Tuesday, December 8, 1998

Following is the text of the 184-page White House rebuttal to impeachment charges, submitted to the House Judiciary Committee on December 8. Footnotes have been deleted.

December 8, 1998

PREFACE

In addition to the factual, legal and Constitutional defenses we present in this document, the President has asked us to convey a personal note: What the President did was wrong. As the President himself has said, publicly and painfully, "there is no fancy way to say that I have sinned."

The President has insisted that no legalities be allowed to obscure the simple moral truth that his behavior in this matter was wrong; that he misled his wife, his friends and our Nation about the nature of his relationship with Ms. Lewinsky. He did not want anyone to know about his personal wrongdoing. But he does want everyone -- the Committee, the Congress and the country -- to know that he is profoundly sorry for the wrongs he has committed and for the pain he has caused his family, his friends, and our nation.

But as attorneys representing the President in a legal and Constitutional proceeding, we are duty-bound to draw a distinction between immoral conduct and illegal or impeachable acts. And just as no fancy language can obscure the fact that what the President did was morally wrong, no amount of rhetoric can change the legal reality that the record before this Committee does not justify charges of criminal conduct or impeachable offenses.

The Framers, in their wisdom, left this Body the solemn obligation of determining not what is sinful, but rather what is impeachable. The President has not sugar-coated the reality of his wrongdoing. Neither should the Committee ignore the high standards of the Constitution to overturn a national election and to impeach a President.

TABLE OF CONTENTS

PREFACE      i

I.      INTRODUCTION      1

II.      THE FACTUAL BACKGROUND      5

III.      THE CONSTITUTION REQUIRES PROOF OF OFFICIAL MISCONDUCT FOR IMPEACHMENT      13

B.      American Presidential Impeachment Practice and Contemporary Scholarship Confirm that Impeachment Is Only for Political Offenses Against the State Itself, Not for Private Wrongs      24

C.      Relevant Historical Precedents Demonstrate that No Impeachable Offense Has Been Alleged Here      31

IV.      THE CONSTITUTION REQUIRES CLEAR AND CONVINCING EVIDENCE TO APPROVE ARTICLES OF IMPEACHMENT      38

V.      THE COMMITTEE SHOULD NOT RELY ON THE REFERRAL’S ACCOUNT OF THE EVIDENCE      43

VI.      THE PRESIDENT DID NOT COMMIT PERJURY      54

VII.      THE PRESIDENT DID NOT OBSTRUCT JUSTICE      89

VIII.      THE PRESIDENT DID NOT ABUSE POWER      156

IX.      CONCLUSION      183

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

I.      INTRODUCTION

The President of the United States has not committed impeachable offenses. He repeatedly has acknowledged that what he did was wrong, he has apologized, and he has sought forgiveness. But his apologies, his acceptance of responsibility, and his contrition do not mean either that the President committed criminal acts or that the acts of which he is accused are impeachable offenses. Counsel for President Clinton respectfully submit this memorandum to demonstrate and document this contention.

We offer this memorandum mindful of the fact that this body now confronts one of the most difficult questions our Constitution poses to Congress: whether to invalidate the popular will expressed in the election of the President. "Voting in the presidential election," as Professor Charles Black wrote, "is certainly the political choice most significant to the American people." Accordingly, "[n]o matter can be of higher political importance than our considering whether, in any given instance, this act of choice is to be undone." Consideration both wise and deliberate must precede any decision to report articles of impeachment. For "the power of impeachment and removal is drastic one, not to be lightly undertaken . . . and especially sensitive with reference to the President of the United States."

We previously have submitted three memoranda to this Committee, addressing various issues arising out of the Independent Counsel’s September 11, 1998, Referral. In this submission, we comprehensively set out our response to the Referral based on the evidence now available to us; address certain questions stemming from the testimony of the Committee’s sole witness, Independent Counsel Kenneth W. Starr and correct fundamental misconceptions about this matter arising from deeply unfair or unsupported inferences drawn in the Referral and significant misstatements about the evidence in the press and elsewhere. For example, it is widely alleged among those favoring impeachment that the President "lied under oath" to the grand jury. But a review of the available evidence proves that this allegation often is based not on what the President actually said under oath but rather on what some of his accusers claim he said -- such as that in the grand jury he categorically denied having a sexual relationship with Ms. Lewinsky, or that he denied being alone with her, when in fact he explicitly acknowledged to the grand jury both that he had had an inappropriate intimate relationship with Ms. Lewinsky and that he had been alone with her. There are numerous other examples of allegations, now commonly believed, that are wholly -- not just somewhat -- unsupported even by the evidence presented to the Committee in the OIC referral. It is in part the purpose of this memorandum to separate fact and fiction and demonstrate why the record supports neither the charges made nor impeachment. We ask that readers set aside their preconceptions of what they think the evidence is, based on the biased presentation in the Starr Referral and subsequent inaccurate coverage, and look instead at the evidence itself.

At the outset, let us be clear. Extraordinary as it must seem in a matter of this gravity, the President has not been specifically notified what allegations are at issue here. The Referral itself cites "eleven possible grounds for impeachment" of the President, Ref. at 129, although it does not identify the rationale for including these grounds. In his presentation to the Committee, Mr. Schippers identified a somewhat different set of "fifteen separate events directly involving [the] President" which "could constitute felonies which, in turn, may constitute grounds to proceed with an impeachment inquiry." The Chairman apparently has indicated that the Committee may consider only two charges, while recent newspaper articles variously state that the Committee staff is drafting three charges or four charges. We have been provided only the most limited and in some instances no access to significant evidence in the Committee’s possession, elliptically referred to by Members at the November 19, 1998, testimony of the Independent Counsel. Without knowing what this evidence is, and being able to analyze and quote it, we cannot fairly or adequately rebut every allegation the Committee may later choose to bring forward from the Referral or elsewhere.

Moreover, the Committee has recently launched new investigative forays in areas not covered by the Referral. It has taken depositions related to Ms. Kathleen Willey, and it has authorized (but now apparently withdrawn) subpoenas for depositions and documents related to fundraising for the 1996 Presidential campaign. Simple fairness entitles us to an adequate opportunity to receive, review, and use the information in the Committee’s possession (for example, the transcripts of depositions from which we were excluded), be apprised of the specific charges the Committee is considering, and have a fair chance to discover and present evidence in rebuttal.

The present memorandum is thus necessarily limited in scope, and we will make a further submission to address any new or revised allegations the Committee may decide to pursue.

II.      THE FACTUAL BACKGROUND

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

A.      The Whitewater Investigative Dead-End

The Lewinsky investigation had its antecedent in the long-running Whitewater investigation. On August 5, 1994, Kenneth W. Starr was appointed Independent Counsel by the Special Division to conduct an investigation centering on two Arkansas entities, Whitewater Development Company, Inc., and Madison Guaranty Savings and Loan Association. The Office of Independent Counsel’s ("OIC") investigation dragged on slowly and inconclusively, without any charges being lodged against either the President or Mrs. Clinton. The Independent Counsel himself announced his resignation in February 1997 to become Dean of the Pepperdine Law School but, after a firestorm of media criticism, he backtracked and resumed his duties.

