wire to tape record Vernon Jordan and the President, and whether she really believed that "no one asked her to lie, and no one promised her a job for her silence"). The OIC then reiterated the same lack of confidence in Ms. Lewinsky in its December 11, 1998 written responses to the Committee's questions following his November 19 appearance, repeatedly asserted that Ms. Lewinsky's grand jury testimony concerning the conduct of OIC prosecutors was false. For example, the OIC denied the truthfulness of Ms. Lewinsky's sworn testimony that she had been threatened with a jail sentence of 27 years, that her mother had been threatened with prosecution, and that she had been asked to secretly tape record conversations with Betty Currie, Vernon Jordan and possibly the President. As Rep. Watt asked during his questioning of the Independent Counsel, "how are you picking and choosing what you believe from Ms. Lewinsky?" 92 More specifically, the record is replete with evidence that Ms. Lewinsky's memory, standing alone, does not constitute clear and convincing evidence on the disputed issues of fact concerning her intimate contacts with the President. If the House is going to discharge its constitutional responsibilities to send charges to the Senate only upon "clear and convincing" evidence, it must review the contradictions in the record with respect to Ms. Lewinsky. This is especially true with respect to times that Ms. Lewinsky was contemporaneously describing "the nature and details" of her relationship with the President to her friends and acquaintances the very issue about which a trial in the Senate would have to occur. However, the Minority has been seeking, and continues to seek to avoid entirely, any further inquiry into these matters and thereby spare Ms. Lewinsky further personal embarrassment. That is why it has pointed out that the immateriality of these allegedly false statements concerning these matters is dispositive of the issue. As a general matter, the Independent Counsel's Referral acknowledges (albeit in a footnote) that Ms. Lewinsky has certain credibility problems due to "her perjurious Jones affidavit, her efforts to persuade Linda Tripp to commit perjury, her assertion in a recorded conversation that she had been brought up to regard lying as necessary, and her forgery of a letter while in college. 93 As a result, the Independent Counsel placed great weight on statements made by Ms. Lewinsky to her confidantes concerning the nature and character of her physical contacts with the President. 94 Indeed, on the narrow factual question in dispute concerning the exact nature of their physical contacts, Ms. Lewinsky's contemporaneous statements to her associates are the only corroborating evidence offered for Ms. Lewinsky's account. A more detailed examination of the record reveals, however, that the mere fact that, on more than one occasion, Ms. Lewinsky volunteered information to friends about the details of her relationship with the President is not a reliable indicator of the truthfulness of that information. For example, Ms. Lewinsky confided to her friend, Kathleen Estep, on one occasion, that the President was brought to her 92 11/19/98 Hearing Tr. at 236. 93 Referral at 12, n. 8. 94 Referral at 13. apartment at 2:00 a.m. by the Secret Service. 95 Not only did Ms. Estep conclude that Ms. Lewinsky was lying to her about this incident, but the OIC found no evidence that such a visit had occurred. 96 Similarly, Ms. Lewinsky told her friend, Dale Young, that she had recorded some of the President's late night telephone calls to her. 97 No such recordings were ever recovered and Ms. Lewinsky never told the OIC about such recordings during her extensive debriefings with them. When interviewing for a job in New York, Ms. Lewinsky told one of her interviewers that she had lunch with Hillary Clinton the previous week and that the First Lady had offered to help Ms. Lewinsky find an apartment in New York. 98 It was the impression of the interviewer that "Lewinsky's comments strained credulity." 99 Ms. Lewinsky also offered untruthful details to her friends about the nature of her intimate contacts with the President. For example, Ms. Lewinsky told a friend about a sexual encounter with the President where she was fully unclothed 100, but told the grand jury that neither she nor the President ever fully disrobed. 101 Ms. Lewinsky told both Ashley Raines and Linda Tripp that her sexual relations with the President included, on occasion "reciprocal oral sex." 102 Ms. Lewinsky told the grand jury, however, that she never received oral sex from the President. 103 These conflicting accounts are all the evidence available to the Committee on this narrow issue. It is not necessary to conclude, however, that either Ms. Lewinsky or the President is intentionally falsifying their respective accounts of their intimate contacts. The record before us suggests that recollections can vary according to the witness' perspective. For example, Ms. Lewinsky testified before the grand jury that she "does not have a memory" of how she "made it clear that she intended to deny" the sexual relationship with the President (as she said in her proffer), but insists she was telling the truth at the time she wrote that. 104 In a remarkable exchange, the OIC prosecutors suggested that one reason for her inability to remember may be her guilt over getting Jordan in trouble: Q. But-and I think you also said you feel some-I don't know if this is the reason you don't remember it, but-you have expressed to us that you feel some guilt about Vernon Jordan. Is that correct? A. Yes. Q. Okay. Can you tell us why that is? A. He was the only person who did what he said he was going to do for me and-in getting me the job. And when I met with Linda on the 13th, when she was wearing a wire, and even in subsequent or previous conversations 95 Estep 8/23/98 302 at 3. 