Whatever confusion or incompleteness there may have been in the President's testimony about when and where he was alone with Ms. Lewinsky cannot be charged against the President. The Jones lawyers failed to follow up on incomplete or unresponsive answers. They were free to ask specific follow-up questions about the frequency or locale of any physical contact, but they did not do so. This failure cannot be used to support a charge of perjury. 125 In addition to the evidentiary questions raised by the President's counsel, the lack of materiality of any of the President's responses concerning Ms. Lewinsky in the Jones litigation undercuts arguments that false statements in this civil deposition could support the criminal charge of perjury, much less constitute an impeachable offense. 3. The President Did Not Commit An Impeachable Offense When He Testified about Gifts He Exchanged with Lewinsky The President's civil deposition testimony has been seriously mischaracterized by suggestions that the President falsely stated that "he could not recall whether he had given any gifts to Ms. Lewinsky." 126 In fact, the President's response, fairly read, clearly concedes that he had given Ms. Lewinsky gifts, but that he could not specifically recall what they were. Q. Well, have you given any gifts to Monica Lewinsky? President Clinton confirmed to the grand jury that this was the proper interpretation of his response. I think what I meant there was I don't recall what they were, not that I don't recall whether I had given them.128 The Majority Counsel, in his December 10 presentation to the Committee, claimed that this response was perjurious on the theory that an answer that "baldly understates a numerical fact” in "response to a specific quantitative inquiry" may be technically true but is actually false. 129 Majority Counsel's belabored construction of the applicable legal principles totally ignores the fact that no "quantitative inquiry" was put to the President on this topic. The President was not asked how many gifts he had given to Ms. Lewinsky, but simply whether he had given her any gifts. In response to such an inquiry, it is astounding that the Majority Counsel continues to insist that the President's immediate acknowledgment that he had given Ms. Lewinsky gifts amounts to a perjurious statement.130 The entire theory of alleged perjury by the President concerning gifts rests, therefore, not on the President's denials that 125 Submission by Counsel for President Clinton to the Committee on the Judiciary of the United States House of Representatives, pp. 77–78 (Dec. 8, 1998). 126 Referral at 158. 127 Clinton 1/17/98 Depo. at 75 (emphasis added). 128 Clinton 8/17/98 GJ at 52:7-8. 129 Majority Counsel's Presentation (Dec. 10, 1998). 130 Indeed, the President readily acknowledged having given Ms. Lewinsky certain gifts after they were specifically identified. See Clinton 1/17/98 Depo at 75 ("Q. Do you remember giving her an item that had been purchased from The Black Dog store at Martha's Vineyard? A. I do remember that * * *."). gifts had been exchanged, but simply on his failure to recall the gifts with specificity. Before discussing each specific question concerning gifts, it is important to note that the President testified during his grand jury testimony that he was not especially concerned about the Jones attorneys discovering that he had exchanged gifts with Monica Lewinsky: I formed an opinion really early in 1996, once I got into this unfortunate and wrong conduct, that when I stopped it, which I knew I'd have to do and which I should have done a long time before I did, that she would talk about it. Not because Monica Lewinsky is a bad person. She's basically a good girl. She's a good young woman with a good heart and a good mind. I think she is burdened by some unfortunate conditions of her upbringing. But she's basically a good person. But I knew that the minute there was no longer any contact, she would talk about this. She would have to. She couldn't help it. It was, it was a part of her psyche. 131 The President also testified that he did not view an admission about gifts as necessarily indicating a romantic relationship between himself and Monica Lewinsky: And let me also tell you, Mr. Bittman, if you go back and look at my testimony here, I actually asked the Jones lawyers for help. on one occasion, when they were asking me what gifts I had given her, so they could-I was never hung up on this gift issue. Maybe its because I have a different experience. But, you know, the President gets hundreds of gifts a year, maybe more. I have always given a lot of gifts to people, especially if they give me gifts. And this was no big deal to me. I mean, it's nice. I enjoy it. I gave dozens of personal gifts to people last Christmas. I give gifts to people all the time. Friends of mine give me gifts all the time, give me ties, give me books, give me other things. So, it was just not a big deal. * * * * And when I was asked about this in my deposition, even though I was not trying to be helpful particularly to these people that I though were not well-motivated, or being honest or even lawful in their conduct vis-a-vis me, that is, the Jones legal team, I did ask them specifically to enumerate the gifts. I asked them to help me because I couldn't remember the specifics. So, all I'm saying is, it didn't I wasn't troubled by this gift issue. I have always given a lot of people gifts. I have always Even Linda Tripp's grand jury testimony confirmed that the President expressed no great alarm to Ms. Lewinsky about the 131 Clinton 8/17/98 GJ at 575-76. 