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

At his testimony before this Committee on November 19, 1998, Mr. Starr conceded that his agents had conducted these interrogations and acknowledged that he had not sought expansion of his jurisdiction from the Attorney General or the Special Division of the Court of Appeals, but he contended that these inquiries were somehow relevant to his Whitewater investigation: "we were, in fact, interviewing, as good prosecutors, good investigators do, individuals who would have information that may be relevant to our inquiry about the President’s involvement in Whitewater, in Madison Guaranty Savings and Loan and the like." However, the OIC was obviously engaged in an effort to gather embarrassing information concerning the President. Indeed, a recent article in the New York Times Magazine notes that Deputy Independent Counsel Jackie Bennett was "known among fellow prosecutors as the office expert on the President’s sex life long before anyone had heard of Monica Lewinsky."

B.      The Paula Jones Litigation

In January 1998, the OIC finally succeeded in transforming its investigation from one focused on long-ago land deals and loans in Arkansas into one involving a different topic (sex) and more recent events in Washington, D.C. The Lewinsky investigation grew out of the pretrial discovery proceedings in the civil suit Ms. Paula Corbin Jones had filed against the President in May 1994, making certain allegations about events three years earlier when the President was Governor of Arkansas. Discovery had been stayed until the Supreme Court’s decision on May 27, 1997, denying Presidential immunity. Shortly thereafter, Ms. Jones selected a new spokesperson, Ms. Susan Carpenter-McMillan, and retained new counsel affiliated with the conservative Rutherford Institute, who began a public relations offensive against the President. "‘I will never deny that when I first heard about this case I said, "Okay, good. We’re gonna get that little slimeball,"’ said Ms. Carpenter-McMillan, a staunch Republican." While Ms. Jones’ previous attorneys, Messrs. Gilbert Davis and Joseph Cammarata, had largely avoided the media, public personal attacks now became the order of the day as the Jones civil suit became a partisan vehicle to try to savage the President. Ms. Jones’ husband, Steve, even announced his intention to use judicial process to obtain and disseminate pejorative personal information concerning the President:

As is now well known, this effort led ultimately to the Jones lawyers being permitted to subpoena various women, to determine their relationship, if any, with the President, allegedly for the purpose of determining whether they had information relevant to the sexual harassment charge. Among these women was Ms. Lewinsky.

By mid-January 1998, Ms. Tripp had brought to the attention of the OIC certain information she believed she had about Ms. Lewinsky’s involvement in the Jones case and, as noted above, the OIC investigation then began to reach formally into the Jones case. The OIC met with Ms. Tripp through the week of January 12, and with her cooperation taped Ms. Lewinsky discussing the Jones case and the President. During the week, Ms. Tripp alerted the OIC that she had been taping Ms. Lewinsky in violation of Maryland law, and the OIC promised Ms. Tripp immunity from federal prosecution, and assistance in protecting her from state prosecution, in exchange for her cooperation. The OIC formalized that agreement in writing on Friday, January 16, after it had received jurisdiction to do so from the Attorney General.

The President’s deposition in the Jones case was scheduled to take place the next day, on Saturday, January 17. As we now know, the night before that deposition Ms. Tripp had briefed the lawyers for Ms. Jones on her perception of the relationship between Ms. Lewinsky and the President -- doing so based on confidences Ms. Lewinsky had entrusted to her. (She was permitted to do so even though, having received immunity from the OIC, the OIC could have barred her from talking to any one about Ms. Lewinsky but failed to do so.) At the deposition the next day, the President unexpectedly was asked numerous questions about Ms. Lewinsky, even before he was questioned about Ms. Jones.

The Jones case, of course, was not about Ms. Lewinsky. She was a peripheral player and, since her relationship with the President was concededly consensual, an irrelevant one. Shortly after the President’s deposition, Chief Judge Wright ruled that evidence pertaining to Ms. Lewinsky would not be admissible at the Jones trial because "it is not essential to the core issues in this case." 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.

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

On August 17, 1998, the President specifically acknowledged to the grand jury that he had had a relationship with Ms. Lewinsky involving "improper intimate contact." He described how the relationship began, and how it had ended early in 1997 -- long before any public attention or scrutiny. He acknowledged this relationship to the grand jury, and he explained how he had tried to get through the deposition in the Jones case months earlier without admitting what he had had to admit to the grand jury -- an improper relationship with Ms. Lewinsky. He further testified that the "inappropriate encounters" with Ms. Lewinsky had ended, at his insistence, in early 1997, and he stated: "I regret that what began as a friendship came to include this conduct, and I take full responsibility for my actions." Id. at 461. He declined to describe, because of personal privacy and institutional dignity considerations, certain specifics about his conduct with Ms. Lewinsky, but he indicated his willingness to answer, and he did answer, the other questions put to him about his relationship with her. No one who watched the videotape of this grand jury testimony had any doubt that the President was admitting to an improper physical relationship with Ms. Lewinsky.

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

The Constitution provides that the President shall be removed from office only upon "Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." U.S. Const. Art. II, § 4. The legal question confronting the Committee is whether the acts of the President alleged in the Starr Referral could conceivably amount to "high Crimes and Misdemeanors."

The answer is that they could not. The syntax of the Constitution’s formulation "Treason, Bribery or other high Crimes and Misdemeanors" (emphasis added) strongly suggests that, to be impeachable offenses, high crimes and misdemeanors must be of the seriousness of "Treason" and "Bribery." Yet the Referral alleges nothing remotely similar in gravity to those high crimes.

Moreover, both the historical background of the "high Crimes and Misdemeanors" concept and the Constitution itself make clear that the conduct alleged does not constitute an impeachable offense. To the contrary, cognizant that the impeachment process upsets the electoral will of the people, the Framers made the standard of impeachable offenses an especially high one, requiring a showing of injury to our very system of government.

The English precedents illustrate that impeachment was understood to apply only to fundamental offenses against the system of government. In English practice, the term "high crimes and misdemeanors" had been applied to offenses, the common elements of which were their severity and the fact that the wrongdoing was directed against the state. The English cases included misappropriation of public funds, interfering in elections, accepting bribes, and various forms of corruption. Ibid. These offenses all affected the discharge of public duties by public officials. In short, under the English practice, "the critical element of injury in an impeachable offense was injury to the state."

The notion that "injury to the state" was the hallmark of the impeachable offense was also shared by the Staff of the Impeachment Inquiry when it researched the issue in connection with the investigation of President Richard Nixon in 1974. In early English impeachments, the Staff concluded, "the thrust of the charge was damage to the state. . . . Characteristically, impeachment was used in individual cases to reach offenses, as perceived by Parliament, against the system of government."

The constitutional and ratification debates confirm that impeachment was limited to only the gravest political wrongs. The Framers plainly intended the impeachment standard to be a high one. They rejected a proposal that the President be impeachable for "maladministration," for, as James Madison pointed out, such a standard would "be equivalent to a tenure during the pleasure of the Senate." The Framers plainly did not intend to permit Congress to debilitate the Executive by authorizing impeachment for something short of the most serious harm to the state. In George Mason’s apt language, impeachment was thought necessary to remedy "great and dangerous offenses" not covered by "Treason" or "Bribery" such as "[a]ttempts to subvert the Constitution."

That is why, at the time of the ratification debates, Alexander Hamilton described impeachment as a "method of NATIONAL INQUEST into the conduct of public men." No act touches more fundamental questions of constitutional government than does the process of Presidential impeachment. No act more directly affects the public interest. No act presents the potential for greater injustice -- injustice both to the Chief Executive and to the people who elected him -- and the Framers were fully aware of this.

