Question 43. Do you admit or deny that you gave false and misleading testimony under oath in your deposition in the case of Jones v. Clinton when you responded "once or twice" to the question "has Monica Lewinsky ever given you any gifts?" Answer. The President responded in his deposition by stating that he gives and receives numerous gifts, and that he thought she had given him one or two. In fact, Ms. Lewinsky gave the President approximately 38 gifts. In the request for admissions the President stated that his deposition response was not false and misleading because given the large number of gifts he receives he could not recall a precise amount. Facts As Provided In Referral: In fact, the President was not even close to the number of gifts she gave him. Once again, taken within the context of the overwhelming evidence, this is another example of the President's feigned memory problems which represents an intent to mislead the Committee and withhold the truth. Question 52. Do you admit or deny that on January 18, 1998, at or about 5:00 p.m. you had a meeting with Betty Currie at which you made statements similar to any of the following regarding your relationship with Monica Lewinsky? a. "You were always there when she was there, right? We were never really alone." b. "You could see and hear everything." c. "Monica came on to me, and I never touched her right?” d. "She wanted to have sex with me and I couldn't do that.” Answer. In response to the requests for admissions, the President stated that he asked Ms. Currie certain questions, but could not remember exactly what was said. Facts As Provided In Referral: In fact, Ms. Currie testified that she understood his comments to be statements rather than questions. Further, the record indicates that the President made similar statements at a meeting held around 5 p.m. that day. Question 53. Do you admit or deny that you had a conversation with Betty Currie within several days of January 18, 1998, in which you made statements similar to any of the following regarding your relationship with Monica Lewinsky? a. "You were always there when she was there, right?" "We were never really alone." b. "You could see and hear everything." c. "Monica came on to me, and I never touched her right?' d. "She wanted to have sex with me and I couldn't do that." Answer. In the answer to the requests for admissions the President stated that in his grand jury testimony he stated that he did not know that he had another conversation with Ms. Currie in which he made statements similar to those quoted. Facts As Provided In Referral: The record indicates that the President made similar statements to Ms. Currie on another occasion close in time to January 18, 1998. VI. CONCLUSIONS Those in defense of the President argue that even if all the evidence is true, the activities do not amount to impeachable offenses. They insist that the President's actions involved private conduct, and the impeachment remedy for corruption does not apply to pri vate conduct. Such an argument is both convenient and misguided. In the last twenty years Congress has indeed impeached individuals for private conduct. There have been three impeachments involving judges since the impeachment of President Nixon. Judge Harry Claiborne was impeached for making a false and fraudulent income tax return. Judge Walter Nixon was impeached for making false and misleading statements before a federal grand jury. Judge Alcee Hastings was impeached for perjury in a criminal trial. The alleged perjury committed by Judge Hastings was to conceal his involvement in a bribery conspiracy. Thus, perjury has played a central role in each of the three judicial impeachments. During Judge Claiborne's impeachment proceedings, Representative Hamilton Fish stated that: "[i]mpeachable conduct does not have to occur in the course of the performance of an officer's official duties. Evidence of misconduct, misbehavior, high crimes, and misdemeanors can be justified upon one's private dealings as well as one's exercise of public office. That, of course, is the situation in this case." 164 In the present case, even if the President's actions were "private," the evidence leads a reasonable person to the conclusion that the President lied under oath, obstructed justice and tampered with witnesses. The President argues that he did not commit perjury because the answers he provided under oath were literally correct. Such a defense relies on a misguided parsing and hair-splitting of words. The law is clear. Perjury charges can be imposed upon a witness who feigns forgetfulness. 165 When a witness feigns forgetfulness, the prosecutor need only prove that the witness had information or knowledge about the events in question.166 Such circumstances require an examination of all the evidence in the case, or the circumstantial evidence which tends to show that the witness in fact had information about the events in question. 