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2. The President Did Not Commit An Impeachable Offense When

Testifying About His Prior Testimony In The Jones Civil Deposition This subsection of Article I represents a dramatic departure from the approach utilized by the Independent Counsel's Referral by alleging that the President's descriptions and justifications for his allegedly perjurious statements in the Jones civil deposition were themselves perjurious. The Majority has offered no formal specifications of which statements fall into this category. Instead, in response to objections stated during public debate about the Article's lack of specificity, the Members indicated an intention to refer the full House and the Senate to the presentation by the Majority Counsel and the record of the debates within the Committee. With these stated intentions as the only available guidance concerning the particulars of this subsection, our review suggests that the following statements are at issue:

The President's explanation of his response to questions during the Jones deposition concerning who had told him that Ms. Lewinsky had been subpoenaed.

The President's explanation of his response to questions during the Jones deposition concerning whether he had exchanged gifts with Ms. Lewinsky.

The President's explanation of why he characterized Ms. Lewinsky's affidavit as “true" during the Jones deposition. Each of these alleged false statements are analyzed in detail in the following section in connection with Article II, which explains why the President's testimony during Jones deposition, as well as his explanation of that testimony during his grand jury appearance, was not intentionally false and did not constitute an impeachable offense. See Section III.B, infra. 3. The President Did Not Commit An Impeachable Offense When

His Attorney Characterized the Contents of Ms. Lewinsky's Affi

davit to the Presiding Judge in the Jones case In another departure from the approach taken by the Independent Counsel's Referral, the Majority, without the benefit of any additional evidence, has recycled an allegation that Mr. Starr used solely in support of his claim that the President committed perjury during his civil deposition. This approach bootstraps the same facts into a new and separate allegation of grand jury perjury.

The basis for the allegation in this subsection is the President's failure to volunteer information during the Jones deposition when Mr. Bennett, while discussing the appropriate scope of questioning by plaintiff's attorneys, characterized Ms. Lewinsky's affidavit as saying that “there is no absolutely no sex of any kind in any manner, shape or form, with President Clinton. . . ."117 As a threshold matter, no charge of perjury can exist without some perjurious statement by the defendant. Here, of course, the Majority appears to advance a new theory of criminal liability: the imputed perjurious statement. Notwithstanding the legal irrelevance Mr. Bennett's

17 Clinton 1/17/98 Depo at 54.

ving that into me. testimony believe the the

statement, the President explained in his grand jury testimony that he was not paying close attention to his lawyer's comments.

I don't believe I ever even focused on what Mr. Bennett said in the exact words he did until I started reading this transcript carefully for this hearing. That moment, that whole argument just passed me by. I was a witness. I was trying to focus on what I said and how I said it. 118

I was not paying a great deal of attention to this exchange. I was focusing on my testimony. ... I'm quite sure that I didn't follow all the interchanges between the lawyers all that carefully. And I don't really believe therefore, that I can say Mr. Bennett's testimony or statement is testimony or is imputable to me. I didn't I don't know

that I was even paying that much attention to it.119 The Majority Counsel argues that this was a perjurious statement because the videotape of the deposition supposedly shows that the President was paying attention. The evaluation of the demeanor of a witness is traditionally reserved to the ultimate fact-finder, but a review of the tape does not reveal any outward sign that the President is in fact following or agreeing with Mr. Bennett's colloquy with the judge. The President appears to be looking in Mr. Bennett's direction, but he neither nods his head nor makes any other facial expression from which his awareness of the import of Mr. Bennett's remarks may be inferred. On many other occasions during the videotaped deposition, the viewer can see the President nodding or making some other gesture of acknowledgment which is not the case in this exchange. In addition, the article fails to state that the President obviously was thinking as fast as he could as he just realized that someone was setting him up with respect to the relationship with Ms. Lewinsky. He was, no doubt, taking every break from questions and answers he could to try to figure out how much the Jones attorneys knew and where the questions were heading. It is completely logical to think that he was not paying attention under all of these circumstances.