The specific harms the Framers sought to redress by impeachment are far more serious than those alleged in the Starr Referral. During the ratification debates, a number of the Framers addressed the Constitution’s impeachment provisions. The following is a list of wrongs they believed the impeachment power was intended to address:

Impeachment provisions in a number of late eighteenth century state constitutions reaffirm that the Framers’ generation believed that impeachment’s purpose was redress of official wrongdoing. The New Jersey Constitution’s impeachment provision for "misbehavior" was interpreted to permit impeachment not for personal wrongdoing but for acts by public officials performed in their public capacity. Delaware’s first Constitution authorized impeachment for "offending against the state by maladministration, corruption, or other means, by which the safety of the commonwealth may be endangered." And Virginia’s Constitution of 1776 provided for impeachment of those public officers who "offend[ ] against the state, either by maladministration, corruption or other means, by which the safety of the State may be endangered."

The history on which they relied, the arguments they made in Convention, the specific ills they regarded as redressable, and the State backgrounds from which they emerged -- all these establish that the Framers believed that impeachment must be reserved for only the most serious forms of wrongdoing. They believed, in short, that impeachment "reached offenses against the government, and especially abuses of constitutional duties."

The Referral alleges no wrongs of that magnitude.

The remedy of impeachment was designed only for those very grave harms not otherwise politically redressable. As James Wilson wrote, "our President . . . is amenable to [the laws] in his private character as a citizen, and in his public character by impeachment."/ That is why Justice Story described the harms to be reached by impeachment as those "offensive acts which do not properly belong to the judicial character in the ordinary administration of justice, and are far removed from the reach of municipal jurisprudence."/

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

Early commentators on the Constitution are in accord on the question of impeachment’s intended purpose. In Justice James Wilson’s words, impeachments are "proceedings of a political nature . . . confined to political characters" charging only "political crimes and misdemeanors" and culminating only in "political punishments." And as Justice Story put the matter, "the [impeachment] power partakes of a political character, as it respects injuries to the society in its political character." In short, impeachment was not thought to be a remedy for private wrongs -- or even for most public wrongs. Rather, the Framers "intended that a president be removable from office for the commission of great offenses against the Constitution." Impeachment therefore addresses public wrongdoing, whether denominated a "political crime[ ] against the state," or "an act of malfeasance or abuse of office," or a "great offense[ ] against the federal government." 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.

Private misconduct, or even public misconduct short of an offense against the state, is not redressable by impeachment because that solemn process, in Justice Story’s words, addresses "offences which are committed by public men in violation of their public trust and duties." Impeachment is a political act in the sense that its aims are public; it attempts to rein in abuses of the public trust committed by public officeholders in connection with conduct in public office. The availability of the process is commensurate with the gravity of the harm. As one scholar has put it, "[t]he nature of [impeachment] proceedings is dictated by the harms sought to be redressed -- ‘the misconduct of public men’ relating to the conduct of their public office -- and the ultimate issue to be resolved -- whether they have forfeited through that conduct their right to continued public trust."

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

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, 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 of impeachable offenses. It was emphatically not the intention of the Framers that the President should be subject to the will of the dominant legislative party. Our system of government does not permit Congress to unseat the President merely because it disagrees with his behavior or his policies. The Framers’ decisive rejection of parliamentary government is one reason they caused the phrase "Treason, Bribery or other high Crimes and Misdemeanors" to appear in the Constitution itself. They chose to specify those categories of offenses subject to the impeachment power, rather than leave that judgment to the unfettered whim of the legislature.

Any just and proper impeachment process must be reasonably viewed by the public as arising from one of those rare cases when the Legislature is compelled to stand in for all the people and remove a President whose continuation in office threatens grave harm to the Republic. Impeachment for wrongdoing of lesser gravity involves a legislative usurpation of a power belonging only to the people (the power to choose and "depose" Presidents by election) and a Legislative encroachment on the power of the Executive.

The current process appears bent on "mangling the system of checks and balances that is our chief safeguard against abuses of public power." Impeachment of the President on the grounds alleged in the Referral would ignore this intentionally imposed limit on legislative power and would thereby do incalculable damage to the institution of the Presidency. Whether "successful" or not, the current drive "will leave the Presidency permanently disfigured and diminished, at the mercy as never before of the caprices of any Congress." The undefined, but broad and lenient, standard under which the Committee is implicitly proceeding converts the impeachment power into something other than the drastic removal power of last resort intended by the Framers. This new impeachment weapon would be a permanent, extra-constitutional power of Congress, a poison arrow aimed permanently at the heart of the Presidency. The inevitable effect of such a threat would be the weakening of that Office and an improper subservience of the President to the Congress, that was wholly unintended by the Framers.

That is not the impeachment power enshrined in the Constitution and defined by two hundred years of experience. The Constitution permits a single justification for impeachment -- a demonstrated need to protect the people themselves.

The Framers made the President the sole nationally elected public official, responsible to all the people. He is the only person whose mandate is country-wide, extending to all citizens, all places, and all interests. He is the people's choice.

Therefore, when the Congress raises the issue of impeachment, the House (and ultimately the Senate) confront this inescapable question: is the alleged misconduct so profoundly serious, so malevolent, that it justifies undoing 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 process itself?

The wrongdoing alleged here does not remotely meet that standard.

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

Three American Presidents have been the subject of impeachment proceedings. Each was impeached (or threatened with impeachment) for allegedly wrongful official conduct and not for alleged misdeeds unrelated to the exercise of public office.

John Tyler. In 1841, President Tyler succeeded William Henry Harrison after the latter’s death in office. He immediately ran into political differences with the Whig majority in Congress. After Tyler vetoed a Whig-sponsored tariff bill, a Whig Congressman offered a resolution of impeachment against President Tyler. The resolution proffered nine impeachment articles, each alleging high crimes and misdemeanors constituting crimes against the government in the performance of official duties. The allegations included withholding assent to laws indispensable to the operation of government and assuming to himself the whole power of taxation, abuse of the appointment and removal power, and abuse of the veto power.

The resolution was rejected. But the fundamental premise of each charge was that the President had committed crimes against the United States in the exercise of official duties.

Andrew Johnson. President Johnson is, of course, the only president actually to have been impeached. President Johnson ran afoul of the Reconstruction Congress after the death of President Lincoln. After President Johnson notified Secretary of War Stanton that he was removed from office, the Congress voted an impeachment resolution in 1868 based on the President’s supposed violation of the Tenure of Office Act. Ultimately, eleven articles were adopted against him and approved by the House.

As in the case of President Tyler, all the allegations concerned allegedly wrongful official conduct said to be harmful to the processes of government. The leading House manager in the Senate trial was Rep. Benjamin Butler, who defined impeachable offenses as follows: "We define, therefore, an impeachable high crime and misdemeanor to be one in its nature or consequences subversive of some fundamental or essential principle of government, or highly prejudicial to the public interest . . . ."

On May 26, 1868, President Johnson was acquitted by a single vote. Although the vote was overwhelmingly partisan, seven Republican Senators broke with the party and voted for acquittal. Sen. William Pitt Fessenden was one of those seven. He did not vote for impeachment because, as he put it, an impeachable offense must be "of such a character to commend itself at once to the minds of all right thinking men, as beyond all question, an adequate cause for impeachment. It should leave no reasonable ground of suspicion upon the motives of those who inflict the penalty."/

Richard Nixon. Five articles of impeachment were proposed against then-President Nixon by this Committee in 1974. Three were approved. Two were not. As with the charges against Presidents Tyler and Johnson, the approved articles alleged official wrongdoing. Article I charged President Nixon with "using the powers of his high office [to] engage[ ] . . . in a course of conduct or plan designed to delay, impede and obstruct" the Watergate investigation. 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." 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."

