Wednesday, January 13, 1999

Following is the full text of a "trial memorandum," in which the White House outlines its defense. The document was delivered Jan. 13 to the secretary of the Senate. Also see the much shorter "trial brief" filed on Jan. 11.

IN THE SENATE OF THE UNITED STATES SITTING AS A COURT OF IMPEACHMENT

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In re
Impeachment of
William Jefferson Clinton
President of the United States

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TRIAL MEMORANDUM OF PRESIDENT WILLIAM JEFFERSON CLINTON

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David E. Kendall Nicole K. Seligman Emmet T. Flood Max Stier Glen Donath Alicia Marti Williams & Connolly 725 12th Street, N.W. Washington, D.C. 20005

Charles F.C. Ruff Gregory B. Craig Bruce R. Lindsey Cheryl D. Mills Lanny A. Breuer Office of the White House Counsel The White House Washington, D.C. 20502

 

January 13, 1999

TABLE OF CONTENTS

I.	INTRODUCTION	1
A.	The Constitutional Standard for Impeachment Has Not Been Satisfied	4
B.	The President Did Not Commit Perjury or Obstruct Justice	5
C.	Compound Charges and Vagueness	5
II.	BACKGROUND	6
A.	The Whitewater Investigative Dead-End	6
B.	The Paula Jones Litigation	8
C.	The President's Grand Jury Testimony About Ms. Lewinsky	11
D.	Proceedings in the House of Representatives	12
III.	THE CONSTITUTIONAL STANDARD AND BURDEN OF PROOF FOR DECISION	15
A.	The Offenses Alleged Do Not Meet the Constitutional Standard of High Crimes and Misdemeanors	15
1.	The Senate Has a Constitutional Duty to Confront the Question Whether Impeachable Offenses Have Been Alleged	15
2.	The Constitution Requires a High Standard of Proof of "High Crimes and Misdemeanors" for Removal	16
a.	The Constitutional Text and Structure Set an Intentionally High Standard for Removal	16
b.	The Framers Believed that Impeachment and Removal Were Appropriate Only for Offenses Against the System of Government	19
3.	Past Precedents Confirm that Allegations of Dishonesty Do Not Alone State Impeachable Offenses	21
a.	The Fraudulent Tax Return Allegation Against President Nixon	21
b.	The Financial Misdealing Allegation Against Alexander Hamilton	23
4.	The Views of Prominent Historians and Legal Scholars Confirm that Impeachable Offenses Are Not Present	24
a.	No Impeachable Offense Has Been Stated Here	24
b.	To Make Impeachable Offenses of These Allegations Would Forever Lower the Bar in a Way Inimical to the Presidency and to Our Government of Separated Powers	26
5.	Comparisons to Impeachment of Judges Are Wrong	27
B.	The Standard of Proof	31
IV.	THE PRESIDENT SHOULD BE ACQUITTED ON ARTICLE I	33
A.	Applicable Law	33
B.	Structure of the Allegations	36
C.	Response to the Particular Allegations in Article I	38
1.	The President denies that he made materially false or misleading statements to the grand jury about "the nature and details of his relationship" with Monica Lewinsky	39
2.	The President denies that he made perjurious, false and misleading statements to the grand jury about testimony he gave in the Jones case	45
3.	The President denies that he made perjurious, false and misleading statements to the grand jury about the statements of his attorney to Judge Wright during the Jones deposition	50
4.	The President denies that he made perjurious, false and misleading statements to the grand jury when he denied attempting "to influence the testimony of witnesses and to impede the discovery of evidence" in the Jones case	51
V.	THE PRESIDENT SHOULD BE ACQUITTED ON ARTICLE II	54
A.	Applicable Law	54
B.	Structure of the Allegations	55
C.	Response to the Particular Allegations in Article II	56
1.	The President denies that on or about December 17, 1997, he "corruptly encouraged" Monica Lewinsky "to execute a sworn affidavit in that proceeding that he knew to be perjurious, false and misleading"	56
2.	The President denies that on or about December 17, 1997, he "corruptly encouraged" Monica Lewinsky "to give perjurious, false and misleading testimony if and when called to testify personally" in the Jones litigation	59
3.	The President denies that he "corruptly engaged in, encouraged, or supported a scheme to conceal evidence" -- gifts he had given to Monica Lewinsky -- in the Jones case	63
a.	Ms. Lewinsky's December 28 Meeting with the President	63
b.	Ms. Currie's Supposed Involvement in Concealing Gifts	66
c.	The Obstruction-by-Gift-Concealment Charge Is at Odds With the President's Actions	72
4.	The President denies that he obstructed justice in connection with Monica Lewinsky's efforts to obtain a job in New York in an effort to "corruptly prevent" her "truthful testimony" in the Jones case	74
a.	The Complete Absence of Direct Evidence Supporting This Charge	75
b.	Background of Ms. Lewinsky's New York Job Search	76
c.	The Committee Report's Circumstantial Case	80
1)	Monica Lewinsky's December 11 meeting with Vernon Jordan	80
2)	The January job interviews and the Revlon employment offer	84
d.	Conclusion	88
5.	The President denies that he "corruptly allowed his attorney to make false and misleading statements to a Federal judge" concerning Monica Lewinsky's affidavit	89
6.	The President denies that he obstructed justice by relating "false and misleading statements" to "a potential witness," Betty Currie, "in order to corruptly influence [her] testimony"	91
7.	The President denies that he obstructed justice when he relayed allegedly "false and misleading statements" to his aides	96
VI.	THE STRUCTURAL DEFICIENCIES OF THE ARTICLES PRECLUDE A CONSTITUTIONALLY SOUND VOTE	98
A.	The Articles Are Both Unfairly Complex and Lacking in Specificity	100
1.	The Structure of Article I	100
2.	The Structure of Article II	102
B.	Conviction on These Articles Would Violate the Constitutional Requirement That Two-Thirds of the Senate Reach Agreement that Specific Wrongdoing Has Been Proven	104
1.	The Articles Bundle Together Disparate Allegations in Violation of the Constitution's Requirements of Concurrence and Due Process	104
a.	The Articles Violate the Constitution's Two-Thirds Concurrence Requirement	104
b.	Conviction on the Articles Would Violate Due Process Protections that Forbid Compound Charges in a Single Accusation	109
C.	Conviction on These Articles Would Violate Due Process Protections Prohibiting Vague and Nonspecific Accusations	113
1.	The Law of Due Process Forbids Vague and Nonspecific Charges	113
2.	The Allegations of Both Articles Are Unconstitutionally Vague	115
D.	The Senate's Judgment Will Be Final and That Judgment Must Speak Clearly and Intelligibly.	120
VII.	THE NEED FOR DISCOVERY	121
VIII.	CONCLUSION	126

TRIAL MEMORANDUM OF
PRESIDENT WILLIAM JEFFERSON CLINTON

I. INTRODUCTION

Twenty-six months ago, more than 90 million Americans left their homes and work places to travel to schools, church halls and other civic centers to elect a President of the United States. And on January 20, 1997, William Jefferson Clinton was sworn in to serve a second term of office for four years.

The Senate, in receipt of Articles of Impeachment from the House of Representatives, is now gathered in trial to consider whether that decision should be set aside for the remaining two years of the President's term. It is a power contemplated and authorized by the Framers of the Constitution, but never before employed in our nation's history. The gravity of what is at stake -- the democratic choice of the American people -- and the solemnity of the proceedings dictate that a decision to remove the President from office should follow only from the most serious of circumstances and should be done in conformity with Constitutional standards and in the interest of the Nation and its people.

The Articles of Impeachment that have been exhibited to the Senate fall far short of what the Founding Fathers had in mind when they placed in the hands of the Congress the power to impeach and remove a President from office. They fall far short of what the American people demand be shown and proven before their democratic choice is reversed. And they even fall far short of what a prudent prosecutor would require before presenting a case to a judge or jury.

Take away the elaborate trappings of the Articles and the high-flying rhetoric that has accompanied them, and we see clearly that the House of Representatives asks the Senate to remove the President from office because he:

• used the phrase "certain occasions" to describe the frequency of his improper intimate contacts with Ms. Monica Lewinsky. There were, according to the House Managers, eleven such contacts over the course of approximately 500 days.

Should the will of the people be overruled and the President of the United States be removed from office because he used the phrase "certain occasions" to describe eleven events over some 500 days? That is what the House of Representatives asks the Senate to do.

• used the word "occasional" to describe the frequency of inappropriate telephone conversations between he and Monica Lewinsky. According to Ms. Lewinsky, the President and Ms. Lewinsky engaged in between ten and fifteen such conversations spanning a 23-month period.

Should the will of the people be overruled and the President of the United States be removed from office because he used the word "occasional" to describe up to 15 telephone calls over a 23-month period? That is what the House of Representatives asks the Senate to do.

• said the improper relationship with Ms. Lewinsky began in early 1996, while she recalls that it began in November 1995. And he said the contact did not include touching certain parts of her body, while she said it did.

Should the will of the people be overruled and the President of the United States be removed from office because two people have a different recollection of the details of a wrongful relationship -- which the President has admitted? That is what the House of Representatives asks the Senate to do.

The Articles of Impeachment are not limited to the examples cited above, but the other allegations of wrongdoing are similarly unconvincing. There is the charge that the President unlawfully obstructed justice by allegedly trying to find a job for Monica Lewinsky in exchange for her silence about their relationship. This charge is made despite the fact that no one involved in the effort to find work for Ms. Lewinsky -- including Ms. Lewinsky herself -- testifies that there was any connection between the job search and the affidavit. Indeed, the basis for that allegation, Ms. Lewinsky's statements to Ms. Tripp, was expressly repudiated by Ms. Lewinsky under oath.

There is also the charge that the President conspired to obstruct justice by arranging for Ms. Lewinsky to hide gifts that he had given her, even though the facts and the testimony contain no evidence that he did so. In fact, the evidence shows that the President gave her new gifts on the very day that the articles allege he conspired to conceal his gifts to her.

In the final analysis, the House is asking the Senate to remove the President because he had a wrongful relationship and sought to keep the existence of that relationship private.

Nothing said in this Trial Memorandum is intended to excuse the President's actions. By his own admission, he is guilty of personal failings. As he has publicly stated, "I don't think there is a fancy way to say that I have sinned." He has misled his family, his friends, his staff, and the Nation about the nature of his relationship with Ms. Lewinsky. He hoped to avoid exposure of personal wrongdoing so as to protect his family and himself and to avoid public embarrassment. He has acknowledged that his actions were wrong.

By the same token, these actions must not be mischaracterized into a wholly groundless excuse for removing the President from the office to which he was twice elected by the American people. The allegations in the articles and the argument in the House Managers' Trial Memorandum do not begin to satisfy the stringent showing required by our Founding Fathers to remove a duly elected President from office, either as a matter of fact or law.

