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On January 29, 1998, the Independent Counsel intervened in the Jones case and moved to exclude from that proceeding any evidence. regarding Monica Lewinsky.43 In her order granting that motion, Judge Wright concluded that evidence relating to Monica Lewinsky was not "essential to the core issues in this case.” 44 Since Paula Jones' lawyers would have been precluded from introducing any evidence relating to Lewinsky to attack the President's credibility, the President's testimony was not material to the Jones case.

On April 1, 1998, Judge Wright granted the President's motion for summary judgment in the Jones case.45 As required by federal law, in reviewing the President's summary judgment motion, Judge Wright assessed the evidence in the case in the light most favorable to Ms. Jones.46 Nevertheless, Judge Wright concluded that no "rational trier of fact [could] find for [Ms. Jones)," and therefore that there were “no genuine issues for trial[.]” 47 The court's decision undermines the OIC's assumption that the President's testimony regarding Monica Lewinsky could ever be material to the resolution of the specific claims that Ms. Jones made:

One final matter concerns the alleged suppression of pattern and practice evidence. Whatever relevance such evidence may have to prove other elements of the plaintiff's case, it does not have anything to do with the issues presented by the President's * * * motion[] for summary judgment * * * Whether other women may have been subjected to workplace harassment, and whether such evidence has allegedly been suppressed, does not change the fact that plaintiff has failed to demonstrate that she has

a case worthy of submitting to a jury. 48 If Jones' claims failed for lack of proof, nothing the President said about Ms. Lewinsky could possibly have affected the outcome of the case.

The presence of Judge Wright during the deposition and her decision to allow certain questions to be posed does not suggest, as some have argued, that the President's responses to those questions were inevitably material to the Jones case. During a discovery deposition, only questions that are wholly irrelevant to the underlying action will be disallowed. Relevance in the discovery stage of civil litigation is an exceedingly broad standard which is not co-ex


43 The President's actions in supposedly denying a civil litigant access to evidence has been frequently cited as one reason that the President's alleged per

y may istitute a able offense. It is ironic, therefore, that it was the Independent Counsel's insistence that the allegations relating to Ms. Lewinsky merited criminal investigation which actually deprived Mrs. Jones of the ability to present evidence concerning Monica Lewinsky to the court.

44 Judge Wright's order further held that “some of this evidence might even be inadmissible as extrinsic evidence under Rule 608(b) of the Federal Rules of Evidence.” Jones v. Clinton, No. LR-C-94–290, Order dated Jan. 29, 1998, at 2. Federal Rule of Evidence 608(b) governs a party's ability to introduce specific instances of a witness' prior conduct in order to impeach the witness' credibility. The rule provides, as a general matter, that a witness' prior conduct may not be proved by extrinsic evidence. Judge Wright clearly thought it possible that proof of the President's alleged relationship with Monica Lewinsky would be inadmissible because, at best, it was relevant only to the President's credibility. See also Jones v. Clinton, No. LR-C-94–290, Order dated Mar. 9, 1998, at 2 (denying motion to reconsider order excluding Lewinsky evidence because “any evidence concerning Ms. Lewinsky would be excluded from the trial of this matter”).

45 Jones v. Clinton, No. LR-C-94–290, Memorandum Opinion and Order at 10–11 (E.D. Ark. Apr. 1, 1998). -46 Id. at 3 n.3. 47 Id. at 39. 48 Id. at 38-39 (emphasis in original).

tensive with the concept of materiality. The Federal Rules of Civil Procedure provide that discovery may be had on any subject relevant to a pending case, and that the “information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1).49 Courts have held, however, that the mere fact that testimony was deemed permissible is not sufficient to establish materiality.

[T]he credibility of a witness is always at issue, but not every word of a witness' testimony is invariably material. The materiality of a particular snippet of testimony is not automatically established by the simple expedient of prov

ing that the testimony was In sum, not all testimony that a judge permits to be elicited during a pretrial discovery proceeding can satisfy the materiality requirement that the information be likely to influence the outcome of the case.

Some Members of the Majority and the OIC in press releases that it issued during the course of the Committee's hearings 51 have alleged that the materiality of the President's alleged false statements in Jones v. Clinton has already been dispositively resolved by the United States Court of Appeals for the District of Columbia Circuit. 52 This assertion is misleading and untrue. The litigation referred to by the OIC involved a legal challenge by Ms. Lewinsky's lawyer, Frank Carter, to a subpoena issued by the OIC for testimony and materials protected by the attorney-client privilege. In seeking to compel testimony that would ordinarily be protected by the attorney-client privilege, the OIC argued that it had reason to believe that the attorney-client relationship had been exploited to facilitate the filing of a false affidavit, which would permit ordinarily privileged material to be disclosed pursuant to the “crimefraud" exception. In opposing this subpoena to her former attorney, Ms. Lewinsky argued that her affidavit related to matters later excluded from the Jones case and, therefore, was not “material" to that proceeding, thereby rendering the truth or falsity of her affidavit legally irrelevant. The D.C. Circuit, in rejecting this argument, did not hold that Ms. Lewinsky's affidavit was relevant to the underlying Jones litigation. Instead, the Court arrived at the much narrower ruling that Ms. Lewinsky's affidavit was relevant to her motion to quash her own subpoena.