The precedents speak clearly. The allegation against President Tyler and the articles actually approved against Presidents Johnson and Nixon all charged serious misconduct amounting to misuse of the authority of the Presidential office. As Professor Sunstein expressed it in his testimony before this body’s Subcommittee on the Constitution, American presidential impeachment proceedings have targeted "act[s] by the President, that amount[ ] to large-scale abuse of distinctly Presidential authority." The Referral contains nothing of the kind.

Impeachable acts need not be criminal acts. As Professor Black has noted, it would probably be an impeachable act for a President to move to Saudi Arabia so he could have four wives while proposing to conduct the Presidency by mail and wireless from there; or to announce and adhere to a policy of appointing no Roman Catholics to public office; or to announce a policy of granting full pardons, in advance of indictment or trial, to federal agents or police who killed anyone in the line of duty in the District of Columbia./ None of these acts would be crimes, but all would be impeachable. This, because they are all "serious assaults on the integrity of government."/ And all of these acts are public acts having public consequences.

Holders of public office should not be impeached for conduct (even criminal conduct) that is essentially private. That is why scholars and other disinterested observers have consistently framed the test of impeachable offenses in terms of some fundamental attack on our system of government, describing impeachment as being reserved for:

In a recent statement, 400 historians warned of the threat to our constitutional system posed by these impeachment proceedings. The Framers, they wrote, "explicitly reserved [impeachment] for high crimes and misdemeanors in the exercise of executive power." Impeachment for anything short of that high standard would have "the most serious implications for our constitutional order."

That view accords with the position expressed by 430 legal scholars and communicated by letter to the House leadership and the leadership of this Committee./ The legal scholars’ letter underscores that high crimes and misdemeanors must be of a seriousness comparable to "treason" and "bribery" that are distinguished by a "grossly derelict exercise of official power." That standard, as the law professors note, is simply not met here even on the facts alleged. "If the President committed perjury regarding his sexual conduct, this perjury involved no exercise of Presidential power as such." In other words, "making false statements about sexual improprieties is not a sufficient basis to justify the trial and removal from office of the President of the United States." To continue an impeachment inquiry under such circumstances would pose a heavy cost to the Presidency with no return to the American people.

Thus, as Professor Michael Gerhardt summarized the matter in his recent testimony before a subcommittee of this body, there is "widespread recognition [of] a paradigmatic case for impeachment." In such a case, "there must be a nexus between the misconduct of an impeachable official and the latter’s official duties." The Referral presents no such case.

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

That impeachment was reserved for serious public wrongdoing of a serious political nature was no mere abstraction to the authors of the Constitution. The ink on the Constitution was barely dry when Congress was forced to investigate wrongdoing by one of the Framers. In 1792-93, Congress investigated then-Secretary of the Treasury Alexander Hamilton for alleged financial misdealings with James Reynolds, a convicted securities swindler. Secretary Hamilton was interviewed by members of Congress, including the House Speaker and James Monroe, the future President. He admitted to making secret payments to Mr. Reynolds, whose release from prison the Treasury Department had authorized. Mr. Hamilton acknowledged that he had made the payments but explained that he had committed adultery with Reynolds’ wife; that he had made payments to Mr. Reynolds to cover it up; that he had had Mrs. Reynolds burn incriminating correspondence; and that he had promised to pay the Reynolds’ travel costs if they would leave town./

The Members of Congress who heard Secretary Hamilton's confession concluded that the matter was private, not public; that as a result no impeachable offense had occurred; and that the entire matter should remain secret. Although President Washington, Vice-President Adams, Secretary of State Jefferson and House Minority leader James Madison (two of whom had signed the Constitution) all eventually became aware of the affair, they too maintained their silence. And even after the whole matter became public knowledge some years later, Mr. Hamilton was appointed to the second highest position in the United States Army and was speedily confirmed by the Senate./

It is apparent from the Hamilton case that the Framers did not regard private sexual misconduct as creating an impeachable offense. It is also apparent that efforts to cover up such private behavior, including even paying hush money to induce someone to destroy documents, did not meet the standard. Neither Hamilton's very high position, nor the fact that his payments to a securities swindler created an enormous "appearance" problem, were enough to implicate the standard. These wrongs were real, and they were not insubstantial, but to the Framers they were essentially private and therefore not impeachable.

Some have responded to the argument that the conduct at issue in the Referral is private by contending that the President is charged with faithfully executing the laws of the United States and that perjury would be a violation of that duty. That argument, however, proves far too much. Under that theory, any violation of federal law would constitute an impeachable offense, no matter how minor and no matter whether it arose out of the President’s private life or his public responsibilities. Lying in a deposition in a private lawsuit would, for constitutional purposes, be the equivalent of lying to Congress about significant conduct of the Executive Branch -- surely a result those advocates do not contemplate. More importantly, as the next section demonstrates, we know from the bipartisan defeat of the tax fraud article against President Nixon that the "faithfully execute" theory has been squarely rejected.

As previously indicated, this Committee’s investigation of President Nixon in 1973-74 had to confront the question of just what constitutes an "impeachable offense." That investigation resulted in the Committee’s approval of three articles of impeachment alleging misuse of the Presidential Office and rejection of two others. Those decisions constitute part of the common law of impeachment, and they stand for the principle that abuse of the Presidential Office is at the core of the notion of impeachable offense.

That conclusion was no happenstance. It resulted from a concordance among Committee majority and minority views as to the standard of impeachable offenses. One of the first tasks assigned to the staff of the Judiciary Committee when it began its investigation of President Nixon was to prepare a legal analysis of the grounds for impeachment of a President. The staff concluded that:

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

Notwithstanding their many differences, the Judiciary Committee investigating President Nixon was in substantial agreement on the question posed here: an impeachable wrong is an offense against our very system, a constitutional evil subversive of the government itself.

Against that backdrop, it is clear that the Committee’s vote not to approve a proposed tax-fraud type article was every bit as significant a precedent as the articles it did approve. The proposed article the Committee ultimately declined to approve charged that President Nixon both "knowingly and fraudulently failed to report certain income and claimed deductions [for 1969-72] on his Federal income tax returns which were not authorized by law." The President had signed his returns for those years under penalty of perjury, and there was reason to believe that the underlying facts would have supported a criminal prosecution against President Nixon himself. Yet the article was not approved. And it was not approved because the otherwise conflicting views of the Committee majority and minority were in concord: submission of a false tax return was not so related to exercise of the Presidential Office as to trigger impeachment.

Thus, by a bipartisan vote greater than a 2-1 margin, the Judiciary Committee rejected the tax-evasion article. Both Democrats and Republicans spoke against the idea that tax evasion constituted an impeachable offense. Congressman Railsback (R-Ill.) opposed the article saying that "there is a serious question as to whether something involving his personal tax liability has anything to do with [the] conduct of the office of the President." Congressman Owens (D-Utah) stated that, even assuming the charges were true in fact, "on the evidence available, these offenses do not rise, in my opinion, to the level of impeachment." Congressman Hogan (R-Md.) did not believe tax evasion an impeachable offense because the Constitution’s phrase "high crime signified a crime against the system of government, not merely a serious crime." And Congressman Waldie (D-Cal.) spoke against the article, saying that "there had not been an enormous abuse of power," notwithstanding his finding "the conduct of the President in these instances to have been shabby, to have been unacceptable, and to have been disgraceful even."/

These voices, and the overwhelming vote against the tax evasion article, underscore the fact that the 1974 Judiciary Committee’s judgment was faithful to its legal conclusions. It would not (and did not) approve an article of impeachment for anything short of a fundamental offense against our very system of government. In the words of the Nixon Impeachment Inquiry Report:

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

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

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

In the Watergate hearings, the President’s counsel, Mr. St. Clair, put the threshold-of-proof question in this way:

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

Emphasizing the political nature and consequences of impeachment, Mr. Doar reiterated that "as a practical matter, proof must be clear and convincing."

