Tweede reactie van Clinton op het Starr Report
Download beide reacties als zipbestand (96 kb).
TO REFERRAL OF
OFFICE OF INDEPENDENT COUNSEL
September 12, 1998
On May 31, 1998, the spokesman for Independent Counsel Kenneth W. Starr declared that the Office's Monica Lewinsky investigation "is not about sex. This case is about perjury, subornation of perjury, witness tampering, obstruction of justice. That is what this case is about."1 Now that the 450-page Referral to the United States House of Representatives Pursuant to Title 28, United States Code § 595(c) (the "Referral") is public, it is plain that "sex" is precisely what this four-and-a-half year investigation has boiled down to. The Referral is so loaded with irrelevant and unnecessary graphic and salacious allegations that only one conclusion is possible: its principal purpose is to damage the President.
The President has acknowledged and apologized for an inappropriate sexual relationship with Ms. Lewinsky, so there is no need to describe that relationship in ugly detail. No one denies that the relationship was wrong or that the President was responsible. The Referral's pious defense of its pornographic specificity is that, in the Independent Counsel's view:
Narrative at 20. This statement is patently false. Any fair reader of the Referral will easily discern that many of the lurid allegations, which need not be recounted here, have no justification at all, even in terms of any OIC legal theory. They plainly do not relate, even arguably, to activities which may be within the definition of "sexual relations" in the President's Jones deposition, which is the excuse advanced by the OIC. They are simply part of a hit-and-run smear campaign, and their inclusion says volumes about the OIC's tactics and objectives.
Review of a prosecutor's case necessarily starts with an analysis of the charges, and that is what we offer here. This is necessarily a very preliminary response, offered on the basis of less than a day's analysis and without any access to the factual materials cited in the Referral.
Spectacularly absent from the Referral is any discussion of contradictory or exculpatory evidence or any evidence that would cast doubt on the credibility of the testimony the OIC cites (but does not explicitly quote). This is a failure of fundamental fairness which is highly prejudicial to the President and it is reason alone to withhold judgment on the Referral's allegations until all the prosecutors' evidence can be scrutinized -- and then challenged, as necessary, by evidence from the President.
The real critique can occur only with access to the materials on which the prosecutors have ostensibly relied. Only at that time can contradictory evidence be identified and the context and consistency (or lack thereof) of the cited evidence be ascertained. Since we have not been given access to the transcripts and other materials compiled by the OIC, our inquiry is therefore necessarily limited. But even with this limited access, our preliminary review reaffirms how little this highly intrusive and disruptive investigation has in fact yielded. In instance after instance, the OIC's allegations fail to withstand scrutiny either as a factual matter, or a legal matter, or both. The Referral quickly emerges as a portrait of biased recounting, skewed analysis, and unconscionable overreaching.
In our Preliminary Memorandum, filed yesterday, at pages 3-12, we set forth at some length the various ways in which impeachable "high Crimes and Misdemeanors" have been defined. Nothing in the Referral even approximates such conduct. In the English practice from which the Framers borrowed the phrase, "High Crimes and Misdemeanors" denoted political offenses, the critical element of which was injury to the state. Impeachment was intended to redress public offenses committed by public officials in violation of the public trust and duties. Because presidential impeachment invalidates the will of the American people, it was designed to be justified for the gravest wrongs -- offenses against the Constitution itself. In short, only "serious assaults on the integrity of the processes of government,"2 and "such crimes as would so stain a president as to make his continuance in office dangerous to the public order,"3 constitute impeachable offenses. The eleven supposed "grounds for impeachment" set forth in the section of the Referral called "Acts That May Constitute Grounds for an Impeachment" ("Acts") fall far short of that high standard, and their very allegation demeans the constitutional process. The document is at bottom overreaching in an extravagant effort to find a case where there is none.
Allegation I -- Perjury in January 17, 1998, Deposition
We begin our response to the OIC's charge that the President committed perjury in his January 17 deposition in the Jones case with these simple facts: the President's relationship with Ms. Lewinsky was wrong; he admitted it was wrong; and he has asked for the forgiveness of his family and the American people. The perjury charges in the Referral in reality serve one principal purpose for the OIC -- to provide an opportunity to lay out in a public forum as much salacious, gratuitous detail as possible with the goal of damaging the President and the presidency.
The OIC begins its catalogue of "acts that may constitute grounds for impeachment" with the allegation that "[t]here is substantial and credible information that President Clinton lied under oath as a defendant in Jones v. Clinton regarding his sexual relationship with Monica Lewinsky." Acts at 5. The OIC contends that, for legal reasons, it must discuss its allegations of sexual activity in detail and then goes out of its way to supply lurid detail after lurid detail that are completely irrelevant to any legal claim, obviously hoping that the shock value of its footnotes will overcome the absence of legal foundation for the perjury allegation.
