White House Rebuttal to Starr Report

PRELIMINARY MEMORANDUM
CONCERNING REFERRAL OF
OFFICE OF INDEPENDENT COUNSEL

OFFICE OF THE WHITE HOUSE COUNSEL
The White House
Washington, DC 20005

WILLIAMS & CONNOLLY
725 12th Street, N.W.
Washington, DC 20005

September 11, 1998

EXECUTIVE SUMMARY

This document is intended to be a preliminary response to the Referral submitted by the Office of Independent Counsel to The Congress. Because we were denied the opportunity to review the content, nature or specifics of the allegations made against the President by the Office of Independent Counsel (OIC), we do not pretend to offer a point-by-point refutation of those allegations, or a comprehensive defense of the President.

We commend the House of Representatives for the extraordinary steps it has taken to safeguard the secrecy of the OIC's allegations. Unfortunately, its efforts were thwarted by unnamed sources familiar with the details of the OIC's allegations -- sources that could only come from the OIC itself -- who saw fit to leak elements of the allegations to the news media.

Based on these illegal leaks, as well as our knowledge of the President's testimony, we offer this document as a summary outline of his side of the case. We will provide you with a specific rebuttal as soon as we have had a chance to review the materials that the OIC has already transmitted to you.

The simple reality of this situation is that the House is being confronted with evidence of a man's efforts to keep an inappropriate relationship private. A personal failure that the President has acknowledged was wrong, for which he apologized, and for which he accepts complete responsibility. A personal failure for which the President has sought forgiveness from members of his family, members of the Cabinet, Members of Congress, and the American people. Such a personal failing does not, however, constitute "treason, bribery and high crimes and misdemeanors" that would justify the impeachment of the President of the United States.

The President himself has described his conduct as wrong. But no amount of gratuitous details about the President's relationship with Ms. Lewinsky, no matter how salacious, can alter the fact that:

1) The President did not commit perjury:

2) The President did not obstruct justice;

3) The President did not tamper with witnesses; and

4) The President did not abuse the power of his office.

Impeachment is a matter of incomparable gravity. Even to discuss it is to discuss overturning the electoral will of the people. For this reason, the Framers made clear, and scholars have long agreed, that the power should be exercised only in the event of such grave harms to the state as "serious assaults on the integrity of the processes of government," or "such crimes as would so stain a president as to make his continuance in office dangerous to public order." Charles L. Black, Impeachment: A Handbook 38-39 (1974). We do not believe the OIC can identify any conduct remotely approaching this standard. Instead, from press reports, if true, it appears that the OIC has dangerously overreached to describe in the most dramatic of terms conduct that not only is not criminal but is actually proper and lawful.

The President has confessed to indiscretions with Ms. Lewinsky and accepted responsibility and blame. The allegations concerning obstruction, intimidation, perjury and subornation of perjury that we anticipate from the OIC are extravagant attempts to transform a case involving inappropriate personal behavior into one of public misconduct justifying reversal of the judgment of the electorate of this country.

I. STANDARDS FOR IMPEACHMENT

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, ' 4. Of course, there is no suggestion of treason or bribery present here. Therefore, the question confronting the House of Representatives is whether the President has committed a "high Crime[] or Misdemeanor. " The House has an obligation to consider the evidence in view of that very high Constitutional threshold. It should pursue the impeachment process only if there is evidence implicating that high standard.

The House must approach the question with solemnity and with care, for history teaches that an "impeachable offense" is no ordinary kind of wrongdoing. The Framers included specific provisions for impeachment in the Constitution itself because they understood that the most severe political remedy was necessary to remedy the most serious forms of public wrongdoing. Impeachment is a basic constitutional safeguard, designed both to correct harms to the system of government itself and to protect the people from ongoing malfeasance. Nothing less than the gravest executive wrongdoing can justify impeachment. The Constitution leaves lesser wrongs to the political process and to public opinion.

Presidential impeachment is thus a matter of incomparable gravity. As Professor Charles Black stated,

Impeachment: A Handbook 1 (1974). Presidential impeachment is thus an "awful step. " Ibid. The Framers knew this. For that reason they framed the constitutional procedure with precision and specified grounds for impeachment with great care.

The Framers deliberately chose to make "high Crimes and Misdemeanors " the standard of an impeachable offense. They were familiar with English common law and parliamentary history and they borrowed the expression directly from the English law of impeachment. They did so knowing that the expression was a term of art and they made the choice after deliberate rejection of alternative formulations of the impeachment standard.

The Framers intended the 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."^/ 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 phrase, impeachment was thought necessary to remedy "[a]ttempts to subvert the Constitution."

In English practice, the term "high crimes and misdemeanors" had been applied to various offenses, the common elements of which were their severity and the fact that the wrongdoing was directed against the state.^/ The English cases included misappropriation of public funds, interfering in elections, accepting bribes, neglect of duty, 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. "^/

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. " The Federalist No. 65 at 331 (Gary Wills ed. 1982). This "inquest " is perhaps the gravest process known to our Constitution. 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.

For these reasons, the impeachment process must be painstaking and deliberate. It must focus only on such harms as the Framers intended to be redressed by the incomparably severe act of impeachment. And most importantly, it must be understood for what it is -- a process of inquiry. That process is itself the exercise of a public trust "of delicacy and magnitude. "^/ Accordingly, if the process is begun it is only just that the members engaged in this solemn task withhold judgment until the process is complete and all the facts are known. Our Constitution's most basic values and the requirements of simple justice together demand no less.

The President is sole head of one branch of our government -B indeed, in a certain sense the President is the Executive Branch. The Constitution provides that "[t]he executive Power shall be vested in a President of the United States of America. " U.S. Const. art. II, ' 1. The President is the only government official to have been popularly elected by all the American people. When the people elect a President, the popular will is expressed in its most important, most visible and most unmistakable form.^/ The impeachment process, by definition, threatens to undo the popular will. Impeachment presents the prospect of reversing the electoral mandate that brought the executive to office. Conviction upon articles of impeachment actually does so.

For these reasons, impeachment is limited to only certain forms of potential wrongdoing and it is intended to redress only certain kinds of harms. Again, in Hamilton's words:

Federalist 65 at 330-31.

The Framers and early commentators on the Constitution are in accord on the question of impeachment's intended consequence. 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. " J. Wilson, Works 426 (R. McCloskey, ed. 1967) 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. " Joseph Story, Commentaries on the Constitution ' 744 (1^st Ed. 1833).^/ That understanding of the Framers and early commentators reflected the historical understanding of impeachable offenses in England. A=High crimes and misdemeanors' were a category of political crimes against the state. " Berger, Impeachment, at 61 (emphasis in original). Therefore, the Framers "intended that a president be removable from office for the commission of great offenses against the Constitution."^/ Impeachment therefore addresses public wrongdoing, whether denominated a "political crime[] against the state, "^/ or "an act of malfeasance or abuse of office,"^/ or a "great offense[s] against the federal government. "^/ In short, impeachment is a necessary Constitutional check by a coordinate branch of government upon serious and aggravated abuses of executive power that, given the President's four-year term, might otherwise go unchecked.

