidence contained in the 
appendices and supplements gives the lie to the Referral's 
theory and makes the following facts absolutely clear:
           Ms. Lewinsky's desire to leave Washington 
        arose long before her involvement in the Jones case;
           The President provided Ms. Lewinsky with 
        only modest assistance;
           The job assistance provided by friends and 
        associates of the President was in no way unusual;
           No pressure was applied to obtain Ms. 
        Lewinsky a job;
           There was no timetable for Ms. Lewinsky's 
        job search, let alone any timetable linked to her 
        involvement in the Jones case; and
           None of Ms. Lewinsky's job-searching and 
        job-obtaining measures were in any way linked to her 
        involvement in the Jones case.
When the events leading up to Ms. Lewinsky's job offer are 
reconstructed in fuller detail,148 when the one-
sidedness of the Referral's account is recognized, and when its 
crucial omissions are exposed, it becomes plain that there was 
no impropriety and no obstruction of justice in connection with 
her job search. The case for obstruction simply evaporates.
---------------------------------------------------------------------------
    \148\ In addition to the many relevant facts omitted from the 
Referral altogether, see Part V.C., infra, the Referral also contains 
its own misleading ``editing'' of events it does include. For instance, 
the Referral includes a number of exculpatory facts in its Narrative 
section, but then, when it sets forth what it calls ``substantial and 
credible evidence'' of wrongdoing, it omits them from its so-called 
summary of ``key events and dates.'' Ref. 181. The following is just a 
sampling of facts the Referral's authors did not regard as ``key 
events'' deserving consideration in the accusatory part of the 
Referral:
     That throughout the first half of 1997, Ms. Lewinsky had 
been hoping to return to a job in the White House and that she had not 
succeeded in doing so; App. at 564 (President's 8/17/98 grand jury 
testimony);
     That the idea of a job at the United Nations originated 
with Ms. Lewinsky, not the President; see App. at 788 (8/6/98 grand 
jury testimony of Ms. Lewinsky) (in July 3 letter, ``I said in New York 
at the United Nations'');
     That Ms. Lewinsky's resolve to leave Washington was 
cemented by remarks reported to her by Ms. Tripp on October 6, 1997 and 
that those remarks, by a Tripp acquaintance, ``were `the straw that 
broke the camel's back.' '' App. at 1460 (7/31/98 FBI Form 302 
Interview of Ms. Lewinsky);
     That before she ever had had the October discussion with 
the President about a job, she had discussed with Ms. Tripp whether Mr. 
Jordan would help with her job search; App. at 823-24 (8/6/98 grand 
jury testimony of Ms. Lewinsky);
     That Ms. Lewinsky first expressed a need for a White House 
reference on October 11, and that she suggested that Mr. John Hilley 
was the appropriate person to provide the reference because he had at 
one time been her supervisor; App. at 1544-45 (8/13/98 FBI Form 302 
Interview of Ms. Lewinsky);
     That Ms. Lewinsky needed the reference not for any 
improper motive but because she had worked at the White House in the 
Office of Legislative Affairs; App. at 934-35 (8/6/98 grand jury 
testimony of Ms. Lewinsky). Mr. Hilley was the appropriate person to 
provide the reference because he had been her boss there during the 
latter part of her tenure at the White House. Ibid.
    The omission of each of these facts from the accusatory portion of 
the Referral artificially bolsters the theory of the Referral by 
creating the effect that Ms. Lewinsky's job search occurred mostly in 
December and January.
---------------------------------------------------------------------------
            b. A More Complete Narrative of Events
    Ms. Lewinsky worked in the White House from late 1995 until 
early April 1996. In early April, she was advised by Mr. Tim 
Keating that she was being transferred from the White House to 
the Pentagon; Mr. Keating told her that she might be able to 
return to the White House after the November 1996 election. 
App. at 1503-04 (8/3/98 FBI Form 302 Interview of Ms. 
Lewinsky). Following the 1996 election, Ms. Lewinsky tried for 
months throughout 1997 to get a job in the White House or in 
the Old Executive Office Building. During that period, the 
President told her that Mr. Bob Nash and later Ms. Marsha Scott 
were the people who could help her get a job in the White 
House. App. at 1458 (7/31/98 FBI Form 302 Interview of Ms. 
Lewinsky). Ms. Lewinsky wrote to and met several times with Ms. 
Scott in 1997 about a White House job. App. at 1458-59 (7/31/98 
FBI Form 302 Interview of Ms. Lewinsky). The President was 
aware of Ms. Lewinsky's continuing efforts to work in the White 
House. App. at 564-65 (President's 8/17/98 grand 
jurytestimony). While still hoping for a White House job, Ms. Lewinsky 
began to think about working in New York. Ultimately, Ms. Lewinsky was 
never offered another White House job, and when (in early October 1997) 
it became clear to her that she would not be offered one, she turned 
her focus entirely to New York.
    On July 3, 1997, Ms. Lewinsky notified the President that 
she was thinking of moving to New York. App. at 1414 (7/29/98 
FBI 302 Interview of Ms. Lewinsky). She told him of her 
interest in a United Nations job and explicitly asked for his 
help in getting a position in New York. App. at 788 (8/6/98 
grand jury testimony of Ms. Lewinsky). Ms. Lewinsky again 
raised the prospect of moving to New York in a September 2, 
1997 e-mail message to a friend. App. at 2811. According to Ms. 
Lewinsky, by October 6, 1997, she was ``mostly resolved to look 
for a job in the private sector in New York.'' App. at 1544 (8/
13/98 FBI Form 302 Interview of Ms. Lewinsky). On October 9th 
or 11th, Ms. Lewinsky asked the President if Mr. Vernon Jordan 
might be able to assist her with her New York job search, App. 
at 822-24 (8/6/98 grand jury testimony of Ms. Lewinsky); 1079 
(8/20/98 grand jury testimony of Ms. Lewinsky). The idea of 
obtaining Mr. Jordan's assistance may have originated with Ms. 
Tripp. App. at 822-24 (8/6/98 grand jury testimony of Ms. 
Lewinsky).
    Ms. Lewinsky believed that her discussions with the 
President about a job were ``part of her relationship with'' 
the President. App. at 1461 (7/31/98 FBI Form 302 Interview). 
According to Ms. Lewinsky, she prepared a list of jobs she was 
interested in the private sector in New York. App. at 824 (8/6/
98 grand jury testimony of Ms. Lewinsky); App. at 1585. In 
early November, Ms. Lewinsky met with Mr. Jordan who agreed to 
help her at that time. App. at 824 (8/6/98 grand jury testimony 
of Ms. Lewinsky). All of these events took place long before 
Ms. Lewinsky's name ever appeared on any witness list in the 
Jones matter. Indeed, it could not be clearer that Ms. 
Lewinsky's wish to move to New York and her efforts to involve 
the President and others in that search antedated and were 
unrelated to the Jones matter.
    As to the actual job interviews and offers Ms. Lewinsky 
later obtained, no relevant circumstances reflect any attempt 
to obstruct justice. A fuller account of Ms. Lewinsky's job 
search makes this absolutely plain.
    (1) The United Nations Job. Ms. Lewinsky interviewed for 
and was ultimately offered a job at the United Nations. That 
job interview was arranged by Mr. John Podesta acting at the 
behest of Ms. Betty Currie. Supp. at 3404 (4/30/98 grand jury 
testimony of Bill Richardson). Ms. Currie testified that she 
was acting on her own in undertaking these efforts. Supp. at 
592 (5/6/98 grand jury testimony of Betty Currie). In the 
course of a casual conversation with Ambassador Richardson, Mr. 
Podesta suggested that Ambassador Richardson interview a former 
White House employee who was moving to New York. Supp. at 3395 
(1/28/98 FBI Form 302 Interview of Bill Richardson). It was not 
uncommon for Ambassador Richardson to interview persons on a 
courtesy basis. Supp. at 3418 (4/30/98 grand jury testimony of 
Bill Richardson). He was impressed with Ms. Lewinsky's resume. 
Supp. at 3411 (4/30/98 grand jury testimony of Bill 
Richardson). Ambassador Richardson neverspoke to the President 
about Ms. Lewinsky. He never spoke to Mr. Jordan about Ms. Lewinsky. 
Supp. at 3422 (4/30/98 grand jury testimony of Bill Richardson). 
Ambassador Richardson felt no pressure to hire Ms. Lewinsky. Supp. at 
3423 (4/30/98 grand jury testimony of Bill Richardson). Ms. Lewinsky 
was interviewed on October 31, 1997, long before her name appeared on 
the witness list in the Jones case. Supp. at 3718 (5/27/98 grand jury 
testimony of Mona Sutphen).
    She was offered a job at the U.N. and ultimately refused 
it. There is no evidence that the job offer was related to the 
Jones case and no suggestion that she was coerced or even 
encouraged to take it. Moreover, there is no evidence that the 
U.N. job interview and subsequent offer were part of any effort 
to silence Ms. Lewinsky, or induce her to leave Washington, or 
cause her to lie in connection with the Jones case.
    (2) Private Sector Efforts. Ms. Lewinsky obtained help in 
finding a private-sector job from several sources. In late 
October-early November 1997, Ms. Lewinsky informed her then-
boss at the Pentagon, Mr. Kenneth Bacon, that she wanted to 
seek employment in New York. Supp. at 11 (2/26/98 FBI Form 302 
Interview of Kenneth Bacon). This was well before her name 
appeared on the witness list in the Jones case. She told Mr. 
Bacon that her mother was moving to New York and that she 
wanted to work in public relations. Id. Mr. Bacon then had a 
conversation with Mr. Howard Paster, the Chairman and CEO of 
Hill & Knowlton about Ms. Lewinsky's job search. Mr. Paster 
said that Ms. Connie Chung may have been looking for a 
researcher. Id. On November 24, 1997, Mr. Bacon wrote to Mr. 
Paster enclosing Ms. Lewinsky's resume and thanking him for his 
willingness to talk to Ms. Chung about Ms. Lewinsky. Id. Mr. 
Bacon's involvement reflects several fundamental facts 
concerning Ms. Lewinsky's search for a New York job: (1) the 
effort was initiated by her; (2) the effort predated the 
relevant period in the Jones matter; and (3) the effort 
proceeded on multiple fronts--with, as we will see, only very 
limited involvement by the President.
    At the heart of the Referral's obstruction charge is the 
notion that the President used Mr. Jordan to obtain a job for 
Ms. Lewinsky in New York in order to silence her or induce her 
to lie in the Jones case. However, the person who contacted Mr. 
Jordan on Ms. Lewinsky's behalf was Ms. Currie. Supp. at 592-93 
(5/6/98 grand jury testimony of Betty Currie); Supp. at 1704 
(3/3/98 grand jury testimony of Vernon Jordan); see also Supp. 
at 1755 (3/5/98 grand jury testimony of Vernon Jordan). Ms. 
Currie took an active role with Mr. Jordan. They were old 
friends, and she felt comfortable approaching him to help Ms. 
Lewinsky. Supp. at 592-94 (5/6/98 grand jury testimony of Betty 
Currie).
    The Referral says that Mr. Jordan contacted people from 
three private companies with recommendations for Ms. Lewinsky. 
Ref. at 93. Those people were Mr. Peter Georgescu, the Chairman 
and CEO of Young & Rubicam (the parent of Burson-Marsteller); 
Ms. Ursula Fairbairn, the Executive Vice President of Human 
Resources at American Express; and Mr. Richard Halperin, the 
Executive Vice President and Special Counsel at MacAndrews & 
Forbes, the parent company of Revlon. Ms. Lewinsky applied for 
positions with all three companies. As the recordmakes clear, 
neither the President nor Mr. Jordan put any pressure on these 
companies to hire Ms. Lewinsky or tried to engineer the timing of her 
hiring to coincide with activity in the Jones case.
    Burson Marsteller. Mr. Jordan telephoned Mr. Georgescu in 
early December 1997, asking him to take a look at a young White 
House person for a job. Mr. Jordan did not, in Mr. Georgescu's 
words, engage in a ``sales pitch'' about Ms. Lewinsky. Supp. at 
1222 (3/25/98 FBI Form 302 Interview of Peter Georgescu). Mr. 
Georgescu told Mr. Jordan that the company ``would take a look 
at Ms. Lewinsky in the usual way,'' Supp. at 1219 (1/29/98 FBI 
Form 302 Interview of Peter Georgescu), and that his own 
involvement would be ``arm's length,'' Supp. at 1222 (3/25/98 
FBI Form 302 Interview of Peter Georgescu). After Mr. Georgescu 
set up the initial interview, Ms. Lewinsky would be ``on [her] 
own from that point.'' Ibid. Ms. Lewinsky then interviewed with 
a Ms. Celia Berk of Burson-Marsteller. According to Ms. Berk, 
her company's actions in Ms. Lewinsky's interviewing process 
were handled ``by the book.'' Supp. at 111 (3/31/98 FBI Form 
302 Interview of Celia Berk). Ms. Lewinsky's ``recruitment 
process,'' she said, ``was somewhat accelerated, but it went 
through the normal stops.'' Ibid. Burson-Marsteller never 
offered Ms. Lewinsky a job.
    American Express. The person Mr. Jordan spoke with at 
American Express was Ms. Ursula Fairbairn, the head of Human 
Resources. Ref. 93. According to Ms. Fairbairn, there was 
nothing unusual for board members or company officers to 
recommend talented people for work at American Express. Supp. 
at 1087 (1/29/98 FBI Form 302 Interview of Ursula Fairbairn). 
Indeed Mr. Jordan had recently made another employment 
recommendation to Ms. Fairbairn at American Express. Supp. at 
1087 (1/29/98 FBI Form 302 Interview of Ursula Fairbairn). Ms. 
Fairbairn felt that no pressure was exerted by Mr. Jordan. 
Supp. at 1087 (1/29/98 FBI Form 302 Interview of Ursula 
Fairbairn).
    The person Ms. Lewinsky interviewed with was an American 
Express official in Washington named Mr. Thomas Schick. Ref. at 
95. According to Mr. Schick, he never talked to Mr. Jordan at 
any time during this process. He also said that he felt 
absolutely no pressure to hire Ms. Lewinsky. Supp. at 3521 (1/
29/98 FBI Form 302 Interview of Thomas Schick). Ms. Lewinsky 
interviewed with Mr. Schick on December 23, 1997. According to 
Ms. Lewinsky's account of that interview, she was told that she 
lacked the qualifications necessary for the position. App. at 
1480 (8/1/98 FBI Form 302 Interview of Ms. Lewinsky). Ms. 
Lewinsky was never offered a job at American Express. Supp. at 
1714 (3/3/98 grand jury testimony of Vernon Jordan).
    MacAndrews & Forbes/Revlon. The person Mr. Jordan first 
contacted at MacAndrews & Forbes was an Executive Vice 
President named Mr. Richard Halperin. Ref. at 93. It was not 
unusual for Mr. Jordan to call him with an employment 
recommendation. Supp. at 1281 (1/26/98 FBI Form 302 Interview 
of Richard Halperin); see also Supp. at 1294 (4/23/98 grand 
jury testimony of Richard Halperin) (same). In fact, Mr. Jordan 
had recommended at least three other persons besides Ms. 
Lewinsky to MacAndrews & Forbes. Supp. at 1746-47 (3/5/98 
grandjury testimony of Vernon Jordan). On this occasion, Mr. Jordan 
told Mr. Halperin that Ms. Lewinsky was bright, energetic and 
enthusiastic and encouraged him to meet with Ms. Lewinsky. Supp. at 
1286 (3/27/98 Interview of Richard Halperin). Mr. Halperin did not 
think there was anything unusual about Mr. Jordan's request. Id. In Mr. 
Jordan's telephone call, Mr. Halperin testified that Mr. Jordan did not 
``ask [Halperin] to work on any particular kind of timetable,'' Supp. 
at 1294 (4/23/98 grand jury testimony of Richard Halperin), and Mr. 
Halperin said that ``there was no implied time constraint or 
requirement for fast action.'' Supp. at 1286 (3/27/98 FBI Form 302 
Interview of Richard Halperin).
    Ms. Lewinsky interviewed with Mr. Halperin on December 18, 
1997, in New York. Supp. at 1282 (1/26/98 FBI Form 302 
Interview of Richard Halperin). At the end of the Lewinsky 
interview, Mr. Halperin thought Ms. Lewinsky would be ``shipped 
to Revlon'' for consideration of opportunities there. Supp. at 
1287 (3/27/98 FBI Form 302 Interview of Richard Halperin). 
Earlier that week, Mr. Halperin had sent Ms. Lewinsky's resume 
to Mr. Jaymie Durnan of MacAndrews & Forbes for his 
consideration. Ibid.
    Mr. Durnan became aware of Ms. Lewinsky in mid-December 
1997. Supp. at 1053 (3/27/98 FBI Form 302 Interview of Jaymie 
Durnan). At that time, he reviewed her resume and decided to 
interview her after the first of the year. Ibid. (He was going 
on vacation the last two weeks of December.) Ibid. When he 
returned from vacation, he had his assistant schedule an 
interview with Ms. Lewinsky for January 7, 1998, but, because 
of scheduling problems, he rescheduled the interview for the 
next day January 8, 1998. Supp. at 1049 (1/26/98 FBI Form 302 
Interview of Jaymie Durnan). Mr. Durnan's decision to interview 
Ms. Lewinsky was made independently of the decision by Mr. 
