a conviction and to sustain it on appeal" before a decision is made to bring a charge against a potential defendant.76 Thus, the former federal prosecutors agreed on a number of points. First, they agreed that the criminal law generally is not used to sanction misbehavior that occurs during civil litigation. As Mr. Sullivan explained, "the thrust of what I am saying is that the Federal criminal process simply is not used to determine truth or falsity in statements in civil litigation, and it is particularly trueI mean, that's true, and it is also even more true when you take a situation, as you have here, that the testimony is even peripheral to the civil case involved." 77 Second, they concurred that testimony concerning the President's relationship with Ms. Lewinsky was not material to the Jones lawsuit. Mr. Dennis testified that the "Lewinsky affair is of questionable materiality to the proceedings in which it was raised." 78 Third, the panelists agreed that the OIC's case against the President likely could not be sustained in court. As Mr. Noble put it, "I think that it is fairly clear, and that if a poll were taken of former U.S. attorneys from any administration, you would probably find the overwhelming number of them would agree with the assessment that this case is a loser and just would not be sustained in court." 79 Fourth, the former prosecutors agreed that the charge of obstruction of justice against the President arising out of his conversations with Betty Currie was weak. In the words of Governor Weld, "I think it [the case for obstruction] is a little thin." 80 And finally, they agreed that a charge should not be brought against a defendant unless it can be sustained at trial. As Mr. Sullivan remarked, "I have had situations where my *** [law enforcement] agents have said to me after discussion about the evidence and we concluded that we cannot get a conviction or it is likely that we will lose-let's indict him anyway to show him. My response to that is, get out of my office and never come back." 81 III. THE ARTICLES OF IMPEACHMENT FAIL TO ESTABLISH IMPEACHABLE OFFENSES A. ARTICLE I ALLEGING PERJURY BEFORE THE GRAND JURY FAILS TO ESTABLISH IMPEACHABLE OFFENSES The Committee has approved an article of impeachment concerning the President's grand jury testimony which alleges perjurious testimony with respect to the following subject matters: “(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 actions 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 the testimony of witnesses and to impede the discovery of evidence in that civil actions." 76 12/9/98 Tr. at 81. 77 12/9/98 Tr. at 58. 78 12/9/98 Tr. at 32. 79 12/9/98 Tr. at 59. 80 12/9/98 Tr. at 75. 81 12/9/98 Tr. at 81. 52-759 98-12 1. The President Did Not Commit Impeachable Offenses When Testifying About "the nature and details of his relationship with a subordinate Government employee" Specific details of the allegedly perjurious statements described by this subparagraph were not included in the articles. In the absence of such specifics, the Minority has no choice but to presume that the Committee intends to parrot the allegations of grand jury perjury contained in the OIC's Referral. The Referral alleged that the President perjured himself in his grand jury testimony by responding to questions concerning the physical nature of his relationship with Ms. Lewinsky in the following ways: The President testified that he understood the definition of "sexual relations" given to him in the Jones deposition not to include oral sex performed on him. The President asserted that his admittedly intimate contacts with Ms. Lewinsky did not constitute "sexual relations" as the President testified he understood that term to be defined in the Jones deposition. The President testified that his physical relationship with Ms. Lewinsky did not begin until early 1996, rather than late 1995, as recalled by Ms. Lewinsky. The Majority Counsel, in his presentation, additionally alleged that the President testified falsely to the grand jury concerning the following issues: The exact number of the President's meetings with Ms. Lewinsky. The exact number of his telephone conversations with Ms. Lewinksy that included sexual banter. This Committee has not been presented with clear and convincing evidence that the President's testimony on any of subjects was intentionally false. More importantly, there is no real prospect that a Senate trial would ever find sufficient evidence to convict the President of impeachable offenses based on these allegations. (a) The President did not commit an impeachable offense when testifying about his understanding of the definition of "sexual relations" presented to him during his civil deposition in the Jones case It is alleged that the President falsely testified before the grand jury that he genuinely believed that the definition of "sexual relations" presented