In reaching any fair judgment as to the merits of the OIC's claim that the President's testimony establishes a basis for impeachment, it is important to understand a few additional points. First, the OIC barely acknowledges the elements of perjury, including, in particular, the substantial burden that must be met to show that the alleged false statements were made "knowingly," Preliminary Memorandum at 52, or that they were material to the Jones proceeding.
Second, the OIC ignores the careful standards that the courts have mandated to prevent the misuse of perjury allegations. As was set out in detail in our Preliminary Memorandum, pages 51-64, literally true statements cannot be the basis for a perjury prosecution, even if a witness intends to mislead the questioner. Likewise, answers to inherently ambiguous questions cannot constitute perjury. And, normally, a perjury prosecution may not rest on the testimony of a single witness.
Third, by selectively presenting the facts and failing to set out the full context of the answers that it claims may have been perjurious, the OIC has presented a wholly misleading picture. This tactic is most pronounced in the OIC's astonishing failure to set out the initial definition of "sexual relations" presented by the Jones lawyers at President Clinton's deposition, two parts of which were eliminated by Judge Wright as being "too broad."4 The OIC also fails to mention that the Jones lawyers were fully able, and indeed were invited by President Clinton's counsel, to ask the President specific questions about his sexual encounters, but they chose not do so. See Preliminary Memorandum at 65.
These surprising and substantial gaps in the Referral, and the OIC's purposefully incomplete presentation reflect the extreme weakness of the OIC's contention that the President's deposition testimony about "sexual relations" may constitute perjury.
As any fair prosecutor would acknowledge, what the OIC dismisses as a mere "semantical defense" is, in fact, reflective of the great care the courts have taken to ensure that a witness is not charged with perjury except when the government can demonstrate a clear intent to provide false testimony. Thus, in any ordinary prosecutor's office, and surely in the chambers of the House Judiciary Committee, the definitions of such terms as "sexual affair," "sexual relations," and "sexual relationship" would be seen as vital to a determination whether some violation of law had occurred.5 The burden that must be met by the OIC extends beyond showing that the President was wrong on the semantics, it must also show that, because perjury is a specific intent crime, he knew he was wrong and intended to lie -- something that the OIC could not begin to demonstrate. In fact, all the OIC has is a witness who gave narrow answers to ambiguous questions.
Lawyers' arguments, however well taken, should not obscure the President's admission that his relationship with Ms. Lewinsky was wrong and his acceptance of responsibility for his conduct. But one example will suffice to demonstrate the inherent weakness of the OIC's claim. The OIC argues that oral sex falls within the definition of sexual relations and that the President therefore lied when he said he denied having sexual relations. It is, however, the President's good faith and reasonable interpretation that oral sex was outside the special definition of sexual relations provided to him. The OIC simply asserts that it disagrees with the President's "linguistic parsing," and that reasonable people would not have agreed with him. Acts at 30. This simply is not the stuff of which criminal prosecutions -- and surely impeachment proceedings -- are made.
What is left, then is a disagreement about the very specific details of certain encounters that the President has acknowledged were improper -- the very "oath against oath" that the law and experience reject as a basis for a prosecution, because a perjury conviction cannot rest on simple inconsistencies and memory disparities between only two witnesses.
Instead of acknowledging the well-settled legal limits on perjury cases, or grappling with the important limitations on perjury prosecutions, the OIC has chosen to fill its report with unnecessary and salacious sex -- details that cause pain and damage for absolutely no legitimate reason.
Allegation II -- Perjury in August 17, 1998, Grand Jury Testimony
In its second allegation, the OIC contends that "[t[here is substantial and credible information that President Clinton lied under oath to the grand jury about his sexual relationship with Monica Lewinsky." Acts at 40. In particular, the OIC alleges that the President committed perjury three times: (1) when he testified that he believed oral sex was not covered by any of the terms and definitions for sexual activity used at the Jones deposition; (2) when he contradicted Ms. Lewinsky's grand jury testimony on the question whether the President touched Ms. Lewinsky's breasts or genitalia during their sexual activity, since "[t]here can be no contention that one of them has a lack of memory or is mistaken," id.; and (3) when he testified to a purportedly false date on which his relationship with Ms. Lewinsky commenced. None of these "allegations" makes out a prima facie case of perjury, and none can possibly constitute a "ground" for impeachment.