Lewinsky used the statement in her affidavit * * * to support her motion to quash the subpoena issued in the discovery phase of the Arkansas litigation. * * * There can be no doubt that Lewinsky's statements in her affidavit were * * * predictably capable of affecting this deci

dinarily ent privile testi sion. She executed and filed her affidavit for this very pur

49 The drafters of the rule further explained that testimony is proper at a deposition so long as it is part of “a broad search for facts, * * * or any other matter which may aid a party in the preparation or presentation of his case.” Fed. R. Civ. P. 26, 1946 Advisory Committee Note.

50 United States v. Adams, 870 F.2d 1140, 1147-48 (6th Cir. 1989). made its 595(c) Referral to Congress bears note. This report points out the bias, impartiality,

sine practice of the OIC to continue to speak publicly and to issue press releases after it and "attitude" with which the Referral was written. The fact that the OIC continued to feel the need to defend itself against all possible criticisms-large and small-demonstrates that it was indeed too vested and partial in this entire event.

52 Appendices to the Referral (Part 1) H. Doc. 103–311 at 294.

pose. 53

wasion that the prising, budavit was

That Ms. Lewinsky's affidavit was material to her own motion to quash is not surprising, but that holding does not com pel the conclusion that the President's testimony concerning Ms. Lewinsky was material to the Jones case. It is a disservice to the state of the record to suggest that the important threshold question of materiality has been conclusively resolved by the D.C. Circuit. Most importantly, as the Majority has argued time and time again, these : are not legal proceedings. Although scholars differ about the materiality issue, it cannot be denied that the President's allegedly false statements played no actual role in depriving Ms. Jones of any relief she was seeking as a civil litigant. To the contrary, the negative publicity created by both her case and the OIC's involvement in her civil discovery processes may well led the President to offer her a generous settlement despite the decision dismissing her claims. These are legitimate, common-sense considerations which should have weighed more heavily in this Committee's deliberations about the gravity of the offenses alleged. When Judge Webber Wright ruled on April 1 that no matter what the President did with Ms. Lewinsky, Paula Jones herself had not proven that she had been harmed, the court's opinion confirmed that the President's statements, whether truthful or not, were not of the grave constitutional significance necessary to support impeachment. B. THE ALLEGED PERJURIOUS STATEMENTS WOULD NEVER MERIT

PROSECUTION On December 9, 1998, a panel of five highly regarded former Democratic and Republican federal prosecutors appeared before the Committee and testified that the OIC's case against the President would not have been pursued by a responsible federal prosecutor. It stood to reason, therefore, that if lawyers could agree that the President's conduct would not even merit a criminal prosecution under ordinary circumstances, how could lawmakers in Congress conclude that it amounted to a “high crime?” The bi-partisan panel consisted of:

Richard J. Davis, former task force leader for the Watergate Special Prosecution Force, and former Assistant Secretary of the Treasury for Enforcement and Operations;

Edward S.G. Dennis, Jr., former Acting Deputy Attorney General of the United States, former Assistant Attorney General for the Criminal Division of the Department of Justice, and former United States Attorney for the Eastern District of Pennsylvania;

Ronald K. Noble, former Under Secretary for Enforcement of the Department of the Treasury, former Deputy Assistant Attorney General of the United States, and former Assistant United States Attorney for the Eastern District of Pennsylvania;

Thomas P. Sullivan, former United States Attorney for the Northern District of Illinois; and

53 In re Sealed Case, slip op. at 4-6 (D.C. Cir., Nos. 98–3052, 98–3053, 98–3059, May 26,

William F. Weld, former Governor of Massachusetts, former Assistant Attorney General in charge of the Criminal Division of the Department of Justice, former United States Attorney for the District of Massachusetts, and House Judiciary Committee Counsel during Watergate. In his testimony, Mr. Sullivan told the Committee that federal prosecutions for perjury and obstruction of justice are relatively rare, in part, because they are extremely difficult to prove. 54 He explained that the law of perjury “can be particularly arcane, including the requirements that the government prove beyond a reasonable doubt that the defendant knew his testimony to be false at the time he or she testified, that the alleged false testimony was material, and that any ambiguity or uncertainty about what the question or answer meant must be construed in favor of the defendant.” 55 He further stated that, as a general matter, “[f]ederal prosecutors do not use the criminal process in connection with civil litigation involving private parties.” 56 That is because "there are well established remedies available to civil litigants who believe perjury or obstruction has occurred.” 57 Mr. Sullivan testified that “the evidence set out in the Starr report would not be prosecuted as a criminal case by a responsible federal prosecutor.” 58