132 Clinton 8/17/98 GJ at 43, 45 & 46. prospect that his gifts to her might be surrendered to the Jones attorneys. But the interesting thing was his take on that, and so then The President also pointed out in his own defense that the specificity of the questions put to him by the Jones attorneys made it clear to him that they had specific information concerning his receipt of the gifts: It was obvious to me by this point in the deposition, in this In order to credit the assertion that the President's failures of memory regarding specific gifts were intentionally false statements rather than genuine memory lapses, one has to accept the notion that the President intentionally misled the Jones attorneys about gifts that he did not believe would indicate an improper relationship and about which the Jones attorneys clearly had specific information. These premises are inherently implausible. The actual facts concerning the specific gifts about which the President was asked quickly reveals the insubstantiality of these allegations. The hat pin. In response to specific follow-up questions on this topic, the President conceded that he may have given Ms. Lewinsky a hat pin, but that he had no specific recollection of doing so. There is no persuasive evidence that the President falsely denied that he could not recall whether he gave Ms. Lewinsky a hat pin. The President gave Ms. Lewinsky that gift on February 28, 1997, almost eleven months prior to his deposition in the Jones case. 135 Under these circumstances, the President's inability to recall whether he had given this specific item to Ms. Lewinsky is hardly so remarkable as to justify the inference that the President's failure of recollection was an intentionally perjurious statement. 136 It has been argued that the President must have had a specific recollection of the hat pin by citing to Ms. Lewinsky's testimony that she specifically discussed the hat pin with the President on December 28, 1997, after she received a subpoena from the Jones lawyers.137 According to Ms. Lewinsky, she met with the President 133 Tripp 7/29/98 GJ at 105. 134 Clinton 8/17/98 GJ at 51-52. 135 Referral at 156. 136 The Referral also misleadingly suggests that the President also spoke with Currie about the hat pin around the same time that Ms. Lewinsky claims to have discussed with the President the request for it by the Jones lawyers. Ms. Currie testified that she did not know when she discussed the hat pin with the President, and her description of their conversation strongly supports the conclusion that it occurred shortly after the President presented Ms. Lewinsky with the hat pin on February 28, 1997. Currie 5/6/98 GJ at 142:9-10 (“I think he may have said something 'Did Monica show you the hat pin I gave her * * *’”). 137 Referral at 156. on December 28, 1997, and brought up the fact that she had received a subpoena from the Jones lawyers asking her to produce, among other things, any hat pin given to her by the President. 138 According to Ms. Lewinsky, the President "said that that had sort of concerned him also and asked me if I had told anyone that he had given me this hat pin and I said no." 139 The entire discussion concerning the Jones case, according to Ms. Lewinsky, took "maybe about five-no more than ten minutes." 140 The President testified to the grand jury that he would not dispute Ms. Lewinsky's recollection, but reiterated that he had no recollection of any reference to the hat pin during that conversation: Q. Well, didn't she tell you, Mr. President, that the subpoena specifically called for a hat pin that you had * * * given her? A. I don't remember that. I remember-sir, I've told you what I remember. That doesn't mean my memory is accurate. A lot of things have happened in the last several months, and a lot of things were happening then. But my memory is she asked me a general question about gifts.141 The record is simply inconclusive as to whether the President's failure to recall giving a hat pin to Ms. Lewinsky was intentionally false. In addition, this factual point was not material to the Jones lawsuit. The gift of a hat pin would not have signified an inappropriate relationship between the President and Ms. Lewinsky. Indeed, the President readily conceded that he may have given Ms. Lewinsky a hat pin and, notwithstanding his inability to summon a specific recollection of that gift, the Jones attorneys were free to pose appropriate follow-up questions, which they declined to do. Book "about" Walt Whitman. When asked if he had ever given Ms. Lewinsky a book "about" Walt Whitman, the President responded by saying that "I give people a lot of gifts, and when people are around I give a lot of things I have at the White House away, so I could have given her a gift, but I don't remember a specific gift." 142 The President had given Ms. Lewinsky a volume of poetry by Walt Whitman called "Leaves of Grass." 