(c) Information relating to impeachment. -- An
independent counsel shall advise the House of
Representatives of any substantial and credible information
which such independent counsel receives, in carrying out the
independent counsel's responsibilities under this chapter,
that may constitute grounds for an impeachment. Nothing in
this chapter or section 49 of this title [concerning the
assignment of judges to the Special Division that appoints
an independent counsel] shall prevent the Congress or either
House thereof from obtaining information in the course of an
impeachment proceeding.
2. Ms. Jones also named Arkansas State Trooper Danny
Ferguson as a defendant. For a detailed background of the Jones
v. Clinton lawsuit, see the accompanying Appendix, Tab C.
3. In 1991, Ms. Jones was an employee of the Arkansas
Industrial Development Corporation. Ms. Jones alleged that while
at work at a meeting at the Excelsior Hotel that day, she was
invited into a hotel room with Governor Clinton, and that once
she was there, the Governor exposed his genitals and asked her to
perform oral sex on him. Ms. Jones alleged that she suffered
various job detriments after refusing Governor Clinton's
advances. This Referral expresses no view on the factual or
legal merit, or lack thereof, of Ms. Jones's claims.
4. Jones v. Clinton, 117 S. Ct. 1636, 1652 (1997).
5. The purpose of discovery in a civil lawsuit is "to allow
a broad search for facts, the names of witnesses, or any other
matters which may aid a party in the preparation or presentation
of his case." Fed. R. Civ. P. 26 advisory committee notes
(1946). The discovery process allows the parties to obtain from
their respective opponents written answers to interrogatories,
oral testimony in depositions under oath, documents, and other
tangible items so long as the information sought "appears
reasonably calculated to lead to the discovery of admissible
evidence." Fed. R. Civ. P. 26(b)(1).
6. 921-DC-00000461 (Dec. 11, 1997 Order at 3). Similarly,
in a December 18, 1997 Order, Judge Wright noted that "the issue
[was] one of discovery, not admissibility of evidence at trial.
Discovery, as all counsel know, by its very nature takes
unforeseen twists and turns and goes down numerous paths, and
whether those paths lead to the discovery of admissible evidence
often simply cannot be predetermined." 1414-DC-00001012-13 (Dec.
18, 1997 Order at 7-8).
7. V002-DC-00000020 (President Clinton's Responses to
Plaintiff's Second Set of Interrogatories at 5).
8. V002-DC-00000053 (President Clinton's Supplemental
Responses to Plaintiff's Second Set of Interrogatories at 2).
During discovery in a civil lawsuit, the parties must answer
written questions ("interrogatories") that are served on them by
their opponent. Fed. R. Civ. P. 33. The answering party must
sign a statement under penalty of perjury attesting to the
truthfulness of the answers. Id.
9. For a brief discussion of the scope of the OIC's
jurisdiction, see "The Scope of the Referral," below.
10. The full text of the Special Division's Order is set
forth in the Appendix, Tab A.
11. Jones v. Clinton, Motion of the United States for
Limited Intervention and a Stay of Discovery, at 6. The overlap
in the proceedings was significant. Witnesses called before the
grand jury in the criminal investigation had been subpoenaed by
both parties to the civil case; defendant's counsel had
subpoenaed information from the OIC; and the plaintiff's
attorneys had subpoenaed documents directly related to the
criminal matter.
12. Jones v. Clinton, Order, Jan. 29, 1998, at 2.
13. Id.
14. Id. at 2-3.
15. Id. at 3.
16. Jones v. Clinton, 993 F. Supp. 1217, 1222 (E.D. Ark.
1998) (footnote and emphasis omitted).
17. Jones v. Clinton, 990 F. Supp. 657, 679 (E.D. Ark.
1998).
18. In the course of its investigation, the OIC gathered
information from a variety of sources, including the testimony of
witnesses before the grand jury. Normally a federal prosecutor
is prohibited by Rule 6(e) of the Federal Rules of Criminal
Procedure from disclosing grand jury material, unless it obtains
permission from a court or is otherwise authorized by law to do
so. This Office concluded that the statutory obligation of
disclosure imposed on an Independent Counsel by 28 U.S.C. §595(c)
grants such authority. Nevertheless, out of an abundance of
caution, the OIC obtained permission from the Special Division to
disclose grand jury material as appropriate in carrying out its
statutory duty. A copy of the disclosure order entered by the
Special Division is set forth in the Appendix, Tab B. We also
advised Chief Judge Norma Holloway Johnson, who supervises the
principal grand jury in this matter, of our determination on that
issue.
19. U.S. Const., art. I, § 2, cl. 5; art. I, § 3, cl. 6.
20. 28 U.S.C. § 594(a).
21. Before the grand jury, the President refused to answer
certain questions about his conduct with Ms. Lewinsky on the
ground that he believed the inquiries were unnecessary "and . . .
I think, frankly, go too far in trying to criminalize my private
life." Clinton 8/17/98 GJ at 94.
Others have argued that alleged "lies about sex" have
nothing to do with the President's performance in office, and
thus, are inconsequential. Former White House Counsel Jack Quinn
articulated this view:
This is a matter of sex between consenting adults, and the
question of whether or not one or the other was truthful
about it. . . . This doesn't go to the question of his
conduct in office. And, in that sense, it's trivial.
John F. Harris, "In Political Washington, A Confession
Consensus," Washington Post, Aug. 4, 1998, at A1 (quoting Quinn's
statement on CBS's "Face the Nation").
The President echoed this theme in his address to the Nation
on August 17, 1998, following his grand jury testimony:
. . . I intend to reclaim my family life for my family.
It's nobody's business but ours. Even Presidents have
private lives. It is time to stop the pursuit of personal
destruction and the prying into private lives and get on
with our national life.
Testing of a President: In His Own Words, Last Night's
Address, The New York Times, Aug. 18, 1998, at A12.
22. Clinton 1/17/98 Depo. at 9. As two commentators have
noted: "[T]o the extent that discovery is permitted with respect
to the sexual activities of either the complainant or the alleged
harasser, courts likely will freely entertain motions to limit
the availability of such information to the parties and their
counsel and to prohibit general dissemination of such sensitive
data to third parties." See Barbara Lindeman & David D. Kadue,
Sexual Harassment in Employment Law 563 (1992).
23. A sexual harassment case can sometimes boil down to a
credibility battle between the parties, in which "the existence
of corroborative evidence or the lack thereof is likely to be
crucial." Henson v. City of Dundee, 682 F.2d 897, 912 n.25 (11th
Cir. 1982). If there are no eyewitnesses, it can be critical for
a plaintiff to learn in discovery whether the defendant has
committed the same kind of acts before or since. Thus, the Equal
Employment Opportunity Commission explained in a 1990 policy
statement that the plaintiff's allegations of an incident of
sexual harassment "would be further buttressed if other employees
testified that the supervisor propositioned them as well." EEOC
Policy Guidance (1990). The rules of evidence establish that
such corroboration may be used to show the defendant's "motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident." Fed. R. Evid. 404(b). In
short, a defendant's sexual history, at least with respect to
other employees, is ordinarily discoverable in a sexual
harassment suit.