to him in the Jones case did not include oral sex. This charge turns, of course, on the nearly impossible task of demonstrating that the President's was not testifying truthfully about his subjective understanding of a complicated and abstract legal definition of "sexual relations" presented to him for the first time on the day of the Jones deposition and modified by the presiding judge in response to the President's objections. At the beginning of the Jones deposition, the President was presented with the following definition of sexual relations: For the purposes of this deposition, a person engages in "sexual relations" when the person knowingly engages in or causes (1) contact with the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to arouse or gratify the sexual desire of any person[.] (2) contact between any part of the person's body or an object and the genitals or anus of another person; or (3) contact between the genitals or anus of the person and any part of another person's body. "Contact" means intentional touching, either directly or through clothing. The proposed use of this definition by the Jones attorney drew heated and protracted objections based on its ambiguous wording and the potential for confusion. The President's lawyer, Robert Bennett, argued: "I think this could really lead to confusion, and I think it's important that the record be clear *** I do not want my client answering questions not understanding exactly what these folks are talking about." 82 Counsel for the President's co-defendant, former Arkansas trooper Danny Ferguson, also objected. "Frankly, I think it's a political trick [the definition], and I've told you [Judge Wright] before how I feel about the political character of this lawsuit."83 The President's counsel invited the Jones attorneys to questions the President directly about his conduct regardless of the embarrassing nature of the questions. "Why don't they ask him about what happened or what didn't happen?" In retrospect, these objections were especially well-taken since we now know that Jones's attorneys had been extensively debriefed the previous evening by Ms. Lewinsky's confidante, Linda Tripp. Judge Wright, in response to these objections, amended the definition by striking subparts (2) and (3), allowing only subpart (1) to stand. When the plaintiff's attorneys sought to introduce another convoluted definition, Judge Wright, apparently regretting her previous ruling permitting the earlier use of such definitions during questioning, rejected the plaintiff's additional proposed definition due to its confusing nature, and concluded: "I'm not sure Mr. Clinton knows all these definitions, anyway." 84 When the President was later asked by the Jones attorneys whether his contacts with Ms. Lewinsky fit within their tortured definition of sexual relations, he understandably denied that this was so.85 During the President's August 17, 1998 grand jury testimony, the OIC prosecutor returned to this topic and asked whether the President regarded oral sex as falling within the definition provided to him in the Jones deposition. Q: [I]s oral sex performed on you within the definition The President was consistent in his interpretation that sexual relations are distinct from oral sex, and, thus, that his physical relations with Ms. Lewinsky did not meet the definition provided in the Jones case. For example, he testified that when he was presented 82 Clinton 1/17/98 Depo at 20. 83 Clinton 1/17/98 Depo at 20. 84 Clinton 1/17/98 Depo at 25. 85 Clinton 1/17/98 Depo at 78. 86 Clinton 8/17/98 GJ at 93. with the definition in the Jones case he was very uncomfortable because he had to acknowledge that, in one instance, he had engaged in conduct that met the definition of "sexual relations": All I can tell you is, whatever I thought was covered, and I thought about this carefully. And let me just point out, this was uncomfortable for me. I had to acknowledge, because of this definition, that under this definition I had actually had sexual relations with Gennifer Flowers, a person who had spread all kinds of ridiculous, dishonest, exaggerated stories about me for money. And I knew when I did that, it would be leaked. It was. And I was embarrassed. But I did it. * * * * Let me remind you, sir, I read this carefully. And I thought about it. I thought about what "contact" meant. I thought about what "intent to arouse or gratify" meant. And I had to admit under this definition that I'd actually had sexual relations with Gennifer Flowers. Now, I would rather have taken a whipping than done that, after all the trouble I'd been through with Gennifer Flowers 87 The lawyers in the Jones deposition simply did not ask the question most relevant to uncovering the nature of the physical contact between the President and Ms. Lewinsky. The world now knows why these attorneys asked the questions couched in the definitions they