Minority counsel, Mr. Garrison, told the Committee that "when a member of the committee or a Member of the House votes to impeach, he should do so having made a judgment that the evidence convinces him that the President should be removed from office." And in their "Standard of Proof for Impeachment by the House" section of the Impeachment Inquiry, the Republican authors of the Minority Views formulated the standard as follows:

Finally, this Committee expressly found clear and convincing evidence supporting the obstruction-of-justice and abuse-of-power charges against President Nixon. See, e.g., Impeachment Inquiry at 33 ("[t]his report . . . contains clear and convincing evidence that the President caused action . . . to cover up the Watergate break-in"); id. at 136 ("[t]he Committee finds, based upon of [sic] clear and convincing evidence, that th[e] conduct[ ] detailed in the foregoing pages of this report constitutes ‘high crimes and misdemeanors’"); id. at 141 ("[t]he Committee finds clear and convincing evidence that a course of conduct was carried out [by President Nixon and his subordinates] to violate the constitutional rights of citizens").

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

As the Watergate precedent indicates, this Committee should not approve an article of impeachment for which the record evidence, taken as a whole, is anything less than clear and convincing. Put differently, each member must have a firm conviction, clearly and convincingly grounded in record evidence, that the President is guilty of the wrongdoing alleged. As former Attorney General Elliott Richardson warned on December 1, "‘[a] vote to impeach is a vote to remove. If members of the Committee believe that should be the outcome, they should vote to impeach. If they think that is an excessive sentence, they should not vote to impeach because if they do vote to impeach the matter is out their hands, and if the Senate convicts, out of its hands.’"

This clear-and-convincing standard is not the highest degree of proof known to our law, but the substantial showing it demands is commensurate with the gravity of impeachment itself. Exercise of the House’s accusatory impeachment power is itself an act that weakens the Presidency. Unlike the grand juror’s vote to indict, which affects a sole individual, affirmative votes on articles of impeachment jeopardize an entire branch of our national government and threaten the political viability of the single person (except for the Vice President) elected by the entire electorate. The clear-and-convincing requirement ensures that this momentous step is not lightly taken. Lower standards (probable cause or apparent preponderance of the evidence) are simply not demanding enough to justify the fateful step of an impeachment trial. They pose a genuine risk of subjecting the President, the Senate, and most of all the people who elected the President to a trial "on the basis of one-sided or incomplete information or insufficiently persuasive evidence." Moreover, those lower standards would be particularly inappropriate here, where this Committee has itself neither independently investigated the evidence nor heard from a single witness with first-hand knowledge of such facts. The respected impeachment scholar Michael Gerhardt has declared: "‘This idea that all [this Committee] need[s] to have is probable cause is in my mind ahistorical . . . . I do think that members, at least historically, have demanded more in terms of the kind of evidence that has to exist to initiate formal impeachment proceedings against the President and also to trigger a trial.’"

Exercise of the impeachment power by the House is a matter of the utmost seriousness. No member of this Committee or of the House as a whole should approve articles of impeachment unless that member is personally persuaded that a high crime or misdemeanor has been proven to have occurred by clear and convincing evidence. The precedent created in the Watergate proceedings could not be clearer. To break with that precedent and proceed on something less demanding would properly be viewed as a partisan effort to lower the impeachment bar. The President, the Constitution, and the American people deserve more. Proof by clear and convincing evidence, and nothing less, is necessary to justify each member’s affirmative vote for articles of impeachment.

The Committee is now in the process of completing its deliberations on this question of the utmost national gravity: whether to approve articles of impeachment against the President of the United States. Voting in favor of such articles would commence the somber process of annulling the electoral choice of the people of this country. Before analyzing, in the next three sections, with as much specificity as possible the charges the Committee apparently is considering, it is appropriate to examine the evidentiary record that serves as the basis for these grave judgments.

The record here is strikingly different from that on which the Committee acted twenty-four years ago in the Watergate proceedings. There, over several months of investigation, the Committee examined numerous fact witnesses and obtained and analyzed documents and other evidence; while it received a transmission of testimony and documents from the Watergate grand jury, it made its own independent evaluation of the evidence it had gathered. See Nixon Report at 9 (Judiciary Committee received statements of information from inquiry staff in which "a deliberate and scrupulous abstention from conclusions, even by implication, was observed").

Here, however, the Committee is almost wholly relying on the work of the Independent Counsel. Neither the Committee, its staff, nor counsel for the President have had the opportunity to confront the witnesses who have appeared before the OIC’s grand jury: to cross-examine them, assess their credibility, and elicit further information that might affect the testimony the witnesses gave. Indeed, the very genesis of this impeachment inquiry differs radically from the Watergate proceedings. Twenty-four years ago, this Committee itself made a decision to embark upon an impeachment inquiry. In the present case, however, this inquiry was generated by the judgment of Mr. Starr that he had identified "substantial and credible information . . . that may constitute grounds for impeachment." 28 U.S.C. § 595(c).

The Referral represents Mr. Starr’s effort to support that conclusion. The grand jury never authorized the transmission of or even reviewed the Referral, November 19, 1998 Testimony at 324-25 (Testimony of Mr. Starr) and, while Mr. Starr declined to address the question in his public testimony, we do not believe that the Referral itself was ever presented for substantive approval to Chief Judge Johnson or the Special Division of the Court of Appeals for the Purpose of Appointing Independent Counsels. Instead, the Referral reflects Mr. Starr’s own version of the vast amount of evidence gathered by the grand jury and the conclusions he draws from that evidence.

Unlike the impartial presentation to the Watergate committee from Special Prosecutor Jaworski, the Referral is a document advocating impeachment. It sets forth Mr. Starr’s best case for impeachment, not a neutral presentation of the facts. It reflects a careful selection and presentation of the evidence designed to portray the President in the worst possible light. It is being presented as a good faith summary of reliable evidence when it is in fact nothing of the kind. While we will address the specific allegations of perjury, obstruction of justice, and abuse of office (as best we can discern them) in the next sections, it is appropriate here to sketch out the untested nature of the underlying evidence, the material omissions in the Referral, and the indications of bias and overreaching that have characterized the OIC’s investigation. To demonstrate this is not to make an irrelevant ad hominem attack on the Independent Counsel but to point out how unreliable is the record before this Committee, and the caution and skepticism with which the narrative and conclusions of the Referral must therefore be viewed.

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

Instead of transmitting to the Committee the information gathered by the OIC, Mr. Starr chose to give it his own spin. Had he sat across the table from the witnesses, it might have been that he based his judgments on such scrutiny. Since he did not, the grounds on which he credited some evidence and rejected other evidence are unknown. The decision to proceed in this way was a sharp departure from Special Prosecutor Leon Jaworski’s submission to Congress of "a simple and straightforward compilation of information gathered by the Grand Jury, and no more." In re Report and Recommendation of June 5, 1972 Grand Jury, 370 F. Supp. 1219, 1226 (D.D.C. 1974). As drafted, the Referral impedes the search for truth by cherry-picking the evidence and presenting (as we demonstrate in the next sections) a deeply misleading portrait of the record.

