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A. PERJURY

1. Grand Jury Perjury18 U.S.C. $ 1623

The grand jury process is an integral part of our criminal justice system. The Fifth Amendment assures that grand jury proceedings are a prerequisite to federal criminal charges and prosecution; "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” The grand jury engages in a truth finding mission.

Grand juries have the power to direct an investigation, and therefore counteract “suspicions of corruption and partisanship in criminal law enforcement.” 79 The importance of the grand jury function is underscored by the fact that perjury in grand jury and court proceedings is discussed separately than perjury in general.80 The Supreme Court has noted the gravity of perjury:

In this constitutional process of securing a witness' testimony, perjury simply has no place whatever. Perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings. Effective restraints against the type of egregious offense are therefore imperative. The power of subpoena, broad as it is, and the power of contempt for refusing to answer, drastic as that is—and the solemnity of the oath-cannot insure truthful answers. Hence Congress has made the giving of false answers a criminal act punishable by severe penalties; in no other way can criminal conduct be flushed into the open where the law can deal with it.

Similarly, our cases have consistently—indeed without exceptionallowed sanction for false statement or perjury; they have done so even in instances where the perjurer complained that the Government exceeded its constitu

tional powers in making the inquiry.81 2. Perjury In General18 U.S.C. § 1621

Perjury consists of providing false testimony as to material facts while under oath: “The essential elements of the crime of perjury as defined in 18 U.S.C. § 1621 * * * are (1) an oath authorized by a law of the United States, (2) taken before a competent tribunal, officer, or person, and (3) a false statement willfully made as to facts material to the hearing." 82 Materiality is based on the circumstances and context in which the statement was made.83 There are no exceptions to perjury for sexual matters.

offiew of the United S.C. $ 1621*10. elements of the

79 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure 88.6 (2d. ed. 1992). 80 See 18 U.S.C. § 1623; cf 18 U.S.C. § 1621.

81 United States v. Mandujano, 425 V.S. 564, 576–77(1976Xplurality opinion)(footnote and citations omitted).

82 United States v. Hvass, 355 U.S. 570, 574 (1958) internal quotation marks omitted); see also 18 U.S.C. § 1621. Section 1621 carries a penalty of fines or imprisonment for up to five years.

83 See, e.g., United States v. Holley, 942 F.2d 916, 923 (5th Cir. 1991)("the government must prove that Holley's statements were, at the time made, material to the proceeding in which his deposition was taken." (emphasis added.)); United States v. Martinez, 855 F.2d 621, 624 (9th Cir. 1988)(“The proper test is to judge materiality in terms of its potential for obstructing justice at the time the statement is made * * *." (emphasis added)); United States v. Percell, 526 F.2d 189, 190 (9th Cir. 1975).

Some have argued that perjury is less important in civil cases and is rarely prosecuted. Such assertions are misguided. 84 As stated by the United States Court of Appeals for the 11th Circuit, “we categorically reject any suggestion, implicit or otherwise, that perjury is somehow less serious when made in a civil proceeding. Perjury, regardless of the setting, is a serious offense that results in incalculable harm to the functioning and integrity of the legal system as well as to private individuals.” 85 In fact, this year the Justice Department prosecuted a woman for perjury pertaining to a sexual relationship. 86 The woman, Ms. Battalino, testified before the Judiciary Committee. She was sentenced to one year home detention and fined $3500 in court costs.87

B. THE ARTICLES OF IMPEACHMENT (1) Article I-Grand Jury Perjury

In his conduct while President of the United States, William Jefferson Clinton, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has willfully corrupted and manipulated the judicial process of the United States for his personal gain and exoneration, impeding the administration of justice, in that:

On August 17, 1998, William Jefferson Clinton swore to tell the truth, the whole truth, and nothing but the truth before a Federal grand jury of the United States. Contrary to that oath, William Jefferson Clinton willfully provided perjurious, false and misleading testimony to the grand jury concerning one or more of the following: (1) the nature and details of his relationship with a subordinate Government employee; (2) prior perjurious, false and misleading testimony he gave in a Federal civil rights action brought against him; (3) prior false and misleading statements he allowed his attorney to make to a Federal judge in that civil rights action; and (4) his corrupt efforts to influence