Halperin to interview her. Indeed, only when Mr. Durnan 
interviewed Ms. Lewinsky in January did he discover that she 
had had a December interview with Mr. Halperin. Ibid.
    Ms. Lewinsky interviewed with Mr. Durnan on the morning of 
January 8th. Mr. Durnan thought she was impressive for entry 
level work. Supp. at 1049 (1/26/98 FBI Form 302 Interview of 
Jaymie Durnan). After that interview, Mr. Durnan concluded that 
Ms. Lewinsky would have ``fit in'' at the parent company 
(MacAndrews & Forbes), but that there was nothing available at 
the time that matched her interest. He also thought she might 
be suitable for MacAndrews & Forbes' subsidiary Revlon. Supp. 
at 1054 (3/27/98 FBI Form 302 Interview of Jaymie Durnan). He 
decided to send her resume to Revlon. He left a message for Ms. 
Allyn Seidman (Senior VP of Corporate Communications) at Revlon 
and forwarded Ms. Lewinsky's resume to her. Supp. at 1049-50 
(1/26/98 FBI Form 302 Interview of Jaymie Durnan).
    That same day, Mr. Jordan spoke to Mr. Ronald Perelman, CEO 
of MacAndrews & Forbes, by telephone and mentioned to Mr. 
Perelman that Ms. Lewinsky had interviewed with MacAndrews & 
Forbes. However, Mr. Jordan made no specific requests and did 
not ask Mr. Perelman to intervene. Supp. at 3273 (1/26/98 FBI 
Form 302 Interview of Ronald Perelman); Supp. at 3276 (3/27/98 
FBI Form 302 Interview of Ronald Perelman). Later that day, Mr. 
Durnan spoke to Mr.Perelman, who mentioned that he had had a 
call from Mr. Jordan about a job candidate. Mr. Perelman simply told 
Mr. Durnan ``let's see what we can do,'' and Mr. Perelman later told 
Mr. Jordan that they would do what they could. Mr. Jordan expressed no 
time constraint to Mr. Perelman. Ibid.
    By the time Mr. Perelman spoke to Mr. Durnan, Mr. Durnan 
had already passed on Ms. Lewinsky's resume to Ms. Seidman at 
Revlon. Supp. at 1049-50 (1/26/98 FBI Form 302 Interview of 
Jaymie Durnan). After speaking with Mr. Perelman, Mr. Durnan 
actually spoke to Ms. Seidman about Ms. Lewinsky for the first 
time. Supp. at 1054-55 (3/27/98 FBI Form 302 Interview of 
Jaymie Durnan). Upon speaking to Ms. Seidman about Ms. 
Lewinsky, Mr. Durnan did not tell Ms. Seidman that CEO Perelman 
had expressed an interest in Lewinsky. Supp. at 1055 (3/27/98 
FBI Form 302 Interview of Jaymie Durnan). Rather, he simply 
told Ms. Seidman that if she liked Ms. Lewinsky, she should 
hire her. Supp. at 1050 (1/26/98 FBI Form 302 Interview of 
Jaymie Durnan).
    According to Mr. Durnan, Mr. Perelman never said or implied 
that Ms. Lewinsky had to be hired. Indeed, Mr. Durnan concluded 
that Ms Lewinsky's hiring was not mandatory. Supp. at 1055 (3/
27/98 FBI Form 302 Interview of Jaymie Durnan). According to 
Ms. Seidman, Mr. Durnan told Ms. Seidman that he thought she 
should interview Ms. Lewinsky because he thought she was a good 
candidate. Supp. at 3634 (4/23/98 grand jury testimony of Allyn 
Seidman). In fact, there is nothing in the record to suggest 
that Ms. Seidman even knew that Mr. Perelman had any interest 
at all in Ms. Lewinsky. Supp. at 3643 (4/23/98 grand jury 
testimony of Allyn Seidman). And there's no evidence that Mr. 
Perelman instructed or suggested to Ms. Seidman that she 
conduct that interview. Supp. at 3642 (4/23/98 grand jury 
testimony of Allyn Seidman). Having seen his name in Ms. 
Lewinsky's application materials, Ms. Seidman was aware that 
Ms. Lewinsky had some connection with Mr. Jordan, but there is 
no evidence that Ms. Seidman was aware of Mr. Jordan's January 
8th call to Mr. Perelman. Supp. at 3643 (4/23/98 grand jury 
testimony of Allyn Seidman).
    In fact, the next day when Ms. Seidman interviewed Ms. 
Lewinsky, she liked her so well she decided to hire her that 
very day. Supp. at 3643 (4/23/98 grand jury testimony of Allyn 
Seidman). And when Ms. Seidman decided to hire Ms. Lewinsky, 
there is no evidence that Mr. Perelman or Mr. Durnan or Mr. 
Halperin told her to do that. Supp. at 3643 (4/23/98 grand jury 
testimony of Allyn Seidman). The decision to hire Ms. Lewinsky 
was made by Ms. Seidman completely unaware of Mr. Jordan's 
January 8 telephone call.
            c. The Referral Falsely Suggests Obstruction by Suppressing 
                    Crucial Facts
    As the foregoing narrative establishes, there was a great 
deal more to Ms. Lewinsky's job search that the Referral 
acknowledges. Indeed, the events of December and January (upon 
which the Referral's obstruction theory places such reliance) 
assume quite a different cast when the details are filled in. 
It becomes clear that the Referral has completely suppressed a 
host of pertinent facts, every one of them relevant to the 
question whether Ms. Lewinsky's job was procured at a crucial 
time in the Jones case in exchange for a false affidavit or to 
buy her silence.Among those set forth in the above narrative, 
those omitted facts include the following:
     That Ms. Lewinsky believed that her discussions 
with the President about a job were ``part of her relationship 
with'' the President. App. at 1461 (7/31/98 FBI From 302 
Interview).
     That Ms. Lewinsky raised the prospect of moving to 
New York in a September 2, 1997 e-mail message to a friend. 
App. at 2811;
     That the idea of obtaining Mr. Jordan's assistance 
may have originated with Ms. Tripp. App. at 822-24 (8/6/98 
grand jury testimony of Ms. Lewinsky);
     That Ms. Lewinsky was simultaneously pursuing New 
York jobs through avenues other than the President and his 
associates, Supp. at 11 (2/26/98 FBI Form 302 Interview of 
Kenneth Bacon);
     That those efforts occurred well before her name 
appeared on the witness list in the Jones case, Supp. at 11 (2/
26/98 FBI Form 302 Interview of Kenneth Bacon);
     That Mr. Jordan put no pressure on Mr. Peter 
Georgescu of Young & Rubicam/Burson Marsteller and that Mr. 
Georgescu told Mr. Jordan that the company ``would take a look 
at Ms. Lewinsky in the usual way.'' Supp. at 1219 (1/29/98 FBI 
Form 302 Interview of Peter Georgescu), that Mr. Georgescu's 
involvement would be ``arm's length,'' and that after he set up 
the initial interview, Ms. Lewinsky would be ``on [her] own 
from that point,'' Supp. at 1222 (3/25/98 FBI Form 302 
Interview of Peter Georgescu);
     That Ms. Lewinsky's interview with a Ms. Celia 
Berk of Burson-Marsteller was handled ``by the book'', Supp. at 
111 (3/31/98 FBI Form 302 Interview of Celia Berk), and that it 
``went through the normal stops.'' Ibid.;
     That Burson-Marsteller never offered Ms. Lewinsky 
a job;
     That Ms. Lewinsky's initial contact with American 
Express was not extraordinary because according to Ms. Ursula 
Fairbairn, there was nothing unusual for board members or 
company officers to recommend talented people for work at 
American Express, Supp. at 1087 (1/29/98 FBI Form 302 Interview 
of Ursula Fairbairn);
     That Mr. Jordan had recently made another 
employment recommendation to Ms. Fairbairn at American Express, 
Supp. at 1087 (1/29/98 FBI Form 302 Interview of Ursula 
Fairbairn);
     That Ms. Fairbairn felt that no pressure was 
exerted by Mr. Jordan, Supp. at 1087 (1/29/98 FBI Form 302 
Interview of Ursula Fairbairn);
     That the person Ms. Lewinsky interviewed with at 
American Express, an official named Mr. Thomas Schick, never 
talked to Mr. Jordan at any time during this process, Supp. at 
3521 (1/29/98 FBI Form 302 Interview of Thomas Schick);
     That Mr. Schick stated that he felt absolutely no 
pressure to hire Ms. Lewinsky, Supp. at 3521 (1/29/98 FBI Form 
302 Interview of Thomas Schick);
     That during Ms. Lewinsky's interview with Mr. 
Schick on December 23, 1997, she was told that she lacked the 
qualifications necessary for the position, App. 1480 (8/1/98 
FBI Form 302 Interview of Ms. Lewinsky);
     That Ms. Lewinsky was never offered a job at 
American Express;
     That the person Mr. Jordan first contacted at 
MacAndrews & Forbes/Revlon was an Executive Vice President 
named Mr. Richard Halperin who said that it was not unusual for 
Mr. Jordan to call him with an employment recommendation, Supp. 
at 1281 (1/26/98 FBI Form 302 Interview of Richard Halperin), 
and that he did not think there was anything unusual about Mr. 
Jordan's request, Supp. at 1286 (3/27/98 FBI Form 302 Interview 
of Richard Halperin);
     That in Mr. Jordan's call to Mr. Halperin, Mr. 
Jordan did not ``ask [Halperin] to work on any particular kind 
of timetable,'' Supp. at 1294 (4/23/98 grand jury testimony of 
Richard Halperin), and that ``there was no implied time 
constraint or requirement for fast action,'' Supp. at 1286 (3/
27/98 FBI Form 302 Interview of Richard Halperin);
     That Ms. Lewinsky's interview with Mr. Halperin 
was scheduled for December 18, 1997 in New York at her request, 
Supp. at 1282 (1/26/98 FBI Form 302 Interview of Richard 
Halperin);
     That earlier that week, Mr. Halperin, with no 
input from Mr. Jordan or MacAndrews and Forbes CEO Ronald 
Perelman, had sent Ms. Lewinsky's resume to Jaymie Durnan for 
his consideration, Ibid.;
     That Mr. Durnan became aware of Ms. Lewinsky in 
mid-December 1997, Supp. at 1053 (3/27/98 FBI Form 302 
Interview of Jaymie Durnan), and that at that time, he reviewed 
her resume and decided to interview her after the first of the 
year, Ibid.;
     That when Mr. Durnan returned from vacation, he 
had his assistant schedule an interview with Ms. Lewinsky for 
January 7, 1998, but, because of scheduling problems, he 
rescheduled the interview for the next day January 8, 1998, 
Supp. at 1049 (1/26/98 FBI Form 302 Interview of Jaymie 
Durnan);
     That Mr. Durnan's decision to interview Ms. 
Lewinsky was made independently of the decision by Mr. Halperin 
to interview her;
     That when Ms. Lewinsky interviewed with Mr. Durnan 
on the morning of January 8th, Mr. Durnan thought she was 
impressive for entry level work, Supp. at 1049 (1/26/98 FBI 
Form 302 Interview of Jaymie Durnan);
     That Mr. Durnan concluded that Ms. Lewinsky would 
have ``fit in'' at the parent company (MacAndrews & Forbes 
Holdings) but that there was nothing available at the time that 
matched her interest and so, for that reason, he referred her 
to Revlon, thinking she might be suitable for that company, 
Supp. at 1054 (3/27/98 FBI Form 302 Interview of Jaymie 
Durnan). He decided to send her resume to Revlon;
     That, as the Referral makes so much of, Mr. Jordan 
did speak to CEO Ronald Perelman on January 8, 1998, but that 
Mr. Jordan made no specific requests and did not ask Mr. 
Perelman to intervene, Supp. at 3273 (1/26/98 FBI Form 302 
Interview of Ronald Perelman); Supp. at 3276 (3/27/98 FBI Form 
302 Interview of Ronald Perelman);
     That in that call, Mr. Jordan did not say that 
there was any time constraint involved in considering Ms. 
Lewinsky for a job, Supp. at 3276 (3/27/98 FBI Form 302 
Interview of Ronald Perelman);
     That on that same day, Mr. Perelman spoke to Mr. 
Durnan about Ms. Lewinsky, but he simply told Mr. Durnan 
``let's see what we can do,'' Ibid., and later told Mr. Jordan 
only that they would do what they could, Ibid.;
     That at the time Mr. Perelman spoke to Mr. Durnan, 
Mr. Durnan had already passed Ms. Lewinsky's resume over to Ms. 
Allyn Seidman (Senior VP Corporate Communications) at Revlon, 
Supp. at 1049-50 (1/26/98 FBI Form 302 Interview of Jaymie 
Durnan);
     That upon first speaking to Ms. Seidman about Ms. 
Lewinsky, Mr. Durnan did not tell Ms. Seidman that CEO Perelman 
had expressed an interest in Lewinsky. Supp. at 1055 (3/27/98 
FBI Form 302 Interview of Jaymie Durnan). Rather, he simply 
told Ms. Seidman that if she liked ML, she should hire her, 
Supp. at 1050 (1/26/98 FBI Form 302 Interview of Jaymie 
Durnan);
     That Mr. Perelman never said or implied that Ms. 
Lewinsky had to be hired and that Mr. Durnan concluded that Ms. 
Lewinsky's hiring was not mandatory, Supp. at 1055 (3/27/98 FBI 
Form 302 Interview of Jaymie Durnan);
     That according to Ms. Seidman, Mr. Durnan told Ms. 
Seidman that he thought she should interview Ms. Lewinsky 
because he thought she was a good candidate, Supp. at 3634 (4/
23/98 grand jury testimony of Allyn Seidman);
     That according to Ms. Seidman, when she 
interviewed Ms. Lewinsky, she liked her a great deal and so 
decided to hire her that very day, Supp. at 3643 (4/23/98 grand 
jury testimony of Allyn Seidman);
     And that when Ms. Seidman decided to hire Ms. 
Lewinsky, there is no evidence that Mr. Perelman or Mr. Durnan 
or Mr. Halperin told her to do that, Supp. at 3643 (4/23/98 
grand jury testimony of Allyn Seidman).
    Every one of the foregoing facts is relevant to the case 
for obstruction of justice. Every one of them suggests that 
there was no obstruction. And every one of them is missing from 
the Referral.
            d. The Referral Omits Ms. Lewinsky's Own Statement of Her 
                    Reason for Seeking the President's Help in 
                    Obtaining A New York Job
    Ms. Lewinsky expressly told the OIC that her principal 
reason for moving to New York was her understanding--growing 
throughout 1997 and confirmed on October 6, 1997--that she 
would never work in the White House again:
    ``LEWINSKY advised that the main reason she looked for a 
job in New York was because TRIPP said that `KATE at NSC' said 
LEWINSKY would never get a job in the White House . . .'' 
LEWINSKY advised TRIPP told LEWINSKY this in an October 6, 1997 
telephone call. App. at 1419-20 (7/29/98 FBI Form 302 Interview 
of Ms. Lewinsky).
    Despite the fact that Ms. Lewinsky stated that this was her 
``main reason for look[ing] for a job in New York,'' that 
statement is nowhere to be found in the Referral. And despite 
the fact that she apparently reached this decision on October 
6, 1997, that fact too is not part of the Referral's chronology 
of ``key events.'' These two facts sharply undermine the OIC's 
insistence that the President's assistance to Ms. Lewinsky in 
obtaining a job in New York was motivated by an intent to 
obstruct justice in the Jones case's December-January discovery 
proceedings, but they are missing from the Referral.
            e. The Referral Leaves Out Direct Evidence Contradicting 
                    the Notion that Ms. Lewinsky's Job Was Procured in 
                    Exchange for Silence or for a False Affidavit
    The OIC's chronology of key events plainly intends to 
suggest that Ms. Lewinsky's Jones affidavit was signed in 
exchange for a New York job. What the chronology omits are the 
following statements made by Ms. Lewinsky showing that there 
simply was no job-for-affidavit deal of any kind:
    ``[t]here was no agreement with the President, JORDAN, or 
anyone else that LEWINSKY had to sign the Jones affidavit 
before getting a job in New York. LEWINSKY never demanded a job 
from JORDAN in return for a favorable affidavit. Neither the 
President nor JORDAN ever told LEWINSKY that she had to lie.'' 
App. at 1398 (7/27/98 FBI Form 302 Interview of Ms. Lewinsky); 
and that the only person who suggested that she sign the 
affidavit in exchange for a job was Ms. Tripp: ``TRIPP told 
LEWINSKY not to sign the affidavit until LEWINSKY had a job.'' 
App. at 1493 (8/2/98 FBI Form 302 Interview of Ms. Lewinsky);
    Ms. Tripp made Ms. Lewinsky promise her not to sign an 
affidavit without first telling Jordan ``no job, no 
affidavit.'' App. at 900 (8/6/98 grand jury testimony of Ms. 
Lewinsky);
    Ms. Tripp said to Ms. Lewinsky: ``Monica, promise me you 
won't sign the affidavit until you get the job. Tell Vernon you 
won't sign the affidavit until you get the job because if you 
sign the affidavit before you get the job they're never going 
to give you the job.'' App. at 902 (8/6/98 grand jury testimony 
of Ms. Lewinsky);
    Ms. Lewinsky reiterated that, ``as I mentioned earlier, she 
[Tripp] made me promise her that I wouldn't sign the affidavit 
until I got the job.'' App. at 933 (8/6/98 grand jury testimony 
of Ms. Lewinsky);
    ``I [Ms. Lewinsky] told Mr. Jordan I wouldn't sign the 
affidavit until I got a job. That was definitely a lie, based 
on something Linda had made me promise her on January 9th.'' 
App. at 1134 (8/20/98 grand jury testimony of Ms. Lewinsky).
    Five distinct statements by Ms. Lewinsky make Ms. Tripp the 
sole source of the job-for-affidavit notion which the OIC holds 
out as the heart of the obstruction case. Ms. Lewinsky's 
recitation of Ms. Tripp's statements are the only direct 
evidence contained in the appendices bearing on that idea. Yet 
these statements are nowhere to be found in the Referral.
            f. The Referral Suppresses Directly Exculpatory Statements 
                    of Ms. Lewinsky
    Finally, the OIC's chronology of key events fails to 
include the following three statements of Ms. Lewinsky bearing 
directly on the core of this issue. The first was made in Ms. 
Lewinsky's original proffer on February 1, 1998:

    ``Neither the Pres[ident] nor Mr. Jordan (or anyone on 
their behalf) asked or encouraged me to lie.'' App. at 718.

    The second was made in her very first interview with the 
OIC:

    [t]here was no agreement with the President, JORDAN, or 
anyone else that LEWINSKY had to sign the Jones affidavit 
before getting a job in New York. LEWINSKY never demanded a job 
from JORDAN in return for a favorable affidavit. Neither the 
President nor JORDAN ever told LEWINSKY that she had to lie.

App. at 1398 (7/27/98 FBI Form 302 Interview of Ms. Lewinsky). 
The third was made at the close of Ms. Lewinsky's grand jury 
testimony in response to a question from a grand juror:

    Q. Monica, is there anything that you would like to add to 
your prior testimony . . . anything that you think needs to be 
amplified on or clarified?
    A. . . . I would just like to say that no one ever asked me 
to lie and I was never promised a job for my silence.

App. at 1161 (8/20/98 grand jury testimony of Ms. Lewinsky).
    From initial proffer to the last minutes of her grand jury 
appearance, the testimony of Ms. Lewinsky (the OIC's principal 
witness) has been clear and consistent on this obstruction 
issue: she was never asked or encouraged to lie or promised a 
job for silence or for a favorable affidavit.
            g. Conclusion
    There was no obstruction of justice in connection with Ms. 
Lewinsky's job search. That search was undertaken long before 
her involvement in the Jones case was known to anyone. It 
involved individuals other than the President and his friends. 
It resulted in several dead ends. It was not conducted 
according to any timetable, explicit or tacit. It was completed 
without pressure of any kind and without reference to the Jones 
case.
    The Referral's insinuations to the contrary are just that. 
When the omissions and falsely suggestive juxtapositions are 
examined, the truth becomes clear: The jobs-based obstruction 
charge lacks even the most basic circumstantial support.

3. The President Did Not Have an Agreement or Understanding with Ms. 
        Lewinsky to Lie Under Oath

    The Committee appears to be considering an article of 
impeachment concerning the assertion in the Referral that 
President Clinton and Ms. Lewinsky had an understanding or 
agreement that they would lie under oath in the Jones case 
about their relationship. Ref. at 173; see also Schippers 
Presentation at 13 (``the two agreed that they would employ the 
same cover story in the Jones case''). Both the Starr Referral 
and the Majority's presentation simply ignore the fact that 
neither Ms. Lewinsky nor the President testified that they had 
any such agreement regarding their testimony in the Jones case. 
To the contrary, Ms. Lewinsky stated repeatedly that she was 
neither asked nor encouraged to lie, by the President or anyone 
else on his behalf. And Ms. Lewinsky never testified that the 
President ever discussed with her in any way the substance or 
content of his own testimony. There simply was no such 
agreement, and neither the OIC nor the majority have cited any 
testimony by either of the supposed conspirators that supports 
one. This allegation of obstruction of justice attempts to rest 
solely on the shaky basis that the President and Ms. Lewinsky 
attempted to conceal the improper nature of their relationship 
while it was on-going.
    In the Referral, Mr. Starr inexplicably never once quotes 
Ms. Lewinsky's repeated, express denials that anyone had told 
her to lie in the Jones case and therefore does not even 
attempt to reconcile them with his theory of obstruction:
     ``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 Proffer).
     ``I think I told [Tripp] that--you know at various 
times the President and Mr. Jordan had told me I had to lie. 
That wasn't true.'' App. at 942 (Ms. Lewinsky's 8/6/98 grand 
jury testimony).
     ``I think because of the public nature of how this 
investigation has been and what the charges aired, that I would 
just like to say that no one ever asked me to lie and I was 
never promised a job for my silence.'' App. at 1161 (Ms. 
Lewinsky's 8/20/98 grand jury testimony).
     ``Neither the President nor Jordan ever told 
Lewinsky that she had to lie.'' App. at 1398 (7/27/98 FBI Form 
302 Interview of Ms. Lewinsky).
     ``Neither the President nor anyone ever directed 
Lewinsky to say anything or to lie . . .'' App. at 1400 (7/27/
98 FBI Form 302 Interview of Ms. Lewinsky).
    The Referral alleges that during the course of their 
admittedly improper relationship, the President and Ms. 
Lewinsky concealed the nature of their relationship from 
others. This is hardly a remarkable proposition. The use of 
``cover stories'' to conceal such a relationship, apart from 
any proceeding, is, however unpraiseworthy, not unusual and 
certainly not an obstruction of justice. Ms. Lewinsky's 
explicit testimony clearly indicates that the conversations she 
said she had with the President about denying the relationship 
had occurred long before her involvement in the Jones case. The 
following exchange occurred between Ms. Lewinsky and a grand 
juror:

    Q. Is it possible that you had these discussions [about 
denying the relationship] after you learned that you were a 
witness in the Paula Jones case?
    A. I don't believe so. No.
    Q. Can you exclude that possibility?
    A. I pretty much can. . . .

App. at 1119 (8/20/98 grand jury testimony of Ms. Lewinsky).
    The Starr Referral cites only one specific statement that 
Ms. Lewinsky claims the President made to her regarding the 
substance of her testimony. Ms. Lewinsky testified that ``At 
some point in the conversation, and I don't know if it was 
before or after the subject of the affidavit came up, [the 
President] sort of said, `You know, you can always say you were 
coming to see Betty or that you were bringing me letters.' '' 
App. at 843 (8/6/98 grand jury testimony of Ms. Lewinsky). As 
an initial matter, the President stated in his grand jury 
testimony that he did not recall saying anything like that in 
connection with Ms. Lewinsky's testimony in the Jones case:

    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 always say that you were coming to 
see Betty or bringing me letters? Did you tell her 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. The President testified that he and Ms. Lewinsky 
``might have talked about what to do in a non-legal context at 
some point in the past,'' but that he had no specific memory of 
that conversation. App. at 569.
    Even if that conversation did take place, neither of those 
two ambiguous statements would be false, and neither statement 
was ever made by Ms.Lewinsky in the Jones case. Ms. Lewinsky 
stated on several occasions that the so-called ``cover stories'' were 
not false. In her handwritten proffer, Ms. Lewinsky stated that the 
President told her if anyone asked her about her visits to the Oval 
Office, that she could say ``she was bringing him letters (when she 
worked in Legislative Affairs) or visiting Betty Currie (after she left 
the White House).'' App. at 709 (2/1/98 Proffer). Ms. Lewinsky 
expressly told the OIC: ``There is truth to both of these statements.'' 
App. at 709 (2/1/98 Proffer) (emphasis added). Ms. Lewinsky also said 
that this conversation took place ``prior to the subpoena in the Paula 
Jones case.'' App. at 718 (2/1/98 Proffer) (emphasis added). Ms. 
Lewinsky alleged that the President mentioned these explanations again 
after the President told her she was on the witness list and reiterated 
that ``[n]either of those statements [was] untrue.'' App. at 712 (2/1/
98 Proffer) (emphasis added). Ms. Lewinsky also stated in her proffer 
that ``[t]o the best of Ms. L's memory, she does not believe they 
discussed the content of any deposition that Ms. L might be involved in 
at a later date.'' App. at 712 (2/1/98 Proffer).
    Ms. Lewinsky testified to the grand jury that she did bring 
papers to the Oval Office and that on some occasions, she 
visited the Oval Office only to see Ms. Currie:

    Q. Did you actually bring [the President] papers at all?
    A. Yes.
    Q. All right. And tell us a little about that.
    A. It varied. Sometimes it was just actual copies of 
letters. . . .

App. at 774-75 (8/6/98 grand jury testimony of Ms. Lewinsky).

    ``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 see Betty but the President 
wasn't in the office.

App. at 775 (8/6/98 grand jury testimony of Ms. Lewinsky).
    Mr. Starr and the Schippers' presentation ignore Ms. 
Lewinsky's assertion that the so-called ``cover stories'' were 
literally true, attempting instead to build an obstruction case 
on the flimsy assertions that (1) her White House job never 
required her to deliver papers for the President's signature; 
and (2) her true purpose in visiting the Oval Office was to see 
the President, and not Ms. Currie. Ref. at 176-77. In other 
words, the OIC suggests that these responses might have been 
misleading. But literal truth is a critical issue in perjury 
and obstruction cases, as is Ms. Lewinsky's belief that the 
statements were, in fact, literally true.

4. The President Did Not Obstruct Justice by Suggesting Ms. Lewinsky 
        Could File an Affidavit

    The Starr Referral alleges that President Clinton 
endeavored to obstruct justice based on Ms. Lewinsky's 
testimony that the President told her, ``Well maybe you can 
sign an affidavit'' in the Jones case. See App. at 843; Ref. at 
173. The President never told Ms. Lewinsky to file a false 
affidavit or otherwise told her what to say in the affidavit--
indeed the OIC makes no contention that the President ever told 
Ms. Lewinsky to file a false affidavit. But a suggestion that 
perhaps she could submit written testimony in lieu of a 
deposition, if he made it, is hardly improper--let alone an 
obstruction of justice. The President was aware that other 
potential deponents in the Jones case had filed affidavits in 
an attempt to avoid the expense, burden, and humiliation of 
testifying in the Jones case, and thatthere was a chance that 
doing so might enable Ms. Lewinsky to avoid testifying. Even if the 
affidavit did not disclose every possible fact regarding their 
relationship, since the Jones case concerned allegations of 
nonconsensual sexual solicitation, a truthful albeit limited affidavit 
might have allowed her to have avoided giving a Jones deposition.
    The President's testimony overwhelmingly indicates that he 
had no intention that Ms. Lewinsky file a false affidavit--and 
no testimony to the contrary has been presented. No fewer than 
eight times in his testimony to the grand jury, the President 
explained that he thought she could and would execute a 
truthful affidavit that would establish she was not relevant to 
the Jones case:

     ``Q. Did you talk with Ms. Lewinsky about what she 
meant to write in her affidavit?
    A. I didn't talk to her about her definition. I did not 
know what was in this affidavit before it was filled out 
specifically. I did not know what words were used specifically 
before it was filled out, or what meaning she gave to them. 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 exchange, there was nothing having to do with sexual 
harassment. And if she defined sexual relationship in the way 
that I think most Americans do, meaning intercourse, then she 
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 circumstances, and without the benefit of what 
Linda Tripp did to her, would have given her a chance not to be 
a witness in this case.'' App. at 521.
    which, under reasonable circumstances with fair-
minded, non-politically oriented people, would result in her 
being relieved of the burden to be put through the kind of 
testimony that, thanks to Linda Tripp's work with you and with 
the Jones lawyers, she would have been put through. I don't 
think that's dishonest, I 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 been over for many, 
many months by the time this incident occurred.'' App. at 568-
69.
     ``I said I thought this could be a truthful 
affidavit. And when I read it, since that's the way I would 
define it, since--keep in mind, she was not, she was not bound 
by this sexual relations definition, which is highly unusual; I 
think anybody would admit that. When she used a different term, 
sexual relationship, if she meant by that what most people 
meant by it, then that is not an untruthful statement.'' App. 
at 474-75.
     ``I believe that the common understanding of the 
term, if you say two people are having a sexual relationship, 
most people believe that includes intercourse. So, if that's 
what Ms. Lewinsky thought, then this is a truthful affidavit. I 
don't know what was in her mind. But if that's what she 
thought, the affidavit is true.'' App. at 475.
     ``Q. Did you tell her to tell the truth?
     ``A. Well, I think the implication was she would tell the 
truth. 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 might get her out of having to 
testify. Now, it obviously wouldn't if the Jones people knew 
this, because they knew that if they could get this and leak 
it, it would serve their larger purposes, even if the judge 
ruled that she couldn't be a witness in the case. The judge 
later ruled she wouldn't be a witness in the case. The judge 
later ruled the case had no merit.
    So, I knew that. And did I hope she'd be able to get out of 
testifying on an affidavit? Absolutely. Did I want her to 
execute a false affidavit? No, I did not.'' App. at 571.
     ``I believe at the time that she filled out this 
affidavit, if she believed that the definition of sexual 
relationship was two people having intercourse, then this is 
accurate. And I believe that is the definition that most 
ordinary Americans would give it.
    If you said Jane and Harry have a sexual relationship, and 
you're not talking about people being drawn into a lawsuit and 
being given definitions, and then a great effort to trick them 
in some way, but you are just talking about people in ordinary 
conversations, I'll bet the grand jurors, if they were talking 
about two people they know, and said they have a sexual 
relationship, they meant they were sleeping together; they 
meant they were having intercourse together.'' App. at 473.