Holders of public office are therefore not to be impeached for private conduct, however wrongful. To the contrary, only "serious assaults on the integrity of the processes of government, "^/ and "such crimes as would so stain a president as to make his continuance in office dangerous to public order "^/ should constitute impeachable offenses. Conduct which is not an "offense[] against the government,"^/ or "malfeasance or abuse of office, "^/ and which bears no "functional relationship "^/ to public office, does not constitute grounds for impeachment. Allegations concerning private conduct-Bprivate sexual conduct in particular--simply do not implicate high crimes or misdemeanors.

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. " Story, Commentaries ' 744 (emphasis added). 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. 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. "

Impeachment's public character is further evidenced by the fact that, as Justice Story expressed it, the process is conducted "by the representatives of the nation, in their public capacity, " and "in the face of the nation. " Story, Commentaries ' 686. Constitutionally, impeachment's public function demands public accountability. Elected officials are no more qualified than ordinary voters to assess the private wrongs of public officeholders. The Constitution's impeachment mechanism does not exist to punish such wrongs.

The public character of impeachable wrongs is also reflected in the fact that the remedy imposed for commission of impeachable acts is a wholly public one. Impeachment results in removal from office and possible disqualification from further office. U.S. Const. art.I, ' 3, cl. 7.

To say that impeachment is fundamentally a "political " process, however, is not to say that it is "partisan " in nature. Indeed, the Framers warned against the spirit of partisanship in impeachment proceedings. In Federalist 65, Hamilton wrote that the impeachment process threatened to "agitate the passions of the whole community . . .to divide it into parties . . . [to] connect itself with pre-existing factions [and] to enlist their animosities, partialities, influence and interest. " Id. at 331. Justice Story warned of the danger that "the decision [to impeach] will be regulated more by the comparative strength of the parties, than by the strength of the proofs. " Commentaries ' 744. Only substantial evidence of presidential wrongdoing that threatened the processes of government or the public order can justify this grave and ideally bipartisan process.

What is ultimately intended by impeachment's truly "political " nature is the manner of limitation the Constitution allows one elected (political) branch to place on the other elected (political) branch, the Presidency. Impeachment is necessarily a public act conducted by public bodies (the Houses of Congress exercising their constitutionally allotted portion of impeachment power) against a public officeholder (here, the President). Exercise of that limiting function is justified only when the people's representatives conclude that the people themselves must be protected from their own elected executive.

Impeachment must therefore be approached with the utmost solemnity. The process must focus on public acts, performed in the President's public capacity, and affecting the public interest. Cognizant of the enormous harm that must follow the bare suggestion of formal impeachment processes, the House should pursue an impeachment inquiry if and only if there is credible evidence of actions constituting fundamental injuries to the governmental process. Indeed, the Committee should consider and approve articles of impeachment only for such acts as have, in its judgment, so seriously threatened the integrity of governmental processes as to have made the President's continuation in office a threat to the public order.

Impropriety falling short of that high standard does not meet the constitutional measure. It must be left to the court of public opinion and the judgment of history.

II. THE RELEVANT FACTUAL BACKGROUND

The Monica Lewinsky investigation is the most recent phase of an amorphous, languorous, expensive, and seemingly interminable investigation into the affairs of a small Arkansas real estate firm, Whitewater Development Company, Inc. In January, 1994, Attorney General Reno made an administrative appointment (the Ethics in Government Act of 1978 having expired) of Robert B. Fiske, Jr., to investigate the relationship of the President and Mrs. Clinton to Whitewater, Madison Guaranty Savings & Loan Association, and Capital Management Services. After the reenactment of the Ethics in Government Act, the Special Division for the Purpose of Appointing Independent Counsels of the Court of Appeals appointed Kenneth W. Starr, a former high official in two Republican administrations, to replace Mr. Fiske on August 5, 1994, and gave him a generally similar grant of investigatory jurisdiction.

During the past four and a half years, the President has cooperated extensively with this investigation. He has given testimony by deposition at the White House to the Independent Counsel on four separate occasions, and on two other occasions, he gave videotaped deposition testimony for Whitewater defendants and was cross-examined by the Independent Counsel. He has submitted written interrogatory answers, produced more than 90,000 pages of documents and other items, and provided information informally in a variety of ways. The OIC subpoenaed from the President, and reviewed, virtually every personal financial record and gubernatorial campaign finance record that exists for the period from the mid-1980s to the present, in its endless search to find something to use against the President. This comprehensive and thorough financial review yielded the OIC nothing.

In May 1994, President Clinton was sued civilly by Ms. Paula Jones, who made various claims arising out of an encounter on May 8, 1991, when the President was Governor of Arkansas. Various constitutional questions were litigated, and it was not until the Supreme Court's decision on May 27, 1997^/ that the case proceeded to discovery. The Independent Counsel had no jurisdiction with respect to the Jones case, but there were occasional press reports that the OIC was in fact investigating the President's personal life.^/

In his grand jury testimony on August 17, 1998, the President acknowledged having had an improperly intimate relationship with Ms. Lewinsky. This is enormously difficult for any person to do even in private, much less in public.

It is important to recognize that the improper relationship with Ms. Lewinsky ended in early 1997, at the President's behest. It therefore had been over for almost a year at the time of the President's deposition in the Jones case. From feelings both of friendship and responsibility, the President remained in touch with Ms. Lewinsky after the improper relationship ended and tried to help her: none of this help was improper or conditioned on her behaving (or testifying) in any particular way.

It is not true that the President had an improper 18-month relationship with Ms. Lewinsky, as several media reports have alleged. In his grand jury deposition, he testified that on certain occasions in early 1996 and once in early 1997, he engaged in improper conduct with Ms. Lewinsky. These encounters did not consist of sexual intercourse, and they did not consist of "sexual relations" as he understood that term to be defined at his Jones deposition on January 17, 1998 (explained infra), but they did involve inappropriate intimate contact. These inappropriate encounters ended, at the President's insistence, in early 1997, not because of the imminence of discovery, not because of the Jones case (which the Supreme Court had not yet decided), but because he knew they were wrong. On August 17, 1998, the President expressed regret to the grand jury and, later, to the country, that what began as a friendship came to include this conduct, and he took full responsibility. He has frequently, to different audiences, made similar expressions of regret and apology.

In this investigation, no stone has been left unturned--or (we believe) unthrown. In simple fairness, therefore, it is important to distinguish between what the President has acknowledged and what the OIC merely alleges (on the basis of evidence we have not yet seen).

IV. THE NATURE OF THE OIC'S EVIDENCE

Use of a federal grand jury to compile evidence for possible impeachment proceedings in Congress raises numerous troubling questions regarding the credibility of that evidence. Indeed, given the limited role of a grand jury in our system and the total absence of procedural protections in the process, the Independent Counsel's insistence that his investigation has been a search for "truth" is deeply misleading. In fact, it has been a one-sided effort to present the worst possible version of a limited set of facts.