A. The Constitutional Standard for Impeachment Has Not Been Satisfied

There is strong agreement among constitutional and legal scholars and historians that the substance of the articles does not amount to impeachable offenses. On November 6, 1998, 430 Constitutional law professors wrote:

Did President Clinton commit "high Crimes and Misdemeanors" warranting impeachment under the Constitution? We . . . believe that the misconduct alleged in the report of the Independent Counsel . . . does not cross the threshold. . . . [I]t is clear that Members of Congress could violate their constitutional responsibilities if they sought to impeach and remove the President for misconduct, even criminal misconduct, that fell short of the high constitutional standard required for impeachment.

On October 28, 1998, more than 400 historians issued a joint statement warning that because impeachment had traditionally been reserved for high crimes and misdemeanors in the exercise of executive power, impeachment of the President based on the facts alleged in the OIC Referral would set a dangerous precedent. "If carried forward, they will leave the Presidency permanently disfigured and diminished, at the mercy as never before of caprices of any Congress. The Presidency, historically the center of leadership during our great national ordeals, will be crippled in meeting the inevitable challenges of the future."

We address why the charges in the two articles do not rise to the level of `high Crimes and Misdemeanors" in Section III, Constitutional Standard and Burden of Proof.

B. The President Did Not Commit Perjury or Obstruct Justice

Article I alleges perjury before a federal grand jury. Article II alleges obstruction of justice. Both perjury and obstruction of justice are statutory crimes. In rebutting the allegations contained in the articles of impeachment, this brief refers to the facts as well as to laws, legal principles, court decisions, procedural safeguards, and the Constitution itself. Those who seek to remove the President speak of the "rule of law." Among the most fundamental rules of law are the principles that those who accuse have the burden of proof, and those who are accused have the right to defend themselves by relying on the law, established procedures, and the Constitution. These principles are not "legalisms" but rather the very essence of the "rule of law" that distinguishes our Nation from others.

We respond, in detail, to those allegations whose substance we can decipher in Section IV, The President Should Be Acquitted on Article I, and in Section V, The President Should Be Acquitted on Article II.

C. Compound Charges and Vagueness

If there were any doubt that the House of Representatives has utterly failed in its constitutional responsibility to the Senate and to the President, that doubt vanishes upon reading the Trial Memorandum submitted by the House Managers. Having proffered two articles of impeachment, each of which unconstitutionally combines multiple offenses and fails to give even minimally adequate notice of the charges it encompasses, the House -- three days before the Managers are to open their case -- is still expanding, not refining, the scope of those articles. In further violation of the most basic constitutional principles, their brief advances, merely as "examples," nineteen conclusory allegations -- eight of perjury under Article I and eleven of obstruction of justice under Article II, some of which have never appeared before, even in the Report submitted by the Judiciary Committee ("Committee Report"), much less in the Office of Independent Counsel ("OIC") Referral or in the articles themselves.¹ If the target the Managers present to the Senate and to the President is still moving now, what can the President expect in the coming days? Is there any point at which the President will be given the right accorded a defendant in the most minor criminal case -- to know with certainty the charges against which he must defend?

The Senate, we know, fully appreciates these concerns and has, in past proceedings, dealt appropriately with articles far less flawed than these. The constitutional concerns raised by the House's action are addressed in Section VI, The Structural Deficiencies of the Articles Preclude a Constitutionally Sound Vote.

II. BACKGROUND

A. The Whitewater Investigative Dead-End

The Lewinsky investigation emerged in January 1998 from the long-running Whitewater investigation. On August 5, 1994, the Special Division of the United States Court of Appeals for the District of Columbia Court Circuit appointed Kenneth W. Starr as Independent Counsel to conduct an investigation centering on two Arkansas entities, Whitewater Development Company, Inc., and Madison Guaranty Savings and Loan Association.

In the spring of 1997, OIC investigators, without any expansion of jurisdiction, interviewed Arkansas state troopers who had once been assigned to the Governor's security detail, and "[t]he troopers said Starr's investigators asked about 12 to 15 women by name, including Paula Corbin Jones. . . ." Woodward & Schmidt, "Starr Probes Clinton Personal Life," The Washington Post (June 25, 1997) at A1 (emphasis added). "The nature of the questioning marks a sharp departure from previous avenues of inquiry in the three-year old investigation . . . . Until now, . . . what has become a wide-ranging investigation of many aspects of Clinton's governorship has largely steered clear of questions about Clinton's relationships with women . . . ."² One of the most striking aspects of this new phase of the Whitewater investigation was the extent to which it focused on the Jones case. One of the troopers interviewed declared, "`[t]hey asked me about Paula Jones, all kinds of questions about Paula Jones, whether I saw Clinton and Paula together and how many times.'"³

In his November 19, 1998, testimony before the House Judiciary Committee, Mr. Starr conceded that his agents had conducted these interrogations and acknowledged that at that time, he had not sought expansion of his jurisdiction from either the Special Division or the Attorney General.⁴ Mr. Starr contended that these inquiries were somehow relevant to his Whitewater investigation: "we were, in fact, interviewing, as good prosecutors, good investigators do, individuals who would have information that may be relevant to our inquiry about the President's involvement in Whitewater, in Madison Guaranty Savings and Loan and the like."⁵ It seems irrefutable, however, that the OIC was in fact engaged in an unauthorized attempt to gather embarrassing information about the President -- information wholly unrelated to Whitewater or Madison Guaranty Savings and Loan, but potentially relevant to the lawsuit filed by Paula Jones.

B. The Paula Jones Litigation

The Paula Jones lawsuit made certain allegations about events she said had occurred three years earlier, in 1991, when the President was Governor of Arkansas. Discovery in the case had been stayed until the Supreme Court's decision on May 27, 1997, denying the President temporary immunity from suit.⁶ Shortly thereafter, Ms. Jones' legal team began a public relations offensive against the President, headed by Ms. Jones' new spokesperson, Ms. Susan Carpenter-McMillan, and her new counsel affiliated with the conservative Rutherford Institute.⁷ "`I will never deny that when I first heard about this case I said, "Okay, good. We're gonna get that little slimeball,"' said Ms. Carpenter-McMillan."⁸ While Ms. Jones' previous attorneys, Messrs. Gilbert Davis and Joseph Cammarata, had largely avoided the media, as the Jones civil suit increasingly became a partisan vehicle to try to damage the President, public personal attacks became the order of the day.⁹ As is now well known, this effort led ultimately to the Jones lawyers being permitted to subpoena various women, to discover the nature of their relationship, if any, with the President, allegedly for the purpose of determining whether they had information relevant to the sexual harassment charge. Among these women was Ms. Lewinsky.

In January 1998, Ms. Linda Tripp notified the OIC of certain information she believed she had about Ms. Lewinsky's involvement in the Jones case. At that time, the OIC investigation began to intrude formally into the Jones case: the OIC met with Ms. Tripp through the week of January 12, and with her cooperation taped Ms. Lewinsky discussing the Jones case and the President. Ms. Tripp also informed the OIC that she had been surreptitiously taping conversations with Ms. Lewinsky in violation of Maryland law, and in exchange for her cooperation, the OIC promised Ms. Tripp immunity from federal prosecution, and assistance in protecting her from state prosecution.¹⁰ On Friday, January 16, after Ms. Tripp wore a body wire and had taped conversations with Ms. Lewinsky for the OIC, the OIC received jurisdiction from the Attorney General and formalized an immunity agreement with Ms. Tripp in writing.

The President's deposition in the Jones case was scheduled to take place the next day, on Saturday, January 17. As we now know, Ms. Tripp met with and briefed the lawyers for Ms. Jones the night before the deposition on her perception of the relationship between Ms. Lewinsky and the President -- doing so based on confidences Ms. Lewinsky had entrusted to her.¹¹ She was permitted to do so even though she had been acting all week at the behest of the OIC and was dependent on the OIC to use its best efforts to protect her from state prosecution. At the deposition the next day, the President was asked numerous questions about his relationship with Ms. Lewinsky by lawyers who already knew the answers.

The Jones case, of course, was not about Ms. Lewinsky. She was a peripheral player and, since her relationship with the President was concededly consensual, irrelevant to Ms. Jones' case. Shortly after the President's deposition, Chief Judge Wright ruled that evidence pertaining to Ms. Lewinsky would not be admissible at the Jones trial because "it is not essential to the core issues in this case."¹² The Court also ruled that, given the allegations at issue in the Jones case, the Lewinsky evidence "might be inadmissible as extrinsic evidence" under the Federal Rules of Evidence because it involved merely the "specific instances of conduct" of a witness.¹³

On April 1, 1998, the Court ruled that Ms. Jones had no case and granted summary judgment for the President. Although Judge Wright "viewed the record in the light most favorable to [Ms. Jones] and [gave] her the benefit of all reasonable factual inferences,"¹⁴ the Court ruled that, as a matter of law, she simply had no case against President Clinton, both because "there is no genuine issue as to any material fact" and because President Clinton was "entitled to a judgment as a matter of law." Id. at 11-12. After reviewing all the proffered evidence, the Court ruled that "the record taken as a whole could not lead a rational trier of fact to find for" Ms. Jones. Id. at 39.

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

On August 17, 1998, the President voluntarily testified to the grand jury and specifically acknowledged that he had had a relationship with Ms. Lewinsky involving "improper intimate contact," and that he "engaged in conduct that was wrong." App. at 461.¹⁵ He described how the relationship began and how he had ended it early in 1997 -- long before any public attention or scrutiny. He stated to the grand jury "it's an embarrassing and personally painful thing, the truth about my relationship with Ms. Lewinsky," App. at 533, and told the grand jurors, "I take full responsibility for it. It wasn't her fault, it was mine." App. at 589-90.

The President also explained how he had tried to navigate the deposition in the Jones case months earlier without admitting what he admitted to the grand jury -- that he had been engaged in an improper intimate relationship with Ms. Lewinsky. Id. at 530-531. He further testified that the "inappropriate encounters" with Ms. Lewinsky had ended, at his insistence, in early 1997. He declined to describe, because of considerations of personal privacy and institutional dignity, certain specifics about his conduct with Ms. Lewinsky,¹⁶ but he indicated his willingness to answer,¹⁷ and he did answer, the other questions put to him about his relationship with her. No one who watched the videotape of this grand jury testimony had any doubt that the President admitted to having had an improper intimate relationship with Ms. Lewinsky.

D. Proceedings in the House of Representatives

On September 9, 1998, Mr. Starr transmitted a Referral to the House of Representatives that alleged eleven acts by the President related to the Lewinsky matter that, in the opinion of the OIC, "may constitute grounds for an impeachment."¹⁸ The allegations fell into three broad categories: lying under oath, obstruction of justice, and abuse of power.