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84 See, e.g., United States v. Wilkinson, 137 F.3d 214 (4th Cir. 1998Xperjury in civil deposition); United States v. Kersey, 130 F.3d 1463 (11th Cir. 1997)(perjury in civis deposition and affi. davit); United States v. Sassanelli, 118 F.3d 495 (6th Cir. 1997/perjury in civil affidavit); Virgin Islands v. Davis, 43 F.3d 41 (3rd Cir. 1994), cert. denied, 515 U.S. 1123 (1995Xperjury in civil case); United States v. Thompson, 29 F.3d 62 (2d Cir. 1994)(perjury in bankruptcy proceeding); United States v. Chaplin, 25 F.3d 1373 (7th Cir. 1994)(perjury in bankruptcy deposition); United States v. Nebel, 16 F.3d 1222, 1994 WL 12647 (6th Cir. 1994/unpublished)(perjury in civil deposition); United States v. Kross, 14 F.3d 751 (2d Cir.), cert. denied, 513 U.S. 828 (1994Xperjury in civil deposition); United States v. Markiewicz, 978 F.2d 786 (2d cir. 1992), cert. denied, 506 U.S. 1086 (1993Xperjury in civil deposition); United States v. Clark, 918 F.2d 843 (9th Cir. 1990Xperjury in civil deposition); United States v. Cox, 859 F.2d 151 (4th Cir. 1988), cert. denied, 488 U.S. 1044 (1989Xunpublished)(perjury in civil trial); United States v. Holley, 942 F.2d 916 (5th Cir. 1991Xperjury in civil deposition).

85 United States v. Holland, 22 F.3d 1040, 1047-48 (11th Cir. 1994), cert. denied, 513 U.S. 1109 (1995)(emphasis added); see also United States v. McAfee, 8 F.3d 1010, 1013–14 (5th Cir. 1993/rejecting the argument that the perjury statute does not apply to civil depositions "[t]here is no real substantive difference between federal civil and federal criminal proceedings (in regard to perjury).”).

86 United States v. Battalino, Case No. CR-98-038_S-EJL (D. Idaho); see also David Tell, Bill Clinton: This Precedent's For You, The Weekly Standard, June 22, 1998, at 9.

87 David Tell, Contagious Corruption, The Weekly Standard, August 3, 1998, at 9.

bethe draftineagues torate articles

other he jury system the

the testimony of witnesses and to impede the discovery of
evidence in that civil rights action.

In doing this, William Jefferson Clinton has undermined
the integrity of his office, has brought disrepute on the
Presidency, has betrayed his trust as President, and has
acted in a manner subversive of the rule of law and jus-
tice, to the manifest injury of the people of the United
States.

Wherefore, William Jefferson Clinton, by such conduct, warrants impeachment and trial, and removal from office and disqualification to hold and enjoy any office of honor,

trust, or profit under the United States. Article I passed the Judiciary Committee by a vote of 21 to 16 on December 11, 1998. I voted in support of its passage.

In the drafting of the Articles of Impeachment, I successfully convinced my colleagues to separate the perjurious conduct of the President into two separate articles, making Article I pertain to grand jury perjury, while making all other perjurious statements into a separate article, Article II. The grand jury system, which common law refers to as the “peoples” panel” to serve as the community's watchdog, has screening and investigative functions to develop evidence in search of the sometimes painful truth with unbridled candor. Throughout legal history, defense lawyers have been critics, often attacking the prosecutor and the process, wherein a grand jury's broad investigative power and independence are linked with criminal procedure, by calling it an “inquisitorial element.”

“The Supreme Court has described the grand jury's authority to compel testimony as '[a]mong the necessary and most important of the powers * * * [that] assure the effective functioning of government in an ordered society.'” 88 For this reason, it is proper that the first Article of Impeachment cite grand jury perjury.

The specific allegations contained in the first article are that the President provided perjurious, false and misleading testimony to the grand jury on August 17, 1998, regarding: the nature and details of his relationship with Ms. Lewinsky; prior perjurious, false and misleading testimony he gave in a Federal civil rights action brought against him; prior false and misleading statements he allowed his attorney to make to a Federal judge in that civil rights action; and his corrupt efforts to influence the testimony of witnesses and to impede the discovery of evidence in that civil rights action.89

a. The President Willfully Provided Perjurious, False and

Misleading Testimony To The Grand Jury Concerning the Nature and Details of The Relationship With A Sub

ordinate Government Employee. The evidence presented demonstrates that President Clinton committed perjury before the grand jury on August 17, 1998. The President gave false and misleading testimony before the grand jury regarding his conduct with a subordinate federal employee who was a witness in the federal civil rights action brought against him. A key inquiry, which could demonstrate perjury in the civil deposition and in responses to interrogatories from the OIC, was whether the President had a sexual relationship with Ms. Lewinsky as defined in Jones v. Clinton.