Finally, it is important to note that, as with all of the other alleged perjurious statements, Judge Wright retained the inherent authority to impose sanctions, including criminal contempt, on the President for his alleged conduct during the deposition. Indeed, Judge Wright was invited to do just that by the Jones attorneys, but has, to date, declined to take any such action. We believe that the district judge's forbearance in this matter is a legitimate factor that weighs against the supposed gravity of the allegations leveled against the President. 4. The President Did Not Commit An Impeachable Offense When He

Testified About Allegations That He Had Obstructed Justice In another apparent attempt to bolster the article charging grand jury perjury, the Majority has included new allegations of perjury in the grand jury not detailed in the Independent Counsel's Referral concerning the President's responses to questions about the actions that are alleged to constitute obstruction of justice. It is sig

118 Clinton 1/17/98 Depo at 29. 119 Clinton 1/17/98 Depo at 58–59.

nificant that the Independent Counsel, with all his prosecutorial zeal, declined to “double charge” the President with both obstruction of justice and separate charges of perjury based solely on his denials that he committed obstruction of justice. The Majority, however, has shown no similar reluctance to pile on duplicative charges. Once again, without a formal statement of the alleged false statements, the Minority is left to guess from the Majority Counsel's presentation, and other exchanges during Committee debates, that this subpart of the article refers to the following statements:

The President's testimony that he could not recall, but did not dispute, making a 2:00 a.m. telephone call to Ms. Lewinsky on December 17.

The President's testimony concerning his discussion with Ms. Lewinsky on December 28, during which meeting it is alleged that Ms. Lewinsky asked about what to do in response to any request from the Jones lawyers for gifts he had given her.

The President's testimony concerning his purpose in speaking with his secretary, Betty Currie, following the Jones deposi

tion. As noted above, these allegations essentially restate charges that are contained in Article III, which alleges obstruction of justice. In order to avoid unnecessary duplication (a goal not shared by these needlessly repetitive articles of impeachment), the Minority's views on the substance of these allegations are discussed below in the section addressing Article III. See Section III.C, infra.


DEPOSITION FAIL TO ESTABLISH AN IMPEACHABLE OFFENSE The second article of impeachment charges the President with unspecified instances of perjurious testimony concerning three broad subject-matter areas: (i) the “nature and details of his relationship with a subordinate Government employee"; (ii) his "knowledge of that employee's involvement and participation in the civil rights action brought against him'; and (iii) his "corrupt efforts to influence the testimony of that employee.” Although the alleged perjurious statements contemplated by this article are not identified, the Minority believes that the article contemplates at least the following allegations. 1. The President Did Not Commit An Impeachable Offense When He

Testified about the Nature of His Relationship with Ms.

Lewinsky During his deposition in the Jones case, the President testified that his intimate contact with Ms. Lewinsky could not be accurately characterized as a "sexual relationship,” a “sexual affair,” or even "sexual relations” as that term was used by Ms. Lewinsky in her affidavit, which was presented to the President during his deposition. It is now a matter of record that the President and Ms. Lewinsky enjoyed intimate contact, but never had sexual intercourse. The question whether the President's responses can be labeled as perjurious turns, therefore, on whether the President testified in an intentionally false manner when he denied various questions inquiring into whether he had "sex" with Ms. Lewinsky.


as that term was President during and Ms

There is substantial evidence in this record that the President's responses, although evasive and misleading, did reflect a genuinelyheld and not unreasonable belief that the limited nature of his intimate contacts with Ms. Lewinsky did not require him to respond affirmatively to the questions put to him on this subject.

The President testified during his grand jury appearance that he understood questions concerning sexual relations to be inquiring into whether he had had intercourse with Ms. Lewinsky:

If you said Jane and Harry have a sexual relationship, and you're not talking about people being drawn into a lawsuit and being given definitions, and then a great effort to trick them in some way, but you are just talking about people in ordinary conversations, I'll bet the grand jurors, if they were talking about two people they know, and said they have a sexual relationship, they meant they were sleeping together; they meant they were having inter

course together. 120 Ms. Lewinsky was similarly convinced that her contacts with the President did not constitute “sex.” In an illegally recorded telephone conversation with Ms. Tripp, Ms. Lewinsky confided that she did not believe that her contacts with the President amounted to sex:

Tripp: Well, I guess you can count (the President) in a half-assed sort of way.