There is simply no evidence that contradicts the President's 
stated intention that the affidavit be limited but truthful. In 
other words, there is simply no evidence that the President had 
any ``corrupt'' intent, which is a requisite element of 
obstruction of justice.
    Ms. Lewinsky's repeated statements that she was not asked 
or encouraged to lie similarly negate the allegation that the 
President asked or encouraged her to file a false affidavit, 
and yet Mr. Starr omitted these statements from his Referral:

     ``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 Proffer).
     ``I think I told [Tripp] that--you know at various times 
the President and Mr. Jordan had told me I had to lie. That 
wasn't true.'' App. at 942 (8/6/98 grand jury testimony).
     ``I think because of the public nature of how this 
investigation has been and what the charges aired, that I would 
just like to say that no one ever asked me to lie and I was 
never promised a job for my silence.'' App. at 1161 (8/20/98 
grand jury testimony).
     ``Neither the President nor Jordan ever told 
Lewinsky that she had to lie.'' App. at 1398 (7/27/98 FBI Form 
302 Interview of Ms. Lewinsky).
     ``Neither the President nor anyone ever directed 
Lewinsky to say anything or to lie . . .'' App. at 1400 (7/27/
98 FBI 302 Form Interview of Ms. Lewinsky).

    Furthermore, Ms. Lewinsky states that she believed, when 
she executed the affidavit, that it was accurate given what she 
believed to be the definition of a ``sexual relationship'':

     ``Ms. L[ewinsky] was comfortable signing the 
affidavit with regard to the sexual relationship because she 
could justify to herself that she and the Pres[ident] did not 
have sexual intercourse.'' App. at 718 (2/1/98 Proffer).
     ``Lewinsky said her use of the term ``having sex'' 
means having intercourse . . .'' App. at 1558 (8/19/98 FBI 302 
Form Interview of Ms. Lewinsky).
     ``I never even came close to sleeping with [the 
President] . . . We didn't have sex . . . Having sex is having 
intercourse . . . Having sex is having intercourse. That's how 
most people would--'' Supp. at 2664 (Linda Tripp tape of a 
conversation between Ms. Lewinsky and Ms. Tripp).149
---------------------------------------------------------------------------
    \149\ A friend of Ms. Lewinsky's also testified that she believed 
that Ms. Lewinsky did not lie in her affidavit based on her 
understanding that when Ms. Lewisnky referred to ``sex'' she meant 
intercourse. Supp. at 4597 (6/23/98 grand jury testimony of Ms. Dale 
Young).

    Moreover, Ms. Lewinsky told the OIC that she believed the 
President himself made such a distinction: ``After having a 
relationship with him, Lewinsky deduced that the President, in 
his mind, apparently does not consider oral sex to be sex. Sex 
to him must mean intercourse.'' App. at 1558 (8/19/98 FBI 302 
Form Interview of Ms. Lewinsky).
    In short, the President never told Ms. Lewinsky what to say 
in the affidavit, he knew that Ms. Lewinsky had her own lawyer 
to protect her interests, and he expressly declined the 
opportunity to review the content of the affidavit, according 
to Ms. Lewinsky, see App. at 1489 (8/2/98 FBI Form 302 
Interview of Ms.Lewinsky). The President repeatedly testified 
that he did not intend Ms. Lewinsky to file a false affidavit, and the 
above-referenced statements of Ms. Lewinsky indicate that, at the time 
she executed it, she believed her affidavit was literally true.
    The OIC's allegation depends on the argument that it 
somehow was an obstruction of justice to fail to ensure that 
Ms. Lewinsky volunteered in her affidavit all information that 
the Jones lawyers might have used to attack the President in 
their politically motivated lawsuit. There simply is no such 
duty under the law, nor does the OIC cite any basis for such a 
duty. Civil litigation is based upon an adversarial process of 
determining truth, and a party is under no affirmative 
obligation to assist an opponent in every way it can.
    The OIC also claims that the President obstructed justice 
by allegedly suggesting a misleading answer to a hypothetical 
question posed to him by Ms. Lewinsky. Ref. at 178. Ms. 
Lewinsky told the grand jury that in a phone conversation with 
the President on January 5, she told him that Mr. Carter had 
asked her some sample questions that she was unsure of how to 
answer. App. at 912-13 (8/6/98 grand jury testimony of Ms. 
Lewinsky). One of the questions was how she got her job at the 
Pentagon. Id. Ms. Lewinsky told the grand jury that ``when I 
told him the questions about my job at the Pentagon, he said, 
``Well, you could always say that the people in Legislative 
Affairs got it for you or helped you get it.'' And there was a 
lot of truth to that. I mean, it was a generality, but that 
was--I said `Well that's a good idea. Okay.' '' App. at 917 (8/
6/98 grand jury testimony of Ms. Lewinsky) (emphasis added). In 
her written proffer, Ms. Lewinsky also told the OIC that the 
President told her she could say ``The people in Legislative 
Affairs helped you.'' App. at 717 (2/1/98 Proffer). She also 
stated, ``this is, in fact, part of the truth--but not the 
whole truth.'' Id. A third time, ``Lewinsky advised [the OIC] 
that that explanation was true, but it was not the entire 
truth.'' App. at 1489 (8/2/98 FBI Form 302 Interview of Ms. 
Lewinsky).
    The OIC claims that this conversation recounted by Ms. 
Lewinsky was an obstruction of justice because the President 
encouraged Ms. Lewinsky to file a false affidavit. This 
conclusion ignores the fact that the conversation recounted by 
Ms. Lewinsky had nothing to do with her affidavit. But that is 
only the first problem with the OIC's claim. The Referral also 
failed to include any of Ms. Lewinsky's three separate 
statements that what the President allegedly had told her to 
say had ``a lot of truth'' to it. And, in claiming that that 
story was misleading because Ms. Lewinsky ``in fact had been 
transferred because she was around the Oval Office too much,'' 
Ref. at 178, the OIC ignored the fact that the question asked 
was not why Ms. Lewinsky was transferred out of the White House 
but rather how she got her job at the Pentagon.
    Finally, the OIC suggests that the President was 
``knowingly responsible'' for a misstatement of fact to a 
federal judge because he failed to correct a statement made by 
his lawyer to the court in the Jones deposition. The President 
testified to the grand jury that the lawyers' argument at the 
start of the deposition ``passed [him] by.'' There is of course 
no legal obligation imposed on a client to listento every word 
his attorney says, and there is no evidence that the President focused 
on or absorbed his attorney's remark. Without any evidence whatsoever, 
the OIC asserts that the President knew what was said, knew he was 
somehow responsible for it, knew it was incorrect, and ignored a duty 
to correct it. Yet, again, this is a wholly unsupported allegation of 
obstruction of justice.

5. The President Did Not Attempt To Influence Betty Currie's Testimony

    The OIC charges that President Clinton obstructed justice 
and improperly attempted to influence a witness when he spoke 
with Ms. Currie the day after his deposition in the Jones case. 
The OIC's claims are the product of extraordinary overreaching 
and pejorative conjecture--a transparent attempt to draw the 
most negative inference possible about lawful conduct.
    The President's actions could not as a matter of law give 
rise to either charge because Ms. Currie was not a witness in 
any proceeding at the time he spoke with her; there was no 
reason to suspect she would play any role in the Jones case; 
her name had not appeared on any of the Jones witness lists; 
she had not been named as a witness in the Jones case; and the 
discovery period in the case was down to its final days. Nor 
did the President have any reason to suspect that the OIC had 
embarked on a wholly new phase of its four-year investigation, 
one in which Ms. Currie would later be called by the OIC as a 
witness. To obstruct a proceeding or tamper with a witness, 
there must be both a proceeding and a witness. Here, there was 
(as far as the President knew) neither. Furthermore, Ms. Currie 
testified that she felt no pressure to agree with the questions 
that the President asked her. Despite the Referral's suggestion 
to the contrary, there was no reason the President should not 
have spoken with Ms. Currie about Ms. Lewinsky.
    Indeed, it is hardly surprising that the President would 
have reached out to Ms. Currie after the deposition. As he 
knew, Ms. Currie was Ms. Lewinsky's friend. The President had 
just faced unexpected, detailed, and hostile questioning from 
fierce political opponents in the Jones case about Ms. 
Lewinsky. He was obviously puzzled at being asked such precise, 
and in some cases such bizarrely inaccurate, questions about a 
past secret relationship. The President also explained that he 
was expecting media questions, based on the Drudge Report 
indicating that Newsweek was pursuing the story of his 
relationship with Ms. Lewinsky. The President testified:

    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 this story breaking, trying 
to ascertain what the facts were, trying to ascertain what 
Betty's perception was. I remember that I was highly agitated, 
understandably, I think.

App. at 593. He had no one to whom he could talk freely about 
the relationship, but he nonetheless had a desire to find out 
what might have transpired with Ms. Lewinsky (e.g., was she--to 
Ms. Currie's knowledge--aiding his opponents in the Jones 
case?) and to test whether his recollection was accurate, since 
he had not anticipated or prepared for such detailed questions.
    The President explained to the grand jury, ``[W]hat I was 
trying to determine was whether my recollection was right and 
that she was always in the office complex when Monica was 
there. . . . I was trying to get the facts down. I wastrying to 
understand what the facts were. . . . I was trying to get information 
in a hurry. I was downloading what I remembered.'' App. at 507-08. It 
was his belief that Ms. Currie was unaware that he had engaged in 
improper activity with Ms. Lewinsky, since she had not been in the 
White House complex when Ms. Lewinsky had visited on weekends in 1995-
96, and he wanted to reassure himself that that was so. He also 
recalled that in 1997, after the improper relationship ended, he had 
asked Ms. Currie to try always to be present when Ms. Lewinsky visited. 
He wanted to inquire whether that was also Ms. Currie's recollection. 
The President testified ``I was not trying to get Betty Currie to say 
something that was untruthful. I was trying to get as much information 
as quickly as I could.'' App. at 508.
    Ms. Currie was also asked about this conversation with the 
President in the grand jury, and her testimony supports the 
President's assertion that he was merely trying to gather 
information. First, Ms. Currie stated in her first interview 
with the OIC that ``Clinton then mentioned some of the 
questions he was asked at his deposition. Currie advised the 
way Clinton phrased the queries, they were both statements and 
questions at the same time.'' Supp. at 534 (1/24/98 FBI Form 
302 Interview of Ms. Currie). The interview further reflects 
that ``Currie advised that she responded `right' to each of the 
statements because as far as she knew, the statements were 
basically right . . .'' Id. Ms. Currie was asked in the grand 
jury:

    Q. You testified with respect to the statements as the 
President made them, and, in particular, the four statements 
that we've already discussed. You felt at the time that they 
were technically accurate? Is that a fair assessment of your 
testimony?
    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 (7/22/98 grand jury testimony of Ms. Currie).

    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 when he told you those 
statements?
    A. None whatsoever. 
    Q. What did you think, or what was going through your mind 
about what he was doing?
    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?
    A. Correct.
    Q. Did you feel any pressure to agree with your boss?
    A. None.

Supp. at 668 (7/22/98 grand jury testimony of Ms. Currie) 
(emphasis added). Ms. Currie also testified, ``I said `Right' 
to him because I thought they were correct, `Right, you were 
never alone with Monica.' . . .'' Supp. at 665 (7/22/98 grand 
jury testimony of Ms. Currie).
    Ms. Currie's testimony supports the President's assertion 
that he was looking for information as a result of his 
deposition. Neither the testimony of Ms. Currie nor that of the 
President--the only two participants in this conversation--
supports the inference that the conversation had an insidious 
purpose. Furthermore, at the time he discussed Ms. Lewinsky 
with Ms. Currie, Ms. Currie was not expected to be, nor was 
she, a witness. When the President became aware that the OIC 
was investigating his relationship with Ms. Lewinsky, he 
repeatedly told Ms. Currie to tell the truth: ``I said, Betty, 
just don't worry about me. Just relax, go in there, and tell 
the truth.'' App. at 591. The President told the grand jury:

    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 her mother was 
in the hospital. I was trying to do--to make her understand 
that I didn't want her to, to be untruthful to the grand jury. 
And if her memory was different than mine, it was fine, just go 
in there and tell them what she thought. So, that's all I 
remember.

    App. at 593. And when questioned by the OIC shortly 
thereafter, Ms. Currie in fact recounted what she knew about 
Ms. Lewinsky, unaffected by the conversation at issue. Neither 
participant in the conversation intended that it affect her 
testimony, and it did not. Again, the charge is without merit.