96 Estep 8/23/98 302 at 3. 97 Young 6/23/98 GJ at 48. 98 Nancy Ridson 1/26/98 302. 99 Nancy Ridson 3/27/98 302. 100 Erbland 2/12/98 GJ at 26 ("She told me that she had given him [oral sex] and she had had all of her clothes off, . ."), 101 "[N]either of us ever really took-completely took off any piece of our clothing, I think specifically because of the possibility of encounters***" Lewinsky 8/26/98 GJ at 43–44. 102 Raines 1/25/98 302 at 1; Tripp 7/2/98 GJ at 101. 103 Lewinsky 8/6/98 GJ at 19. 104 Lewinsky 8/6/98 GJ at 178-79. and subsequent conversations, I attributed things to Mr. son, 105 This is not the only failure of Ms. Lewinsky's recollection concerning Mr. Jordan. For example, Ms. Lewinsky told the OIC in an interview that she never explained to Jordan what phone sex was, but testified in her grand jury appearance that she did. 106 The OIC's indulgence of the memory lapses of its star witness on a key point in her proffer does not strike the Minority as wholly unreasonable. Instead, the Independent Counsel gave Ms. Lewinsky the benefit of the doubt based on the apparent assumption that recollections can honestly fail concerning subjects that cause the witness emotional pain. 107 On the basis of the record before us, particularly in light of the gravity of this impeachment proceeding, every consideration should also be given to the possibility that the differing recollections of the President and Ms. Lewinsky may be colored by their differing emotional perspectives concerning the intimate events at issue. As Ms. Lewinsky testified before the grand jury, the President's description of the limited nature of their physical contacts was interpreted by her as a repudiation of the emotional component of their relationship that reduced it to a mere "service contract." 108 It is incumbent on us to consider the possibility that her emotional perspective could lead a mistaken but goodfaith recollection about the nature of their contacts. Likewise, the President's recollection of the limited nature of their sexual contacts was not a subject of emotional indifference to him. Ms. Lewinsky testified to the grand jury that the President's refusal to engage in specific sexual acts was his way of rationalizing his behavior.109 Ms. Lewinsky herself described the depth of the President's emotional reaction when he rebuffed her sexual overture to him in August of 1997, several months after the President had ended their relationship. According to Ms. Lewinsky, she was "shocked" about the extent to which the President became "visibly upset" and "emotionally upset" about her overture. 110 The President's public expressions of guilt and remorse over his inappropriate conduct underscore this same point. In light of the contradictory state of the evidence, the uncertain probative worth of Ms. Lewinsky's contemporaneous statements to friends and the other failures of recollection documented in the record, it seems highly unlikely that a Senate trial will ever be able to adduce clear and convincing evidence that the President intentionally lied to the grand jury about the exact nature of his intimate contacts with Ms. Lewinsky. 105 Lewinsky 8/6/98 GJ at 179-180. 106 See Lewinsky 8/6/98 GJ at 143; cf. Lewinsky 8/1/98 OIC 302 at 8; Lewinsky 7/27/98 OIC 302 at 9. 107 In his testimony before the Committee, Independent Counsel Starr reiterated that people can have different perceptions about these kinds of events without one being called a liar. 108 Lewinsky 8/20/98 GJ at 54. 109 Lewinsky 8/20/98 GJ at 24. 110 Lewinsky 8/26/98 GJ at 51-52; see also Lewinsky 8/20/98 GJ at 70. (c) The President did not commit an impeachable offense when testifying about the date on which his inappropriate contacts with Ms. Lewinsky began Article I also alleges that the President made a false statement to the grand jury regarding the timing of the beginning of his relationship with Ms. Lewinsky. The Referral charges the President with making a false statement because he testified to the grand jury that his inappropriate relationship with Ms. Lewinsky began in early 1996, whereas Ms. Lewinsky testified that their relationship began in November 1995. In the Majority Staff's initial presentation to the Committee on October 5, when it was debating whether to recommend the initiation of a formal impeachment inquiry, this particular allegation of false testimony to the grand jury was not even mentioned. During a hearing the Committee conducted on December 1, 1998, the Chairman even stated that this charge was a "particularly weak" one. Now, based on the exact same evidentiary record, the charge has been resurrected. Even assuming Ms. Lewinsky is correct in her