1. The OIC first claims that the President testified falsely that he did not believe oral sex to be covered by any of the terms and definitions for sexual activity used at the Jones deposition. As noted in response to the first allegation, supra, the terms "sexual affair" and "sexual relationship" are inherently ambiguous and, when used without definition, cannot possibly amount to perjury. The President testified to the grand jury about what he believed those terms mean. Not content to accept his explanation, the OIC makes the extraordinary (and factually unsupported) claim that the President committed perjury before the grand jury by lying not about some fact but about his belief about the meaning of certain words. The OIC then compounds this error by claiming as perjury the President's explanation of his understanding of the contorted definition of "sexual relations" in the Jones suit, as modified by the court.
This claim is quite stunning. The OIC charges the President with perjury, saying it is "not credible" that the President believed oral sex fell outside the definition he was given, even though it plainly did, and even though many commentators and journalists have stated that they believe that the definition of sexual relations in the Jones deposition did not include oral sex (performed on the President). See, e.g., Internight, August 12, 1998 (Cynthia Alksne) ("when the definition finally was put before the president, it did not include the receipt of oral sex."); "DeLay Urges a Wait For Starr's Report," The Washington Times, August 31, 1998 ("The definition of sexual relations, used by lawyers for Paula Jones when they questioned the president, was loosely worded and may not have included oral sex."); "Legally Accurate," The National Law Journal, August 31, 1998 ("Given the narrowness of the court-approved definition in [the Jones] case, Mr. Clinton indeed may not have perjured himself back then if, say, he received oral sex but did not reciprocate sexually."). Despite the fact that several reasonable commentators agree with the President's interpretation, the OIC acts as though the President's interpretation of the definition in the Jones case is both unique and untenable. It is in fact the OIC's theory that is untenable.
It is beyond debate that false testimony provided as a result of confusion or mistake cannot as a matter of law constitute perjury. See United States v. Dunnigan, 507 U.S. 87, 94 (1993); Department of Justice Manual, 1997 Supplement, at 9-69.214. Moreover, if there is any doubt as to the falsity of testimony, the issue must be resolved in favor of the accused. See United States v. Chaplin, 25 F.3d 1373, 1380 (7th Cir. 1994) (the government must prove falsity by direct evidence, and not inferences). The definitions on which the President relied are shared both by dictionaries, see discussion of Allegation I, supra, and by commentators. The OIC's very allegation that the President committed perjury by re-explaining his belief and interpretation to the grand jury is yet another indication of the extent of the OIC's overreaching in this Referral.6
2. The OIC's next charge - that the President testified falsely when he contradicted Ms. Lewinsky's grand jury testimony on the question whether he touched Ms. Lewinsky's breasts or genitalia during their sexual activity -- is substantially identical to the allegation contained in Allegation I, supra, and cannot constitute perjury for the same reason. The critical issue here is not whether the testimony of the President and Ms. Lewinsky differ but whether there is any evidence that the President knowingly and intentionally gave false testimony. It is worthwhile to note, however, the inaccuracy of the OIC's assertion that "[t]here can be no contention that one of them has a lack of memory or is mistaken" about the details of their physical relationship. Acts at 40.
3. The OIC's final allegation here is that the President made a false statement to the grand jury regarding the timing of the beginning of his relationship with Ms. Lewinsky. Whereas the Referral indicates that the President remembers the improper relationship beginning early in 1996, Ms. Lewinsky has apparently testified that it began November 15, 1995. As a legal allegation this claim is frivolous, because the statement by the President regarding the timing of the relationship (mid-November 1995 as opposed to January 1996) was utterly immaterial to the grand jury's investigation. The Supreme Court has held that "there is no doubt that materiality is an element of perjury." Johnson v. United States, ___ U.S. ___, 117 S. Ct. 1544, 1548 (1997). The test for materiality is whether the statement in question had "a natural tendency to influence, or [be] capable of influencing, the decision of the decisionmaking body to which it was addressed." United States v. Gaudin, 515 U.S. 506, 509 (1995). There is no conceivable way in which any statement by the President with regard to the date (within a few weeks) of the commencement of his relationship with Ms. Lewinsky could possibly have influenced the grand jury, and the OIC has of course not identified how the grand jury was "influenced" by this testimony. The President acknowledged to the grand jury his improper relationship, beginning early in 1996, with Ms. Lewinsky , and his testimony regarding the date that the relationship began cannot possibly have influenced the grand jury in any decision-making function. The mere fact that the OIC would allege perjury as a result of an utterly immaterial statement speaks volumes about the overreaching in the Referral.