6. The President Did Not Attempt To Influence the Testimony of 
        ``Potential'' Grand Jury Witnesses Through His Denials

    The Referral also alleges that the President endeavored to 
obstruct justice by denying to several of his aides that he had 
a sexual relationship with Ms. Lewinsky. Ref. at 197. The 
statements made to the Presidential aides (Messrs. John 
Podesta, Erksine Bowles, Harold Ickes, and Sidney Blumenthal) 
cited in the Referral were made either on the day the Lewinsky 
story broke (January 21, 1998) or within a few days of that 
date. Those statements were concurrent in time with the 
President's repeated public statements to the country denying 
``sexual relations'' with Ms. Lewinsky and were virtually 
identical in substance. Having made this announcement to the 
whole country on television, it is simply absurd to believe 
that he was somehow attempting to corruptly influence the 
testimony of aides when he told them virtually the same thing 
at the same time.
    The Supreme Court has stated that in order to constitute 
obstruction of justice, actions must be taken ``with an intent 
to influence judicial or grand jury proceedings.'' United 
States v. Aguilar, 515 U.S. 592, 599 (1995). There is no 
evidence that the President had the intent to do so when he 
made the alleged statements to these four individuals. The 
President spoke with the individuals regarding the allegations 
that had been made against him because of the long-standing 
professional and personal relationships that he shared with 
them and the responsibility that he felt to address the 
concerns that he assumed they would have after hearing such 
allegations. There is simply no evidence that he spoke with 
them for any other reason, and certainly not that he spoke with 
them intending to obstruct any proceeding.
    The mere repetition of a public denial to these aides could 
not possibly affect the grand jury process. The testimony 
elicited from these aides in the grandjury regarding the 
President's statements was hearsay. The aides were not witnesses to any 
sexual activity, and they had no first-hand knowledge pertinent to the 
denials. The President never attempted to influence their testimony 
regarding their own personal knowledge or observations. Any testimony 
about the President's remarks was merely cumulative of the President's 
own nationally broadcast statements. The suggestion that the President 
violated section 1503's prohibition on ``influenc[ing], obstruct[ing], 
or imped[ing] the due administration of justice'' is groundless.
    Furthermore, the Referral cites no evidence, and there is 
none, for the assertion that the President knew these 
individuals were going to be grand jury witnesses at that very 
early stage of the investigation. The Referral does not allege 
that any of them were under subpoena when the statements were 
made--indeed they were not. The Referral cites the President's 
testimony that he knew it was possible that if he provided 
people with factual details surrounding the allegations that 
had been made that they might be called as witnesses. But his 
point was that he did not want to make them into witnesses 
through admissions, not that he believed they would be. As the 
Supreme Court has made clear, the possibility that one may or 
may not be a witness is simply insufficient to establish 
obstruction in this context. ``[I]f the defendant lacks 
knowledge that his actions are likely to affect the judicial 
proceeding, he lacks the requisite intent to obstruct.'' United 
States v. Aguilar, supra, 515 U.S. at 599 (emphasis added). 
Because of this requirement, the Supreme Court has held that 
false statements made to an individual who merely has the 
potential to be a witness, even if the individual is a federal 
investigative or law enforcement agent, do not constitute 
obstruction of justice: ``We do not believe that uttering false 
statements to an investigating agent who might or might not 
testify before a grand jury is sufficient to make out a 
violation of the catchall provision of Sec. 1503 [of the 
obstruction of justice statute].'' Id. at 600. Thus, the 
Referral fails to allege the most essential elements of 
obstruction.
    Nor is there evidence that the President's statements 
constituted ``witness tampering'' in violation of section 1512. 
To make out such a violation, the government must show that the 
behavior knowingly occurred through one of the specific means 
set forth in the statute: intimidation, physical force, 
threats, misleading conduct or corrupt persuasion--with intent 
to influence testimony in a legal proceeding. None of those 
requisite means is present or even alleged in the Starr 
Referral. The efforts must be aimed specifically at obstructing 
a known legal proceeding. See United States v. Wilson, 565 F. 
Supp. 1416, 1431 (S.D.N.Y. 1983). As explained above, any 
statements made to those individuals were made for reasons 
wholly separate from and unrelated to any legal proceedings. 
Again, there is simply no evidence that when the President 
repeated to aides substantially the same statement he made to 
the whole country that he had any thought whatsoever of the 
grand jury proceedings, let alone the corrupt intent to 
influence the grand jury through the testimony of Presidential 
aides who were not even witnesses at that time. Under the 
Referral's theory, the OIC could have subpoenaed to thegrand 
jury any citizen who heard the President's denial and thus have created 
a new violation of law.
    In sum, the President's statements to his aides could not 
have obstructed justice as a matter of law. Their legal duty 
was to answer the prosecutor's questions and to tell the truth 
honestly as they knew it, and the President's comments in no 
conceivable way affected that duty.
    The OIC suggests that the President's delay in 
acknowledging a relationship with Ms. Lewinsky somehow 
contributed to an obstruction of justice because it affected 
how the prosecutors would conduct the investigation. This claim 
is unfounded, as a matter of law. The President had no legal 
obligation to appear before the grand jury absent compulsion 
and every reason not to do so, given the OIC's tactics, illegal 
leaking, and manifest intent to cause him damage.

                VIII. The President Did Not Abuse Power

    The Independent Counsel's allegation that the President's 
assertions of privilege constituted an abuse of power is 
baseless and disingenuous. As the Framers recognized, 
impeachment is justified only for ``the abuse or violation of 
some public trust.'' 150 The record is devoid of any 
such improper conduct, a conclusion that Mr. Schippers 
apparently also reached as demonstrated by his not including an 
abuse of office charge in his presentation to the Committee. To 
the contrary, the record demonstrates that the White House 
acted at all times based upon a good faith belief that its 
narrow assertions of privilege were appropriate and its claims 
were well founded in existing law. The OIC misstates the record 
with respect to the litigation over privilege and entirely 
omits reference to the occasions when the White House privilege 
claims were vindicated.
---------------------------------------------------------------------------
    \150\ Federalist 65 at 331.
---------------------------------------------------------------------------
    From the inception of the Lewinsky investigation, the OIC's 
objective was clear--to send Congress information that it 
believed constituted grounds for impeachment. Public 
commentators and members of Congress alike raised the issue of 
impeachment within days of the investigation becoming 
public.151 Indeed, Congressman Barr had already 
introduced a resolution on impeachment even before the Lewinsky 
investigation began.152 Thus, from the outset, the 
White House reasonably viewed impeachment proceedings as an 
imminent possibility. With that in mind, the President 
consulted with his lawyers and senior staff, and they consulted 
among themselves, about political and strategic issues with the 
expectation that these conversations were, and would remain, 
confidential.153 The President had every right and 
institutional obligation to seek to preserve the 
confidentiality of these strategic deliberations.
---------------------------------------------------------------------------
    \151\ See, e.g., ``Bryant Suggests Clinton Should Consider Stepping 
Aside,'' Gannett News Service (January 27, 1998); ``President Imperiled 
As Never Before,'' The Washington Post (January 22, 1998); ``Clinton 
Accused: Guide to Impeachment,'' The Independent (January 23, 1998) at 
8.
    \152\ H. Res. 304, 105th Cong., 1st Sess. (November 5, 1997). See 
``17 in House Want Clinton Impeached,'' The Washington Times (November 
6, 1997) at A3.
    \153\ Declaration of Charles F.C. Ruff (hereinafter, ``Ruff 
Dec.''), at para. 19-22, 53 (dated March 17, 1998), filed in In re 
Sealed Case, Misc. No. 98-95 (D.D.C.); United States v. Nixon, 418 U.S. 
683, 708 (1974).
---------------------------------------------------------------------------
    At no time was executive privilege asserted with any 
intention of preventing White House staff from providing the 
grand jury with the facts surrounding the President's 
relationship with Ms. Lewinsky. Rather, it was asserted to 
protect the confidentiality of conversations dealing with the 
President's official functions as he carried out his duties 
under the very real threat of impeachment. These conversations 
included discussions about whether and to what extent 
privileges should be asserted. White House Counsel consistently 
attempted to ensure that the OIC had all of the information 
necessary to complete its investigation. Because the OIC 
adopted the wholly untenable and absolutist position that no 
executive privilege existed whatsoever with respect to its 
investigation, the White House had no choice but to assert 
privilege as narrowly as possible and allow the courts to 
uphold precedent and resolve the legal dispute between the 
White House and the OIC.
    In short, White House claims of privilege have always 
reflected a fundamental and good faith disagreement over legal 
questions. The sole reason for the assertion of privilege was 
to protect this President and future Presidents from 
unwarranted intrusions into confidential communications among 
senior staff.

 A. The President Properly Asserted Executive Privilege to Protect the 
            Confidentiality of Communications with His Staff

    It is indisputable that the President of the United States, 
if he is to perform his constitutionally assigned duties, must 
be able to obtain the most candid, forthright, and well-
informed advice from a wide range of advisors on an even wider 
array of subjects on a daily basis. Only last year, the United 
States Court of Appeals for the District of Columbia Circuit 
reaffirmed that principle, emphasizing the importance of 
preserving the confidentiality of presidential communications 
``to ensure that presidential decision-making is of the highest 
caliber, informed by honest advice and full knowledge.'' In re 
Sealed Case, 121 F.3d 729, 750 (D.C. Cir. 1997). The subjects 
over which the President is entitled to receive confidential 
advice include national security interests but--contrary to the 
unsupported view of the OIC--are not limited to issues of 
national security.154 Under these well-established 
principles, the OIC's apparent belief that the assertion of 
executive privilege over discussions about political and 
strategic decisions in the face of impending impeachment 
proceedings is per se an abuse of power is ludicrous. Indeed, 
Chief Judge Johnson upheld the White House's claim that the 
communications over which it was asserting privilege were 
presumptively privileged and thus required the OIC to make a 
showing of need sufficient to overcome the 
privilege.155 Although she ultimately determined 
that the OIC had made that showing, Chief Judge Johnson never 
suggested in any way that the President's assertion of 
executive privilege was groundless, improper, made in bad 
faith, or in any way an ``abuse of power.''
---------------------------------------------------------------------------
    \154\ In re Grand Jury Proceedings, 5 F. Supp.2d 21 (D.D.C. 1998); 
see also United States v. Nixon, 418 U.S. 683, 711 (1974); In re Sealed 
Case, 121 F.3d 729, 745, 750-52 (D.C. Cir. 1997).
    \155\ In re Grand Jury Proceedings, 5 F. Supp.2d at 28-29.
---------------------------------------------------------------------------

1. The White House Made Every Effort at Accommodation and Ultimately 
        Asserted the Privilege as Narrowly as Possible

    From the outset, the White House Counsel believed that the 
OIC's invasion of the President's confidential communications 
with his advisors was both inappropriate and unnecessary. 
Counsel reasonably relied upon the long-standing principle that 
a President is entitled to receive the frank, candid, and 
confidential advice that is essential to the execution of his 
constitutional, official, statutory, and other 
duties.156 Nevertheless, White House Counsel 
recognized its obligation to try to reach an accommodation with 
the OIC, as it had on numerous other occasions in this and 
other Independent Counsel investigations as well as 
Congressional inquiries. Thus, the White House attempted in 
good faith to initiate a process by which the OIC could obtain 
all of the information it deemed necessary for a prompt 
resolution to its investigation, without unnecessarily 
intruding into the domain of confidential presidential 
communications. This is precisely the process in which the 
White House attempted to engage when the OIC subpoenaed Bruce 
Lindsey, Assistant to the President and Deputy 
Counsel.157
---------------------------------------------------------------------------
    \156\United States v. Nixon, 418 U.S. at 711; In re Sealed Case, 
121 F.3d at 750.
    \157\ Ruff Dec. at para. 31.
---------------------------------------------------------------------------
    Prior to Mr. Lindsey's grand jury appearance, White House 
Counsel met with the OIC on February 3, 1998, to discuss ways 
in which to ensure the OIC received all of the information it 
needed without unnecessarily encroaching upon areas subject to 
executive privilege.158 At that time and 
subsequently, the White House made clear that no factual 
information regarding the President's relationship with Ms. 
Lewinsky would be withheld on the basis of privilege. 
Unfortunately, the OIC refused all efforts to devise a workable 
compromise--insisting on an absolutist position that no 
privilege applied.159 The White House sought to 
protect internal discussions about how to handle press 
inquiries, what political strategies to consider, and how to 
advise the President concerning available political 
strategies.160 The White House also sought to 
protect the discussions about legal strategy, i.e., whether and 
to what extent to assert various privileges, and the political 
consequences of such strategies.161 None of this 
information was critical to the OIC's understanding of the 
President's relationship with Ms. Lewinsky or any of the 
factual allegations it was investigating. Rather, the 
discussions related to the President's capacity to govern in 
the face of an ongoing investigation--to pursue his legislative 
agenda, to ensure the continued leadership of the United States 
in the world community, and to maintain the confidence and 
support of the people who elected him.162
---------------------------------------------------------------------------
    \158\ Id, at para.para. 31-33.
    \159\ Id, at para. 37.
    \160\ Id, at para.para. 29-30.
    \161\ Id, at para.para. 26-30.
    \162\ Id, at para.para. 19-25.
---------------------------------------------------------------------------
    Despite the admittedly private nature of the Lewinsky 
allegations, the White House Counsel's Office was faced with 
strategic decisions involving official duties of the 
Presidency. For example, advisors had to deliberate among 
themselves and provide advice to the President about responses 
to the daily press inquiries, the State of the Union Address 
which was to be given within days of the public disclosure of 
the investigation, and the visit by Prime Minister Blair with 
its accompanying press conference.163 While these 
deliberations were important to the functioning of the 
Presidency and illustrated the President's need for candid 
advice, they were not relevant to the OIC's investigation. The 
OIC's concerted effort to learn about the internal 
deliberations of White House Counsel and other advisors on 
political and legal strategy--whether to assert privilege or 
not, how to handle the voluminous media inquiries, whether to 
refer to the Lewinsky matter during the State of the Union, and 
how to assure foreign leaders that the leadership of the 
country would be stable--does not render the substance of those 
deliberations relevant.
---------------------------------------------------------------------------
    \163\ Id, at para.para. 23-25.
---------------------------------------------------------------------------
    Shortly after this meeting with the OIC on February 3, the 
White House reiterated its willingness to ensure that any 
facts--as opposed to internal deliberations--would be made 
available to the OIC.164 On March 4, the White House 
again proposed to allow senior advisors to testify about any 
factual information they had about the Lewinsky matter, 
including any information the President had communicated to 
them. Id. The only communication with non-attorneys sought to 
be protected were strategic deliberations and discussions. Id. 
The OIC flatly rejected this and all other overtures aimed at 
resolving the sensitive issue of executive privilege. Id.
---------------------------------------------------------------------------
    \164\ Id, at para.para. 45-51.
---------------------------------------------------------------------------
    White House Counsel had hoped to resolve potential 
privilege issues related to Mr. Lindsey and other senior 
advisors by asking the OIC to describe with particularity 
possible areas of inquiry so that counsel could determine 
whether they would implicate privileged 
information.165 Given Mr. Lindsey's role as a key 
advisor and counsel to the President on a variety of issues, as 
well as his service as an intermediary between the President 
and his private counsel, the White House was justified in 
raising its concerns with the OIC.166 As noted, 
however, the OIC flatly rejected the request.167 The 
OIC had no interest in resolving the issues of privilege with 
the White House by a reasonable compromise.
---------------------------------------------------------------------------
    \165\ Id, at para. 32.
    \166\ Id, at para. 41.
    \167\ Id, at para. 51.
---------------------------------------------------------------------------
    Instead, the OIC filed motions to compel the testimony of 
Mr. Lindsey and other senior staff. Id. In the face of this 
absolutist position by the OIC, White House Counsel believed it 
had no choice but to proceed to seek a judicial resolution of 
the executive privilege claims. This decision was not made 
lightly, but was made with full recognition that it would not 
be politically popular and would subject the White House to 
accusations of delay. Nevertheless, because of the grave 
institutional concerns, i.e., to protect the ability of this 
President and future Presidents to receive confidential advice, 
White House Counsel felt obligated to recommend that the 
President assert privilege over a few narrow conversations. 
Thus, White House Counsel notified the President of the 
privilege issues, explained the OIC's unwillingness to engage 
in the traditional accommodation process, and recommended that 
he invoke the presidential communications privilege to protect 
the institutional needs of the Presidency. The President 
accepted this recommendation and authorized the Counsel to 
assert the privilege.168 Thus, contrary to the OIC's 
allegations, the President's decision was not made on his own 
initiative to delay the investigation, but was made on the 
recommendation of counsel to protect the Presidency as an 
institution.
---------------------------------------------------------------------------
    \168\ Id, at para. 56.
---------------------------------------------------------------------------
    It is important to note that the scope of the assertion was 
narrow: these communications ultimately involved the limited 
testimony of only three senior Counsel's Office lawyers. Each 
testified fully with respect to issues that did not implicate 
confidential advice and decision-making. Many current and 
former White House staff members, including many senior 
advisors, testified without asserting any privilege whatsoever. 
The ensuing litigation on executive privilege was based on 
principles that were critical to the institution of the 
Presidency.