143 Jones' lawyer, however, inartfully asked the President whether he ever gave Ms. Lewinsky a book "about" Walt Whitman.144 The allegation that the President responded falsely to this question appears to be premised on the assumption that the President was obligated to guess about what the Jones lawyers intended to ask and respond accordingly. Our perjury statutes impose no such obligation. Simply put, the President's testimony on this point was not perjurious. The gold broach. The President also testified that he did not remember giving Ms. Lewinsky a gold broach. 145 Both the Majority Counsel and the Independent Counsel allege that the President knowingly lied in denying any specific recollection of giving the 138 Lewinsky 8/6/98 GJ at 152. 139 Lewinsky 8/6/98 GJ at 152. 141 Clinton 8/17/98 GJ at 45:9-16. 142 Clinton 1/17/98 Depo. at 75. 143 Referral at 156. 144 Clinton 1/17/98 Depo. at 75. 145 Clinton 1/17/98 Depo. at 75. broach to Ms. Lewinsky, but neither has acknowledged that Ms. Lewinsky herself suffered lapses of memory concerning her receipt of that item. For example, in support of its allegation that the President gave Ms. Lewinsky the broach, the Referral directs the reader to the "Chart of Contacts and Gifts" prepared by the OIC from all of the evidence it has received. 146 This chart is described by Ms. Lewinsky during one of her grand jury appearances as a document she prepared in consultation with the Independent Counsel, and that "definitely includes the visits I had with him, as well as most of the gifts we exchanged." 147 Ms. Lewinsky also agreed that the chart was "a pretty accurate rendition or description of [Lewinsky's] memory of all the events." 148 This chart, although reviewed by Ms. Lewinsky on several occasions 149 and cited by the Referral in support of the assertion that the President had given Ms. Lewinsky a gold broach 150, does not list the gold broach. A review of all the statements and testimony given by Ms. Lewinsky reveals that a "broach" is only mentioned once in passing as an item included in the box of items given to Currie on December 28, 1997.151 The broach is not mentioned, however, in other interviews with Ms. Lewinsky concerning gifts. 152 Ms. Lewinsky's repeated failure to recall the broach she received from the President during multiple interviews with the Independent Counsel is certainly relevant to any assessment of the truthfulness of the President's testimony that he did not recall giving that item to her. The Majority, however, makes no attempt to place these facts in their proper context. Moreover, one of Ms. Lewinsky's confidante's, Neysa Erbland, testified that she had heard about Ms. Lewinsky's receipt of the broach from the President around Christmas of 1996.153 The more than one-year gap between the time that the President gave the broach to Ms. Lewinsky and the time that he was asked about it during the Jones deposition reinforces the reasonableness of his inability to recall that specific gift. 4. The President Did Not Commit An Impeachable Offense When He Testified about Whether He Had Talked with Lewinsky about the Possibility She Would Be Asked to Testify in the Jones Case During the Jones deposition, when questioned as to whether he "ever talked to Monica Lewinsky about the possibility that she might be asked to testify?" the President began an answer with 146 Referral at 156 n.160; GJ Exhibit ML-7. 147 Lewinsky 8/6/98 GJ at 27-28. 148 Lewinsky 8/6/98 GJ at 28:18-19. 149 Lewinsky 8/7/98 302 at 1. 150 Referral at 156 n.160 ("Ms. Lewinsky testified that the President had given her a gold broach, * * *") 151 Lewinsky 7/27/98 302 at 8. 152 Lewinsky 7/27/98 302 at 14-15 (Lewinsky lists all gifts received from President, but broach is not itemized); see also Lewinsky 7/30/98 302 at 19-21 (similar list does not mention a gold broach). 153 Erbland 2/12/98 GJ at 41. The Referral misleadingly asserts that Lewinsky made "nearcontemporaneous" comments about the receipt of the broach to four of her confidantes. Referral at 156 n.160. With the exception of Neysa Erbland, however, three of these witnesses had no knowledge as to when Lewinsky received the broach from the President and each had heard about or seen the gift at different times of the year. Raines 1/29/98 GJ at 53:13-18 (cannot recall whether Lewinsky received broach before or after leaving White House); Ungvari 3/19/98 GJ at 44 (saw either the pin or the broach, but cannot recall which one, at Lewinsky's father's house "this past Thanksgiving"); Tripp 7/29/98 GJ at 105 (recounting discussion about broach after Lewinsky received subpoena in December 1997). |