The House Judiciary Committee held a total of four hearings and called but one witness: Kenneth W. Starr. The Committee allowed the President's lawyers two days in which to present a defense. The White House presented four panels of distinguished expert witnesses who testified that the facts, as alleged, did not constitute an impeachable offense, did not reveal an abuse of power, and would not support a case for perjury or obstruction of justice that any reasonable prosecutor would bring. White House Counsel Charles F.C. Ruff presented argument to the Committee on behalf of the President, which is incorporated into this Trial Memorandum by reference.¹⁹

On December 11 and 12, the Judiciary Committee voted essentially along party lines to approve four articles of impeachment. Republicans defeated the alternative resolution of censure offered by certain Committee Democrats. Almost immediately after censure failed in the Committee, the House Republican leadership declared publicly that no censure proposal would be considered by the full House when it considered the articles of impeachment.²⁰

On December 19, 1998, voting essentially on party lines, the House of Representatives approved two articles of impeachment: Article I, which alleged perjury before the grand jury, passed by a vote of 228 to 206 and Article III, which alleged obstruction of justice, passed by a vote of 221 to 212. The full House defeated two other Articles: Article II, which alleged that the President committed perjury in his civil deposition, and Article IV, which alleged abuse of power. Consideration of a censure resolution was blocked, even though members of both parties had expressed a desire to vote on such an option.

From beginning to end the House process was both partisan and unfair.

Consider:

• The House released the entire OIC Referral to the public without ever reading it, reviewing it, editing it, or allowing the President's counsel to review it;
• The Chairman of the House of Judiciary Committee said he had "no interest in not working in a bipartisan way";²¹
• The Chairman also pledged a process the American people would conclude was fair;²²
• The Speaker-Designate of the House endorsed a vote of conscience on a motion to censure;²³
• Members of the House were shown secret "evidence" in order to influence their vote -- evidence which the President's counsel still has not been able to review.

III. THE CONSTITUTIONAL STANDARD AND BURDEN OF PROOF FOR DECISION

A. The Offenses Alleged Do Not Meet the Constitutional Standard of High Crimes and Misdemeanors

1. The Senate Has a Constitutional Duty to Confront the Question Whether Impeachable Offenses Have Been Alleged

It is the solemn duty of the Senate to consider the question whether the articles state an impeachable offense.²⁴ That Constitutional question has not, in the words of one House Manager, "already been resolved by the House."²⁵ To the contrary, that question now awaits the Senate's measured consideration and independent judgment. Indeed, throughout our history, resolving this question has been an essential part of the Senate's constitutional obligation to "try all Impeachments." U.S. Const. Art. I, § 3, cl. 7. In the words of John Logan, a House Manager in the 1868 proceedings:

It is the rule that all questions of law or of fact are to be decided, in these proceedings, by the final vote upon the guilt or innocence of the accused. It is also the rule, that in determining this general issue senators must consider the sufficiency or insufficiency in law or in fact of every article of accusation."²⁶

We respectfully suggest that the articles exhibited here do not state wrongdoing that constitutes impeachable offenses under our Constitution.

2. The Constitution Requires a High Standard of Proof of "High Crimes and Misdemeanors" for Removal

a. The Constitutional Text and Structure Set an Intentionally High Standard for Removal

The Constitution provides that the President shall be removed from office only upon "Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." U.S. Constitution, Art. II, section 4. The charges fail to meet the high standard that the Framers established.²⁷

The syntax of the Constitutional standard "Treason, Bribery or other high Crimes and Misdemeanors" (emphasis added) strongly suggests, by the interpretive principle noscitur a sociis,²⁸ that, to be impeachable offenses, high crimes and misdemeanors must be of the seriousness of "Treason" and "Bribery."

Our Constitutional structure reaffirms that the standard must be a very high one. Ours is a Constitution of separated powers. In that Constitution, the President does not serve at the will of Congress, but as the directly elected,²⁹ solitary head of the Executive Branch. The Constitution reflects a judgment that a strong Executive, executing the law independently of legislative will, is a necessary protection for a free people.

These elementary facts of constitutional structure underscore the need for a very high standard for impeachment. The House Managers, in their Brief, suggest that the failure to remove the President would raise the standard for impeachment higher than the Framers intended. They say that if the Senate does not remove the President, "The bar will be so high that only a convicted felon or a traitor will need to be concerned." But that standard is just a modified version of the plain language of Article II, Section 4 of the Constitution, which says a President can only be impeached and removed for "Treason, Bribery, or other high Crimes and Misdemeanors." The Framers wanted a high bar. It was not the intention of the Framers that the President should be subject to the will of the dominant legislative party. As Alexander Hamilton said in a warning against the politicization of impeachment: "There will always be the greatest danger that the decision will be regulated more by comparative strength of parties than by the real demonstrations of innocence or guilt." Federalist 65. Our system of government does not permit Congress to unseat the President merely because it disagrees with his behavior or his policies. The Framers' decisive rejection of parliamentary government is one reason they caused the phrase "Treason, Bribery or other high Crimes and Misdemeanors" to appear in the Constitution itself. They chose to specify those categories of offenses subject to the impeachment power, rather than leave that judgment to the unfettered whim of the legislature.

Any just and proper impeachment process must be reasonably viewed by the public as arising from one of those rare cases when the Legislature is compelled to stand in for all the people and remove a President whose continuation in office threatens grave harm to the Republic. Indeed, it is not exaggeration to say -- as a group of more than 400 leading historians and constitutional scholars publicly stated -- that removal on these articles would "mangle the system of checks and balances that is our chief safeguard against abuses of public power."³⁰ Removal of the President on these grounds would defy the constitutional presumption that the removal power rests with the people in elections, and it would do incalculable damage to the institution of the Presidency. If "successful," removal here "will leave the Presidency permanently disfigured and diminished, at the mercy as never before of the caprices of any Congress."³¹

The Framers made the President the sole nationally elected public official (together with the Vice-President), responsible to all the people. Therefore, when articles of impeachment have been exhibited, the Senate confronts this inescapable question: is the alleged misconduct so profoundly serious, so malevolent to our Constitutional system, that it justifies undoing the people's decision? Is the wrong alleged of a sort that not only demands removal of the President before the ordinary electoral cycle can do its work, but also justifies the national trauma that accompanies the impeachment trial process itself? The wrongdoing alleged here does not remotely meet that standard.

b. The Framers Believed that Impeachment and Removal Were Appropriate Only for Offenses Against the System of Government

"[H]igh Crimes and Misdemeanors" refers to nothing short of Presidential actions that are "great and dangerous offenses" or "attempts to subvert the Constitution."³² Impeachment was never intended to be a remedy for private wrongs. It was intended to be a method of removing a President whose continued presence in the Office would cause grave danger to the Nation and our Constitutional system of government.³³ Thus, "in all but the most extreme instances, impeachment should be limited to abuse of public office, not private misconduct unrelated to public office."³⁴

Impeachment was designed to be a means of redressing wrongful public conduct. As scholar and Justice James Wilson wrote, "our President . . . is amenable to [the laws] in his private character as a citizen, and in his public character by impeachment."³⁵ As such, impeachment is limited to certain forms of wrongdoing. Alexander Hamilton described the subject of the Senate's impeachment jurisdiction as

those offenses which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done to the society itself.³⁶

The Framers "intended that a president be removable from office for the commission of great offenses against the Constitution."37 Impeachment therefore addresses public wrongdoing, whether denominated a "political crime[ ] against the state,"38 or "an act of malfeasance or abuse of office,"39 or a "great offense[ ] against the federal government."40 Ordinary civil and criminal wrongs can be addressed through ordinary judicial processes. And ordinary political wrongs can be addressed at the ballot box and by public opinion. Impeachment is reserved for the most serious public misconduct, those aggravated abuses of executive power that, given the President's four-year term, might otherwise go unchecked.

3. Past Precedents Confirm that Allegations of Dishonesty Do Not Alone State Impeachable Offenses

Because impeachment of a President nullifies the popular will of the people, as evidenced by an election, it must be used with great circumspection. As applicable precedents establish, it should not be used to punish private misconduct.

a. The Fraudulent Tax Return Allegation Against President Nixon

Five articles of impeachment were proposed against then-President Nixon by the Judiciary Committee of the House of Representatives in 1974. Three were approved and two were not. The approved articles alleged official wrongdoing. Article I charged President Nixon with "using the powers of his high office [to] engage[ ] . . . in a course of conduct or plan designed to delay, impede and obstruct" the Watergate investigation.⁴¹ Article II described the President as engaging in "repeated and continuing abuse of the powers of the Presidency in disregard of the fundamental principle of the rule of law in our system of government" thereby "us[ing] his power as President to violate the Constitution and the law of the land."⁴² Article III charged the President with refusing to comply with Judiciary Committee subpoenas in frustration of a power necessary to "preserve the integrity of the impeachment process itself and the ability of Congress to act as the ultimate safeguard against improper Presidential conduct."⁴³

One article not approved by the House Judiciary Committee charged that President Nixon both "knowingly and fraudulently failed to report certain income and claimed deductions [for 1969-72] on his Federal income tax returns which were not authorized by law."⁴⁴ The President had signed his returns for those years under penalty of perjury,⁴⁵ and there was reason to believe that the underlying facts would have supported a criminal prosecution against President Nixon himself.⁴⁶

Specifying the applicable standard for impeachment, the majority staff concluded that

[b]ecause impeachment of a President is a grave step for the nation, it is to be predicated only upon conduct seriously incompatible with either the constitutional form and principles of our government or the proper performance of constitutional duties of the president office.47

And the minority views of many Republican members were in substantial agreement:

the Framers . . . were concerned with preserving the government from being overthrown by the treachery or corruption of one man. . . . [I]t is our judgment, based upon this constitutional history, that the Framers of the United States Constitution intended that the President should be removable by the legislative branch only for serious misconduct dangerous to the system of government established by the Constitution.48

The legal principle that impeachable offenses required misconduct dangerous to our system of government provided one basis for the Committee's rejection of the fraudulent-tax-return charge. As Congressman Hogan (R-Md.) put the matter, the Constitution's phrase "high crime signified a crime against the system of government, not merely a serious crime."⁴⁹ As noted, the tax-fraud charge, involving an act which did not demonstrate public misconduct, was rejected by an overwhelming (and bipartisan) 26-12 margin.⁵⁰

b. The Financial Misdealing Allegation Against Alexander Hamilton

In 1792, Congress investigated Secretary of Treasury Alexander Hamilton for alleged financial misdealings with a convicted swindler. Hamilton had made payments to the swindler and had urged his wife (Hamilton's paramour) to burn incriminating correspondence. Members of Congress investigated the matter and it came to the attention of President Washington and future Presidents Adams, Jefferson, Madison and Monroe.

This private matter was not deemed worthy of removing Mr. Hamilton as Secretary of the Treasury.⁵¹ Even when it eventually became public, it was no barrier to Hamilton's appointment to high position in the United States Army. Although not insignificant, Hamilton's behavior was essentially private. It was certainly not regarded as impeachable.