Allegation III - Meetings and Exchanging Gifts with Ms. Lewinsky
In its third allegation, the OIC makes various claims of perjury based on President Clinton's statements in the Jones deposition regarding whether he had been alone with Ms. Lewinsky in the Oval Office and in an adjacent hallway and whether he and Ms. Lewinsky had exchanged gifts. Like the other perjury allegations, the OIC fails to offer a credible case.
First and foremost, President Clinton did not deny meeting alone with Ms. Lewinsky at the White House nor deny that they exchanged gifts. In essence, the OIC's complaint is that President Clinton was not more forthcoming, which is plainly not a ground for perjury, rather than that he knowingly lied under oath. This is perhaps most clearly seen in the OIC's heading for this allegation, which sets forth the accusation that President Clinton "minimized the number of gifts they had exchanged," Acts at 45, which of course concedes that he acknowledged that gifts were exchanged. There is not much that is safe from a perjury prosecution if mere "minimization" qualifies for the offense. The transcript makes it clear that, when asked about particular gifts, the President honestly stated his recollection of the particular item.
Nor can President Clinton's testimony regarding whether he was alone with Ms. Lewinsky at various times and places constitute perjury. The Jones lawyers often failed to follow up on incomplete or unresponsive answers. Read as a whole, the deposition makes clear that the President acknowledged being alone with Ms. Lewinsky on some occasions. The Referral unfortunately mischaracterizes the testimony to suggest an absolute denial, for example, transforming a question about being alone with Ms. Lewinsky in the Oval Office (where the President did not recall engaging in improper contact) into being alone at all ("The President lied when he said "I don't recall" in response to the question whether he had ever been alone with Ms. Lewinsky." Acts at 51.) And, surprisingly since the Jones lawyers had been briefed by Ms. Tripp, the Jones lawyers never asked the President whether he was alone with Ms. Lewinsky in the study, where some of the alleged activity took place. They were free to ask specific follow-up questions about the nature and locale of any physical contact, and they did not do so. The OIC cannot now hold the President to blame for their failure.
Allegation IV -- Discussions with Ms. Lewinsky About Potential Testimony
The Referral claims that in the following exchange in President Clinton's January 17 deposition in the Jones case he committed perjury:
Q: Have you ever talked to Ms. Lewinsky about the possibility that she might be asked to testify in this lawsuit?
A: I'm not sure and let me tell you why I'm not sure. It seems to me the
. . . I want to be as accurate as I can here. Seems to me the last time she was there to see Betty before Christmas we were joking about how you-all, with the help of the Rutherford Institute, were going to call every woman I'd ever talked to and . . . ask them that, and so I said you would qualify, or something like that. I don't, I don't think we ever had more of a conversation than that about it, because when I saw how long the witness list was, or I heard about it, before I saw, but actually by the time I saw her name was on it, but I think that was after all this happened. I might have said something like that, so I don't want to say for sure I didn't because I might have said something like that.
Q: What, if anything, did Monica Lewinsky say in response?
A: Nothing, that I remember. Whatever she said, I don't remember. Probably just some predictable thing.
This answer was literally accurate. The President described a joking conversation that he had with many women about the possibility that they might be subpoenaed by the Jones lawyers. He made clear that the recollection of the conversation with Ms. Lewinsky preceded the appearance of Ms. Lewinsky's name on the witness list (on December 5), saying: "by the time I saw [the witness list on December 6] her name was on it, but I think that was after all this had happened." The President also stated three different times in that one answer that he was not certain as to his recollection, saying, "I'm not sure," "I don't think," and "I might have said something like that." In his grand jury testimony, additional details of a December 28 conversation with Ms. Lewinsky were provided by the President. The testimony that the Referral cites is not inconsistent - his first answer indicating he was referring to a conversation that occurred before she had been named a witness, and his August 17 testimony describing a conversation after she had been subpoenaed in mid-December. The fact that Ms. Lewinsky recalls additional conversations on the subject, all occurring after she had been named on the witness list, does not establish that the President's answer was inaccurate. This answer cannot possibly support a perjury charge.
Allegation V -- Concealing Gifts and an Intimate Note
In its fifth allegation, the OIC contends that President Clinton obstructed justice by concealing gifts he had given to Ms. Lewinsky. This claim is wholly unfounded and simply absurd. On her December 28, 1998 visit, the President gave Ms. Lewinsky several holiday and going-away gifts. Ms. Lewinsky apparently testified that, during the visit, she raised a question about the Jones subpoena and suggested "put[ting] the gifts away outside of my house or somewhere or giv[ing] them to someone, maybe Betty." Acts at 74-75. To this suggestion, the President, according to Ms. Lewinsky's reported testimony, responded with something like, "I don't know" or "Hmmm" or "there really was no response."7 President Clinton contradicts this testimony. But even if one accepts Ms. Lewinsky's testimony, "I don't know, "Hmmm" and silence do not constitute obstruction of justice.