88 Wayne R. LaFave & Jerold H. Israel, criminal procedure 88.6 (2d. ed. 1992)(citation omitted).

89 H. Res. — 105th Cong., 2nd Sess. (1998).

The President lied before the grand jury three times. First, the President stated that oral sex was not included in the definition of sexual relations employed in the Jones v. Clinton deposition.90 It is an incredible torture of words for the President to assert that oral sex would not fall under "sexual relationship," "sexual relations,” or a "sexual affair.” The President interpreted the definition of sexual relations to mean that one who is receiving a sexual favor, or engaged in activity short of sexual intercourse, is not involved in sexual relations.

Second, even if the definition of sexual relations as it was understood by the President is employed, the President engaged in sexual relations with Ms. Lewinsky. The thrust of the President's understanding of the definition of the sex is that if the witness was the person who was touched, rather than provided the touching, then the conduct does not fall under the definition of sexual relations. Substantial and credible evidence shows that on numerous occasions the President did in fact touch Ms. Lewinsky as defined by the court in Jones v. Clinton. In fact, Ms. Lewinsky testified under oath that she had ten sexual encounters with the President, while several of Ms. Lewinsky's friends, family members and counselors testified that she had informed them of a sexual relationship during the pertinent time period. Another item of evidence includes the DNA test. Yet, before the grand jury, the President lied by stating he did not engage in sexual relations with Ms. Lewinsky.

Third, the President made a false statement as to when his relationship with Ms. Lewinsky began.91 Before the grand jury the President testified that the relationship did not begin until 1996, when Ms. Lewinsky was a White House employee.92 However, corroborated evidence shows that the affair began during the government shut-down of November, 1995, when she was only a 22 year old intern.93 According to Ms. Lewinsky's testimony, after first sexual encounter the President tugged on her intern badge and stated that her status as an intern could be a problem.94

Facing such dire circumstances, the President decided to evade the truth before the grand jury. He admitted to an “inappropriate intimate relationship” with Lewinsky but denied that he lied in the Jones v. Clinton deposition when he said he did not have sexual relations with Ms. Lewinsky.95 The President did not want to admit that he had oral sex with a 22 year-old White House intern.

The extensive details of the sexual contacts between the President and Ms. Lewinsky was important to this investigation, because it is only through an examination of precisely what sex acts occurred that one can determine whether the President lied. Based on the detailed information provided by Ms. Lewinsky, as well as

90 Oic Referral at 148. 91 Id. at 149.

92 Id.

93 Id. 94 Id. at 150. 95 OIC Referral at 146–50.

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physical evidence such as DNA evidence, it is clear the President and Ms. Lewinsky engaged in sexual relations under the definition used in the Jones v. Clinton case.

During the grand jury inquiry, "the President was asked whether Ms. Lewinsky performed oral sex on him, and if so, whether he committed perjury by denying a sexual relationship, sexual affair, or sexual relations with her. The President refused to say whether he had oral sex. Instead, the President said (i) that the undefined terms “sexual affair," "sexual relationship," and "sexual relations” necessarily require sexual intercourse, (ii) that he had not engaged in intercourse with Ms. Lewinsky, and (iii) that he therefore had not committed perjury in denying a sexual relationship, sexual affair, or sexual relations."96

The President's defense relies on a twisted, and hair-splitting interpretation of sexual relations. Such a contrived interpretation of the statute flies in the face of testimony which provides “the truth, the whole truth, and nothing but the truth.”

If the President admitted a sexual relationship with Ms. Lewinsky before the grand jury, he would have revealed that he lied in the prior proceeding and in his responses to interrogatories. Such concessions would have made him vulnerable as a defendant in the civil rights lawsuit filed by Paula Jones, whose appeal was pending, and would have jeopardized his family structure, and would have caused enormous embarrassment to his family and personal integrity. Thus, in context, the President had motive to lie. In fact, before the Judiciary Committee the White House counsel Mr. Craig stated: “the President's testimony was evasive, incomplete, misleading, and even maddening.” Those facts in evidence, coupled with the President's demeanor and motive to lie, comprise compelling evidence as to his state of mind that he willfully gave false testimony to the grand jury.

b. The President Willfully Provided Perjurious, False and

Misleading Testimony to the Grand Jury Regarding Prior Perjurious, False and Misleading Testimony Provided in A Federal Civil Rights Action Brought Against

Him The President made a false and misleading statement before the grand jury when he asserted that the testimony he gave in his deposition taken as a part of the civil rights action brought against him in Jones v. Clinton was truthful.

Throughout his grand jury testimony, the President acknowledged his oath and recognized that he was bound to tell the truth during the January 17, 1998, deposition in the Jones v. Clinton case, as well as his testimony before the grand jury on August 17, 1998. The record reflects that he lied.

In contrast to his assertions to testify truthfully when deposed on January 17, 1998, and before the grand jury on August 17, 1998, the record reflects that the President lied, thereby committing grand jury perjury.

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96 Id, at 146.

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