Section 595(c) requires the OIC to provide the House with "substantial and credible information . . . that may constitute grounds for impeachment. " But a grand jury is a totally unsuitable vehicle for generating information that can, without more, be taken as credible beyond challenge. The grand jury's historic role is not to determine the truth but rather to act as an accusatory body. United States v. Williams, 504 U.S. 36, 51 (1992). The process excludes contrary views of the information gathered and fails to identify the kinds of exculpatory information that might have been elicited or presented had a targeted individual, and not just the OIC, had an opportunity to cross-examine and the ability to compel responses.

Because it is inherently so one-sided and untested by cross-examination, it normally is not permissible to use grand jury testimony as a basis for anything other than permitting a grand jury to indict or decline to indict. It may constitute nothing more than hearsay, Costello v. United States, 350 U.S. 359, 364 (1956), or even multiple hearsay-Bevidence which would likely be excluded from a trial. Indeed, the information a grand jury gathers is not circumscribed by the Federal Rules of Evidence at all, see Fed. R. Evid. 1101(d)(2), nor delimited by the other safeguards of reliability which would be enforced at trial. The testimony a grand jury elicits is not subject to impeachment by interested parties, and such testimony may come from immunized witnesses, from witnesses who fear prosecution, from witnesses prepared by the prosecution, from witnesses with a history of untruthfulnessB-or from disinterested witnesses. On the record of the grand jury there need be no distinction among these sources, despite the fact that their reliability varies greatly.

In its day-to-day operations, no judge presides over grand jury proceedings. United States v. Williams, 504 U.S. 36, 48 (1992). Grand jury witnesses do not have counsel present. Fed. R. Crim P. 6(d). The Double Jeopardy Clause does not prevent a grand jury from returning an indictment after a first grand jury has declined to do so. Ex Parte United States, 287 U.S. 241, 250-51 (1932). The exclusionary rule does not apply to grand jury proceedings. United States v. Calandra, 414 U.S. 338, 349 (1974). Grand jury witnesses have no right to respond with information, however related, if it is not called for by the prosecution, and targets and subjects of its inquiry have no compulsory process to gather and present their side of the matter. Nor does the target of a grand jury inquiry have any right to offset potentially incriminating information with exculpatory information in his possession. Williams, 504 U.S. at 55. In short, the most basic techniques our adversary system of justice employs for testing and assuring the reliability of evidence are completely missing in the grand jury context.

As a consequence, "reliability " simply is not the touchstone of a grand-jury inquiry. The Supreme Court itself has said that "the mere fact that evidence is unreliable is not sufficient to require a dismissal of [an] indictment. " Bank of Nova Scotia v. United States, 487 U.S. 250, 261 (1988). The same is true of "inadequate or incompetent " evidence. Its presence will not justify dismissal of an indictment. Calandra, 414 U.S. at 345; see also Holt v. United States, 218 U.S. 245 (1910) (same).

It must therefore be recognized that it is not the grand jury's function to provide information about anything that can be taken as true on its face. Its function is not to get at the ultimate truth. The grand jury's inquisitorial powers serve but one end: to empower a body of citizens to make a threshold decision whether to initiate the search for truth that is the purpose of adversarial proceedings or to decline to indict and thereby forego that search altogether. Only after the grand jury renders that threshold decision does the search for truth really commence because only then are the adversary system's credibility-assessing mechanisms available.

The grand jury secrecy rule, Rule 6(e), Fed. R. Crim. P., is justified-Bindeed, mandated-Bby this reality. Grand jury information is to be kept secret largely because it has been generated without the protections of the adversarial system. Unlike information presented in a trial setting, grand jury information presents an enormous risk that persons' reputations will be injured or destroyed on the basis of non-credible or insubstantial assertions. That harm may damage both witnesses and persons who are subjects of witness testimony. That is why, when a grand jury elects to indict, grand jury materials are sealed and withheld from the petit jury ultimately convened to find the truth and render a verdict.

Accordingly a fair report from the OIC would, inter alia, provide all exculpatory evidence, assess the credibility of witnesses in terms of bias, reason to falsify, prior inconsistent statements, etc., and draw reasonable inferences. A fair report would identify shortcomings in the investigation itself, including any excesses, mistakes, errors in judgment, or impermissible tactics. A fair report would demonstrate that every possible effort had been made to identify all possibly exculpatory evidence, and that all such evidence had been given appropriate weight. And a fair report would address honestly and answer truthfully the following questions:

7) What was Ms. Tripp's motivation in initiating the surreptitious recording of her conversations with Ms. Lewinsky? Did Tripp steer the taped conversations with Ms. Lewinsky to obtain details about Ms. Lewinsky's sexual activities? Was the taping connected in any way to her relationship with Lucianne Goldberg? If Ms. Tripp began to tape Ms. Lewinsky with an unlawful purpose, did she commit a violation of the federal wiretapping statute (Title III)? If the tapes were obtained in violation of federal law, can the tapes or evidence derived from them be part of any official proceeding in Congress (see 18 U.S.C. ' 2515)?

The OIC obtained jurisdiction on January 16, 1998 to investigate possible obstruction of justice, subornation of perjury, and intimidation of witnesses in the Jones case. These crimes are quite specifically defined in the law, and the elements do not always have an obvious meaning. We consider first the definition and then the possible conduct to which these definitions might be applied.

The term "obstruction of justice" usually refers to violations of 18 U.S.C. ' 1503, the "Omnibus Obstruction Provision," which prohibits the intimidation 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. ' 1512, which proscribes intimidating, threatening, or corruptly persuading, through deceptive conduct, a person in connection with an official proceeding.

For a conviction under ' 1503, the government must prove that there was a pending judicial proceeding, that the defendant knew of the proceeding, and that the defendant acted "corruptly" with the specific intent to obstruct or interfere with the proceeding or due administration of justice. See, e.g., United States v. 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 ' 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). Four federal courts of appeals have held that 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 ' 1503. First, false statements or testimony alone cannot sustain a conviction under ' 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). 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 ' 1503, because they did not have the natural and probable effect of impeding the due administration of justice. Moreover, ' 1503 does not apply to a party's concealing or withholding discoverable documents in civil litigation. See, e.g., Richmark v. Timber Falling Consultants, 730 F. Supp. 1525, 1532 (D. Or. 1990) (because of the remedies afforded by the Federal Rules of Civil Procedure, ' 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").^/ Most cases that have found ' 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 ' 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).

Section 1512 specifically applies to "witness tampering." However, by its terms, it does not purport to reach all forms of witness tampering, but only tampering by specified means. In order to obtain a conviction under ' 1512, the government must prove that a defendant knowingly engaged in intimidation, physical force, threats, misleading conduct, or corrupt persuasion with intent to influence, delay, or prevent testimony or cause any person to withhold objects or documents from an official proceeding. While there is no "pending proceeding" requirement for convictions under ' 1512, it is clear that a defendant must be aware of the possibility of a proceeding and his efforts must be aimed specifically at obstructing that proceeding, whether pending or not; ' 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 ' 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. ' 1515(a)(6). It is also clear from the caselaw 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 ' 1512).

Subornation of perjury is addressed in 18 U.S.C. ' 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, ' 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").