Moreover, Ms. Lewinsky's testimony is contradicted by Ms. Currie who testified that it was Ms. Lewinsky, not the President, who asked her to come get the gifts and keep them. The OIC tries to impugn Ms. Currie's memory in the quoted passage, yet her recollection is consistent with the testimony of one of the two other parties to the events. Indeed, the OIC's effort to shore up its case by trying to discount Ms. Currie's testimony on this point is a prime example of the dangers of relying on the OIC's development and presentation of the evidence. When confronted with testimony not to its liking from Ms. Currie, the OIC responded by questioning her in a manner clearly designed to encourage Ms. Currie to restate her recollection in a manner consistent with the OIC's theory of the case. Acts at 77.8
The OIC's theory of concealment also is belied by Ms. Lewinsky's decision to turn over some, but not all, of the gifts she had received from the President to Ms. Currie; if the purpose of the exercise was to avoid having gifts in her possession at the time of the deposition (which of course would not have been proper), retaining some gifts made no sense. But the OIC is forced to acknowledge that only one of the several gifts the President gave to Ms. Lewinsky on December 28, 1998 was included in the box she gave to Ms. Currie for safekeeping. The theory makes no sense.
Ultimately, the only theory that does make sense is the truth, as testified to by the President and Ms. Currie and as supported by the fact that the President acknowledged giving Ms. Lewinsky gifts as early as his January 17, 1998 deposition. The President was unconcerned about the gifts he had given to Ms. Lewinsky because he frequently exchanges gifts with friends. That is why he gave her additional gifts on December 28 even though, according to her testimony, he knew the Jones lawyers were interested in them. Thus, when she raised a question, he told Ms. Lewinsky she had to turn over what she had; they were of no concern to him. Nonetheless, in response to Ms. Lewinsky's subsequent request, Ms. Currie drove to Ms. Lewinsky's apartment and picked up a box of gifts from Ms. Lewinsky and held them for safekeeping. The President did not direct or encourage Ms. Currie's activities regarding the gifts. He likewise did not obstruct justice by concealing their existence.
The OIC also argues that the President obstructed justice in the Jones case by destroying an intimate note that Ms. Lewinsky included in a book she left for him on January 4, 1998.9 The OIC states in its Referral that the President was served with a document request from the Jones lawyers on December 16, 1997, that required him to produce this note to the Jones lawyers. The disingenuousness of this allegation is apparent on several levels.
As a preliminary matter, the President testified that he recalled receiving a book from Ms. Lewinsky, that he believed he had received it in December, and that he did not recall receiving an accompanying note. Deposition of the President, August 17, 1998. Contrary to the one-sided presentation of the purported facts in the OIC's referral, the President may not even have received that note.
Second, the OIC asserts, without basis, that the President purposefully destroyed Ms. Lewinsky's note because he did not want to have to turn it over to the Jones lawyers. The OIC has absolutely no basis for assuming that the President was aware of the document request at the time he received the book. Thus, even assuming the President had received and discarded the note, his acts would not constitute obstruction of justice.
Finally, setting aside whether the President actually received Ms. Lewinsky's note, or knew whether it was subject to a document request, at bottom the OIC is transforming a civil discovery issue into yet another flimsy criminal charge, accusing the President with obstruction of justice on the basis of his alleged failure to produce this note to the Jones lawyers. As the OIC clearly knows, the obstruction of justice statute does not apply to a party's concealing or withholding of discoverable documents in civil litigation. See, e.g., Richmark v. Timber Falling Consultants, 730 F. Supp. 1525, 1532 (D. Or. 1990) ("[t]he parties have not cited and the court has not found any case in which a person was charged with obstruction of justice for concealing or withholding discovery in a civil case"). Demonstrable non-compliance with the rules is sanctioned civilly as an abuse of the discovery process. See Rule 37, Fed. R. Civ. P. ("Failure to Make Disclosure or Cooperate in Discovery: Sanctions"). Therefore, even if, as the OIC alleges, the President received and discarded the note in the wake of an outstanding request -- which the President testified he did not --those actions would not constitute obstruction of justice. The OIC's allegation is missing both the facts and the law.
12 september 1998