recollection, the statement by the President regarding the timing of the relationship is completely immaterial to the grand jury's investigation. A statement must be material to be perjurious. Certainly the President's testimony concerning the date that his intimate contacts with Ms. Lewinsky began could not have made any difference to the grand jury's inquiry into whether the President lied during the Jones deposition about having sexual relations with Ms. Lewinsky. The President has admitted that he had an inappropriate relationship with Ms. Lewinsky. The differing, yet immaterial, recollections of Ms. Lewinsky and the President as to the commencement of the consensual relationship-a quibble over whether the relationship began in November 1995 or February 1996-could not possibly support a charge of criminal perjury, much less an article of impeachment. Moreover, the evidence in support of the proposition that the President testified falsely on this point is exceedingly slight. The Independent Counsel's Referral supports this charge by arguing that the President was motivated to lie about the date on which his physical relationship with Ms. Lewinsky started because the President did not want to admit having an inappropriate relationship with an intern. As support for this assertion, the Referral cites a comment from the President to Ms. Lewinsky where, according to Ms. Lewinsky, the President said that her "pink intern pass" was "going to be a problem." 112 The Referral suggests that the President intentionally misled the grand jury concerning the beginning of his relationship to avoid having to acknowledge inappropriate physical contact with Ms. Lewinsky while she was an intern.113 This is an extremely unconvincing argument. First, the President's admission in his grand jury testimony of his inappropriate physical contacts with Ms. Lewinsky sparked an entirely foreseeable firestorm of intense public criticism of the President's conduct. The suggestion that the President inten Referral at 149. 112 Lewinsky 7/30/98 302 at 6. 113 Referral at 149. tionally sought to mislead the grand jury based on the hope that such public criticism could be muted by obscuring Ms. Lewinsky's employment status at the time the relationship began seems strained, to say the least. Second, the evidence in the record strongly suggests a much more plausible alternative explanation for the President's comment to Ms. Lewinsky about her intern pass: namely, that he was concerned that this pass did not allow her access to the West Wing without an escort. Ms. Lewinsky confirmed that to be the President's concern when he made the statement to her.114 The attempt to characterize the President's mere confusion over dates as an intentionally perjurious statement finds no persuasive support in the record. (d) The President did not commit an impeachable offense when testifying about the number of occasions on which he was alone with Ms. Lewinsky and the number of occasions on which they were having phone sex The Majority Counsel's presentation, alleged not only the false statements to the grand jury outlined above, but also that the President intentionally perjured himself when he admitted to the grand jury that he had been alone with Ms. Lewinsky on "certain occasions" and that he "also had occasional telephone conversations with Lewinsky that included sexual banter." Incredibly, the Majority Counsel charges that these candid admissions were, in fact, intentionally false because the record suggests that the President was alone with Ms. Lewinsky on twenty occasions and that the President had seventeen phone conversations with Ms. Lewinsky that included sexual banter. The Majority Counsel offered no support for his contention that the President's description was intentionally false except to offer his opinion that "[o]ccasional sounds like once every four months or so doesn't it." In fact, the dictionary defines "occasional" as an event "occurring at irregular or infrequent intervals." 115 The meetings between Ms. Lewinsky and the President were, in fact, "irregular and infrequent." 116 The Majority Counsel also refused to offer any reason why he or the grand jury would be legitimately interested in the exact number of telephone calls between the President and Ms. Lewinsky that included sexual banter. The President was never asked about such phone calls during the Jones deposition (because phone sex was plainly not within the definition in that case) and this issue was, therefore, wholly irrelevant to the questions that the grand jury was examining concerning the truth of the President's statements during that deposition. The mere fact that the President chose not to include as many salacious details in his statement to the grand jury as the Independent Counsel included in his Referral hardly constitutes an intentional falsehood, much less an impeachable offense. To even refer to such trivial matters amply demonstrates the underlying partisanship of these proceedings and undermines the Majority's claim that this inquiry is not about sex. 114 Lewinsky 8/24/98 302 at 5. 115 Webster's Collegiate Dictionary (10th ed. 1997). 116 Referral at 156 n.160; GJ Exhibit ML-7 (chart prepared by OIC based on Lewinsky's testimony listing, inter alia, all visits with the President). |