Based upon illegal OIC leaks and press reports, we believe that the OIC's principal claims of obstruction, intimidation and subornation -- the three prongs of the January 1998 expansion of jurisdiction -- appear to arise out of:

(1) "Talking Points"

The so-called "talking points"^/ have been widely hailed as the linchpin of any charge of subornation of perjury or obstruction of justice. Not only were they touted as the "smoking gun " of the investigation, they were instrumental in the OIC efforts to secure an expansion of its jurisdictional authority. Charles Bakaly, the OIC spokesman, appearing on Meet the Press, emphasized the critical nature of this document to the expansion of the OIC jurisdiction:

NBC Meet the Press, July 5, 1998 (emphasis added).

The "talking points" were the basis of thinly veiled smears, groundless speculation, and allegations against President Clinton, White House aides and others close to the President:

And the "talking points" were regarded throughout the investigation as the critical piece of evidence in any charge of subornation of perjury or obstruction of justice:

After all of the rumor and speculation regarding a connection between the White House and the "talking points," President Clinton was not asked one single question relating to the talking points during his August 17 deposition. Ms. Lewinsky is reported to have testified that she wrote the document without any assistance other than conversations she had with Linda Tripp. In the venerable tradition of Whitewater allegations, the "talking points" were surfaced as important and damning evidence of wrongdoing, but in the fullness of time and after investigation, have apparently vanished entirely. Only the stigma remains.

(2) Ms. Lewinsky's Transfer of Gifts to Betty Currie

The President frequently gives gifts to and receives gifts from friends and supporters; he gave Ms. Lewinsky the same kind of gifts he has shared with others. He was not concerned about the Jones lawyers' knowledge of the gifts. In the Jones deposition, he acknowledged knowing Ms. Lewinsky, acknowledged seeing her, acknowledged she had given him gifts, and acknowledged he had given her gifts. Moreover, in his grand jury testimony, he acknowledged giving Ms. Lewinsky good-bye gifts on December 28, 1997, shortly before she moved to New York, a date which we believe to be after Ms. Currie picked up the box of gifts from Ms. Lewinsky. The gifts simply were not a concern to him.

It is our understanding that Ms. Lewinsky may have testified that she raised with the President a concern about the Jones lawyers' request for gifts from the President and that, shortly thereafter, Ms. Currie appeared at her home stating that she understood Ms. Lewinsky had something for her. Ms. Lewinsky apparently testified that she then provided to Ms. Currie for safekeeping a box containing some of the gifts received from the President.

(3) Job Assistance to Ms. Lewinsky

The President made certain efforts to try to assure that Ms. Lewinsky had a fair shot at a job other than her Pentagon position, where she was not happy, and he generally was aware of other efforts by his secretary Ms. Currie and his friend Mr. Jordan. These actions were totally appropriate. At no time did the President ask that Ms. Lewinsky be accorded specially favorable or unfavorable treatment because of his relationship with her or for any other reason. These actions began well before Ms. Lewinsky was ever named a witness in the Jones litigation, and they were in no way intended to influence Ms. Lewinsky to keep secret what was at that time an already terminated relationship. There is no evidence of any link whatsoever between the President's actions and possible testimony by Ms. Lewinsky in the Jones case.

In April 1996, Ms. Lewinsky was reassigned from the White House to the Pentagon. Although the transfer was viewed as a promotion, the President became aware that Ms. Lewinsky was upset about it, did not see it as a positive change, and feared that the transfer would be appear to be a demotion or "black mark " on her resume. To the extent that Ms. Lewinsky was criticized for spending more time in the West Wing than was required by her responsibilities in the Office of Legislative Affairs, the President felt responsible.

In the summer of 1997, the President spoke to Marsha Scott, the deputy personnel director at the White House, and inquired about the possibility of a position being available for Ms. Lewinsky in the White House. He never ordered Ms. Scott or anyone else to provide her special treatment or directed that she be given a job at the White House. He simply wanted to assure that she had been treated fairly and asked only that Ms. Scott look into the possibility of a position at the White House for Ms. Lewinsky if it was appropriate. Ms. Lewinsky was never offered an opportunity to return to the White House-Bas a result of that conversation or otherwise.

In the fall of 1997, Ms. Betty Currie spoke to Mr. John Podesta about finding a job for Ms. Lewinsky in New York, and Mr. Podesta ultimately spoke to Ambassador Bill Richardson about the matter. The Ambassador agreed to interview Ms. Lewinsky for a position in his New York office. The President was not involved in arranging the Richardson interview. When Ms. Lewinsky indicated to Ms. Currie that she preferred a job in the private sector, Ms. Currie contacted Mr. Jordan, her long-time friend, to see whether he would be willing to make inquiries regarding a job opportunity for Ms. Lewinsky in the private sector. Mr. Jordan referred her for interviews at American Express and Revlon, and to the advertising agency of Young & Rubicam. As Mr. Jordan said in his January 22, 1998 statement on the matter:

Mr. Jordan is a private individual who is free to offer job assistance to whomever he chooses.

Questions have been raised about a connection between the timing of Ms. Lewinsky's affidavit (which was executed January 7 and filed January 16) and the timing of any job offer. There was no connection. Francis Carter, Esq., Ms. Lewinsky's attorney at the time she executed the affidavit, apparently has stated that Ms. Lewinsky never asked him to delay the filing of an affidavit until after she had secured a job in New York and never suggested when the affidavit should be filed. The Washington Post, June 19, 1998. Indeed, Mr. Carter has reported that he himself delayed the filing of the affidavit while he attempted to persuade the Jones attorneys to withdraw the subpoena to Ms. Lewinsky. Ibid.

Indeed, it was totally appropriate for Mr. Jordan to refer Ms. Lewinsky to Francis Carter to represent her in the Jones litigation. Mr. Carter is a highly respected lawyer who would owe his duty to Ms. Lewinsky and represent her interests. Assuring a witness has her own counsel in whom she may confide is the surest and most appropriate way to protect the integrity of the process. As Mr. Jordan indicated in his January 22 statement, the referral was "at her request " and Mr. Jordan simply "took her to Mr. Carter's office, introduced them, and returned to my office. " Ms. Lewinsky paid Mr. Carter herself. Mr. Carter has said that Mr. Jordan brought Ms. Lewinsky to his office, introduced them, and told him that she had been subpoenaed in the Jones case and needed an attorney. The Washington Post, June 19, 1998. According to Mr. Carter, Mr. Jordan did not suggest what should be done or how the matter should be handled, but promptly left. Ibid. Mr. Carter has stated, "I never received any kind of information from [Ms. Lewinsky] at any time that contradicted anything that's in that affidavit. " Ibid.

Finally, in January of 1998, the President asked Mr. Erskine Bowles whether the legislative affairs office where Ms. Lewinsky once had worked would be able to give Ms. Lewinsky a reference that would not be negative. The President understood from Ms. Lewinsky that she thought she could get a good reference from The Department of Defense but hoped for a White House reference that was at least neutral. The President did not instruct anyone to provide such a reference and did not follow up on the inquiry. This innocuous query for an honest reference cannot conceivably be a basis for any charge of wrongdoing.

VI. "ABUSES OF POWER"

From the very beginning, the Lewinsky investigation has been about potential impeachment -- a direct attack by the OIC on the constitutional status of the President. It is in that context that the OIC's allegations of abuse of power must be judged.