2. The Court's Ruling Upholding the White House's Assertion of 
        Executive Privilege Squarely Rebuts the OIC's Abuse of Power 
        Claim

    Despite the narrowness of the privilege asserted by the 
White House, the OIC took the position that executive privilege 
was inapplicable in the face of a grand jury subpoena because 
the discussions the OIC sought related in some way to the 
President's personal conduct. The OIC argued, therefore, that 
it did not have to demonstrate any need for the information and 
that it was entitled to immediate and full disclosure of all 
strategic and political communications.169 This 
position, which was squarely at odds with decisions of the 
Supreme Court and the D.C. Circuit, was rejected by Chief Judge 
Johnson.
---------------------------------------------------------------------------
    \169\ Cf., In re Sealed Case, 121 F.3d at 744-45 (explaining need 
requirement set forth in United States v. Nixon).
---------------------------------------------------------------------------
    She upheld the White House's claim that the communications 
over which it was asserting privilege were indeed presumptively 
privileged and flatly rejected the OIC's absolutist position. 
In re Grand Jury Proceedings, 5 F. Supp.2d 21, 25-27 (D.D.C 
1998). Having found that the communications were presumptively 
privileged, the Court required the OIC to make a showing of 
need sufficient to overcome the privilege. Id. at 28-29. After 
reviewing the OIC's factual proffer, the Court concluded that 
the OIC had met its burden with respect to the areas identified 
to the Court. At no time, however, did the Court suggest that 
the President's assertion of executive privilege was 
groundless, improper, made in bad faith, or in any way an abuse 
of power.170
---------------------------------------------------------------------------
    \170\ The Court of Appeals in dicta also validated the 
appropriateness of the executive privilege claim, although the White 
House appeal was limited to the attorney-client privilege issue and did 
not include the executive privilege claim. See In re Lindsey, 158 F.3d 
1263, 1277 (D.C. Cir. 1998) (``information gathered in preparation for 
impeachement proceedings and conversations regarding strategy are 
presumably covered by exective, not attorney-client, privilege'').
---------------------------------------------------------------------------
    We respectfully suggest that the White House's claim of 
executive privilege furnishes no ground for impeachment. The 
facts the OIC selectively omits from the Referral, as recounted 
above, unequivocally support the legitimacy of the White 
House's decision to raise the issue of executive privilege. The 
OIC not only continues to reiterate its claim that executive 
privilege is inapplicable in a grand jury context but also 
omits the critical fact that Judge Johnson validated the White 
House's assertion of the privilege and required the OIC to 
demonstrate a sufficient showing of need before it obtained the 
information.

 B. The President Was Entitled to Assert Attorney-Client Privilege to 
Protect the Right of Presidents to Request and Receive Confidential and 
              Candid Legal Advice from White House Counsel

    Impeachment is, of course, the ultimate threat to a 
President's constitutional status. It is hardly surprising, 
therefore, that the President would need to consult with his 
staff to discuss how to address that threat. Because 
impeachment implicates the interests of the President in his 
official capacity as opposed to his personal capacity, he must 
rely on Counsel's Office lawyers to advisehim. White House 
Counsel took the position that, in the impeachment context, the 
government attorney-client privilege should apply to communications 
between the President or his advisors and the Counsel's Office on 
matters relating to his official duties. This advice was based on sound 
policy: without an assurance of confidentiality, the President's access 
to official legal advice suffers because both he and his lawyers 
necessarily avoid communicating candidly if their discussions may be 
disclosed. It is hardly ``abuse of office'' for a President to follow 
advice based on a well-founded interpretation of law and important 
institutional considerations.

1. The Governmental Attorney-Client Privilege Claim Was Grounded in the 
        Law of the D.C. Circuit and the Supreme Court

    The OIC challenged sound legal authority recognizing the 
attorney-client privilege in the governmental context and 
sought to compel access to all confidential communications 
between the President and his government lawyers. The White 
House Counsel's decision to assert the governmental attorney-
client privilege was based upon a careful consideration of the 
applicable law, the likelihood of impeachment proceedings, and 
the important ethical and institutional obligations of the 
Counsel's Office to the Office of the President.
    For centuries, the law has recognized that the attorney-
client privilege is absolute in protecting the confidentiality 
of attorney-client communications. The D.C. Circuit has also 
upheld the attorney-client privilege in the context of 
confidential communications between government lawyers and the 
government officials they represented. See, e.g., Mead Control, 
Inc. v. Dept. of the Air Force, 566 F.2d 242 (D.C. Cir. 1977). 
Courts recognize that a government official, like every other 
citizen, must be able to provide information to and seek advice 
from government lawyers without fear of public disclosure to 
ensure well-advised and fully-informed decision-making.
    A recent Supreme Court case, which was decided during the 
courts' consideration of the White House's privilege claims, 
rejected the OIC's sweeping attack on the attorney-client 
privilege and further supported the White House's position. In 
Swidler & Berlin v. United States, __ U.S. __, 1998 U.S. Lexis 
4214, *7 (1998), the OIC argued that the personal attorney-
client privilege should automatically give way to the needs of 
a criminal investigation. The Court rejected the OIC's position 
and found ``no case authority for the proposition that the 
privilege applies differently in a criminal and civil 
context,'' id. at *7, thus supporting the principle that the 
privilege remains absolute in a grand jury context. 
Accordingly, the President's position with respect to the 
absolute nature of governmental attorney-client privilege had a 
substantial legal basis.

2. The Courts' Rulings Squarely Rebut the OIC's Claims of Abuse of 
        Power

    The rulings of both the District Court and Court of Appeals 
belie any notion that the claim of attorney-client privilege 
was an abuse of power. The District Court rejected the OIC's 
position that government attorneys and clients are not entitled 
to have confidential communications. In re Grand Jury 
Proceedings, 5 F.Supp.2d 21, 31-32 (D.D.C. 1998). To the 
contrary, the Court held that such conversations are covered by 
the attorney-client privilege. Ibid. Performing a need analysis 
similar to that which it employed with respect to the executive 
privilege claim, the Court balanced the President's interests 
against those of the grand jury and ultimately determined that 
the grand jury was entitled to the information. Id. at 32-39. 
Thus, despite the fact that the Court ultimately ruled in favor 
of the OIC, the Court never suggested--or even hinted--that the 
privilege claim was anything but legitimate.
    On appeal, a sharply divided D.C. Circuit ruled that the 
President had an attorney-client privilege with White House 
Counsel in the civil context, but not in response to a grand 
jury subpoena. In re Lindsey, 158 F.3d 1263, 1271-78 (D.C. Cir. 
1998). Judge Tatel dissented, finding that the Court's opinion 
did not account for ``the unique nature of the Presidency, its 
unique need for confidential legal advice, or the possible 
consequences of abrogating the attorney-client privilege for a 
President's ability to obtain such advice.'' Id. at 1286. Judge 
Tatel's recognition of the validity of the privilege 
demonstrates that the President's position was not frivolous 
and necessarily negates any claim that the President abused the 
power of his Office by advancing such a claim. This point is 
brought home by Justice Breyer's dissent from the denial of 
certiorari, joined by Justice Ginsburg, that ``[t]he divided 
decision of the Court of Appeals makes clear that the question 
presented by this petition has no clear legal answer and is 
open to serious legal debate.'' Office of the President v. 
Office of Independent Counsel, No. 98-316, 67 U.S.L.W. 3321 
(Nov. 10, 1998).
    One further point is worth noting. Conspicuously absent 
from the Referral is any mention of the President's personal 
attorney-client privilege claim concerning the communications 
that Mr. Lindsey had with the President's private counsel, 
Robert Bennett. The White House argued that these 
communications were covered by the President's personal 
attorney-client privilege because Mr. Lindsey was acting as an 
intermediary between the President and Mr. Bennett--a position 
rejected by the OIC. In re Lindsey, 158 F.3d at 1279-80.
    The Court of Appeals rejected the OIC's position. The Court 
recognized the ``tradition of federal courts' affording `the 
utmost deference to Presidential responsibilities.' '' Id. at 
1280 (quoting Clinton v. Jones, 117 S. Ct. 1636, 1652 (1997)). 
The Court also acknowledged ``the President's undisputed right 
to have an effective relationship with personal counsel, 
consonant with carrying out his official duties.'' Id. at 1282. 
Given the ``unavoidable, virtually full-time demands of the 
office [of the President],'' id. at 1280, the Court found that 
the President's use of Mr. Lindsey as an intermediary was ``at 
least reasonably necessary.'' Ibid. Thus, the Court held that 
``while acting in this capacity [Mr. Lindsey's] communications 
came within the President's personal attorney-client 
privilege.'' Ibid. The Court remanded the case to the District 
Court so it could determine in which instances Mr. Lindsey was 
serving as an intermediary so that he could claim privilege, on 
the President's behalf, over those communications.

   C. The Privilege Litigation Did Not Delay the OIC's Investigation

    The OIC also claims that the invocation of privilege was 
intended to delay its investigation. Ref. at 207 n.473. If 
delay occurred, the OIC has only itself to blame. First, the 
procedural history recounted above establishes that the White 
House attempted to reach a reasonable accommodation before any 
witnesses testified. The OIC rejected that offer, choosing 
instead to litigate these issues. Throughout the litigation, 
the Office of the President frequently sought to avoid any 
delay by proposing and/or agreeing to expedited briefing 
schedules involving privilege litigation, and the courts ruled 
swiftly.
    Second, privilege claims were advanced only as to a narrow 
portion of the testimony of three witnesses. The OIC originally 
filed motions to compel the testimony of two senior staff 
members and one Counsel's Office lawyer. The litigation only 
temporarily postponed the testimony of the two senior staff 
members; they both appeared and testified fully. The privilege 
assertions ultimately involved the testimony of only three 
senior Counsel's Office lawyers. Each of these individuals 
testified at length regarding any facts they may have possessed 
about their knowledge of the President's relationship with Ms. 
Lewinsky. Moreover, the questions as to which they asserted 
privilege were narrow in scope.
    Finally, independent of any litigation, substantial delay 
in the overall investigation has been self-inflicted. The OIC 
has called presidential advisors before the grand jury as many 
as six times, sometimes for only one- or two-hour sessions. 
Some witnesses appeared to testify only to wait for hours and 
then be told to return on another day.
    The OIC also has expended substantial time and effort 
exploring irrelevant subjects, such as White House contacts 
with the press or matters of personal opinion. For example, the 
OIC asked Mr. Lindsey, ``[W]hat do you think about learning 
that the President lied to you personally about this matter?'' 
When Mr. Lindsey questioned the relevance of an inquiry into 
his personal feelings, the OIC lawyer persisted and asked, ``So 
are you just too embarrassed to answer the question, sir?'' 
Supp. at 2447 (8/28/98 grand jury testimony of Bruce Lindsey). 
Such lines of inquiry serve no legitimate purpose and appear 
designed simply to create a confrontation or embarrass and 
humiliate a witness.
    Another aspect of the OIC's allegation is its claim that 
the President misused his presidential prerogative by asserting 
and then withdrawing privilege claims in order to delay the 
investigation. Ref. at 206-209. The OIC specifically cites to 
the privilege claim raised, and subsequently withdrawn, 
relating to the testimony of Nancy Hernreich, Director of Oval 
Office Operations, as a basis for this contention. Transcript 
of November 19, 1998 Hearing at 197-98. The OIC argues that an 
executive privilege claim with respect to Ms. Hernreich was 
illegitimate because she ``does have an important function at 
the White House; she manages the Oval Office operations . . . 
[B]ut that is not the kind of function that the principle of 
executive privilege was meant to protect.'' Id. at 198. This 
contention is both legally and factually incorrect.
    First, an individual's title or job description does not 
determine whether her communications fall within executive 
privilege. As set forth in the Court of Appeals decision in In 
re Sealed Case, virtually any individual who participates in 
the deliberative process can take part in a communication or 
provide information that becomes subject to executive 
privilege; e.g., the information provided by a paralegal that 
becomes part an advisor's recommendation. In re Sealed Case, 
121 F.3d at 752-53. Thus, neither Ms. Hernreich's role nor her 
title precludes her conversations from being subject to 
executive privilege.
    Moreover, the OIC disregards the unique events surrounding 
this privilege claim. Ms. Hernreich was one of the first 
individuals subpoenaed by the OIC whose testimony would 
potentially raise privilege concerns. Because the OIC refused 
to describe the areas of inquiry with respect to Ms. Hernreich, 
the White House was unable to give her any guidance in advance 
of her testimony. Thus, at her first grand jury appearance, Ms. 
Hernreich took the precautionary step of preserving the 
privilege. Subsequently, the White House voluntarily and 
unilaterally narrowed the scope of the communications over 
which privilege was being asserted and offered to allow Ms. 
Hernreich, along with other non-lawyer advisors, to testify 
fully about any factual information she 
possessed.171
---------------------------------------------------------------------------
    \171\ Ruff Dec., Exhibit 6.
---------------------------------------------------------------------------
    On March 6, some ten days after Ms. Hernreich's appearance, 
and without notice to the White House, the OIC filed its motion 
to compel her testimony, despite the fact that the White House 
had already informally indicated to the OIC that no privilege 
would be asserted with respect to her testimony. On March 17, 
in response to the OIC's motion (and before the Court had ruled 
on the issue), the White House formally withdrew its privilege 
claims with respect to Ms. Hernreich's testimony. At that 
point, Ms. Hernreich could have testified before the grand jury 
about those communications. Yet, the OIC waited two full months 
before requesting Ms. Hernreich to return to the grand jury. 
Such conduct by the OIC illustrates the hollowness of the OIC's 
claim of delay caused by the President.

   D. Mr. Starr Misrepresents the Record to Claim that the President 
 Deceived the American Public About the Executive Privilege Litigation

    The OIC attempts to buttress its abuse of power claim by 
arguing that the President deceived the American public by 
feigning ignorance of the executive privilege litigation. The 
OIC bases its contention upon the following statement in its 
Referral:

    On March 24, while the President was traveling in Africa, 
he was asked about the assertion of Executive Privilege. He 
responded, ``You should ask someone who knows.'' He also 
stated, ``I haven't discussed that with the lawyers. I don't 
know.''

Ref. at 156; Transcript of November 19, 1998 Hearing at 611-62. 
The OIC completely misstates the question posed to the 
President and, by carefully selecting a portion of the 
President's answer, takes his response entirely out of context. 
The actual exchange follows, with the omitted portion in bold:

    Q. Mr. President, we haven't yet had the opportunity to ask 
you about your decision to invoke executive privilege, sir. Why 
shouldn't the American people see that as an effort to hide 
something from them?
    The President. Look, that's a question that's being asked 
and answered back home by the people who are responsible to do 
that. I don't believe I should be discussing that here.
    Q. Could you at least tell us why you think the First Lady 
might be covered by that privilege, why her conversation might 
fall under that?
    The President. All I know is--I saw an article about it in 
the paper today. I haven't discussed it with the lawyers. I 
don't know. You should ask someone who does.172
---------------------------------------------------------------------------
    \172\ White House Press Release: Remarks by the President in Photo 
Opportunity with President Museveni of Uganda, 1 (March 24, 1998).

    The full question and answer establish that the President 
was not being asked about ``the assertion of Executive 
Privilege,'' but about the very narrow issue of the privilege 
vis-a-vis the First Lady, which was one of the many press 
rumors in circulation when the story broke.
    As the OIC well knows, at this time, the OIC had refused to 
describe the areas of its inquiry to determine which, if any, 
raised privilege concerns. Consequently, the White House 
Counsel's discussion with the President about possible 
privilege claims was limited to possible issues that might 
arise during a witness's testimony and did not identify 
particular individuals who might claim privilege. Thus, the 
President could not possibly have known what conversations the 
First Lady participated in, if any, which might have fallen 
within the scope of executive privilege.

   E. The President's Decision Not to Testify Before the Grand Jury 
                 Voluntarily Was Not an Abuse of Power

    The OIC also contends that it was an abuse of power for the 
President, at a time when both his personal and official 
interests were at stake, not to volunteer to testify before the 
grand jury until August. Ref. at 159-61. This claim is wholly 
unfounded.
    The OIC apparently believes that any government official 
who is the subject of a criminal investigation must immediately 
testify or risk impeachment. Because he was initially invited 
to appear voluntarily, the President had the right to decide 
the timing of his testimony. It became clear early in the OIC's 
investigation that this was not a run-of-the-mill grand jury 
investigation but was instead a focused effort to target the 
President himself. The President's decision to decline 
invitations to testify was entirely appropriate, given the 
nature of the OIC's investigation.