4. The Views of Prominent Historians and Legal Scholars Confirm that Impeachable Offenses Are Not Present

a. No Impeachable Offense Has Been Stated Here

There is strong agreement among constitutional scholars and historians that the articles do not charge impeachable offenses. As Professor Michael Gerhardt summarized in his recent testimony before a subcommittee of the House of Representatives, there is "widespread recognition [of] a paradigmatic case for impeachment."⁵² In such a case, "there must be a nexus between the misconduct of an impeachable official and the latter's official duties."⁵³

There is no such nexus here. Indeed the allegations are so far removed from official wrongdoing that their assertion here threatens to weaken significantly the Presidency itself. As the more than 400 prominent historians and constitutional scholars warned in their public statement:

[t]he theory of impeachment underlying these efforts is unprecedented in our history . . . [and is] are extremely ominous for the future of our political institutions. If carried forward, [the current processes] will leave the Presidency permanently disfigured and diminished, at the mercy as never before of the caprices of any Congress.⁵⁴

Similarly, in a letter to the House of Representatives, an extraordinary group of 430 legal scholars argued together that these offenses, even if proven true, did not rise to the level of an impeachable offense.⁵⁵ The gist of these scholarly objections is that the alleged wrongdoing is insufficiently connected to the exercise of public office. Because the articles charge wrongdoing of an essentially private nature, any harm such behavior poses is too removed from our system of government to justify unseating the President. Numerous scholars, opining long before the current controversy. have emphasized the necessary connection of impeachable wrongs to threats against the state itself. They have found that impeachment should be reserved for:

• "offenses against the government";56
• "political crimes against the state";⁵⁷
• "serious assaults on the integrity of the processes of government";⁵⁸
• "wrongdoing convincingly established [and] so egregious that [the President's] continuation in office is intolerable";59
• "malfeasance or abuse of office,"60bearing a "functional relationship" to public office;61
• "great offense[s] against the federal government";62
• "acts which, like treason and bribery, undermine the integrity of government."63

The articles contain nothing approximating that level of wrongdoing. Indeed the House Managers themselves acknowledge that "the President's [alleged] perjury and obstruction do not directly involve his official conduct."⁶⁴

b. To Make Impeachable Offenses of These Allegations Would Forever Lower the Bar in a Way Inimical to the Presidency and to Our Government of Separated Powers

These articles allege (1) sexual misbehavior, (2) statements about sexual misbehavior and (3) attempts to conceal the fact of sexual misbehavior. These kinds of wrongs are simply not subjects fit for impeachment. To remove a President on this basis would lower the impeachment bar to an unprecedented level and create a devastating precedent. As Professor Arthur Schlesinger, Jr., addressing this problem, has testified:

Lowering the bar for impeachment creates a novel, . . . revolutionary theory of impeachment, [and] . . . would send us on an adventure with ominous implications for the separation of powers that the Constitution established as the basis of our political order. It would permanently weaken the Presidency.⁶⁵

The lowering of the bar that Professor Schlesinger described must stop here. Professor Jack Rakove made a similar point when he stated that "Impeachment [is] a remedy to be deployed only in . . . unequivocal cases where . . . the insult to the constitutional system is grave."⁶⁶ Indeed, he said, there "would have to be a high degree of consensus on both sides of the aisle in Congress and in both Houses to proceed."⁶⁷

Bipartisan consensus was, of course, utterly lacking in the House of Representatives. No civil officer -- no President, no judge, no cabinet member -- has ever been impeached by so narrow a margin as supported the articles exhibited here.⁶⁸ The closeness and partisan division of the vote reflect the constitutionally dubious nature of the charges.

When articles are based on sexual wrongdoing, and when they have passed only by the narrowest, partisan margin, the future of our constitutional politics is in the balance. The very stability of our Constitutional government may depend upon the Senate's response to these articles. Nothing about this case justifies removal of a twice-elected President, because no "high Crimes and Misdemeanors" are alleged.

5. Comparisons to Impeachment of Judges Are Wrong

The House Managers suggest that perjury per se is an impeachable offense because (1) several federal judges have been impeached and removed for perjury, and (2) those precedents control this case. See House Br. at 95-105. That notion is erroneous. It is blind both to the qualitative differences among different allegations of perjury and the very basic differences between federal judges and the President.

First, the impeachment and removal of a Federal judge, while a very solemn task, implicates very different considerations than the impeachment of a President. Federal judges are appointed without public approval and enjoy life tenure without public accountability. Consequently, they hold their offices under our Constitution only "during good behavior." Under our system, impeachment is the only way to remove a Federal judge from office -- even a Federal judge sitting in jail.⁶⁹ By contrast, a President is elected by the Nation to a term, limited to a specified number of years, and he faces accountability in the form of elections.

Second, whether an allegedly perjurious statement rises to the level of an impeachable offense depends necessarily on the particulars of that statement, and the relation of those statements to the fulfillment of official responsibilities. In the impeachment of Judge Harry Claiborne, the accused had been convicted of filing false income tax returns.⁷⁰ As a judge, Claiborne was charged with the responsibility of hearing tax-evasion cases. Once convicted, he simply could not perform his official functions because his personal probity had been impaired such that he could not longer be an arbiter of others' oaths. His wrongdoing bore a direct connection to the performance of his judicial tasks. The inquiry into President Nixon disclosed similar wrongdoing, but the House Judiciary Committee refused to approve an article of impeachment against the President on that basis. The case of Judge Walter Nixon is similar. He was convicted of making perjurious statements concerning his intervention in a judicial proceeding, which is to say, employing the power and prestige of his office to obtain advantage for a party.⁷¹ Although the proceeding at issue was not in his court, his use of the judicial office for the private gain of a party to a judicial proceeding directly implicated his official functions. Finally, Judge Alcee Hastings was impeached and removed for making perjurious statements at his trial for conspiring to fix cases in his own court.⁷² As with Judges Claiborne and Nixon, Judge Hastings' perjurious statements were immediately and incurably detrimental to the performance of his official duties. The allegations against the President, which (as the Managers acknowledge) "do not directly involve his official conduct," House Br. at 109, simply do not involve wrongdoing of gravity sufficient to foreclose effective performance of the Presidential office.

Impeachment scholar John Labovitz, writing of the judicial impeachment cases predating Watergate, observed that:

For both legal and practical reasons, th[e] [judicial impeachment] cases did not necessarily affect the grounds for impeachment of a president. The practical reason was that it seemed inappropriate to determine the fate of an elected chief executive on the basis of law developed in proceedings directed at petty misconduct by obscure judges. The legal reason was that the Constitution provides that judges serve during good behavior. . . . [T]he [good behavior] clause made a difference in judicial impeachments, confounding the application of these cases to presidential impeachment.⁷³

Thus, the judicial precedents relied upon by the House Managers have only "limited force when applied to the impeachment of a President."⁷⁴

The most telling rejoinder to the House's argument comes from President Ford. His definition of impeachable offenses, offered as a congressman in 1970 in connection with an effort to impeach Associate Justice William O. Douglas -- that it is, in essence, "whatever the majority of the House of Representatives considers it to be"-- has been cited. Almost never noted is the more important aspect of then-Congressman Ford's statement -- that, in contrast to the life-tenure of judges, because presidents can be removed by the electorate, "to remove them in midterm . . . would indeed require crimes of the magnitude of treason and bribery."⁷⁵

B. The Standard of Proof

Beyond the question of what constitutes an impeachable offense, each Senator must confront the question of what standard the evidence must meet to justify a vote of "guilty." The Senate has, of course, addressed this issue before -- most recently in the trials of Judge Claiborne and Judge Hastings. We recognize that the Senate chose in the Claiborne proceedings, and reaffirmed in the Hastings trial, not to impose on itself any single standard of proof but, rather, to leave that judgment to the conscience of each senator. Many Senators here today were present for the debate on this issue and chose a standard by which to test the evidence. For many Senators, however, the issue is a new one. And none previously has had to face the issue in the special context of a Presidential impeachment.

We argued before the House Judiciary Committee that it must treat a vote to impeach as, in effect, a vote to remove the President from office and that a decision of such moment ought not to be based on anything less than "clear and convincing" evidence. That standard is higher than the "preponderance of the evidence" test applicable to the ordinary civil case but lower than the beyond a reasonable doubt test applicable to a criminal case. Nonetheless, we felt that the clear and convincing standard was consistent with the grave responsibility of triggering a process that might result in the removal of a president. In fact, it had been the standard agreed upon by both Watergate Committee majority and minority counsel (as well as counsel for President Nixon) twenty-four years ago.

Certainly no lesser standard should be applied in the Senate. Indeed, we submit that the gravity of the decision the Senate must reach should lead each Senator to go further and ask whether the House has established guilt beyond a reasonable doubt.

Both lawyers and laymen too often treat the standard of proof as meaningless legal jargon with no application to the real world of difficult decisions. But it is much more than that. In our system of justice, it is the guidepost that shows the way through the labyrinth of conflicting evidence. It tells the factfinder to look within and ask: "Would I make the most important decisions of my life based on the degree of certainty I have about these facts?" In the unique legal-political setting of an impeachment trial, it protects against partisan overreaching, and it assures the public that this grave decision has been made with care. In sum, it is a disciplining force to carry into the deliberations.

This point is given added weight by the language of the Constitution. Article I, section 3, clause 6 of the United States Constitution gives to the Senate "the Power to try all Impeachments. . . . and no Person shall be convicted without the Concurrence of two thirds of the Members present." (Emphasis added.) Use of the words "try" and "convicted" strongly suggests that an impeachment trial is akin to a criminal proceeding and that the beyond-a-reasonable-doubt standard of criminal proceedings should be used. This position was enunciated in the Minority Views contained in the Report of the House Judiciary Committee on the impeachment proceedings against President Nixon (H.Rep. 93-1305 at 377-381) and has been espoused as the correct standard by such Senators as Robert Taft, Jr., Sam Ervin, Strom Thurmond and John Stennis.⁷⁶

Even if the clear and convincing standard nonetheless is appropriate for judicial impeachments, it does not follow that it should be applied where the Presidency itself is at stake. With judges, the Senate must balance its concern for the independence of the judiciary against the recognition that, because judges hold life-time tenure, impeachment is the only available means to protect the public against those who are corrupt. On the other hand, when a President is on trial, the balance to be struck is quite different. Here the Senate is asked, in effect, to overturn the results of an election held two years ago in which the American people selected the head of one of the three coordinate branches of government. It is asked to take this action in circumstances where there is no suggestion of corruption or misuse of office -- or any other conduct that places our system of government at risk in the two remaining years of the President's term, when once again the people will judge who they wish to lead them. In this setting, the evidence should be tested by the most stringent standard we know -- proof beyond a reasonable doubt. Only then can the American people be confident that this most serious of constitutional decisions has been given the careful consideration it deserves.