Mr. Davis testified that in “making a prosecution decision as recognized by Justice Department policy, the initial question for any prosecutor is, can the case be won at trial? Simply stated, no prosecutor should bring a case if he or she does not believe that based upon the facts and the law, it is more likely than not that they will prevail at trial.” 59 Mr. Davis added that “[c]ases that are likely to be lost cannot be brought simply to make a point, to express a sense of moral outrage, however justified such a sense of outrage might be.” 60 Like Mr. Sullivan, Mr. Davis noted that perjury cases are difficult to prosecute because “questions and answers are often imprecise.” 61

Significantly, Mr. Davis noted that in civil lawsuits, "lawyers routinely counsel their clients to answer only the question asked, not to volunteer and not to help out an inarticulate questioner.” 62 Based on his review of the oic's evidence, Mr. Davis concluded that there does not exist a prosecutable case of perjury against the President arising out of his grand jury testimony. That is because the President "acknowledged to the grand jury the existence of an improper relationship with Monica Lewinsky, but argued with prosecutors questioning him that his acknowledged conduct was not a sexual relationship as he understood the definition of that term being used in the Jones deposition.” 63 Put another way, Mr. Davis testified that it would not be possible to prove that the Presi

54 12/9/98 Tr. at 14–15. 55 12/9/98 Tr. at 15. 56 12/9/98 Tr. at 15. 57 12/9/98 Tr. at 16. 58 12/9/98 Tr. at 17. 59 12/9/98 Tr. at 24. 60 12/9/98 Tr. at 24. 6112/9/98 Tr. at 24. 62 12/9/98 Tr. at 24. 63 12/9/98 Tr. at 26.

Under theaking the sincerned above latter circari

dent perjured himself about his subjective understanding of the definition of “sexual relations” drafted by the Jones attorneys.

Mr. Dennis testified that a criminal conviction of the President "would be extremely difficult to obtain in a court of law” because there “is very weak proof of the criminal intent of the President.” 64 In addition, Mr. Dennis told the Committee that the “Lewinsky affair is of questionable materiality to the proceedings in which it was raised.” 65 According to Mr. Dennis, perjury and obstruction of justice cases arising out of civil litigation involving private parties are “rare," and “rarer still are criminal investigations in the course of civil litigation in anticipation of incipient perjury or obstruction of justice.” 66 That is because in the latter circumstances, “prosecutors are justifiably concerned about the appearance that government is taking the side of one private party against another.” 67 Under the facts of the Jones case, Mr. Dennis testified that a criminal prosecution was not warranted and “most likely would fail.” 68 He concluded that “[c]ertainly the exercise of sound prosecutorial discretion would not dictate prosecuting such a case.” 69

Mr. Noble testified that "a Federal prosecutor ordinarily would not prosecute a case against a private citizen based on the facts set forth in the Starr referral.”70 He explained that “Federal prosecutors and Federal agents, as a rule, ought to stay out of the private sexual lives of consenting adults.” 71 Like his colleagues, Mr. Noble agreed that as a general matter “Federal prosecutors are not asked to bring Federal criminal charges against individuals who have allegedly perjured themselves in connection with civil lawsuits.” 72 That is because “[b]y their nature, lawsuits have remedies built into the system. Lying litigants can be exposed to such and lose their lawsuits. The judge overseeing the lawsuit is in the best position to receive evidence about false statements, deceitful conduct and even perjured testimony.” 73 Mr. Noble also testified that “[n]o prosecutor would be permitted to bring a prosecution where she believed that there was no chance that an unbiased jury would convict[,)” and for that reason urged the Committee to “consider the impact that a long and no doubt sensationalized trial will have on the country, especially a trial that will not result in a convic

tion.” 74

Finally, Governor Weld testified that in the Reagan Administration, it was not the policy of the Department of Justice “to seek an indictment based solely on evidence that a prospective defendant had falsely denied committing unlawful adultery or fornication.” 75 He also testified that under settled principles of federal prosecution, “the prosecutor has to believe that there is sufficient evidence, admissible evidence, to obtain from a reasonable and unbiased jury

64 12/9/98 Tr. at 32. 65 12/9/98 Tr. at 32. 66 12/9/98 Tr. at 33. 67 12/9/98 Tr. at 33. 68 12/9/98 Tr. at 34. 69 12/9/98 Tr. at 34. 70 12/9/98 Tr. at 35. 71 12/9/98 Tr. at 39. 72 12/9/98 Tr. at 41. 73 12/9/98 Tr. at 41. 74 12/9/98 Tr. at 45. 75 12/9/98 Tr. at 48.

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