     F. False Public Denials About an Improper Relationship Do Not 
                     Constitute an Abuse of Office

    President Clinton has acknowledged that he misled the 
American public when he denied having an improper relationship 
with Lewinsky. However, his public denial of this relationship 
does not warrant impeachment. A comparison to Watergate is 
illuminating, for false statements allegedly made by President 
Nixon were an important part of that inquiry.
    Twenty-four years ago, Chairman Rodino stated that the 
Judiciary Committee's approach during the Nixon inquiry would 
be to consider ``whether or not serious abuses of power or 
violations of the public trust have occurred, and if they have, 
whether under the Constitution, they are grounds for 
impeachment'' 173 The Watergate impeachment 
investigation focused on whether President Nixon's allegedly 
false public statements rose to the level of abuse of power, 
but the subject matter was quite different. President Nixon's 
statements related to official matters of state and were 
allegedly part of a comprehensive scheme to undermine the 
political process and to obstruct justice by encouraging and 
condoning perjury by senior members of his administration, 
paying hush money to criminal defendants, and using the CIA to 
thwart the FBI investigation. This Committee finally charged 
that his false statements were calculated to lull the public 
into believing that the administration was adequately 
investigating alleged governmental wrongdoing--in other words, 
he lied about his official actions.
---------------------------------------------------------------------------
    \173\ Cong. Record 2350, February 6, 1974.
---------------------------------------------------------------------------
    President Clinton's misleading public denial of an improper 
relationship with Ms. Lewinsky, although admittedly wrong, is 
not such an abuse of power. President Clinton did not misuse 
the FBI, conceal governmental law-breaking, or misuse the 
official powers of the President. To the contrary, the 
underlying conduct addressed by his public statements was 
indisputably private.

1. Subjecting a President to Impeachment Would Disrupt Our 
        Constitutional Government

    To consider the President's misleading public denials of an 
improper relationship impeachable would radically lower the 
constitutional bar to impeachment. For better or worse, 
allegations of public untruthfulness by Presidents--often on 
important matters of state--have been levelled at most 
Presidents. President Reagan faced accusations about his 
truthfulness regarding Iran-Contra. President Bush confronted 
similar charges, with The New York Times characterizing his 
statements on the subject as ``incredible.'' 174 
President Johnson faced a ``credibility gap'' regarding his 
statements about the Viet Nam war. President Kennedy lied about 
the Bay of Pigs, and President Eisenhower lied about Gary 
Powers and the U2 incident. And many have suggested that 
Presidents Wilson and Franklin Roosevelt were less than fully 
candid about the prospective involvement of the United States 
in World Wars I and II. These examples demonstrate how 
dangerous it would be to make it an impeachable offense to lie 
to the public. All of these alleged misstatements related to 
public policy. If they were in fact untrue, they denied the 
public and Congress an opportunity to exercise their democratic 
prerogative to affect those policies. Accordingly, if false 
public statements are to satisfy the constitutional standard 
for impeachment, it is difficult to conceive of a single 
Presidency in the last century that would not have been subject 
to potential impeachment proceedings.
---------------------------------------------------------------------------
    \174\ Editorial, ``What the President Knew,'' The New York Times 
(Oct. 19, 1992) at A16.
---------------------------------------------------------------------------
    In hotly contested policy disputes, accusations often fly 
regarding the truthfulness of a President's statements. Such 
accusations may or may not be justified. But to devalue the 
impeachment currency by making lack of truthfulness, real or 
perceived, an impeachable offense would potentially inflate 
many policy disagreements into impeachment inquiries.
    This danger is compounded by the inevitable uncertainty 
regarding the type of statements that would be penalized. Would 
it be impeachable to promise to take an action before an 
election, such as raising taxes or staying out of war, and then 
to reverse position after the election? Or to fail to disclose 
a physical infirmity? Would all Presidential untruths be 
impeachable?
    Surely misstatements about public policy are more 
significant than misstatements about private indiscretions. 
False public statements about sexual indiscretions or other 
personal activities simply do not affect policymaking and do 
not implicate the powers of the presidency.

2. The President's Denial of an Improper Relationship Is Not Comparable 
        to President Nixon's Denials of Involvement in the Watergate 
        Burglary and Cover-up

    President Clinton's conduct differs markedly from the gross 
abuses of power alleged by this Committee to have been 
committed by President Nixon. The charges against President 
Nixon were based upon his public misstatements involving 
official misconduct. One of the nine means by which this 
Committee asserted that President Nixon had violated his Oath 
of Office was by--

Making false or misleading public statements for the purpose of 
deceiving the people of the United States into believing that a 
thorough and complete investigation had been conducted with 
respect to allegations of misconduct on the part of personnel 
of the executive branch of the United States and personnel of 
the Committee for the Re-election of the President, and that 
there was no involvement of such personnel in such 
misconduct.175

    \175\ Nixon Report at 2.

For more than two years, President Nixon repeatedly denied any 
personal or White House involvement in or responsibility for 
(1) the burglary of the DNC headquarters to obtain political 
intelligence regarding the Presidential election, (2) the 
subsequent cover-up, involving misuse of law enforcement, and 
(3) the scope of other illegal activities involving 
presidential powers carried out by and for the former 
President.176 The first such false statement was 
made on June 22, 1972, when Nixon publicly characterized as 
accurate his Press Secretary's statement that ``The White House 
has no involvement whatever in this particular incident'' 
(referring to the Watergate break-in).177
---------------------------------------------------------------------------
    \176\ Nixon Report at 27-34.
    \177\ Nixon Report at 27, 47.
---------------------------------------------------------------------------
    More than two months later, on August 29, 1972, the 
President held another press conference, during which he 
discussed the various pending investigations. In attempting to 
persuade the public that no special prosecutor was necessary, 
the President stated:

    The other point I should make is that these investigations, 
the investigation by the GAO, the investigation by the FBI, by 
the Department of Justice, have, at my direction had the total 
cooperation of the--not only the White House--but also of all 
agencies of the Government. In addition to that, within our own 
staff, under my direction, Counsel to the President, Mr. Dean, 
has conducted a complete investigation of all leads which might 
involve any present members of the White House Staff or anybody 
in the Government. I can say categorically that this 
investigation indicates that no one in the White House Staff, 
no one in this Administration, presently employed was involve 
in this very bizarre incident. . . . I think under these 
circumstances we are doing everything we can to take this 
incident and to investigate it and not to cover it up.\178\
---------------------------------------------------------------------------
    \178\ Nixon Report at 27.

    At the time he made this statement, the President knew that 
Mr. Dean had conducted no investigation, had not concluded that 
members of the White House or administration were beyond 
suspicion, and in fact was working to thwart the FBI's 
investigation.\179\ In other words, President Nixon used his 
Presidential powers to conceal governmental law-breaking.
---------------------------------------------------------------------------
    \179\ Nixon Report at 59-60.
---------------------------------------------------------------------------
    This Committee's investigation ultimately revealed \180\ 
that President Nixon engaged in an elaborate cover-up scheme 
that included using his secret intelligence operation to pay 
both for illegal activities and subsequent blackmail money for 
the cover-up. On March 21, 1973, President Nixon urged the 
paying of hush money to Mr. E. Howard Hunt, and instructed 
Administration witnesses on how to commit perjury.\181\ He also 
used people within the Justice Department to give him 
information about what was transpiring within the grand jury, 
then passed that information along to Messrs. Haldeman and 
Ehrlichman, whom he knew to be targets of the investigation, in 
violation of Rule 6(e) of the Federal Rules of Criminal 
Procedure.\182\ He used his ``plumbers'' group to subvert the 
IRS and CIA, authorized illegal intelligence gathering 
activities, attempted to use CIA funds to pay off the Watergate 
burglars, directly interfered with the Justice Department's ITT 
investigation, and ordered the FBI to interfere with the 
Watergate Special Prosecution Force by sealing the WSPF offices 
after the Saturday Night Massacre. He also pressured the CIA to 
interfere with the FBI's investigation of the Watergate break-
in--a conversation captured on tape. And he used the IRS to 
investigate his ``enemies'' and the FCC to try to take away the 
broadcasting licenses of press organizations investigating 
him.\183\
---------------------------------------------------------------------------
    \180\ Nixon Report at 3-4.
    \181\ Nixon Report at 98-99.
    \182\ Nixon Report at 103.
    \183\ Nixon Report at 161-70, 177-79.
---------------------------------------------------------------------------
    These plain abuses of power cannot be equated with 
President Clinton's attempt to keep a private indiscretion 
secret. Unlike the series of lies told by President Nixon, 
President Clinton's denials bore no relationship to his use of 
the powers of the presidency. They did not deal with policy or 
governmental action but were designed to protect himself and 
his family from embarrassment caused by a purely personal 
indiscretion. Whereas President Nixon used governmental 
agencies including the CIA and FBI to thwart the investigation 
into his lies, President Clinton did nothing of the sort. Thus, 
while the pervasive and persistent lies of President Nixon to 
the American public about the nature and extent of official law 
enforcement activities could reasonably have been viewed as 
affecting the nature of our Constitutional government and thus 
warranting impeachment, President Clinton's denial of a private 
indiscretion cannot.

                             IX. Conclusion

    Short of committing force of arms in defense of the Nation, 
the Framers of the Constitution did not contemplate a more 
solemn or awesome responsibility than the impeachment of the 
President. The Framers rejected amorphous and vague standards 
such as ``maladministration'' or ``corruption'' in favor of 
``Treason, Bribery or other High Crimes and Misdemeanors,'' 
which has always been taken to mean offenses against the 
constitutional system itself. Indeed, Benjamin Franklin once 
referred to impeachment as the constitutional alternative to 
assassination. So it is with the utmost gravity that we submit 
this brief. We believe a careful and fair review of the real 
record of this case--not the political attacks, but the real 
record--cannot justify the impeachment of the President.
    Once again, we rely on the judgment of the House, as did 
the Framers, to separate fact from myth, the record from the 
rhetoric, and the sinful from the impeachable. On behalf of the 
President, we thank the Committee for reviewing this brief.
    Finally, we conclude where the President asked us to begin: 
by conveying to you his profound and personal sense of 
contrition. Let nothing in this brief, nothing in our defense, 
nothing in your analysis of the facts or our arguments on the 
law confuse the reality that what the President did was wrong. 
For his wrongs he has admitted his regret, and he has sought 
the forgiveness of his family, friends, and fellow Americans.
    The sole duty, the solemn obligation of the House is not to 
sit in judgment of the morality of the President's conduct, but 
rather to decide whether or not you will call upon the Senate 
to remove from office the duly elected President of the United 
States. On that issue, and that issue alone, we believe there 
is no cause--on the facts, on the law, or under the 
Constitution--to overturn the national election and impeach the 
President.
            Respectfully submitted,
                                   David E. Kendall
                                   Nicole K. Seligman
                                   Emmet T. Flood
                                   Max Stier
                                   Alicia L. Marti
                                           Williams & Connolly
                                           725 12th Street, N.W.
                                           Washington, D.C. 20005
                                   Gregory B. Craig
                                           Special Counsel to the 
                                               President, The White 
                                               House, Washington, D.C. 
                                               20502
                                   Charles F.C. Ruff
                                   Cheryl D. Mills
                                   Lanny A. Breuer
                                           Office of the White House 
                                               Counsel, The White 
                                               House, Washington, D.C. 
                                               20502
December 8, 1998.


