Excerpts from the 200-page report released Tuesday by the White House contesting the impeachment case against President Clinton:
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 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.
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.
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 the troopers said Starr's investigators asked about 12 to 15 women by name, including Paula Corbin Jones. ... 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.
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. ... 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.
The specific harms the Framers sought to redress by impeachment are far more serious than those alleged in the Starr Referral. ... 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.
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.
Thus, a member would act in derogation of a solemn constitutional duty if he or she approved an article of impeachment without having concluded that the President had been shown, by clear and convincing evidence, to have performed an impeachable act. The House has its own independent constitutional obligation to weigh the evidence presented. It is not a matter of merely voting for the article on the theory that the Senate will determine the truth. 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.
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."
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.
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 Referral repeatedly and demonstrably omitted or mischaracterized directly relevant evidence that exonerates the President of the very allegations leveled by the OIC.
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:
"I was never promised a job for my silence." (grand jury testimony of Ms. Lewinsky, Aug. 20, 1998).
"As far as I was concerned, the job and the affidavit were two very separate matters." (grand jury testimony of Vernon Jordan, March 5, 1998).
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:
Q: "Now, back again to the four statements that you testified the President made to you that were presented as statements, did you feel pressured when he told you those statements?
A: "None whatsoever."
The OIC accused the President of obstructing justice by suggesting that Ms. Lewinsky file an affidavit that he knew would be false. However, the OIC inexplicably never once quoted Ms. Lewinsky's repeated, express denials that anyone had told or encouraged her to lie:
"Neither the President nor Mr. Jordan (or anyone on their behalf) asked or encouraged Ms. Lewinsky 3/8 to lie." (Feb. 1, 1998 Proffer).
"I think I told Tripp that -- you know, at various times the President and Mr. Jordan had told me I had to lie. That wasn't true." (grand jury testimony of Ms. Lewinsky, Aug. 6, 1998).
"I think because of the public nature of how this investigation has been and what the charges aired, that I would just like to say that no one ever asked me to lie and I was never promised a job for my silence." (grand jury testimony of Ms. Lewinsky, Aug. 20, 1998).
"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 ... (4th Cir. 1973); United States v. Markiewicz ... (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
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. ... 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.
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:
"After having a relationship with him, Lewinsky deduced that the President, in his mind, apparently does not consider oral sex to be sex. Sex to him must mean intercourse." (FBI 302 Form Interview of Ms. Lewinsky, Aug. 19, 1998).
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.
Proponents of impeachment repeatedly contend in the most general terms that President Clinton committed perjury in the grand jury on August 17, 1998. When this allegation is framed in specific terms, it is often based on the false belief that President Clinton denied in the grand jury having had any sexual contact with Ms. Lewinsky. For example, in the Committee's perjury hearing held last week, Chairman Hyde discounted the Referral's charge that President Clinton had lied to the grand jury about the commencement date of his relationship with Ms. Lewinsky and then stated, "I don't rank that up with lying to the grand jury, saying he didn't have a sexual relationship." (Remarks of Chairman Hyde at Perjury Hearing, December 1, 1998; see also Statement of Judge Charles Wiggins ... "the President was called as a witness before the grand jury and he repeated his story that he did not have a sexual relationship with Monica Lewinsky. Subsequently the President acknowledged that his story was false or misleading and that he in fact had such a relationship with Ms. Lewinsky.")
These accounts of President Clinton's grand jury testimony are not accurate. In his August 17, 1998 grand jury testimony, President Clinton acknowledged that he had engaged in "inappropriate intimate contact" with Ms. Lewinsky. ... He also acknowledged that his conduct was "wrong." Ibid. What the President denied in the grand jury was having "sexual relations" with Ms. Lewinsky only as that term was defined by the Jones lawyers and substantially restricted by Judge Wright. He did not go into the details of those encounters because of privacy considerations, although he did testify that they did not involve either sexual intercourse or "sexual relations" as defined at the Jones deposition after Judge Wright struck two-thirds of it.
In view of the foregoing distortions and omissions, no fair-minded factfinder could conclude from the evidence that the President instructed Ms. Currie to retrieve gifts from Ms. Lewinsky.
In short, the President never told Ms. Lewinsky what to say in the affidavit, he knew that Ms. Lewinsky had her own lawyer to protect her interests, and he expressly declined the opportunity to review the content of the affidavit, according to Ms. Lewinsky ... (FBI Form 302 Interview of Ms. Lewinsky, Aug. 2, 1998). The President repeatedly testified that he did not intend Ms. Lewinsky to file a false affidavit, and the above-referenced statements of Ms. Lewinsky indicate that, at the time she executed it, she believed her affidavit was literally true.
The OIC's allegation depends on the argument that it is somehow was an obstruction of justice to fail to ensure that Ms. Lewinsky volunteered in her affidavit all information that the Jones lawyers might have used to attack the President in their politically motivated lawsuit. There simply is no such duty under the law, nor does the OIC cite any basis for such a duty.
The OIC also contends that it was an abuse of power for the President, at a time when both his personal and official interests were at stake, not to volunteer to testify before the grand jury until August. ... This claim is wholly unfounded. The OIC apparently believes that any government official who is the subject of a criminal investigation must immediately testify or risk impeachment. Because he was initially invited to appear voluntarily, the President had the right to decide the timing of his testimony. It became clear early in the OIC's investigation that this was not a run-of-the-mill grand jury investigation but was instead a focused effort to target the President himself. The President's decision to decline invitations to testify was entirely appropriate, given the nature of the OIC's investigation.
We respectfully suggest that the White House's claim of executive privilege furnishes no ground for impeachment. The facts the OIC selectively omits from the Referral, as recounted above, unequivocally support the legitimacy of the White House's decision to raise the issue of executive privilege. The OIC not only continues to reiterate its claim that executive privilege is inapplicable in a grand jury context but also omits the critical fact that Judge Johnson validated the White House's assertion of the privilege and required the OIC to demonstrate a sufficient showing of need before it obtained the information.