Any charge the OIC might make that the President has abused the powers of his office through the assertion of privileges -- privileges that were asserted at the initiation and recommendation of the Counsel's Office, not by the President himself -- is utterly baseless. Indeed, those charges are more a reflection of the OIC's unfettered abuse of his authority and his wholesale abandonment of any prosecutorial judgment in his campaign to prevent the President from consulting with his most senior advisors in confidence. No prosecutor, not even during Watergate, ever has contemplated the sort of sweeping intrusion into the President's ability to obtain advice that has been undertaken by the OIC. At bottom, the Independent Counsel believes that, merely because he demands confidential information, the President may not defend himself against impeachment without raising a charge that he is thereby abusing his power.

Before moving to these issues, one other point is worthy of note. It has been suggested in media reports that one of the grounds for impeachment advanced by the OIC is that the President abused his power by denying to his staff, in the days immediately following disclosure of the Lewinsky investigation, that he had engaged in any improper conduct when he knew that they might be called as witnesses before the grand jury and knew that they were making public statements in his defense. If this allegation were not so serious, such a suggestion would be ludicrous.

Implicit in the allegation is the notion that any official, in any branch of the government, who makes a statement about his own conduct, or indeed any other matter, that is not absolutely true is liable for misusing his office for so long as he fails to admit wrongdoing, for the official's staff will inevitable repeat his explanation in any number of forums. It would follow, therefore, according to what appears to be the OIC's reasoning, that no official could mount a defense to impeachment, or to ethics charges, or to a criminal investigation while remaining in office, for anything other than an admission of guilt will be treated as an abuse of his official powers.

The Independent Counsel apparently attempts to evoke images of Watergate by charging that the President has abused the powers of his office. This allegation is simply meritless. In the Federalist Papers, Alexander Hamilton described abuse of power as the "corrupt use of the office for personal gain or some other improper purpose." Former President Nixon's use of the Central Intelligence Agency (CIA) to thwart a major criminal investigation by the Federal Bureau of Investigation (FBI) of a crime in which he was involved, to take but one example, fits squarely within that definition. President Clinton's lawful assertion of privileges in a court of law and the Counsel's Office conduct of its official duties plainly does not.

There is no comparison between the claimed abuses of power by President Nixon and the public and lawful assertion of privileges during the OIC investigation. Indeed, comparing this White House with President Nixon's diminishes the historical significance of the unprecedented claims of abuse of power by the Nixon administration and attempts to criminalize the proper exercise of presidential prerogatives. The specious nature of the OIC's allegations reveal the OIC's true motive: to create an offense where none exists.

In July 1974, the House Judiciary Committee lodged serious and significant abuse of power charges against President Nixon, alleging that President Nixon, among other things:

In contrast, the OIC apparently has made such charges of abuse against President Clinton, however erroneously, for purportedly encouraging the Secret Service to assert privilege claims over their testimony and invoking attorney-client and executive privileges. President Clinton's privilege claims have been open and lawful, and were reviewed and in significant measure validated by the courts. Thus, the Nixon investigation and precedent stand in sharp contrast to the OIC's investigation and baseless charges in this matter.

2. The United States Secret Service's Decision to Pursue AProtective Privilege Was the Proper Exercise of Its Own Authority And In No Way an Abuse of Power By the President

The assertion of a protective function privilege by the Secret Service cannot possibly serve as a basis for the OIC's allegations of abuse of power. As a factual matter, the President never asked, directed, or participated in any decision regarding the protective function privilege. Moreover, no one at the White House asked, directed, participated or had any role in such decisions. The Treasury and Justice Departments independently decided to pursue a privilege for the Secret Service to ensure the protection of this and future presidents.

Second, ignoring significant security concerns expressed by the Secret Service, the Independent Counsel sought testimony from agents about non-criminal events they may have witnessed as well as non-criminal conversations they may have overheard in the course of protecting the President. For the first time in the history of the Independent Counsel statute, the Independent Counsel sought to use the protective service as a source of intelligence for admittedly non-criminal activities of a protectee. In the wake of this unprecedented demand, it was and continues to be the reasoned judgment of career professionals in the Secret Service that the absence of a protective privilege would severely impair agents' ability to fulfill their mission to protect this and future Presidents (as well as other protectees). The Secret Service's position was supported by former presidents and by former agents assigned to protect presidents in both Republican as well as Democratic administrations.

Thus, the Justice and Treasury Departments' assertion of a protective privilege advanced valid concerns about the Secret Service's ability to perform its function. The OIC's suggestion that the assertion of this privilege constituted an abuse of power not only insults the integrity of career law enforcement officials, but that of congressional policy makers too. Indeed, because of the Independent Counsel's unorthodox overreaching, Senator Hatch vowed to seek legislation to enact the type of limited privilege asserted by the Secret Service in response to the Independent Counsel's sweeping actions. Congressional Press Releases, Senator Orrin Hatch, July 17, 1998.

Any charge by the OIC that the President's assertion of privileges constitutes an abuse of power is equally baseless. The White House advanced claims of privilege only sparingly and as a last resort to protect the core constitutional and institutional interests of this and future presidencies. In pursuing his attack on the institution of the Presidency, the OIC took the extreme position that executive privilege was inapplicable and that the governmental attorney-client privilege did not exist in the face of grand jury subpoena. The OIC now seeks to penalize the President for disagreeing with its interpretations of the law, despite the fact that the courts (and the Department of Justice) both also disagreed with the OIC.

A necessary component of the OIC's abuse of power allegation is that the President initiated the White House's claims of privilege -- both executive and attorney-client -- with intent to impede the OIC's investigation. The record completely refutes this premise.

The privilege issue initially arose when the OIC served on Bruce Lindsey, Assistant to the President and Deputy Counsel, a subpoena seeking his testimony before the grand jury. Declaration of Charles F.C. Ruff ( "Ruff Dec. ") & 31. Prior to Mr. Lindsey's appearance, the White House Counsel met with the OIC to discuss privilege issues and to ask the OIC to describe with particularity possible areas of inquiry to determine whether they would encompass privileged information. Id. & 32. The OIC declined to discuss this issue, and later stated that it intended to question Mr. Lindsey on areas implicating a wide array of privileges because it believed that executive and attorney-client privileges were inapplicable to information relating to the Lewinsky investigation. Id. && 32-34. The White House offered, in good faith, to provide the OIC with any factual testimony regarding the Lewinsky investigation. Id. && 45-50. The OIC rejected this offer. Id. & 51.

Instead, the OIC suddenly filed motions to compel the testimony of Mr. Lindsey and other senior staff. Id. After careful deliberations, the White House Counsel notified the President of the privilege issue, explained the failed accommodation effort, and recommended that he invoke privilege. As he did in every instance, the President accepted the White House Counsel's recommendation and authorized the Counsel to make the claim of privilege. Id. & 56. Thus, the President's decision to claim privilege was never the result of his own initiative, but of his Counsel's advice.