The Referral repeatedly and demonstrably omitted or mischaracterized directly relevant evidence that exonerates the President of the very allegations leveled by the OIC. For example:

The concealment-of-gifts-accusation. The Referral claims that the President and Ms. Lewinsky "discussed" concealing gifts at their December 28 visit, and that the President therefore orchestrated the pick-up of those gifts. The Referral ignores evidence to the contrary, such as:

·      Asked if President Clinton discussed concealment with her, Ms.       Lewinsky said, "[H]e really didn’t -- he didn’t really discuss it."

App. at 1122 (8/20/98 grand jury testimony of Ms. Lewinsky). As to who first conceived of the idea of involving Ms. Currie, the Referral omitted the key passage:

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

Supp. at 582 (5/6/98 grand jury testimony of Ms. Currie) (emphasis added).

The jobs-for-silence-accusation. The allegation that the President obstructed justice by procuring a job for Ms. Lewinsky in exchange for silence or false testimony rests on the Referral’s account of Ms. Lewinsky’s job search that simply excluded the contradictory evidence. Both Ms. Lewinsky and Mr. Jordan flatly denied that the job assistance had anything at all to do with Ms. Lewinsky’s testimony:

Supp. at 1827 (5/5/98 grand jury testimony of Vernon Jordan). And as to the circumstantial evidence, we demonstrate in Part VI.B.2 that the Referral omitted a host of probative and exculpatory facts that negate the existence of any improper quid pro quo.

The influencing-Betty-Currie-accusation. The Referral asserts that the President’s January 18 conversation was an attempt to influence Ms. Currie’s testimony. But the Referral omitted Ms. Currie’s clear testimony that this discussion did no such thing:

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

Supp. at 667 (7/22/98 grand jury testimony of Ms. Currie).

The false-affidavit-accusation. The OIC accused the President of obstructing justice by suggesting that Ms. Lewinsky file an affidavit that he knew would be false. Ref. at 173. However, the OIC inexplicably never once quoted Ms. Lewinsky’s repeated, express denials that anyone had told or encouraged her to lie:

The denying-knowledge-of executive-privilege-accusation. The Referral states that the President deceived the public by feigning ignorance of the executive privilege litigation:. According to the Referral, while in Africa, the President "was asked about the assertion of Executive Privilege, he responded ‘You should ask someone who knows.’ He also stated, ‘I haven’t discussed that with the lawyers. I don’t know.’"

To achieve the desired effect, the Referral first misstates the actual question posed. This is the actual exchange:

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

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

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

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

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

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

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

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

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

NBC Nightly News (Feb. 4, 1998) (emphasis added). The Referral barely mentions the "Talking Points" and makes no allegation that the President in fact had anything to do with this document.

The flaws in the Referral and the evidentiary record before the Committee are not academic. They reveal in concrete terms the weaknesses of the charges of perjury, obstruction of justice, and abuse of office that have been presented to the Committee. These charges are addressed in detail in the sections that follow.

VI.      THE PRESIDENT DID NOT COMMIT PERJURY

Will Rogers is reported to have said of a contemporary: "It’s not what he doesn’t know that bothers me, it’s what he knows for sure that just ain’t so." Defending what the President actually said under oath is much easier than defending phantom allegations based on what some claim the President said. In analyzing the allegation of perjury, we urge the Committee and the Congress to focus only on what is actually in the record, not on popular mythology, conventional (but incorrect) wisdom, or political spin.

For example, it has variously been asserted that in the grand jury the President denied that he had a "sexual relationship" with Ms. Lewinsky and that he broadly reaffirmed his earlier deposition testimony. In fact, in the grand jury, the President admitted to an "inappropriate intimate relationship" with Ms. Lewinsky that was physical in nature. In other words, any consideration of charges of perjury requires a focused look at the actual statements at issue. Again, we ask the Committee: Please, do not assume the conventional wisdom. Look, instead, at the actual record.

Given the difficulties of testifying under oath with precision, proof of perjury requires meeting a very high standard. A vast range of testimony that is imprecise, unresponsive, vague, and literally truthful, even if it is not completely forthcoming, simply is not perjury. The law is aware of human foibles and shortcomings of memory. Dissatisfaction with the President’s answers because they may be narrow, "hair splitting," or formalistic does not constitute grounds for alleging perjury.

Perjury requires proof that a defendant, while under oath, knowingly made a false statement as to material facts. See, e.g., United States v. Dunnigan, 507 U.S. 87, 94 (1993). The "knowingly" requirement is a high burden: the government must prove the defendant had a subjective awareness of the falsity of his statement at the time he made it. See, e.g., United States v. Dowdy, 479 F.2d 213, 230 (4th Cir. 1973); United States v. Markiewicz, 978 F.2d 786, 811 (2d Cir. 1992). Moreover, it is (of course) clear that a statement must be false in order to constitute perjury. It is equally beyond debate that certain types of answers are not capable of being false and are therefore by definition non-perjurious, no matter how frustrating they may be to the proceeding in which they are given: literally truthful answers that imply facts that are not true, see, e.g., United States v. Bronston, 409 U.S. 352, 358 (1973); truthful answers to questions that are not asked, see, e.g., United States v. Corr, 543 F.2d 1042, 1049 (2d Cir. 1976); and answers that fail to correct misleading impressions, see, e.g., United States v. Earp, 812 F.2d 917, 919 (4th Cir. 1987). The Supreme Court has made abundantly clear that it is not relevant for perjury purposes whether the witness intends his answer to mislead, or indeed intends a "pattern" of answers to mislead, if the answers are truthful or literally truthful.

In explaining the law of perjury, the Supreme Court and numerous lower federal courts have set forth four clear standards. These core principles, discussed below in some detail, must inform the Committee’s analysis here. First, the mere fact that recollections differ does not mean one party is committing perjury. Few civil cases arise where testimony about events is not in conflict -- even as to core matters at the heart of a case. When one party wins a case, the other is not routinely indicted for perjury. Common sense and the stringent requirements of perjury law make clear that much more is needed. Second, a perjury conviction under 18 U.S.C. § 1621 cannot rest solely on the testimony of a single witness and, at the very least as a matter of practice, no reasonable prosecutor would bring any kind of perjury case based on the testimony of one witness without independent corroboration -- especially if the witness is immunized, or is of questionable credibility. As the Supreme Court has made clear, a perjury case "ought not to rest entirely upon ‘an oath against an oath.’" United States v. Weiler, 323 U.S. 606, 608-09 (1945). Third, answers to questions under oath that are literally true but unresponsive to the questions asked do not, as a matter of law, fall under the scope of the federal perjury statute. That is so even if the witness intends to mislead his questioner by his answer and even if the answer is false by "negative implication." And fourth, answers to questions that are fundamentally ambiguous cannot, as a matter of law, be perjurious.

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

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

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

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

In a perjury prosecution under 18 U.S.C. § 1621, the falsity of a statement alleged to be perjurious cannot be established by the testimony of just one witness. This ancient common law rule, referred to as the "two-witness rule," has survived repeated challenges to its legitimacy and has been judicially recognized as the standard of proof for perjury prosecutions brought under § 1621. See, e.g., Weiler v. United States, 323 U.S. 606, 608-610 (1945) (discussing the history and policy rationales of the two-witness rule); United States v. Chaplin, 25 F.3d 1373, 1377-78 (7th Cir. 1994) (two-witness rule applies to perjury prosecutions). The Department of Justice recognizes the applicability of the two-witness rule to perjury prosecutions brought under § 1621. See Department of Justice Manual, 1997 Supplement, at 9-69.265.