IV. THE PRESIDENT SHOULD BE ACQUITTED ON ARTICLE I

The evidence does not support the allegations of Article I.

A. Applicable Law

Article I alleges perjury, along with false and misleading statements, before a federal grand jury. Perjury is a statutory crime that is set forth in the United States Code at 18 U.S.C. § 1623.⁷⁷ Before an accused may be found guilty of perjury before a grand jury, a prosecutor must prove all elements of the offense.

In the criminal law context, § 1623 requires proof beyond a reasonable doubt of the following elements: that an accused (1) while under oath (2) knowingly (3) made a false statement as to (4) material facts. The "materiality" element is fundamental: it means that testimony given to a grand jury may be found perjurious only if it had a tendency to influence, impede, or hamper the grand jury's investigation. See, e.g., United States v. Reilly, 33 F.3d 1396, 1419 (3d Cir. 1994); United States v. Barrett, 111 F.3d 947, 953 (D.C. Cir. 1997). If an answer provided to a grand jury has no impact on the grand jury's investigation, or if it relates to a subject that the grand jury is not considering, it is incapable as a matter of law of being perjurious. Thus, alleged false testimony concerning details that a grand jury is not investigating cannot as a matter of law constitute perjury, since such testimony by definition is immaterial. See, e.g., United States v. Lasater, 535 F.2d 1041, 1048 (8th Cir. 1976) (where defendant admitted signing letter and testified to its purpose, his denial of actually writing letter was not material to grand jury investigation and was incapable of supporting perjury charge); United States v. Pyle, 156 F.2d 852, 856 (D.C. Cir. 1946) (details such as whether defendant "paid the rent on her Washington apartment, as she testified that she did" were "not pertinent to the issue being tried;" therefore, "the false statement attributed to [defendant] was in no way material in the case in which she made it and did not constitute perjury within the meaning of the statute.") In other words, mere falsity -- even knowing falsity -- is not perjury if the statement at issue is not "material" to the matter under consideration.

An additional "element" of perjury prosecutions, at least as a matter of prosecutorial practice, is that a perjury conviction cannot rest solely on the testimony of one witness. In United States v. Weiler, 323 U.S. 606, 608-09 (1945), the Supreme Court observed that the "special rule which bars conviction for perjury solely upon the evidence of a single witness is deeply rooted in past centuries." While § 1623 does not literally incorporate the so-called "two-witness" rule, the case law makes clear that perjury prosecutions under this statute require a high degree of proof, and that prosecutors should not, as a matter of reason and practicality, try to bring perjury prosecutions based solely on the testimony of a single witness. As the Supreme Court has cautioned, perjury cases should not rest merely upon "an oath against an oath." Id. at 609.

Indeed, that is exactly the point that experienced former federal prosecutors made to the House Judiciary Committee. A panel of former federal prosecutors, some Republican, testified that they would not charge perjury based upon the facts in this case. For example, Mr. Thomas Sullivan, a former United States Attorney for the Northern District of Illinois, told the Committee that "the evidence set out in the Starr report would not be prosecuted as a criminal case by a responsible federal prosecutor." See Transcript of "Prosecutorial Standards for Obstruction of Justice and Perjury" Hearing (Dec. 9, 1998); see generally Minority Report at 340-47. As Mr. Sullivan emphasized, "because perjury and obstruction charges often arise from private dealings with few observers, the courts have required either two witnesses who testified directly to the facts establishing the crime, or, if only one witness testifies to the facts constituting the alleged perjury, that there be substantial corroborating proof to establish guilt." See Transcript of "Prosecutorial Standards for Obstruction of Justice and Perjury" Hearing (Dec. 9, 1998). The other prosecutors on the panel agreed. Mr. Richard J. Davis, who served as an Assistant United States Attorney for the Southern District of New York and as a Task Force Leader for the Watergate Special Prosecution Force, testified that "it is virtually unheard of to bring a perjury prosecution based solely on the conflicting testimony of two people." Id. A review of the perjury alleged here thus requires both careful scrutiny of the materiality of any alleged falsehood and vigilance against conviction merely on an "oath against an oath." Weiler, 323 U.S. at 609.

B. Structure of the Allegations

Article I charges that the President committed perjury when he testified before the grand jury on August 17, 1998. It alleges he "willfully provided perjurious, false and misleading testimony to the grand jury concerning "one or more of the following: (1) the nature and details of his relationship with a subordinate Government employee; (2) prior perjurious, false and misleading testimony he gave in a Federal civil rights action brought against him; (3) prior false and misleading statements he allowed his attorney to make to a Federal judge in that civil rights action; and (4) his corrupt efforts to influence the testimony of witnesses and to impede the discovery of evidence in that civil rights action." As noted above, the article does not provide guidance on the particular statements alleged to be perjurious, false and misleading. But by reference to the different views in the House Committee Report, the presentation of House Majority Counsel David Schippers, the OIC Referral, and the Trial Memorandum of the House Managers, we have attempted to identify certain statements from which members of the House might have chosen.

Subpart (1) alleges that the President committed perjury before the grand jury about the details of his relationship with Ms. Lewinsky -- including apparently such insignificant matters as mis-remembering the precise month on which certain inappropriate physical contact started, understating as "occasional" his infrequent inappropriate physical and telephone contacts with Ms. Lewinsky over a period of many months, characterizing their relationship as starting as a friendship, and touching Ms. Lewinsky in certain ways and for certain purposes during their intimate encounters.

Subpart (2) of Article I alleges that the President made perjurious, false and misleading statements to the grand jury when he testified about certain responses he had given in the Jones civil deposition. The House Managers erroneously suggest that in the grand jury President Clinton was asked about and reaffirmed his entire deposition testimony, including his deposition testimony about whether he had been alone with Ms. Lewinsky. See House Br. at 2, 60. That is demonstrably false. Those statements that the President did in fact make in the grand jury, by way of explaining his deposition testimony, were truthful. Moreover, to the extent this subpart repeats allegations of Article II of the original proposed articles of impeachment, the full House of Representatives has explicitly considered and specifically rejected those charges, and their consideration would violate the impeachment procedures mandated by the Constitution.

Subparts (3) and (4) allege that the President lied in the grand jury when he testified about certain activities in late 1997 and early 1998. They are based on statements about conduct that the House Managers claim constitutes obstruction of justice under Article II and in many respects track Article II. Compare Article I (3) (perjury in the grand jury concerning alleged "prior false and misleading statements he allowed his attorney to make to a Federal judge") with Article II (5) (obstructing justice by "allow[ing] his attorney to make false and misleading statements to a Federal judge) and compare Article I (4) (perjury in the grand jury concerning alleged "corrupt efforts to influence testimony of witnesses and to impede the discovery of evidence") with Article II (3), (6), (7) (obstructing justice when he (3) "engaged in, encouraged, or supported a scheme to conceal evidence," i.e., gifts; (6) "corruptly influence[d] the testimony" of Betty Currie; (7) "made false and misleading statements to potential witnesses in a Federal grand jury proceeding in order to corruptly influence the testimony of those witnesses"). These perjury allegations are without merit both because the obstruction charges upon which they are based are wrong and because the statements that President Clinton made in the grand jury about these charges are true. Because of the close parallel, and for sake of brevity in this submission, we have dealt comprehensively with these overlapping allegations in the next section addressing Article II (obstruction of justice), and address them only briefly in this section.

C. Response to the Particular Allegations in Article I

The President testified truthfully before the grand jury. There must be no mistake about what the President said. He admitted to the grand jury that he had engaged in an inappropriate intimate relationship with Ms. Lewinsky over a period of many months. He admitted to the grand jury that he had been alone with Ms. Lewinsky. He admitted to the grand jury that he had misled his family, his friends and staff, and the entire Nation about the nature of that relationship. No one who heard the President's August 17 speech or watched the President's videotaped grand jury testimony had any doubt that he had admitted to an ongoing physical relationship with Ms. Lewinsky.

The article makes general allegations about this testimony but does not specify alleged false statements, so direct rebuttal is impossible. In light of this uncertainty, we set forth below responses to the allegations that have been made by the House Managers, the House Committee, and the OIC, even though they were not adopted in the article, in an effort to try to respond comprehensively to the charges.

1. The President denies that he made materially false or misleading statements to the grand jury about "the nature and details of his relationship" with Monica Lewinsky

a) Early in his grand jury testimony, the President specifically acknowledged that he had had a relationship with Ms. Lewinsky that involved "improper intimate contact." App. at 461. He described how the relationship began and how it ended early in 1997 -- long before any public attention or scrutiny.

In response to the first question about Ms. Lewinsky, the President read the following statement:

When I was alone with Ms. Lewinsky on certain occasions in early 1996 and once in early 1997, I engaged in conduct that was wrong. These encounters did not consist of sexual intercourse. They did not constitute sexual relations as I understood that term to be defined at my January 17th, 1998 deposition. But they did involve inappropriate intimate contact.

These inappropriate encounters ended, at my insistence, in early 1997. I also had occasional telephone conversations with Ms. Lewinsky that included inappropriate sexual banter.

I regret that what began as a friendship came to include this conduct, and I take full responsibility for my actions.

While I will provide the grand jury whatever other information I can, because of privacy considerations affecting my family, myself, and others, and in an effort to preserve the dignity of the office I hold, this is all I will say about the specifics of these particular matters.

I will try to answer, to the best of my ability, other questions including questions about my relationship with Ms. Lewinsky; questions about my understanding of the term "sexual relations," as I understood it to be defined at my January 17th, 1998 deposition; and questions concerning alleged subornation of perjury, obstruction of justice, and intimidation of witnesses.

App. at 460-62. The President occasionally referred back to this statement -- but only when asked very specific questions about his physical relationship with Ms. Lewinsky -- and he otherwise responded fully to four hours of interrogation about his relationship with Ms. Lewinsky, his answers in the civil deposition, and his conduct surrounding the Jones deposition.

The articles are silent on precisely what statements the President made about his relationship with Ms. Lewinsky that were allegedly perjurious. But between the House Brief and the Committee Report, both drafted by the Managers, it appears there are three aspects of this prepared statement that are alleged to be false and misleading because Ms. Lewinsky's recollection differs -- albeit with respect to certain very specific, utterly immaterial matters: first, when the President admitted that inappropriate conduct occurred "on certain occasions in early 1996 and once in 1997," he allegedly committed perjury because in the Managers' view, the first instance of inappropriate conduct apparently occurred a few months prior to "early 1996," see House Br. at 53; second, when the President admitted to inappropriate conduct "on certain occasions in early 1996 and once in 1997," he allegedly committed perjury because, according to the House Committee, there were eleven total sexual encounters and the term "on certain occasions" implied something other than eleven, see Committee Report at 34; and third, when the President admitted that he "had occasional telephone conversations with Ms. Lewinsky that included sexual banter," he allegedly committed perjury because, according to the House Committee (although not Ms. Lewinsky), seventeen conversations may have included sexually explicit conversation, ibid. Apart from the fact that the record itself refutes some of the allegations (for example, seven of the seventeen calls were only "possible," according even to the OIC, App. at 116-26, and Ms. Lewinsky recalled fewer than seventeen, App. at 744), simply to state them is to reveal their utter immateriality.⁷⁸

The President categorically denies that his prepared statement was perjurious, false and misleading in any respect. He offered his written statement to focus the questioning in a manner that would allow the OIC to obtain the information it needed without unduly dwelling on the salacious details of his relationship. It preceded almost four hours of follow-up questions about the relationship. It is utterly remarkable that the Managers now find fault even with the President's very painful public admission of inappropriate conduct.