B. The President's Executive Privilege Assertions Were Upheld by the Court

To put the OIC's apparent abuse of power charges in context, it is important to recognize that the OIC took the extraordinary position that executive privilege was inapplicable in the face of a grand jury subpoena and that it therefore was entitled to immediate and full disclosure of all strategic and political communication among the President's most senior advisors. This position was squarely at odds with the law of the Supreme Court, and of course, the D.C. Circuit. Executive privilege is constitutionally-based and covers communications relating to the President's official duties and the effective functioning of the executive branch. It ensures that the President receives frank and candid advice and recommendations, which ultimately fosters more informed and effective decision-making.

Here, the President asserted executive privilege over communications that relate to matters that affect the performance of his official duties. In re Grand Jury Proceedings, 1998 U.S. Dist. Lexis 7736, *7 (D.D.C. 1998); Ruff Dec. && 16-30. Indeed, some of these communications related to the President's decision whether to invoke privilege over other communications. Id. && 26-28.

Rather than acknowledge the presumptively privileged nature of the information, the OIC maintained that the privilege was inapplicable and that it did not have to demonstrate any need for the information. Chief Judge Johnson rejected the OIC's position holding that the communications were presumptively privileged. In re Grand Jury Proceedings, 1998 U.S. Dist. Lexis at *3-10. The Court then required the OIC to make a showing that its need for the information was sufficient to overcome the privilege. Id. at * 13-21. Although the Court concluded that the OIC had met its burden, the Court at no time even suggested that the President's assertion of executive privilege was groundless, improper, or made in bad faith. In those circumstances, it cannot seriously be argued that assertion of the privilege was an abuse of power.

For centuries, the law has recognized the attorney-client privilege as absolute in protecting the confidentiality of communications between lawyers and their clients. The D.C. Circuit has also recognized that the attorney-client privilege protects confidential communications between government lawyers and officials. E.g. Mead Data Control, Inc. v. Dep't of the Air Force, 566 F.2d 242 (D.C. Cir. 1977). Courts recognize that a government official, like any other citizen, must be able to provide information to and seek advice from government lawyers without fear of public disclosure. Ultimately, the privilege serves an important governmental function by fostering well-advised and fully-informed decision-making. The possibility that those communications may be disclosed will forfeit the benefits the privilege was intended to protect.

Despite the law in the D.C. Circuit recognizing the attorney-client privilege in the governmental context, the Independent Counsel pushed to breach the bonds of the governmental attorney-client privilege. Unlike his predecessors, who have respected the professional obligation of government attorneys to provide confidential legal advice on official matters, the Independent Counsel has insisted that government attorneys and clients do not have the right to discuss legal issues in confidence. In this context, the White House's assertion of the attorney-client privilege was not only appropriate, but it was an ethical and institutional obligation.

Prior to the D.C. Circuit litigation, the OIC was well aware that the White House fundamentally disagreed with the OIC regarding the applicability and scope of the governmental attorney-client privilege. In the Eighth Circuit, the OIC had attempted to obtain a White House lawyer's notes that reflected confidential communications. In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8^th Cir. 1997). At the time of that litigation, which the White House resisted and the OIC won, there was no authority rejecting the existence of a governmental attorney-client privilege.

Two years later, the OIC, in the Lewinsky investigation, sought to compel the disclosure of confidential communications between the President and his official lawyers in which legal advice was either being sought by or provided to the President regarding official matters. In view of the law of the D.C. Circuit, which recognized an absolute governmental attorney-client privilege, the White House Counsel recommended, and the President asserted, the privilege.

A recent Supreme Court ruling that rejected the OIC's sweeping attack on the attorney-client privilege provided additional support for the President's position. In Swidler & Berlin v. United States, ___U.S.___ (1998); 1998 U.S. Lexis 4214 (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 stated that "there is no case authority for the proposition that the privilege applies differently in criminal and civil cases, " id. at *7, supporting the principle that the privilege remains absolute in a grand jury context. Accordingly, the President's position on the applicability of the privilege in this context had a substantial basis in the decisions of both this Circuit and the Supreme Court.

Undaunted, the OIC argued that, based upon the non-binding Eighth Circuit opinion, the governmental attorney-client privilege is inapplicable in a grand jury context. 112 F.3d 910 (8^th Cir. 1997). From an institutional standpoint, the OIC's position stripped the President of any ability to obtain confidential advice from government lawyers about official matters in the event that the OIC made a referral to Congress for possible impeachment hearings. In an impeachment context, the President is entitled to rely on Counsel's Office lawyers to provide critical legal guidance. Without the ability to receive such confidential advice, he is left without any legal guidance regarding the conduct of his official duties.

The District Court rejected the OIC's position and held that the President had a valid, though qualified, governmental attorney-client privilege. In re Grand Jury Proceedings, 1998 U.S. Dist. Lexis at *21-52. Performing a need analysis similar to executive privilege, 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. Once again, the District Court did not suggest that the privilege claim was spurious or made in bad faith.

On appeal, a divided D.C. Circuit Court of Appeals ruled that the President had an attorney-client privilege with White House Counsel in some contexts, but not this one. In re: Bruce R. Lindsey, 1998 U.S. App. Lexis 17066, *7-43 (D.C. Cir. 1998). Judge David Tatel, whose dissenting opinion in the Court of Appeals' decision in Swidler & Berlin was adopted by the Supreme Court, dissented here as well. Consistent with his analysis in Swidler & Berlin, Judge Tatel found 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 *54. Judge Tatel's recognition of the validity of the absolute nature of the privilege and the President's need to assert this and belies the notion that the assertion was in any way an abuse of power.

The OIC's apparent argument that the assertions of privilege were for purposes of delay lacks any evidentiary support and, more significantly, overlooks the OIC's own dilatory conduct. After Mr. Lindsey was subpoenaed and before he was scheduled to testify, the Office of the President attempted to avoid litigating these issues by reaching an accommodation that would provide the OIC with access to the information to which it was entitled while maintaining the legitimate confidentiality interests of the President. Id. && 31-32. The OIC rejected those efforts and instead filed its motion to compel. Id. &51. The OIC has continued to reject any attempt by the White House to compromise, choosing instead to litigate these issues. The Office of the President has sought to avoid any delay by agreeing to expedited briefing schedules involving privilege litigation, and the courts, appreciating the time-sensitivity of the issues, have ruled swiftly on these matters.

In any event, any delay that might have been caused by the White House had no substantive impact on the OIC's investigation. Privilege claims have been advanced as to only 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 staffers; in March, they both appeared before the grand and testified fully. The privilege assertions ultimately involved the testimony of only three Counsel's Office lawyers. Each of these individuals has testified at length regarding any facts they may have possessed about whether the President had a relationship with Ms. Lewinsky. The questions as to which they asserted privilege were narrow in scope and irrelevant to the matters being investigated.

Finally, substantial delay in the investigation has been self-inflicted. The OIC has wandered aimlessly down more alleys and byways than any federal prosecutor would appropriately do. The OIC has called current and former White House staffers before the grand jury, and interviewed many others. The OIC has called presidential advisers before the grand jury four, five and six times; sometimes for only one- or two-hour sessions. Some witnesses appeared to testify only to find themselves waiting for hours and then being told to return on another day. The OIC has also insisted on exploring such irrelevant subjects as White House contacts with the press, and has required testimony from attorneys whose primary function was to deal with the OIC. Such actions are highly unusual, if not unprecedented.