invented. They were, in fact, trying to create the very chaos and confusion that has occurred. They were not seeking information; they already had it from Linda Tripp. What they were seeking was to set the President up. If they had asked real questions, seeking real information, and had raised specific conduct, we might have avoided this charge in the Referral entirely. The President testified that he had no intention of avoiding a question regarding oral sex; he just wasn't asked about it: Q. Would you have been prepared, if asked by the Jones lawyers, would you have been prepared to answer a question directly about oral sex performed on you by Monica Lewinsky? A. If the Judge had required me to answer it, of course, I would have answered it. And I would have answered truthfully. . . .88 There is no evidence of intent on the President's part to commit perjury in his grand jury appearance the President simply explained and re-explained his interpretation of the definition of sexual relations provided to him by the lawyers in the Jones case. When a question is "fundamentally ambiguous," the answers to the questions posed are insufficient as a matter of law to support a perjury conviction. 89 Simply put, when there is more than one way of understanding the meaning of a question, and the witness 87 Clinton 8/17/98 GJ at 150. 88 Clinton 8/17/98 GJ at 151. 89 See, e.g., United States v. Finucan, 708 F.2d 838, 848 (1st Cir. 1983); United States v. Lighte, 782 F.2d 367, 375 (2d Cir. 1986); United States v. Tonelli, 577 F.2d 194, 199 (3d Cir. 1978); United States v. Bell, 623 F.2d 1132, 1337 (5th Cir. 1980); United States v. Wall, 371 F.2d 398, 400 (6th Cir. 1967); United States v. Williams, 552 F.2d 226, 229 (8th Cir. 1977). has answered truthfully as to his understanding, he cannot commit perjury. Even assuming, for the sake of argument, that the President's definition of sexual relations is too narrow, even in the context of the Jones deposition, the record shows at most that the President may have been mistaken in construing the definition too narrowly, not that he intended to lie. It is well established that inaccurate or false testimony which is provided as a result of confusion or mistake cannot form the basis for a perjury charge.90 (b) The President did not commit an impeachable offense when testifying about the nature of his intimate contacts with Ms. Lewinsky Article I also appears to encompass the allegation that the President testified falsely when he denied during his grand jury testimony that his intimate physical contact with Ms. Lewinsky fell within the definition presented to him in the Jones deposition. We do not believe that the constitutional responsibilities of this Committee compel a detailed regurgitation of the salacious details concerning the alleged physical contact between the President and Ms. Lewinsky. Considerations of personal privacy and institutional dignity must hold some sway in this process, especially where this factual question, even if dispositively resolved against the President, cannot merit his impeachment. In a prolonged Senate trial, additional evidence could conceivably be amassed concerning the intimate details of the physical relationship between the President and Ms. Lewinsky, but that is not necessary. The President's alleged misstatements about this matter would not warrant the inquiry suggested by the Majority. These were statements made in a civil case that was based on allegations of sexual harassment, not consensual sexual relationships; these were statements made under a very narrow and confusing definition of "sexual relations;" and these were statements not material to the decision in the case. In the end, these statements denying an improper relationship were made with the primary purpose of attempting to conceal what the President himself has acknowledged was a serious lapse of judgment concerning a private matter, rather than a corrupt attempt to impede the administration of justice. It is equally important to note that the evidence does not provide clear and convincing proof that the President has testified in an intentionally false manner concerning the nature of his intimate contacts with Ms. Lewinsky. Article I rests on the OIC's untenable assumption that there is no possibility that Ms. Lewinsky's memory is inaccurate or that she was, to some extent, untruthful. As the Referral states: "There can be no contention that one of them has a lack of memory or is mistaken."91 Independent Counsel Starr at his November 19, 1998 appearance before the Committee all but stated that Ms. Lewinsky was not to be believed on a variety of issues (e.g., whether she was denied a chance to call her attorney when she was first confronted, whether she was asked to wear a 90 See United States v. Dunnigan, 507 U.S. 87, 94 (1993): Department of Justice Manual, at 9-69.214 (Supp. 1997). 91 Referral at 148. |