In any event, the charges are totally without merit. The Committee Report takes issue with the terms "on certain occasions" and "occasional," but neither phrase implies a definite or maximum number. "On certain occasions" -- the phrase introducing discussion of the physical contacts -- has virtually no meaning other than "it sometimes happened." It is unfathomable what objective interpretation the Majority gives to this phrase to suggest that it could be false. An attack on the phrase "occasional" -- the phrase introducing discussion of the inappropriate telephone contacts -- is little different. Dictionaries define "occasional" to mean "occurring at irregular or infrequent intervals" or "now and then."⁷⁹ It is a measure of the Committee Report's extraordinary overreaching to suggest that the eleven occasions of intimate contact alleged by the House Majority over well more than a year did not occur, by any objective reading, "on certain occasions." And since even the OIC Referral acknowledges that the inappropriate telephone contact occurred not "at least 17 times" (as the Committee Report and the Managers suggest, Committee Report at 8; House Br. at 11) but between 10 and 15 times over a 23-month period,⁸⁰ "occasional" would surely seem not just a reasonable description but the correct one.

Finally, these squabbles are utterly immaterial. Even if the President and Ms. Lewinsky disagreed as to the precise number of such encounters, it is of no consequence whatsoever to anything, given his admission of their relationship. This is precisely the kind of disagreement that the law does not intend to capture as perjury.

The date of the first intimate encounter is also totally immaterial. Having acknowledged the relationship, the President had no conceivable motive to misstate the date on which it began. The Managers assert that the President committed perjury when he testified about when the relationship began, but they offer no rationale for why he would have done so.⁸¹ The President had already made a painful admission. Any misstatement about when the intimate relationship began (if there was a misstatement) cannot justify a charge of perjury, let alone the removal of the President from office. As Chairman Hyde himself stated in reference to this latter allegation, "It doesn't strike me as a terribly serious count." Remarks of Chairman Hyde at Perjury Hearing of December 1, 1998.

b) The Managers also assert that the President lied when, after admitting that he had an inappropriate sexual relationship with Ms. Lewinsky, he maintained that he did not touch Ms. Lewinsky in a manner that met the definition used in the Jones deposition. See House Br. at 54. The President admits that he engaged in inappropriate physical contact with Ms. Lewinsky, but has testified that he did not engage in activity that met the convoluted and truncated definition he was presented in the Jones deposition.⁸²

It is important to note that this Jones definition was not of the President's making. It was one provided to him by the Jones' lawyers for their questioning of him. Under that definition, oral sex performed by Ms. Lewinsky on the President would not constitute sexual relations, while touching certain areas of Ms. Lewinsky's body with the intent to arouse her would meet the definition. The President testified in the grand jury that believed that oral sex performed on him fell outside the Jones definition. App. at 544.⁸³ As strange as this may sound, a totally reasonable reading of the definition supports that conclusion, as many commentators have agreed.⁸⁴

This claim comes down to an oath against an oath about immaterial details concerning an acknowledged wrongful relationship.

2. The President denies that he made perjurious, false and misleading statements to the grand jury about testimony he gave in the Jones case 

First, it is important to understand that the allegation of Article I that the President "willfully provided false and misleading testimony to the grand jury concerning ... prior perjurious, false and misleading testimony he gave in" the Jones deposition is premised on a misunderstanding of the President's grand jury testimony. The President was not asked to, and he did not, reaffirm his entire Jones deposition testimony during his grand jury appearance. For example, contrary to popular myth and the undocumented assertion of the House Managers, House Br. at 2, the President was never even asked in the grand jury about his answer to the deposition question whether he and Ms. Lewinsky had been "together alone in the Oval Office," Dep. at 52-53,⁸⁵ and he therefore neither reaffirmed it nor even addressed it. In fact, in the grand jury he was asked only about a small handful of his answers in the deposition. As is demonstrated below, his explanations of these answers were not reaffirmations or in any respect evasive or misleading -- they were completely truthful, and they do not support a perjury allegation.

The extent to which this allegation of the House Majority misses the mark is dramatically apparent when it is compared with the OIC's Referral. The OIC did not charge that the President's statements about his prior deposition testimony were perjurious (apart from the charge discussed above concerning the nature and details of his relationship with Ms. Lewinsky). See OIC Ref. at 145.⁸⁶ It would be remarkable to contemplate charges beyond those brought by the OIC, particularly in the context of a perjury claim where the OIC chose what to ask the President and itself conducted the grand jury session.

The House Managers point to a single statement made by President Clinton in the grand jury to justify their contention that every statement from his civil deposition is now fair game. House Br. at 60. Specifically, the House Managers rely on President Clinton's explanation in the grand jury of his state of mind during the Jones deposition: "My goal in this deposition was to be truthful, but not particularly helpful ... I was determined to walk through the mine field of this deposition without violating the law, and I believe I did." App. at 532. In addition to being a true statement of his belief as to his legal position, this single remark plainly was not intended as and was not a broad reaffirmation of the accuracy of all the statements the President made during the Jones deposition. Indeed, given that he told the grand jury that he had an intimate relationship with Ms. Lewinsky during which he was alone with her, no one who heard the grand jury testimony could have understood it to be the unequivocal reaffirmation that is alleged.

The Managers charge that the President did not really mean it when he told the grand jury how he was trying to be literally truthful in the Jones deposition without providing information about his relationship with Ms. Lewinsky. The President had endeavored to navigate the deposition without having to make embarrassing admissions about his inappropriate, albeit consensual, relationship with Ms. Lewinsky. And to do this, the President walked as close to the line between (a) truthful but evasive or non-responsive testimony and (b) false testimony as he could without crossing it. He sought, as he explained to the grand jury, to give answers that were literally accurate, even if, as a result, they were evasive and thus misleading. We repeat: what is at issue here is not the underlying statements made by the President in the deposition, but the President's explanations in the grand jury of his effort to walk a fine line. Anyone who reads or watches that deposition knows the President was in fact trying to do precisely what he has admitted -- to give the lawyers grudging, unresponsive or even misleading answers without actually lying. However successful or unsuccessful he might have been, there is no evidence that controverts the fact that this was indeed the President's intention.

An examination of the statements that the President actually did make in the grand jury about his deposition testimony further demonstrates the lack of merit in this article. In the grand jury, the President only was asked about three areas of his deposition testimony that were covered in the failed impeachment article alleging perjury in the civil deposition.⁸⁷ The first topic was the nature of any intimate contact with Ms. Lewinsky and has already been addressed above.

The second topic was the President's testimony about his knowledge of gifts he exchanged with Ms. Lewinsky. In his grand jury testimony, the President had the following exchange with the OIC:

Q: When you testified in the Paula Jones case, this was only two and a half weeks after you had given her these six gifts, you were asked, at page 75 in your deposition, lines 2 through 5, "Well, have you ever given any gifts to Monica Lewinsky?" And you answer, "I don't recall."

And you were correct. You pointed out that you actually asked them, for prompting, "Do you know what they were?"

A: I think what I meant there was I don't recall what they were, not that I don't recall whether I had given them. And then if you see, they did give me these specifics, and I gave them quite a good explanation here. I remembered very clearly what the facts were about The Black Dog. ...

App. at 502-03. The President's explanation that he could not recall the exact gifts that he had given Ms. Lewinsky and that he affirmatively sought prompting from the Jones lawyers is entirely consistent with his deposition testimony. This record plainly does not support a charge of perjury.

The third and last topic was the President's deposition testimony that Ms. Lewinsky's affidavit statement denying have a sexual relationship with the President was correct:

Q: And you indicated that it [Ms. Lewinsky's affidavit statement that she had no sexual relationship with him] was absolutely correct.

A: I did. ... I believe at the time that she filled out this affidavit, if she believed that the definition of sexual relationship was two people having intercourse, then this is accurate. And I believe that this is the definition that most ordinary Americans would give it. ...

App. at 473. The President's grand jury testimony was truthful. As Ms. Lewinsky and Ms. Tripp discussed long before any of this matter was public, this was in fact Ms. Lewinsky's definition of "sex" and apparently the President's as well. See Supp. at 2664 (10/3/97 Tape); see also App. at 1558 (Lewinsky FBI 302 8/19/98). There is no evidence whatever that the President did not believe this definition of sexual relations, and his belief finds support in dictionary definitions, the courts and commentators.⁸⁸ Moreover, the record establishes that Ms. Lewinsky shared this view.⁸⁹ Since the President's grand jury testimony about his understanding is corroborated both by dictionaries and by his prior statements to Ms. Lewinsky, it simply cannot be labeled "wrong" or, more seriously, "perjurious."

The President did not testify falsely and perjuriously in the grand jury about his civil deposition testimony.

3. The President denies that he made perjurious, false and misleading statements to the grand jury about the statements of his attorney to Judge Wright during the Jones deposition.

It is remarkable that Article I contains allegations such as this one that even the OIC, which conducted the President's grand jury appearance, chose not to include in the Referral (presumably because there was no "substantial and credible information" to support the claim). Subpart (3) appears to allege that the President lied in his grand jury testimony when he characterized his state of mind in his civil deposition as his lawyer described the Lewinsky affidavit as meaning "there is no sex of any kind in any manner, shape or form." Dep. at 53-54. Specifically, the House Managers appear to base their perjury claim on President Clinton's grand jury statement that "I'm not even sure I paid attention to what he [Mr. Bennett] was saying." House Br. at 62.