Finally, the open and lawful efforts of the White House lawyers to assist White House staff obtain lawyers, to speak with witnesses and their lawyers, and to provide advice on the ramifications of the investigation also cannot be considered an abuse of power.

As a threshold matter, when there is an official nexus between the duties of the President and an ongoing investigation, which certainly exists here, it is the duty of government attorneys to represent their official client. The specter of impeachment loomed from the day the Lewinsky story broke in the press. Ruff Dec. & 21. Members of the Congress asserted that the investigation, which drew explosive media, public and congressional attention, burdened the President's ability to perform his constitutional and statutory duties. Accordingly, the White House Counsel's Office lawyers, among others, were responsible for providing the President and White House officials with informed, candid advice on the issues raised by the investigation that affected the President's official duties. Id. && 16-30.

When it suited the OIC's interests, the OIC recognized the appropriateness of, and relied on, the White House Counsel's efforts. From the beginning of this investigation, the OIC sought -- and received -- the cooperation of the White House lawyers in setting up interviews and grand jury appearances of current and former White House employees. The OIC, however, refused to allow the White House lawyers to represent even the most junior, uninvolved witnesses. Thus, all White House officials, from the most senior to the most junior, were required to obtain private counsel. White House lawyers also provided relevant documents to witnesses' attorneys to ensure complete and accurate testimony, provided privilege instructions and guidance, and followed-up afterwards to discuss an individual's interview or grand jury appearance and any outstanding issues. All of the Counsel's Office activities were well-known to the OIC, and no objection was ever voiced.

Lastly, it was not uncommon for the White House to be faced with inaccurate and spurious stories that seemed to be coming from the OIC or "sources close to the OIC" shortly after a witness testified or was interviewed by the prosecution. Indeed, Judge Johnson examined media reports, and concluded that they contained grand jury material and that there was evidence that the OIC as the source. In re Grand Jury Proceedings, Misc. No. 98-55 (D.D.C. June 19, 1998), Mem. Op. at 6. Accordingly, Judge Johnson held that this evidence established a prima facie case that the OIC had violated Rule 6(e) and ordered the OIC to appear to show cause why it should not be held in contempt for Rule 6(e) violations. These leaks created a deluge of press inquiries to the White House; not surprisingly, White House Counsel lawyers were required to gather information and advise senior staff concerning the appropriate response to these inquiries.

VII. ALLEGATIONS OF PERJURY^/

The OIC cannot make out even a colorable claim of perjury. If answers are truthful or literally truthful but misleading, there is no perjury as a matter of law, no matter how misleading the testimony is or is intended to be. The law simply does not require the witness to aid his interrogator. The Referral seeks to punish the President for being unhelpful to those trying to destroy him politically.

A. The Law of Perjury

Perjury requires proof that a defendant, while under oath, knowingly made a false statement as to material facts.^/ 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 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). It is beyond debate that false testimony provided as a result of confusion, mistake, faulty memory, carelessness, misunderstanding, mistaken conclusions, unjustified inferences testified to negligently, or even recklessness does not satisfy the "knowingly " element. 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.

Moreover, it is of course clear that a statement must be false in order to constitute perjury. It is equally beyond debate that the following types of answers are not capable of being false and are therefore by definition non-perjurious: 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 failures 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.

Thus, in explaining the law of perjury, the Supreme Court and numerous lower federal courts have set forth three clear standards. First, 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. " The second clear rule is that answers to questions that are fundamentally ambiguous cannot, as a matter of law, be perjurious. Finally, a perjury conviction under 18 U.S.C. ' 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 has any question as to credibility or truthfulness. 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).

1. Bronston and "Literal Truth.@

In United States v. Bronston, 409 U.S. 352 (1973), the leading case on the law of perjury, the United States 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 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?

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 ownB-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 took pains 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-Bto the incongruity of petitioner's unresponsive answer. " Id. at 359. Moreover, the Court noted that because of the adversarial process, perjury is an extraordinary sanction that is almost always unwarranted, 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.^/ 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. Literally every federal court of appeals in the nation concurs in this reading of Bronston.^/

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 the penitentiary " 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 A=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:

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:

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.^/

The law is clear that in a perjury prosecution under 18 U.S.C. ' 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 ' 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 ' 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 ' 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.

While 18 U.S.C. ' 1623 does not incorporate the "two-witness rule, " it is nonetheless clear from the case law that perjury prosecutions 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 United States 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 ' 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 criminal cases 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.@

B. The Jones Deposition

Without knowledge of the OIC's specific allegations it is impossible to address why any particular claim of perjury fails although we are confident that no colorable claim of perjury can be made out. However, illegal leaks and speculation make clear that there are certain misperceptions about this testimony that can immediately be laid to rest. For example,

Not so. The President acknowledged in his deposition that he met with Ms. Lewinsky on up to five occasions while she worked at the White House. (p. 50). He then referred back to that testimony when asked if he ever was alone with her in the Oval Office (p. 52), and again when asked whether he was alone with her in any room in the White House. (p. 59). The Jones lawyers did not follow up and ask the President to describe the nature of any physical contact that may have occurred on these occasions.

Not so. The President was asked whether he had "an extramarital sexual affair " with Ms. Lewinsky (p. 78) and responded that he did not. That term was undefined and ambiguous. The President understood the term "sexual affair " to involve a relationship involving sexual intercourse. He had no such relationship with Ms. Lewinsky.

The President also was asked whether he had "sexual relations " with Ms. Lewinsky, "as that term is defined in Deposition Exhibit 1, as modified by the Court. " (p. 59). The Court explicitly directed the President's attention to Definition Number 1 on Exhibit 1, which the President had circled.

The President denied he had "sexual relations " with Ms. Lewinsky under this definition. Although the President's counsel, Mr. Bennett, had invited the Jones lawyers to ask specific questions about the President's conduct-- "Why don't they ask the President what he did, what he didn't do, and then we can argue in Court later about what it means? " (p. 21)--the Jones lawyers declined to do so, relying instead on the definition. The President was not asked any specific questions at all about his physical contact with Ms. Lewinsky, and in particular he was not pointedly asked whether he had engaged in any of the conduct outside the definition provided. The President's testimony in response to these questions was accurate. He did not have sexual intercourse with Ms. Lewinsky or otherwise engage in sexual conduct covered by the definition, as provided by plaintiff and narrowed by the Court.

The President also testified in the Jones deposition that Ms. Lewinsky's affidavit, in which she stated she had never had a "sexual relationship " with the President, was accurate (p. 204). He believed this testimony to be truthful. The term "sexual relationship " was not defined in the affidavit or in the deposition. The definition of the different term "sexual relations " utilized by the Jones lawyers did not apply to that question. The term "sexual relationship, " like sexual affair, has no definitive meaning. To the President, that term reasonably requires sexual intercourse as a necessary component of the relationship. Since his relationship with Ms. Lewinsky did not involve intercourse, he truthfully answered that the affidavit was accurate.