The crux of the two-witness rule is that "the falsity of a statement alleged to be perjurious must be established either by the testimony of two independent witnesses, or by one witness and independent corroborating evidence which is inconsistent with the innocence of the accused." Department of Justice Manual, 1997 Supplement, at 9-69.265 (emphasis in original). The second witness must give testimony independent of the first which, if believed, would "prove that what the accused said under oath was false." Id.; United States v. Maultasch, 596 F.2d 19, 25 (2d Cir. 1979). Alternatively, the independent corroborating evidence must be inconsistent with the innocence of the accused and "of a quality to assure that a guilty verdict is solidly founded." Department of Justice Manual, 1997 Supplement, at 9-69.265; United States v. Forrest, 639 F.2d 1224, 1226 (5th Cir. 1981). It is therefore clear that a perjury conviction under § 1621 cannot lie where there is no independent second witness who corroborates the first, or where there is no independent evidence that convincingly contradicts the testimony of the accused.

Section 1623 does not literally incorporate the "two-witness rule," but it is nonetheless clear from the case law that perjury prosecutions under this statute require a high degree of proof, and that prosecutors should not, as a matter of reason and practicality, even try to bring perjury prosecutions based solely on the testimony of a single witness. In Weiler v. United States, 323 U.S. 606, 608-09 (1945), the Supreme Court observed that "[t]he special rule which bars conviction for perjury solely upon the evidence of a single witness is deeply rooted in past centuries." The Court further observed that "equally honest witnesses may well have differing recollections of the same event," and hence "a conviction for perjury ought not to rest entirely upon ‘an oath against an oath.’" Id. at 609 (emphasis added). Indeed, the common law courts in seventeenth-century England required the testimony of two witnesses as a precondition to a perjury conviction, when the testimony of a single witness was in almost all other cases sufficient. See Chaplin, 25 F.3d at 1377 (citing Wigmore on Evidence § 2040(a) at 359-60 (Chadbourne rev. 1978)). The common law courts actually adopted the two-witness rule from the Court of Star Chamber, which had followed the practice of the ecclesiastical courts of requiring two witnesses in perjury cases. Id. The English rationale for the rule is as resonant today as it was in the seventeenth century: "[I]n all other criminal cases the accused could not testify, and thus one oath for the prosecution was in any case something as against nothing; but on a charge of perjury the accused’s oath was always in effect evidence and thus, if but one witness was offered, there would be merely . . . an oath against an oath." Id. And, as noted above, no perjury case should rest merely upon "an oath against an oath." As a practical matter, the less reliable the single witness, the more critically the independent corroboration is required.

A third guiding principle is that literal truth, no matter how frustrating it may be, is not perjury. In United States v. Bronston, 409 U.S. 352 (1973), the leading case on the law of perjury, the Supreme Court addressed "whether a witness may be convicted of perjury for an answer, under oath, that is literally true but not responsive to the question asked and arguably misleading by negative implication." Id. at 352. The Court directly answered the question "no." It made absolutely clear that a literally truthful answer cannot constitute perjury, no matter how much the witness may have intended by his answer to mislead.

Bronston involved testimony taken under oath at a bankruptcy hearing. At the hearing, the sole owner of a bankrupt corporation was asked questions about the existence and location of both his personal assets and the assets of his corporation. The owner testified as follows:

Q:      Do you have any bank accounts in Swiss banks, Mr.                               Bronston?

A:      No, sir.

Id. at 354. The government later proved that Bronston did in fact have a personal Swiss bank account that was terminated prior to his testimony. The government prosecuted Bronston "on the theory that in order to mislead his questioner, [Bronston] answered the second question with literal truthfulness but unresponsively addressed his answer to the company’s assets and not to his own --thereby implying that he had no personal Swiss bank account at the relevant time." Id. at 355.

The Supreme Court unanimously rejected this theory of perjury. It assumed for purposes of its holding that the questions referred to Bronston’s personal bank accounts and not his company’s assets. Moreover, the Court stated, Bronston’s "answer to the crucial question was not responsive," and indeed "an implication in the second answer to the second question [is] that there was never a personal bank account." Id. at 358. The Court went so far as to note that Bronston’s answers "were not guileless but were shrewdly calculated to evade." Id. at 361. However, the Court emphatically held that implications alone do not rise to the level of perjury, and that Bronston therefore could not have committed perjury. "[W]e are not dealing with casual conversation and the statute does not make it a criminal act for a witness to willfully state any material matter that implies any material matter that he does not believe to be true." Id. at 357-58. The Court took pains to point out the irrelevance of the witness’s intent: "A jury should not be permitted to engage in conjecture whether an unresponsive answer, true and complete on its face, was intended to mislead or divert the examiner." Id. at 359.

The Supreme Court in Bronston provided several rationales for its holding that literally true, non-responsive answers are by definition non-perjurious, regardless of their implications. First, the Court noted that the burden always rests squarely on the interrogator to ask precise questions, and that a witness is under no obligation to assist the interrogator in that task. The Court "perceive[d] no reason why Congress would intend the drastic sanction of a perjury prosecution to cure a testimonial mishap that could readily have been reached with a single additional question by counsel alert -- as every counsel ought to be-–to the incongruity of petitioner’s unresponsive answer." Id. at 359. Moreover, the Court noted that because of the adversarial process, perjury is an extraordinary and unusual sanction, since "a prosecution for perjury is not the sole, or even the primary safeguard against errant testimony." Id. at 360. The perjury statute cannot be invoked "simply because a wily witness succeeds in derailing the questioner -- so long as the witness speaks the literal truth." Id.

Bronston is just one of scores of cases across the federal circuits that make clear that the definition of perjury must be carefully limited because perjury prosecutions are dangerous to the public interest since they "discourage witnesses from appearing or testifying." Id. at 359. For instance, in United States v. Earp, 812 F.2d 917 (4th Cir. 1987), the defendant, a member of the Ku Klux Klan, had stood guard during the attempted burning of a cross on the lawn of an interracial couple, and further evidence demonstrated that he had personally engaged in other attempts to burn crosses. During questioning before a grand jury, however, he denied ever having burned crosses on anyone’s lawn. He was convicted of perjury, but the United States Court of Appeals for the Fourth Circuit reversed his conviction, because "like the witness in Bronston, [the defendant’s] answers were literally true although his second answer was unresponsive." Id. at 919. That is, the defendant had not actually succeeded in his cross-burning attempts, so it was literally true that he had never burned crosses on anyone’s lawn. The court noted that "while he no doubt knew full well that he had on that occasion tried to burn a cross, he was not specifically asked either about any attempted cross burnings." Id. Every federal court of appeals in the nation concurs in this reading of Bronston.

D.      Fundamentally Ambiguous Questions Cannot Produce Perjurious Answers

A fourth guiding principle is that ambiguous questions cannot produce perjurious answers. When a question or a line of questioning is "fundamentally ambiguous," the answers to the questions posed are insufficient as a matter of law to support a perjury conviction." See, e.g., United States v. Finucan, 708 F.2d 838, 848 (1st Cir. 1983); United States v. Lighte, 782 F.2d 367, 375 (2d Cir. 1986); United States v. Tonelli, 577 F.2d 194, 199 (3d Cir. 1978); United States v. Bell, 623 F.2d 1132, 1337 (5th Cir. 1980); United States v. Wall, 371 F.2d 398, 400 (6th Cir. 1967); United States v. Williams, 552 F.2d 226, 229 (8th Cir. 1977). In other words, when there is more than one way of understanding the meaning of a question, and the witness has answered truthfully as to his understanding, he cannot commit perjury. Many courts have emphasized that "defendants may not be assumed into the penitentiary" by "sustain[ing] a perjury charge based on [an] ambiguous line of questioning." Tonelli, 577 F.2d at 199.