The House Brief takes issue with President Clinton's statement that he was "not paying a great deal of attention to this exchange" because, it alleges, the "videotape [of the deposition] shows the President looking directly at Mr. Bennett, paying close attention to his argument to Judge Wright." Ibid. While it is true that the videotape shows the President staring in what is presumably Mr. Bennett's direction, there is no evidence whatsoever that he was indeed "paying close attention" to the lengthy exchange. Notably absent from the videotape is any action on the part of the President that could be read as affirming Mr. Bennett's statement, such as a nod of the head, or any other activity that could be used to distinguish between a fixed stare and true attention to the complicated sparring of counsel. The President was a witness in a difficult and complex deposition and, as he testified, he was "focussing on [his] answers to the questions." App. at 477. It is a safe bet that the common law has never seen a perjury charge based on so little.⁹⁰

4. The President denies that he made perjurious, false and misleading statements to the grand jury when he denied attempting "to influence the testimony of witnesses and to impede the discovery of evidence" in the Jones case

The general language of the final proviso of Article I, according to the House Managers, is meant to signify a wide range of allegations, see House Br. at 60-69, although none were thought sufficiently credible to be included in the OIC Referral. These allegations were not even included in the summary of the Starr evidence presented to the Committee on October 5, 1998, by House Majority Counsel Schippers. They are nothing more than an effort to inflate the perjury allegations by converting every statement that the President made about the subject matter of Article II into a new count for perjury. As the discussion of Article II establishes, the President did not attempt to obstruct justice. Thus, his explanations of his statements in the grand jury were truthful.

The House Brief asserts that the President committed perjury with respect to three areas of his grand jury testimony about the obstruction allegations. These claims are addressed thoroughly in the next section along with the corresponding Article II obstruction claims, and they are addressed in a short form here. The first claim is that the President committed perjury "when he testified before the grand jury that he recalled telling Ms. Lewinsky that if Ms. Jones' lawyers requested the gifts exchanged between Ms. Lewinsky and the President, she should provide them." House Br. at 63. The House Managers contest the truthfulness of this statement by asserting that the President was responsible for Ms. Lewinsky's transfer of gifts to Ms. Currie in late December. In other words, if the obstruction claim is true, they allege, this statement is not true. As is laid out in greater detail in the next section, the House Manager's view of this matter ignores a wealth of evidence establishing that the idea to conceal some of the gifts she had received originated with, and was executed by, Ms. Lewinsky. See, e.g., Supp. at 557 (Currie GJ 1/27/98); Supp. at 531 (Currie FBI 302 1/24/98); Supp. at 582 (Currie GJ 5/6/98); App. at 1122 (Lewinsky GJ 8/20/98); see also App. at 1481 ("LEWINSKY . . . suggested to the President that Betty Currie hold the gifts.") (Lewinsky FBI 302 8/1/98).

Second, the House Managers contend that the President provided perjurious testimony when he explained to the grand jury that he was trying to "refresh" his recollection when he spoke with Betty Currie on January 18, 1998 about his relationship with Ms. Lewinsky. House Br. at 65. The House Managers completely ignore the numerous statements that Ms. Currie makes in her testimony that support the President's assertion that he was merely trying to gather information. For example, Ms. Currie stated in her first interview with the OIC that "Clinton then mentioned some of the questions he was asked at his deposition. Currie advised the way Clinton phrased the queries, they were both statements and questions at the same time." Supp. at 534 (Currie FBI 302 1/24/98). Ms. Currie's final grand jury testimony on this issue also supports the President' explanation of his questioning:

Q: Now, back again to the four statements that you testified the President made to you that were presented as statements, did you feel pressured when he told you those statements?

A: None whatsoever.

Q: What did you think, or what was going through your mind about what he was doing?

A: At that time I felt that he was - I want to use the word shocked or surprised that this was an issue, and he was just talking.

Q: That was your impression that he wanted you to say - because he would end each of the statements with "Right?," with a question.

A: I do not remember that he wanted me to say "Right." He would say "Right" and I could have said, "Wrong."

Q: But he would end each of those questions with a "Right?" and you could either say whether it was true or not true?

A: Correct.

Q: Did you feel any pressure to agree with your boss?

A: None.

Supp. at 668 (Currie GJ 7/22/98) (emphasis added).

Ms. Currie's testimony supports the President's assertion that he was looking for information as a result of his deposition. There is no basis to doubt the President's explanation that his expectation of a media onslaught prompted the conversation. See App. at 583. Indeed, neither the testimony of Ms. Currie nor that of the President -- the only two participants in this conversation -- conceivably supports the inference that he had any other intent. The House Managers' contention that the President's explanation to the grand jury was perjurious totally disregards the testimony of the only two witnesses with first-hand knowledge and has no basis in fact or in the evidence.

Finally, the House Managers contend that President Clinton "lied about his attempts to influence the testimony of some of his top aides." House Br. at 68. The basis for this charge appears to be the President's testimony that, although he said misleading things to his aides about his relationship with Ms. Lewinsky, he tried to say things that were true. Id. at 69. Once again, the record does not even approach a case for perjury. The President acknowledged that he misled; he tried, however, not to lie. It is a mystery how the Managers could try to disprove this simple statement of intent.

V. THE PRESIDENT SHOULD BE ACQUITTED ON ARTICLE II

The evidence does not support the allegations of Article II.

A. Applicable Law

Article II alleges obstruction of justice, a statutory crime that is set forth in 18 U.S.C. § 1503, the "Omnibus Obstruction Provision." In the criminal law context, § 1503 requires proof of the following elements: (1) that there existed a pending judicial proceeding; (2) that the accused knew of the proceeding; and (3) 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). False statements alone cannot sustain a conviction under § 1503. See United States v. Thomas, 916 F.2d 647, 652 (11th Cir. 1990).⁹¹

B. Structure of the Allegations

Article II exhibited by the House of Representatives alleges that the President "has prevented, obstructed, and impeded the administration of justice, and has to that end engaged personally, and through his subordinates and agents, in a course of conduct or scheme designed to delay, impede, cover up, and conceal the existence of evidence and testimony" in the Jones case. The Article alleges that the President did so by engaging in "one or more of the following acts": the President (1) corruptly encouraged Ms. Lewinsky "to execute a sworn affidavit ... that he knew to be perjurious, false and misleading"; (2) "corruptly encouraged Ms. Lewinsky to give perjurious, false, and misleading testimony if and when called to testify personally" in the Jones case; (3) "corruptly engaged in, encouraged, or supported a scheme to conceal evidence that had been subpoenaed" in the Jones case, namely gifts given by him to Ms. Lewinsky; (4) "intensified and succeeded in an effort to secure job assistance" for Ms. Lewinsky between December 7, 1997 and January 14, 1998, "in order to corruptly prevent [her] truthful testimony" in the Jones case; (5) "corruptly allowed his attorney to make false and misleading statements" to Judge Susan Webber Wright at the Jones deposition; (6) "related a false and misleading account of events" involving Ms. Lewinsky to Betty Currie, a "potential witness" in the Jones case, "in order to corruptly influence" her testimony; and (7) made false and misleading statements to certain members of his staff who were "potential" grand jury witnesses, in order to corruptly influence their testimony.

As noted above, this article essentially duplicates some of the perjury allegations of Article I (4): Article II alleges particular acts of obstruction while Article I (4) alleges that the President lied in the grand jury when he discussed those allegations.⁹² Both sets of allegations are unsupported. Our discussion here of the details of these charges will, as well, serve in part as our response to the allegations in Article I (4).

C. Response to the Particular Allegations in Article II

1. The President denies that on or about December 17, 1997, he "corruptly encouraged" Monica Lewinsky "to execute a sworn affidavit in that proceeding that he knew to be perjurious, false and misleading"

Article II (1) alleges that the President "corruptly encouraged" Monica Lewinsky "to execute a sworn affidavit in that proceeding that he knew to be perjurious, false and misleading." The House Managers allege that during a December 17 phone conversation, Ms. Lewinsky asked the President what she could do if she were subpoenaed in the Jones case and that the President responded, "Well, maybe you can sign an affidavit." House Br. at 22. This admitted statement by the President of totally lawful conduct is the Managers' entire factual basis for the allegation in Article II (1).

The Managers do not allege that the President ever suggested to Ms. Lewinsky she should file a false affidavit or otherwise told her what to say in the affidavit. Indeed they could not, because Ms. Lewinsky has repeatedly and forcefully denied any such suggestions:

• "Neither the Pres[ident] nor Mr. Jordan (or anyone on their behalf) asked or encouraged Ms. L[ewinsky] to lie." App. at 718 (2/1/98 Proffer).
• "[N]o one ever asked me to lie and I was never promised a job for my silence." App. at 1161 (Lewinsky GJ 8/20/98).
• "Neither the President nor Jordan ever told Lewinsky that she had to lie." App. at 1398 (Lewinsky FBI 302 7/27/98).
• "Neither the President nor anyone ever directed Lewinsky to say anything or to lie. . . ." App. at 1400 (Lewinsky FBI 302 7/27/98).
• "I think I told [Linda Tripp] that -- you know at various times the President and Mr. Jordan had told me I have to lie. That wasn't true." App. at 942 (Lewinsky GJ 8/6/98).

In an attempt to compensate for the total lack of evidence supporting their theory,⁹³ the Managers offer their view that "both parties knew the affidavit would have to be false and misleading in order to accomplish the desired result." House Br. at 22; see also Committee Report at 65 (the President "knew [the affidavit] would have to be false for Ms. Lewinsky to avoid testifying"). But there is no evidence to support such bald conjecture, and in fact the opposite is true. Both Ms. Lewinsky and the President testified that, given the particular claims in the Jones case, they thought a truthful, limited affidavit might establish that Ms. Lewinsky had nothing relevant to offer. The President explained to the grand jury why he believed that Ms. Lewinsky could execute a truthful but limited affidavit that would have established that she was not relevant to the Jones case:⁹⁴

• "But I'm just telling you that it's certainly true what she says here, that we didn't have -- there was no employment, no benefit in exchange, there was nothing having to do with sexual harassment. And if she defined sexual relationship in the way I think most Americans do, meaning intercourse, then she told the truth." App. at 474.
• "You know, I believed then, I believe now, that Monica Lewinsky could have sworn out an honest affidavit, that under reasonable circumstances, and without the benefit of what Linda Tripp did to her, would have given her a chance not to be a witness in this case." App. at 521.
• "I believed then, I believe today, that she could execute an affidavit which, under reasonable circumstances with fair-minded, nonpolitically-oriented people, would result in her being relieved of the burden to be put through the kind of testimony that, thanks to Linda Tripp's work with you and with the Jones lawyers, she would have been put through. I don't think that's dishonest. I don't think that's illegal." App. at 529.
• "But I also will tell you that I felt quite comfortable that she could have executed a truthful affidavit, which would not have disclosed the embarrassing details of the relationship that we had had, which had been over for many, many months by the time this incident occurred." App. at 568-69.
• "I've already told you that I felt strongly that she could issue, that she could execute an affidavit that would be factually truthful, that might get her out of having to testify. . . . And did I hope she'd be able to get out of testifying on an affidavit? Absolutely. Did I want her to execute a false affidavit? No, I did not." App. at 571.

The Jones case involved allegations of a nonconsensual sexual solicitation. Ms. Lewinsky's relationship with the President was consensual, and she knew nothing about the factual allegations of the Jones case.