167 If the circumstantial evidence shows beyond a reasonable doubt that the witness had information, a conviction may lie.168 Before the grand jury, and throughout this investigation, the President has repeatedly said, "I don't remember," and "I don't recall." When Mr. Ruff, the Chief White House Counsel, testified before the Judiciary Committee in the President's defense he stated that the President has an excellent memory. Interestingly, the President had a motive to lie from the moment Judge Wright ordered that an inquiry into other federal and state employees with whom the President had sexual relations was permissible and relevant to the Jones v. Clinton case. The overwhelming circumstantial evidence in this case demonstrates that the President feigned forgetfulness on a consistent basis. For example, the evidence shows that the President met with Ms. Lewinsky on December 28, 1997, and had a discussion about certain gifts the two had exchanged, specifically, the hat pin which 164 Cong. Rec. H4713 (daily ed. July 22, 1986). 165 See United States v. Dean, 55 F.3d 640 (D.C. Cir. 1995), cert. denied, 516 U.S. 184 (1996); see also United States v. Dunnigan, 507 U.S. 87 (1993). 166 See United States v. Dean, 55 F.3d 640 (D.C. Cir. 1995), cert. denied, 516 U.S. 184 (1996). 167 Id. 168 Id. was listed in Ms. Lewinsky's subpoena. The evidence also shows that the President's secretary went to retrieve numerous gifts from Ms. Lewinsky that day, the Sunday after Christmas weekend. In fact, the President was concerned that a reporter questioned Ms. Lewinsky about a hat pin that was a gift from the President. Yet, three weeks later in the Jones v. Clinton deposition the President could not recall specific gifts, and later testified that he was not concerned about them on that day. Again, examining the cumulative evidence in this case, it is very clear the President had knowledge about this matter, but feigned forgetfulness to the court. On at least 23 questions the President professed a lack of memory. This from a man who is renowned for his remarkable memory and ability to recall details, as testified to by White House Counsel, Mr. Ruff, before the Judiciary Committee. In a letter to House leaders, numerous legal scholars stated, “[i]t goes without saying that lying under oath is a very serious offense." 169 They also recognize that perjury is an attack on our system of laws, "[p]erjury and obstructing justice can without doubt be impeachable offenses * Moreover, covering up a crime fur * * thers or aids the underlying crime." 170 Another fact which tends to show that perjury is indeed a high crime worthy of impeachment is the fact that perjury and bribery are accorded the same penalty under the Federal Sentencing Guidelines. The Guidelines are a product of the Federal Sentencing Commission which determines the penalty for criminal offenses by examining the predicate offense, or the crime for which the person was charged, and then lists mitigating and aggravating factors in order to reach a recommended sentence for courts to consider when imposing a punishment on a convicted criminal. According to the Commission, bribery and perjury warrant the same penalty. It follows that the two crimes are comparable in gravity according to the Commission. VII. CENSURE Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That it is the sense of Congress that (1) on January 20, 1993, William Jefferson Clinton took (2)(A) William Jefferson Clinton made false statements 169 Letter from professors of law to Speaker Gingrich and House leaders 3 (Nov. 6, 1998) (on file with Congressman Buyer). 170 Id. (C) inasmuch as no person is above the law, William Jefferson Clinton remains subject to criminal and civil penalties; and (3) William Jefferson Clinton, President of the United States, by his conduct has brought upon himself, and fully deserves, the censure and condemnation of the American people and the Congress; and by his signature on this Joint Resolution, acknowledges this censure and condemnation. On December 12, 1998, the Judiciary Committee considered a censure resolution. After lengthy debate, the Committee declined to submit such a resolution by a vote of 14 in favor to 22 in opposition. I opposed the censure resolution. Congress lacks the power to punish the President aside from formal impeachment procedures. The impeachment clauses of the Constitution specifically provide that the Chief Executive is subject to impeachment by the House and trial by the Senate.171 The Framers' decision to confine legislative sanctioning of the executive officials to removal upon impeachment was carefully considered. By forcing the House and Senate to act as a tribunal and trial jury, rather than merely as a legislative body, they infused the process with notions of due process to prevent impeachment from becoming a common tool of party politics. The requirement of removal upon conviction accentuates the magnitude of the procedure, encouraging serious deliberation among members of Congress. Most importantly, by refusing to include any consequences less serious than removal as outcomes of the impeachment process, the Framers made impeachment into such an awesome weapon that Congress could not use it to harass executive officials or otherwise interfere with operations of coordinate branches. The Framers of the Constitution purposely avoided granting the legislature the power to impose nonjudicial punishment, as "such bills are condemned in the Constitution because they represent legislative encroachment on the powers of the judiciary." 