Not so. The President's answers left no doubt that he had a special relationship with Ms. Lewinsky. He acknowledged knowing how she had gotten her internship at the White House. He acknowledged meeting with her and knowing where she worked after leaving the White House. He acknowledged exchanging small gifts with her. He acknowledged that he knew she was moving to New York and that her mother had moved there. He acknowledged knowing about her job search in New York, and that she had had an interview with (then) U.N. Ambassador Bill Richardson. He acknowledged that Mr. Jordan reported on his meeting with Ms. Lewinsky about her New York job search. He acknowledged receiving cards and notes from her through Ms. Betty Currie. The Jones lawyers received affirmative responses to particular questions. Had they opted to ask precise questions on other matters, they would have received truthful responses. They did not do so.

VIII. THE LEWINSKY EXPANSION OF THE WHITEWATER INVESTIGATION

The expansion of the Independent Counsel's jurisdiction to encompass the Jones case and Ms. Lewinsky did not occur by accident or easily. The OIC deliberately and purposefully sought this expansion on an emergency basis. Media accounts that the Attorney General herself requested this expansion are highly misleading.

On January 16, 1998, upon the OIC's request, the Special Division of the Court of Appeals for the Purpose of Appointing Independent Counsels expanded the OIC's jurisdiction to allow it to investigate "whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law . . . in dealing with witnesses, potential witnesses, attorneys, or others concerning the civil case Jones v. Clinton." Order, Div. No. 94-1 (Jan. 16, 1998) (Div. for Purpose of Appointing Independent Counsel) (D.C. Cir.). The series of events that led to this expansion of authority raise serious questions as to the motivations and manipulations of the OIC in securing this expanded jurisdiction.

Under the Independent Counsel statute, if the "independent counsel discovers or receives information about possible violations of criminal law by [covered persons], which are not covered by the prosecutorial jurisdiction of the independent counsel, the independent counsel may submit such information to the Attorney General." 28 U.S.C. ' 593 (c)(2)(A). The Attorney General is then to conduct a preliminary investigation. 28 U.S.C. ' 592. The statute did not give the OIC authority to conduct its own preliminary investigation in order to gather or create evidence to present to the Attorney General to support a request for an expansion of jurisdiction.

According to media reports, Ms. Linda Tripp contacted the OIC on Monday, January 12, 1998. There was no particular logic to this contact, and she could easily have taken her concerns to state or federal authorities. In any event, the OIC arranged for Ms. Tripp to wear an F.B.I. recording device and tape surreptitiously a conversation that she had with Ms. Lewinsky the next day, Tuesday, January 13, 1998 (Ms. Lewinsky had not yet filed an affidavit in the Jones case). On Friday, January 16, 1998, at the OIC's request, Ms. Tripp lured Ms. Lewinsky to a meeting, where she was apprehended by OIC agents, who confronted her and attempted to pressure her into doing surreptitious taping herself. She was informed that an immunity agreement was contingent on her not contacting her lawyer.^/

That same day, the Special Division agreed to expand the OIC's authority, based upon the Independent Counsel's earlier application to the Attorney General and on the tapes that the OIC had already created: "In a taped conversation with a cooperating witness, Ms. Lewinsky states that she intends to lie when deposed. In the same conversation, she urges the cooperating witness to lie in her own upcoming deposition. . . . Independent Counsel Starr has requested that this matter be referred to him. " (Text of Attorney General's Petition to Special Division, The Associated Press, January 29, 1998.)

The Independent Counsel later suggested that the expansion of authority prior to the taping was unnecessary, as it was already within his jurisdiction. However, the Lewinsky matter had no connection whatsoever to the Whitewater activities, or any other activities, then being investigated by the OIC. In addition, the Attorney General specifically stated in her referral to the Special Division that she was seeking an expansion of the Independent Counsel's jurisdiction. Or, as former independent counsel Michael Zeldin pointed out, "If he had jurisdiction to investigate it when he wired her, why did he have to go to court to get it afterward? In some ways, he is talking out of both sides of his mouth. . . . It seems to me arguable that he obtained evidence unlawfully . . . ." Chicago Tribune, January 25, 1998. And former independent counsel Lawrence Walsh declared, "A prosecutor has no business getting into that case [Paula Jones] unless there's something terrible happening. I question Starr's judgment in going into it so hard." Chicago Tribune, January 25, 1998.

Furthermore, the sequence of events suggests that Independent Counsel Starr deliberately delayed requesting the expansion of jurisdiction. Neither Monica Lewinsky nor President Clinton had made any statements under oath in the Jones case (at least that had been filed with any court) when Linda Tripp approached the OIC on January 12. The only evidence the OIC possessed at that time were tapes illegally created by Tripp. The OIC itself proceeded to tape the Tuesday, January 13 conversation between Tripp and Lewinsky. Ms. Lewinsky's affidavit was not filed in the Jones case until January 16, and the OIC had petitioned the Attorney General the day before for an expansion of authority based on the evidence (the Tripp tapes and the OIC's tape) that he had acquired without any authority to do so.

Ms. Tripp remained through the day at the hotel where Ms. Lewinsky was apprehended by the OIC on Friday, January 16, 1998.^/ During that day, Ms. Jones' lawyers repeatedly tried to contact Ms. Tripp for a meeting, but she was unavailable. Ibid. Late in the afternoon, when it became clear that Ms. Lewinsky would not cooperate in the surreptitious taping of others, the Jones lawyers received a call arranging a meeting with Ms. Tripp for that night, so she could help them prepare for the President's deposition next day. Ibid.^/ It seems probable that Ms. Tripp, who was acting as the OIC's agent under an immunity agreement, must have gotten approval for this briefing from the OIC. Ms. Tripp met with the Jones lawyers at her home in Maryland that night and briefed them on the illegal tapes she had made of Ms. Lewinsky^/, so they could use the contents of those tapes in their questioning of the President.^/ Ms. Tripp is under investigation in the state of Maryland because she secretly recorded Ms. Lewinsky and then shared the existence and contents of those tapes with the Jones lawyers. It is a crime in that state, punishable by imprisonment up to five years and a fine of up to $10,000, for a person to "wilfully" record a conversation without the consent of both parties or to "wilfully" disclose the contents of such an illegally recorded conversation. Md. Code Ann. ' 10-402 (1997).^/

On January 17, armed with the information obtained from Ms. Tripp, Ms. Jones' attorneys deposed President Clinton in great detail regarding Ms. Lewinsky. At about this time, the OIC sought to prevent press coverage of its attempt to have Ms. Lewinsky cooperate in secret taping.^/

This entire sequence of events--the OIC's delay in requesting jurisdiction, the OIC's pressure on reporters to withhold public disclosure of the matter,^/ the OIC's unwillingness to permit Ms. Lewinsky to contact her lawyer, and the OIC's dispatch of Ms. Tripp to brief the Jones lawyers about the fruits of her illegal taping the day before they were to depose the President--suggests an intention by the OIC to ensure that the expansion of jurisdiction was kept a secret until the President and Ms. Lewinsky had given testimony under oath and (if Ms. Lewinsky could be so persuaded) she had been enlisted to do surreptitious taping. In other words, rather than taking steps to defer or avoid any possible interference with the Jones case, the OIC did everything in its power--and some things outside its authority--to set up a case against the President.

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