Ms. Lewinsky similarly recognized that an affidavit need not be false in order to accomplish the purpose of avoiding a deposition:

• LEWINSKY told TRIPP that the purpose of the affidavit was to avoid being deposed. LEWINSKY advised that one does this by giving a portion of the whole story, so the attorneys do not think you have anything of relevance to their case. App. at 1420 (Lewinsky FBI 302 7/29/98) (emphasis added).
• LEWINSKY advised the goal of an affidavit is to be as benign as possible, so as to avoid being deposed. App. at 1421 (Lewinsky FBI 302 7/29/98) (emphasis added).
• I thought that signing an affidavit could range from anywhere -- the point of it would be to deter or to prevent me from being deposed and so that that could range from anywhere between maybe just somehow mentioning, you know, innocuous things or going as far as maybe having to deny any kind of a relationship. App. at 842 (Lewinsky GJ 8/6/98) (emphasis added).

The Committee Report argued that Ms. Lewinsky must have known that the President wanted her to lie because he never told her to fully detail their relationship in her affidavit and because an affidavit fully detailing the "true nature" of their relationship would have been damaging to him in the Jones case. Committee Report at 65. The Managers wisely appear to have abandoned this argument.⁹⁵ Ms. Lewinsky plainly was under no obligation to volunteer to the Jones lawyers every last detail about her relationship with the President -- and the failure of the President to instruct her to do so is neither wrong nor an obstruction of justice. A limited, truthful affidavit might have established that Ms. Lewinsky was not relevant to the Jones case. The suggestion that perhaps Ms. Lewinsky could submit an affidavit in lieu of a deposition, as the President knew other potential deponents in the Jones case had attempted to do, in order to avoid the expense, burden, and humiliation of testifying in the Jones case was entirely proper. The notion that the President of the United States could face removal from office not because he told Monica Lewinsky to lie, or encouraged her to do so, but because he did not affirmatively instruct her to disclose every detail of their relationship to the Jones lawyers is simply not supportable.

Moreover, there is significant evidence in the record that, at the time she executed the affidavit, Ms. Lewinsky honestly believed that her denial of a sexual relationship was accurate given what she believed to be the definition of a "sexual relationship":

• "I never even came close to sleeping with [the President] . . . We didn't have sex . . . Having sex is having intercourse. That's how most people would --" Supp. at 2664 (Lewinsky-Tripp tape 10/3/97).⁹⁶
• "Ms. L[ewinsky] was comfortable signing the affidavit with regard to the sexual relationship because she could justify to herself that she and the Pres[ident] did not have sexual intercourse." App. at 718 (2/1/98 Proffer).
• "Lewinsky said that her use of the term `having sex' means having intercourse. . . ." App. at 1558 (Lewinsky FBI 302 8/19/98).

The allegation contained in Article II (1) is totally unsupported by evidence. It is the product of a baseless hypothesis, and it should be rejected.

2. The President denies that on or about December 17, 1997, he "corruptly encouraged" Monica Lewinsky "to give perjurious, false and misleading testimony if and when called to testify personally" in the Jones litigation

Article II (2) alleges that the President encouraged Ms. Lewinsky to give false testimony if and when she was called to testify personally in the Jones litigation. Again, Ms. Lewinsky repeatedly denied that anyone told her or encouraged her to lie:

• "Neither the Pres[ident] nor Mr. Jordan (or anyone on their behalf) asked or encouraged Ms. L[ewinsky] to lie." App. at 718 (2/1/98 Proffer).
• "[N]o one ever asked me to lie and I was never promised a job for my silence." App. at 1161 (Lewinsky GJ 8/20/98).
• "Neither the President nor Jordan ever told Lewinsky that she had to lie." App. at 1398 (Lewinsky FBI 302 7/27/98).
• "Neither the President nor anyone ever directed Lewinsky to say anything or to lie. . . ." App. at 1400 (Lewinsky FBI 302 7/27/98).
• "I think I told [Linda Tripp] that -- you know at various times the President and Mr. Jordan had told me I have to lie. That wasn't true." App. at 942 (Lewinsky GJ 8/6/98) (emphasis added).

The Managers allege that the President called Ms. Lewinsky on December 17 to inform her that she had been listed as a potential witness in the Jones case, and that during this conversation, he "sort of said, `You know, you can always say you were coming to see Betty or that you were bringing me letters.'" House Br. at 22; App. at 843 (Lewinsky GJ 8/6/98). Other than the fact that Ms. Lewinsky recalls this statement being made in the same conversation in which she learned that her name was on the Jones witness list, the Managers cite no evidence whatsoever that supports their claim that the President encouraged her to make such statements "if and when called to testify personally in the Jones case." They claim simply that Ms. Lewinsky had discussed such explanations for her visits with the President in the past. Unremarkably, the President and Ms. Lewinsky had been concerned about concealing their improper relationship from others while it was ongoing.

Ms. Lewinsky's own testimony and proffered statements undercut their case:

• When asked what should be said if anyone questioned Ms. Lewinsky about her being with the President, he said she should say she was bringing him letters (when she worked in Legislative Affairs) or visiting Betty Currie (after she left the WH). There is truth to both of these statements.... [This] occurred prior to the subpoena in the Paula Jones case. App. at 709 and 718 (2/1/98 Proffer) (emphasis added).
• After Ms. Lewinsky was informed, by the Pres[ident], that she was identified as a possible witness in the Jones case, the Pres[ident] and Ms. L[ewinsky] discussed what she should do. The President told her he was not sure she would be subpoenaed, but in the event that she was, she should contact Ms. Currie. When asked what to do if she was subpoenaed, the Pres[ident] suggested she could sign an affidavit to try to satisfy their inquiry and not be deposed. In general, Ms. L[ewinsky] should say she visited the WH to see Ms. Currie and, on occasion when working at the WH, she brought him letters when no one else was around. Neither of those statements untrue. App. at 712 (2/1/98 Proffer) (emphasis added).
• To the best of Ms. L[ewinsky]'s memory, she does not believe they discussed the content of any deposition that Ms. L[ewinsky] might be involved in at a later date. App. at 712 (2/1/98 Proffer) (emphasis added).
• LEWINSKY advised, though they did not discuss the issue in specific relation to the JONES matter, she and CLINTON had discussed what to say when asked about LEWINSKY's visits to the White House. App. at 1466 (Lewinsky FBI 302 7/31/98) (emphasis added).

Ms. Lewinsky's statements indicate that she asked the President what to say if "anyone" asked about her visits, that the President said "in general" she could give such an explanation, and that they "did not discuss the issue in specific relation to the Jones matter."

This is consistent with the President's testimony that he and Ms. Lewinsky "might have talked about what to do in a non-legal context at some point in the past," although he had no specific memory of that conversation. App. at 569. The President also stated in his grand jury testimony that he did not recall saying anything like that in connection with Ms. Lewinsky's testimony in the Jones case:

Q. And in that conversation, or in any conversation in which you informed her she was on the witness list, did you tell her, you know, you can always say that you were coming to see Betty or bringing me letters? Did you tell her anything like that?

A. I don't remember. She was coming to see Betty. I can tell you this. I absolutely never asked her to lie.

App. at 568. Ms. Lewinsky does not testify that this discussion was had in reference to testimony she may or may not have been called to give personally, and the Managers' implication is directly contradicted by Ms. Lewinsky's statement that she and the President did not discuss her deposition testimony in that conversation. See App. at 712 (2/1/98 Proffer) ("To the best of Ms. L[ewinsky's] memory, she does not believe they discussed [in the December 17 conversation] the content of any deposition that Ms. L[ewinsky] might be involved in at a later date.").

In support of this allegation, the Managers also cite Ms. Lewinsky's testimony that she told the President she would deny the relationship and that the President made some encouraging comment. House Br. at 23. Ms. Lewinsky never stated that she told the President any such thing on December 17, or at any other time after she had been identified as a witness. Indeed, Ms. Lewinsky testified that that discussion did not take place after she learned she was a witness in the Jones case:

Q: It is possible that you also had these discussions [about denying the relationship] after you learned that you were a witness in the Paula Jones case?

A: I don't believe so. No.

Q: Can you exclude that possibility?

A: I pretty much can. I really don't remember it. I mean, it would be very surprising for me to be confronted with something that would show me different, but I -- it was 2:30 in the -- I mean, the conversation I'm thinking of mainly would have been December 17th, which was --

Q: The telephone call.

A: Right. And it was -- you know, 2:00, 2:30 in the morning. I remember the gist of it and I -- I really don't think so.

App. at 1119-20 (Lewinsky GJ 8/20/98) (emphasis added).

Moreover, Ms. Lewinsky has stated several times that neither of these so-called "cover stories" was untrue. In her handwritten proffer, Ms. Lewinsky stated that she asked that the President what to say if anyone asked her about her visits to the Oval Office and he said that she could say "she was bringing him letters (when she worked in Legislative Affairs) or visiting Betty Currie (after she left the White House)." App. at 709 (Lewinsky 2/1/98 Proffer). Ms. Lewinsky expressly stated: "There is truth to both of these statements." Id. (emphasis added); see also App. at 712 (2/1/98 Proffer) ("[n]either of those statements [was] untrue.") (emphasis added). Indeed, Ms. Lewinsky testified to the grand jury that she did in fact bring papers to the President and that on some occasions, she visited the Oval Office only to see Ms. Currie:

Q: Did you actually bring [the President] papers at all?

A: Yes.

Q: All right. Tell us a little about that.

A: It varied. Sometimes it was just actual copies of letters. . . .

App. at 774-75 (Lewinsky GJ 8/6/98).

I saw Betty on every time that I was there ... most of the time my purpose was to see the President, but there were some times when I did just go see Betty but the President wasn't in the office.

App. at 775 (Lewinsky GJ 8/6/98). The Managers assert that these stories were misleading. House Br. at 23; see also Committee Report at 66 (delivering documents to the President was a "ruse that had no legitimate business purpose."). In other words, while the so-called "cover stories" were literally true, such explanations might have been misleading. But literal truth is a critical issue in perjury and obstruction cases, as is Ms. Lewinsky's belief that the statements were, in fact, literally true.

The allegation contained in Article II (2) is unsupported by the evidence and should be rejected.

3. The President denies that he "corruptly engaged in, encouraged, or supported a scheme to conceal evidence" -- gifts he had given to Monica Lewinsky -- in the Jones case

This allegation charges that the President participated in a scheme to conceal certain gifts he had given to Monica Lewinsky. It apparently centers on two events allegedly occurring in December 1997: (a) a conversation between the President and Ms. Lewinsky in which the two allegedly discussed the gifts the President had given Ms. Lewinsky, and (b) Ms. Currie's receipt of a box of gifts from Ms. Lewinsky and storage of them under her bed. The evidence does not support the charge.

a. Ms. Lewinsky's December 28 Meeting with the President

Monica Lewinsky met with the President on December 28, 1997, sometime shortly after 8:00 a.m. to pick up Christmas presents. App. at 868 (Lewinsky GJ 8/6/98). Acc