172 A bill of attainder "assumes . . . judicial magistracy; it pronounces upon the guilt of the party, without any of the forms or safeguards of trial." 173 The impeachment procedures explicitly provided by the Constitution provide such fairness. Censure is an inappropriate method to bypass the impeachment procedures prescribed in the Constitution. Some members have proposed censure as a sanction from analogy to the legislative procedures by which members of each House censure its own members. The analogy fails because the Constitution expressly provides plenary authority to each House of Congress to fashion penalties for member of the legislative branch short of expulsion, but provides no such authority to discipline officers of other branches in the same manner. It is pursuant to this explicit authority that each House can require one of its members 171 "The House of Representatives * ** shall have the sole Power of Impeachment." U.S. Const. art. I, §2. "The Senate shall have the sole Power to try all Impeachments." U.S. Const. art. 1, §3. "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." U.S. Const. Art II, §4. 172 Linnas v. INS, 790 F.2d 1024, 1028, cert. denied, 107 S.Ct. 600, 479 U.S. 995 (1986). 173 Id. at 1028, quoting Cummings v. Missouri, 71 Ú.S. (4 Wall.) 271, 323, 18 L.Ed. 356 (1866). to go to the well of the House and receive the judgment of their peers. For the President or any other civil officer, this kind of shaming punishment by the legislature is precluded, since the impeachment provisions permit Congress only to remove an officer of another branch and disqualify him from office. Not only would such a punishment undermine the separation of powers, but it would violate the Constitution's prohibition on bills of attainder. The law is clear on legislative punishments without the benefit of a trial. Such punishments violate Article I, section 9 of the Constitution which prohibits bills of attainder. A bill of attainder is defined as a legislative act which inflicts punishment without a judicial trial.174, 175 In basic terms, that means that other than through impeachment procedures, Congress may not punish the President for past acts. These constitutional prohibitions on bills of attainder prohibit state legislatures, as well as the federal legislature from imposing an expedited or summary punishment for past conduct. 176 Even a statement of reproval intended to punish the President by discussing his behavior could potentially violate the rule against bills of attainder. 177 Censure measures which include language of proposed articles of impeachment could therefore implicate the bills of attainder prohibition. In order for a legislative measure to survive the bill of attainder prohibition, it must pass a three prong test. The test requires that the actual purpose, objective purpose, and effect are non- punitive. 178 Courts are directed to examine the legislative intent of the measure to see if the intent was to punish.179 If the objective purpose was solely remedial, the measure may not qualify as punitive. 180 Similarly, if the intent of the measure is to deter future acts of the same nature, it is likely not punitive. 181 Stated simply, a bill of attainder prohibited by the Constitution contains three components: specification of affected persons, some form of punishment, and lack of a judicial trial, 182 An integral part of the censure debate was whether the purpose of censure is to punish the President. Would censure serve a valid legislative purpose? What is the intent behind a censure resolution? Is censure merely impeachment under another name? Or is it a novel form of a plea bargain wherein a "deal" is made to miti 174 Historically, the bill of attainder was used to punish a certain person or a group by death, prison, banishment, punitive confiscation of property, or by barring participation in specific employment or vocation. Artway v. Attorney General of the State of New Jersey, 81 F.3d 1235 (3rd Cir. 1996). 175 Nixon v. Administrator of General Services, 433 U.S. 425, 468 (1977); Linnas v. INS, 790 F.2d 1024, cert. denied, 107 S.Ct. 600, 479 U.S. 995 (1986); WMX Tech., Inc. v. Gasconade County, Mo., 105 F.3d 1195, 1201 (8th Cir. 1997); Charles v. Rice, 28 F.3d 1312, 1318 (1st Cir. 1994); Antonio v. Wards Cove Packing Co., Inc., 10 F.3d 1485, cert. denied, 115 S.Ct. 57, 513 U.S. 809 (9th Cir. 1993); U.S. v. Patzer, 15 F.3d 934 (10th Cir. 1993). 176 Landraf v. USI Film Products, 114 S.Ct. 1483, 1497, 511 U.S. 244 (1994); Fraternal Order of Police Hobart Lodge No. 121 v. City of Hobart, 864 F.2d 5451 (7th Cir. 1988); Artway v. Attorney General of the State of New Jersey, 81 F.3d 1235, reh'g denied, 83 F.3d 594 (3rd Cir. 1996). 177 WMX Tech., Inc. v. Gasconade County, Mo., 105 F.3d 1195, 1201 (8th Cir. 1997); Selective Service System v. Minnesota Public Interest Research Group, 104 S.Ct. 3348, 3352, 468 U.S. 841 (1984). 178 Artway v. Attorney General of the State of New Jersey, 81 F.3d 1235, 1263 (3rd Cir. 1996). 179 Id. at 1263. 180 Id. 181 Id. 182 Dehainaut v. Pena, 32 F.3d 1066 (7th Cir. 1994); Zilich v. Longo, 34 F.3d 359 (6th Cir. |