[GRAPHIC] [TIFF OMITTED] T2643.001

[GRAPHIC] [TIFF OMITTED] T2643.002

[GRAPHIC] [TIFF OMITTED] T2643.003

[GRAPHIC] [TIFF OMITTED] T2643.004

[GRAPHIC] [TIFF OMITTED] T2643.005

[GRAPHIC] [TIFF OMITTED] T2643.006

[GRAPHIC] [TIFF OMITTED] T2643.007

[GRAPHIC] [TIFF OMITTED] T2643.008

[GRAPHIC] [TIFF OMITTED] T2643.009

[GRAPHIC] [TIFF OMITTED] T2643.010

[GRAPHIC] [TIFF OMITTED] T2643.011

[GRAPHIC] [TIFF OMITTED] T2643.012

[GRAPHIC] [TIFF OMITTED] T2643.013

[GRAPHIC] [TIFF OMITTED] T2643.014

[GRAPHIC] [TIFF OMITTED] T2643.015

[GRAPHIC] [TIFF OMITTED] T2643.016

[GRAPHIC] [TIFF OMITTED] T2643.017

[GRAPHIC] [TIFF OMITTED] T2643.018

[GRAPHIC] [TIFF OMITTED] T2643.019

[GRAPHIC] [TIFF OMITTED] T2643.020

[GRAPHIC] [TIFF OMITTED] T2643.021

[GRAPHIC] [TIFF OMITTED] T2643.022

[GRAPHIC] [TIFF OMITTED] T2643.023

[GRAPHIC] [TIFF OMITTED] T2643.024

[GRAPHIC] [TIFF OMITTED] T2643.025

[GRAPHIC] [TIFF OMITTED] T2643.026

[GRAPHIC] [TIFF OMITTED] T2643.027

[GRAPHIC] [TIFF OMITTED] T2643.028

[GRAPHIC] [TIFF OMITTED] T2643.029

[GRAPHIC] [TIFF OMITTED] T2643.030

[GRAPHIC] [TIFF OMITTED] T2643.031

[GRAPHIC] [TIFF OMITTED] T2643.032

[GRAPHIC] [TIFF OMITTED] T2643.033

[GRAPHIC] [TIFF OMITTED] T2643.034

[GRAPHIC] [TIFF OMITTED] T2643.035

[GRAPHIC] [TIFF OMITTED] T2643.036

[GRAPHIC] [TIFF OMITTED] T2643.037

[GRAPHIC] [TIFF OMITTED] T2643.038

[GRAPHIC] [TIFF OMITTED] T2643.039

[GRAPHIC] [TIFF OMITTED] T2643.040

[GRAPHIC] [TIFF OMITTED] T2643.041

[GRAPHIC] [TIFF OMITTED] T2643.042

[GRAPHIC] [TIFF OMITTED] T2643.043

[GRAPHIC] [TIFF OMITTED] T2643.044

[GRAPHIC] [TIFF OMITTED] T2643.045

[GRAPHIC] [TIFF OMITTED] T2643.046

[GRAPHIC] [TIFF OMITTED] T2643.047

[GRAPHIC] [TIFF OMITTED] T2643.048

[GRAPHIC] [TIFF OMITTED] T2643.049

[GRAPHIC] [TIFF OMITTED] T2643.050

[GRAPHIC] [TIFF OMITTED] T2643.051

[GRAPHIC] [TIFF OMITTED] T2643.052

[GRAPHIC] [TIFF OMITTED] T2643.053

[GRAPHIC] [TIFF OMITTED] T2643.054

[GRAPHIC] [TIFF OMITTED] T2643.055

[GRAPHIC] [TIFF OMITTED] T2643.056

[GRAPHIC] [TIFF OMITTED] T2643.057

[GRAPHIC] [TIFF OMITTED] T2643.058

[GRAPHIC] [TIFF OMITTED] T2643.059

[GRAPHIC] [TIFF OMITTED] T2643.060

[GRAPHIC] [TIFF OMITTED] T2643.061

[GRAPHIC] [TIFF OMITTED] T2643.062

[GRAPHIC] [TIFF OMITTED] T2643.063

[GRAPHIC] [TIFF OMITTED] T2643.064

[GRAPHIC] [TIFF OMITTED] T2643.065

[GRAPHIC] [TIFF OMITTED] T2643.066

[GRAPHIC] [TIFF OMITTED] T2643.067

[GRAPHIC] [TIFF OMITTED] T2643.068

[GRAPHIC] [TIFF OMITTED] T2643.069

[GRAPHIC] [TIFF OMITTED] T2643.070

[GRAPHIC] [TIFF OMITTED] T2643.071

[GRAPHIC] [TIFF OMITTED] T2643.072

[GRAPHIC] [TIFF OMITTED] T2643.073

[GRAPHIC] [TIFF OMITTED] T2643.074

[GRAPHIC] [TIFF OMITTED] T2643.075

[GRAPHIC] [TIFF OMITTED] T2643.076

[GRAPHIC] [TIFF OMITTED] T2643.077

[GRAPHIC] [TIFF OMITTED] T2643.078

[GRAPHIC] [TIFF OMITTED] T2643.079

[GRAPHIC] [TIFF OMITTED] T2643.080

[GRAPHIC] [TIFF OMITTED] T2643.081

[GRAPHIC] [TIFF OMITTED] T2643.082

[GRAPHIC] [TIFF OMITTED] T2643.083

[GRAPHIC] [TIFF OMITTED] T2643.084

[GRAPHIC] [TIFF OMITTED] T2643.085

[GRAPHIC] [TIFF OMITTED] T2643.086

[GRAPHIC] [TIFF OMITTED] T2643.087

[GRAPHIC] [TIFF OMITTED] T2643.088

[GRAPHIC] [TIFF OMITTED] T2643.089

[GRAPHIC] [TIFF OMITTED] T2643.090

[GRAPHIC] [TIFF OMITTED] T2643.091

[GRAPHIC] [TIFF OMITTED] T2643.092

[GRAPHIC] [TIFF OMITTED] T2643.093

[GRAPHIC] [TIFF OMITTED] T2643.094

[GRAPHIC] [TIFF OMITTED] T2643.095

[GRAPHIC] [TIFF OMITTED] T2643.096

[GRAPHIC] [TIFF OMITTED] T2643.097

[GRAPHIC] [TIFF OMITTED] T2643.098

[GRAPHIC] [TIFF OMITTED] T2643.099

[GRAPHIC] [TIFF OMITTED] T2643.100

[GRAPHIC] [TIFF OMITTED] T2643.101

[GRAPHIC] [TIFF OMITTED] T2643.102

[GRAPHIC] [TIFF OMITTED] T2643.103

[GRAPHIC] [TIFF OMITTED] T2643.104

[GRAPHIC] [TIFF OMITTED] T2643.105

[GRAPHIC] [TIFF OMITTED] T2643.106

[GRAPHIC] [TIFF OMITTED] T2643.107

[GRAPHIC] [TIFF OMITTED] T2643.108

[GRAPHIC] [TIFF OMITTED] T2643.109

[GRAPHIC] [TIFF OMITTED] T2643.110

[GRAPHIC] [TIFF OMITTED] T2643.111

[GRAPHIC] [TIFF OMITTED] T2643.112

[GRAPHIC] [TIFF OMITTED] T2643.113

[GRAPHIC] [TIFF OMITTED] T2643.114

[GRAPHIC] [TIFF OMITTED] T2643.115

[GRAPHIC] [TIFF OMITTED] T2643.116

[GRAPHIC] [TIFF OMITTED] T2643.117

[GRAPHIC] [TIFF OMITTED] T2643.118

[GRAPHIC] [TIFF OMITTED] T2643.119

[GRAPHIC] [TIFF OMITTED] T2643.120

[GRAPHIC] [TIFF OMITTED] T2643.121

[GRAPHIC] [TIFF OMITTED] T2643.122

[GRAPHIC] [TIFF OMITTED] T2643.123

[GRAPHIC] [TIFF OMITTED] T2643.124

[GRAPHIC] [TIFF OMITTED] T2643.125

[GRAPHIC] [TIFF OMITTED] T2643.126

[GRAPHIC] [TIFF OMITTED] T2643.127

[GRAPHIC] [TIFF OMITTED] T2643.128

[GRAPHIC] [TIFF OMITTED] T2643.129

[GRAPHIC] [TIFF OMITTED] T2643.130

[GRAPHIC] [TIFF OMITTED] T2643.131

[GRAPHIC] [TIFF OMITTED] T2643.132

[GRAPHIC] [TIFF OMITTED] T2643.133

[GRAPHIC] [TIFF OMITTED] T2643.134

[GRAPHIC] [TIFF OMITTED] T2643.135

[GRAPHIC] [TIFF OMITTED] T2643.136

[GRAPHIC] [TIFF OMITTED] T2643.137

[GRAPHIC] [TIFF OMITTED] T2643.138

[GRAPHIC] [TIFF OMITTED] T2643.139

[GRAPHIC] [TIFF OMITTED] T2643.140

[GRAPHIC] [TIFF OMITTED] T2643.141

[GRAPHIC] [TIFF OMITTED] T2643.142

[GRAPHIC] [TIFF OMITTED] T2643.143

[GRAPHIC] [TIFF OMITTED] T2643.144

[GRAPHIC] [TIFF OMITTED] T2643.145

[GRAPHIC] [TIFF OMITTED] T2643.146

[GRAPHIC] [TIFF OMITTED] T2643.147

[GRAPHIC] [TIFF OMITTED] T2643.148

[GRAPHIC] [TIFF OMITTED] T2643.149

[GRAPHIC] [TIFF OMITTED] T2643.150

[GRAPHIC] [TIFF OMITTED] T2643.151

[GRAPHIC] [TIFF OMITTED] T2643.152

[GRAPHIC] [TIFF OMITTED] T2643.153

[GRAPHIC] [TIFF OMITTED] T2643.154

[GRAPHIC] [TIFF OMITTED] T2643.155

[GRAPHIC] [TIFF OMITTED] T2643.156

[GRAPHIC] [TIFF OMITTED] T2643.157

[GRAPHIC] [TIFF OMITTED] T2643.158

[GRAPHIC] [TIFF OMITTED] T2643.159

[GRAPHIC] [TIFF OMITTED] T2643.160

[GRAPHIC] [TIFF OMITTED] T2643.161

[GRAPHIC] [TIFF OMITTED] T2643.162

[GRAPHIC] [TIFF OMITTED] T2643.163

[GRAPHIC] [TIFF OMITTED] T2643.164

[GRAPHIC] [TIFF OMITTED] T2643.165

[GRAPHIC] [TIFF OMITTED] T2643.166

[GRAPHIC] [TIFF OMITTED] T2643.167

[GRAPHIC] [TIFF OMITTED] T2643.168

[GRAPHIC] [TIFF OMITTED] T2643.169

[GRAPHIC] [TIFF OMITTED] T2643.170

[GRAPHIC] [TIFF OMITTED] T2643.171

[GRAPHIC] [TIFF OMITTED] T2643.172

[GRAPHIC] [TIFF OMITTED] T2643.173

[GRAPHIC] [TIFF OMITTED] T2643.174

[GRAPHIC] [TIFF OMITTED] T2643.175

[GRAPHIC] [TIFF OMITTED] T2643.176

[GRAPHIC] [TIFF OMITTED] T2643.177

[GRAPHIC] [TIFF OMITTED] T2643.178

[GRAPHIC] [TIFF OMITTED] T2643.179

[GRAPHIC] [TIFF OMITTED] T2643.180

[GRAPHIC] [TIFF OMITTED] T2643.181

[GRAPHIC] [TIFF OMITTED] T2643.182

[GRAPHIC] [TIFF OMITTED] T2643.183

[GRAPHIC] [TIFF OMITTED] T2643.184

[GRAPHIC] [TIFF OMITTED] T2643.185

[GRAPHIC] [TIFF OMITTED] T2643.186

[GRAPHIC] [TIFF OMITTED] T2643.187

[GRAPHIC] [TIFF OMITTED] T2643.188

[GRAPHIC] [TIFF OMITTED] T2643.189

[GRAPHIC] [TIFF OMITTED] T2643.190

[GRAPHIC] [TIFF OMITTED] T2643.191

[GRAPHIC] [TIFF OMITTED] T2643.192

[GRAPHIC] [TIFF OMITTED] T2643.193

[GRAPHIC] [TIFF OMITTED] T2643.194

[GRAPHIC] [TIFF OMITTED] T2643.195

[GRAPHIC] [TIFF OMITTED] T2643.196

[GRAPHIC] [TIFF OMITTED] T2643.197

[GRAPHIC] [TIFF OMITTED] T2643.198

[GRAPHIC] [TIFF OMITTED] T2643.199

[GRAPHIC] [TIFF OMITTED] T2643.200

[GRAPHIC] [TIFF OMITTED] T2643.201

[GRAPHIC] [TIFF OMITTED] T2643.202

[GRAPHIC] [TIFF OMITTED] T2643.203

[GRAPHIC] [TIFF OMITTED] T2643.204

[GRAPHIC] [TIFF OMITTED] T2643.205

[GRAPHIC] [TIFF OMITTED] T2643.206

[GRAPHIC] [TIFF OMITTED] T2643.207

[GRAPHIC] [TIFF OMITTED] T2643.208

[GRAPHIC] [TIFF OMITTED] T2643.209

[GRAPHIC] [TIFF OMITTED] T2643.210

[GRAPHIC] [TIFF OMITTED] T2643.211

[GRAPHIC] [TIFF OMITTED] T2643.212

[GRAPHIC] [TIFF OMITTED] T2643.213

[GRAPHIC] [TIFF OMITTED] T2643.214

[GRAPHIC] [TIFF OMITTED] T2643.215

[GRAPHIC] [TIFF OMITTED] T2643.216

[GRAPHIC] [TIFF OMITTED] T2643.217

[GRAPHIC] [TIFF OMITTED] T2643.218

[GRAPHIC] [TIFF OMITTED] T2643.219

[GRAPHIC] [TIFF OMITTED] T2643.220

[GRAPHIC] [TIFF OMITTED] T2643.221

[GRAPHIC] [TIFF OMITTED] T2643.222

[GRAPHIC] [TIFF OMITTED] T2643.223

[GRAPHIC] [TIFF OMITTED] T2643.224

[GRAPHIC] [TIFF OMITTED] T2643.225

[GRAPHIC] [TIFF OMITTED] T2643.226

[GRAPHIC] [TIFF OMITTED] T2643.227

[GRAPHIC] [TIFF OMITTED] T2643.228

[GRAPHIC] [TIFF OMITTED] T2643.229

[GRAPHIC] [TIFF OMITTED] T2643.230

[GRAPHIC] [TIFF OMITTED] T2643.231

[GRAPHIC] [TIFF OMITTED] T2643.232

[GRAPHIC] [TIFF OMITTED] T2643.233

[GRAPHIC] [TIFF OMITTED] T2643.234

[GRAPHIC] [TIFF OMITTED] T2643.235

[GRAPHIC] [TIFF OMITTED] T2643.236

[GRAPHIC] [TIFF OMITTED] T2643.237

[GRAPHIC] [TIFF OMITTED] T2643.238

[GRAPHIC] [TIFF OMITTED] T2643.239

[GRAPHIC] [TIFF OMITTED] T2643.240

[GRAPHIC] [TIFF OMITTED] T2643.241

[GRAPHIC] [TIFF OMITTED] T2643.242

[GRAPHIC] [TIFF OMITTED] T2643.243

[GRAPHIC] [TIFF OMITTED] T2643.244

[GRAPHIC] [TIFF OMITTED] T2643.245

[GRAPHIC] [TIFF OMITTED] T2643.246

[GRAPHIC] [TIFF OMITTED] T2643.247

[GRAPHIC] [TIFF OMITTED] T2643.248

[GRAPHIC] [TIFF OMITTED] T2643.249

[GRAPHIC] [TIFF OMITTED] T2643.250

[GRAPHIC] [TIFF OMITTED] T2643.251

[GRAPHIC] [TIFF OMITTED] T2643.252

[GRAPHIC] [TIFF OMITTED] T2643.253

[GRAPHIC] [TIFF OMITTED] T2643.254

[GRAPHIC] [TIFF OMITTED] T2643.255

[GRAPHIC] [TIFF OMITTED] T2643.256

[GRAPHIC] [TIFF OMITTED] T2643.257

[GRAPHIC] [TIFF OMITTED] T2643.258

[GRAPHIC] [TIFF OMITTED] T2643.259

[GRAPHIC] [TIFF OMITTED] T2643.260

[GRAPHIC] [TIFF OMITTED] T2643.261

[GRAPHIC] [TIFF OMITTED] T2643.262

[GRAPHIC] [TIFF OMITTED] T2643.263

[GRAPHIC] [TIFF OMITTED] T2643.264

[GRAPHIC] [TIFF OMITTED] T2643.265

[GRAPHIC] [TIFF OMITTED] T2643.266

[GRAPHIC] [TIFF OMITTED] T2643.267

[GRAPHIC] [TIFF OMITTED] T2643.268

[GRAPHIC] [TIFF OMITTED] T2643.269

[GRAPHIC] [TIFF OMITTED] T2643.270

[GRAPHIC] [TIFF OMITTED] T2643.271

[GRAPHIC] [TIFF OMITTED] T2643.272

[GRAPHIC] [TIFF OMITTED] T2643.273

[GRAPHIC] [TIFF OMITTED] T2643.274

[GRAPHIC] [TIFF OMITTED] T2643.275

[GRAPHIC] [TIFF OMITTED] T2643.276

[GRAPHIC] [TIFF OMITTED] T2643.277

[GRAPHIC] [TIFF OMITTED] T2643.278

[GRAPHIC] [TIFF OMITTED] T2643.279

[GRAPHIC] [TIFF OMITTED] T2643.280

[GRAPHIC] [TIFF OMITTED] T2643.281

[GRAPHIC] [TIFF OMITTED] T2643.282

[GRAPHIC] [TIFF OMITTED] T2643.283

[GRAPHIC] [TIFF OMITTED] T2643.284

[GRAPHIC] [TIFF OMITTED] T2643.285

[GRAPHIC] [TIFF OMITTED] T2643.286

[GRAPHIC] [TIFF OMITTED] T2643.287

[GRAPHIC] [TIFF OMITTED] T2643.288

[GRAPHIC] [TIFF OMITTED] T2643.289

[GRAPHIC] [TIFF OMITTED] T2643.290

[GRAPHIC] [TIFF OMITTED] T2643.291

[GRAPHIC] [TIFF OMITTED] T2643.292

[GRAPHIC] [TIFF OMITTED] T2643.293

[GRAPHIC] [TIFF OMITTED] T2643.294

[GRAPHIC] [TIFF OMITTED] T2643.295

[GRAPHIC] [TIFF OMITTED] T2643.296

[GRAPHIC] [TIFF OMITTED] T2643.297

[GRAPHIC] [TIFF OMITTED] T2643.298

[GRAPHIC] [TIFF OMITTED] T2643.299

[GRAPHIC] [TIFF OMITTED] T2643.300

[GRAPHIC] [TIFF OMITTED] T2643.301

[GRAPHIC] [TIFF OMITTED] T2643.302

[GRAPHIC] [TIFF OMITTED] T2643.303

[GRAPHIC] [TIFF OMITTED] T2643.304

[GRAPHIC] [TIFF OMITTED] T2643.305

[GRAPHIC] [TIFF OMITTED] T2643.306

[GRAPHIC] [TIFF OMITTED] T2643.307

[GRAPHIC] [TIFF OMITTED] T2643.308

[GRAPHIC] [TIFF OMITTED] T2643.309

[GRAPHIC] [TIFF OMITTED] T2643.310

[GRAPHIC] [TIFF OMITTED] T2643.311