United States v. Lattimore, 127 F. Supp. 405 (D.D.C. 1955), is the key case dealing with ambiguous questions in the perjury context. In Lattimore, a witness was questioned before the Senate Internal Security Subcommittee about his ties to the Communist party. He was asked whether he was a "follower of the Communist line," and whether he had been a "promoter of Communist interests." He answered "no" to both questions, and was subsequently indicted for committing perjury. The United States District Court for the District of Columbia found that the witness could not be indicted on "charges so formless and obscure as those before the Court." Id. at 413. The court held that "‘follower of the Communist line’ is not a phrase with a meaning about which men of ordinary intellect could agree, nor one which could be used with mutual understanding by a questioner and answerer unless it were defined at the time it were sought and offered as testimony." Id. at 110. As the court explained further:

Id. at 109.

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

Similarly, in United States v. Tonelli, 577 F.2d 194 (3d Cir. 1978), the defendant answered negatively a question whether he had "handled any pension fund checks." The government then proved that the defendant had actually handled the transmission of pension fund checks by arranging for others to send, mail, or deliver the checks. The government charged the defendant with perjury. The court held that perjury could not result from the government’s ambiguous question. The court explained:

Id. at 199-200.

United States v. Bell, 623 F.2d 1132, 1137 (5th Cir. 1980), is yet another example of this doctrine. In Bell, a witness was asked before a grand jury, "Whether personal or business do you have records that are asked for in the subpoena," and the witness answered, "No, sir, I do not." It was later established that the witness’s files clearly contained relevant records. Nonetheless, the court held that the question was ambiguous, and therefore incapable of yielding a perjurious answer. The witness interpreted the question to ask whether he had brought the records with him that day, and not whether he had any records anywhere else in the world.

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

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

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

The primary allegation of perjury arising from President Clinton’s deposition testimony of January 17, 1998, appears to be that he lied under oath about the nature of his relationship with Ms. Lewinsky when he denied in that civil case that he had a "sexual affair," a "sexual relationship," or "sexual relations" with Ms. Lewinsky. See Ref. at 131; Schippers Presentation at 25. In the deposition, President Clinton asserted: (1) that he did not have a "sexual affair" with Ms. Lewinsky within the undefined meaning of that term, Dep. at 78; (2) that Ms. Lewinsky was correct in her statement that she did not have a "sexual relationship" with the President within the undefined meaning of that term, id. at 204; and (3) that he did not have "sexual relations" with Ms. Lewinsky as that term was defined by the Jones lawyers and limited by Judge Wright, ibid. The allegation that President Clinton perjured himself with respect to any of these deposition statements is without merit.

First, it is by now more than clear that the undefined terms "sexual affair," "sexual relations" and "sexual relationship" are at best ambiguous, meaning different things to different people, and that President Clinton’s belief that the terms refer to sexual intercourse is supported by courts, commentators, and numerous dictionaries -- a point ignored in the Referral and Mr. Schippers’ presentation to the Committee despite the obvious problem with premising a perjury claim on such ambiguous terms. As one court has stated, "[i]n common parlance the terms ‘sexual intercourse’ and ‘sexual relations’ are often used interchangeably." J.Y. v. D.A., 381 N.E.2d 1270, 1273 (Ind. App. 1978). Dictionary definitions make the same point. For example,

The President’s understanding of these terms, which is shared even by several common dictionaries, could not possibly support a prosecution for perjury. How would a prosecutor prove these dictionaries "wrong?"

Irrespective of the view that "sexual relations" means intercourse, the evidence is indisputable that this is indeed what President Clinton believed. Perjury requires more than that a third party believes President Clinton was wrong about the meaning of these terms (a point on which the allegation plainly founders); it also requires proof that President Clinton knew he was wrong and intentionally lied about it. But the evidence demonstrates that the President honestly held that belief well before the Jones deposition. The genuineness of President Clinton’s beliefs on this subject is even supported by the OIC’s account of Ms. Lewinsky’s testimony during an interview with the FBI:

App. at 1558 (8/19/98 FBI 302 Form Interview of Ms. Lewinsky).

And finally, Ms. Lewinsky herself took the position that her contact with the President did not constitute "sex" and reaffirmed that position even after she had received immunity and began cooperating with the OIC. For example, in one of the conversations surreptitiously taped by Ms. Tripp, Ms. Lewinsky explained to Ms. Tripp that she "didn’t have sex" with the President because "[h]aving sex is having intercourse." Supp. at 2664; see also Supp. at 1066 (grand jury testimony of Neysa Erbland stating that Ms. Lewinsky had said that the President and she "didn’t have sex"). Ms. Lewinsky reaffirmed this position even after receiving immunity, stating in an FBI interview that "her use of the term ‘having sex’ means having intercourse. . . ." App. at 1558 (8/19/98 FBI 302 Form Interview of Ms. Lewinsky). Likewise, in her original proffer to the OIC, she wrote, "Ms. L[ewinsky] was comfortable signing the affidavit with regard to the ‘sexual relationship’ because she could justify to herself that she and the Pres[ident] did not have sexual intercourse." App. at 718 (2/1/98 Proffer). In short, the evidence supports only the conclusion that the President’s responses with respect to these undefined terms were truthful and at worst good faith responses to indisputably ambiguous questions. The Referral and the Committee have adduced no evidence to the contrary.

Second, the President’s statement in his deposition that he had not had "sexual relations" with Ms. Lewinsky as that term was defined by the Jones lawyers and substantially narrowed by Judge Wright also is correct. Neither the OIC in its Referral nor Mr. Schippers in his presentation to the Committee laid out the sequence of events that led to the limited definition of "sexual relations" which was ultimately presented to President Clinton and which he was required to follow. At the deposition, the Jones attorneys presented a broad, three-part definition of the term "sexual relations" to be used by them in the questioning. Judge Wright ruled that two parts of the definition were "too broad" and eliminated them. Dep. at 22. The President, therefore, was presented with the following definition (as he understood it to have been amended by the Court):

Definition of Sexual Relations

For the purposes of this deposition, a person engages in "sexual relations" when the person knowingly engages in or causes -

(1)      contact with the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to arouse or gratify the sexual desire of any person;

(2)      contact between any part of the person’s body or an object and the genitals and anus of another person; or

(3)      contact between the genitals or anus of the person and any part of another person’s body.

"Contact" means intentional touching, either directly or through clothing.

This definition substantially narrowed the meaning of the term as it was used by the Jones lawyers. It rendered an overly broad definition bizarrely narrow and contorted. But despite that narrowing, and the resulting peculiarity of what was and was not covered, the Jones lawyers chose to stick with it rather than ask direct questions, see Dep. at 23, as they were invited to do by the President’s counsel. Dep. at 25. When they asked the President about "sexual relations" with Ms. Lewinsky in the deposition, they did so with explicit reference to this definition. See Dep. at 78 ("And so the record is completely clear, have you ever had sexual relations with Monica Lewinsky, as that term is defined in Deposition Exhibit 1, as modified b