Lewinsky: Not at all. I never even came close to sleeping
with him.

Tripp: Why, because you were standing up.
Lewinsky: We didn't have sex, Linda. Not—we didn't
have sex.

Tripp: Well, what do you call it?
Lewinsky: We fooled around.
Tripp: Oh.
Lewinsky: Not sex.

Tripp: Oh, I don't know. I think if you go to—if you get
to orgasm, that's having sex.
Lewinsky: No, it's not. It's-
Tripp: Its not having-

Lewinsky: Having sex is having intercourse. 121 Another friend of Ms. Lewinsky's, Dale Young, testified before the grand jury that Ms. Lewinsky had told her that "she didn't have sex with the President," and that when Ms. Lewinsky referred to sex she meant “intercourse.” 122 The genuineness of President Clinton's beliefs on this subject is even supported by the OIC's account of Ms. Lewinsky's testimony during an interview with the FBI:

[A]fter having a relationship with him, Lewinsky deduced that the President, in his mind, apparently does not consider oral sex to be sex. Sex to him must mean intercourse. 123

120 Clinton 8/17/98 GJ at 21. 121 Lewinsky/Tripp 10/3/97 Tr.0018 at 49. 122 Young 6/23/98 GJ at 91. 122 App. at 1558 (8/19/98 FBI 302 Form Interview of Ms. Lewinsky).

The record is convincing that these beliefs were not only genuinely held, but objectively reasonable. Numerous dictionary definitions support both the President's and Ms. Lewinsky's interpretation of sexual relations as necessarily including intercourse.

Webster's Third New International Dictionary (1st ed.
1981) at 2082, defines "sexual relations” as “coitus;"
Random House Webster's College Dictionary (1st ed.
1996) at 1229, defines “sexual relations” as “sexual inter-
course; coitus;"
Merriam-Webster's Collegiate Dictionary (10th ed. 1997)
at 1074, defines "sexual relations” as “coitus;'

Black's Law Dictionary (Abridged 6th ed. 1991) at 560,
defines "intercourse” as "sexual relations;" and

Webster's Tenth Edition defines "sexual relations” as “co

itus” which is defined as “intercourse.” In short, the evidence supports only the conclusion that the President's responses with respect to these undefined terms were truthful and good faith responses to indisputably ambiguous questions. There is no evidence to the contrary. 2. The President Did Not Commit An Impeachable Offense When He

Testified about Meeting Alone with Lewinsky Some Minority Members of the Committee have expressed discomfort with the President's responses during the Jones deposition to questions about whether he was ever alone with Ms. Lewinsky, some even concluded that they believed his testimony may have been false. The President's counsel, however, has strongly argued that the President's responses on this point cannot be characterized as perjurious.

President Clinton's deposition testimony regarding whether he was alone with Ms. Lewinsky at various times and places does not constitute perjury. The fundamental flaw in the charge is that it is based on a mischaracterization of the President's testimony—the President did not testify that he was never alone with Ms. Lewinsky.

Both the Starr Referral and Mr. Schipper's presentation to the Committee start from the incorrect premise that the President testified that he was never alone with Ms. Lewinsky. In fact, the President did not deny that he had been alone with Ms. Lewinsky. For example, the President answered “yes” to the question “your testimony is that it was possible, then, that you were alone with her * * *7" 124

124 Clinton 1/17/98 Depo at 53. In his grand jury testimony the President stated that he had been alone with Ms. Lewinsky. See, e.g., App. at 481. The term “alone” is vague unless a particular geographic space is identified. For example, Ms. Currie testified that “she considers the term alone to mean that no one else was in the entire Oval Office area.” Supp. at 534-35 (1/24/98 FBI Form 302 Interview of Ms. Currie; see also Supp. at 665 (7/22/98 grand jury testimony of Ms. Currie) (“I interpret being 'alone' as alone * *'* [W]e were around, so they were never alone.”). Ms. Currie also acknowledged that the President and Ms. Lewinsky were "alone" on certain occasions if alone meant that no one else was in the same room. Supp. at 552–53 (1/ 27/98 grand jury testimony of Ms. Currie).

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