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"I'm not sure," but then suggested that if he had, it was as part of a conversation in which he joked that every woman he had ever talked to was going to be called as a witness in the Paula Jones case. 154 This was a truthful response. 155 The President did not deny that he had had other conversations with Ms. Lewinsky about the Jones case. The President expressed uncertainty about whether there were other occasions. The President testified that "I don't think we ever had more of a conversation than that about it." when describing the earlier exchange with Ms. Lewinsky over whether she might appear on the witness list. 156 As in so many other instances, the Jones attorneys failed to ask appropriate follow-up questions such as "were there any other conversations concerning the possibility that Ms. Lewinsky would testify in the Jones case?" Perjury, of course, requires proof that a defendant knowingly made a false statement as to material facts. 157 As we have already discussed, testimony regarding Ms. Lewinsky was not central to the Jones case. Moreover, the following types of answers cannot be characterized as perjurious: literally truthful answers that imply facts that are not true, see, e.g., United States v. Bronston, 409 U.S. 352, 358 (1973), truthful answers to questions that are not asked, see, e.g., United States v. Corr, 543 F.2d 1042, 1049 (2d Cir. 1976), and failures to correct misleading impressions. See, e.g., United States v. Earp, 812 F.2d 917, 919 (4th Cir. 1987). The Supreme Court has made abundantly clear that it is not relevant for perjury purposes whether the witness intends his answer to mislead, or indeed intends a "pattern" of answers to mislead, if the answers are truthful or literally truthful.

Ms. Lewinsky has only testified about one other discussion with the President about the possibility that she "might" be asked to testify. Ms. Lewinsky claims that the President told her during a December 17 phone call that she had appeared on the Jones witness list. Subsequent conversations between the President and Ms. Lewinsky about the receipt of her subpoena two days later would not have been responsive to the question posed by the Jones attorneys because the "possibility that she might be asked to testify" had become a reality by that point. Even if Ms. Lewinsky's testimony is fully credited, the President's failure to recall that they discussed the possibility that she would be asked to testify in the Jones case during their December 17 conversation was an understandable memory lapse. That call was made at 2:00 a.m. and the main purpose of the call was to inform Ms. Lewinsky about the death of Betty Currie's brother.

5. The President Did Not Commit an Impeachable Offense When He Testified About Whether Lewinsky Had Told Him She Had Been Subpoenaed

It is alleged that the President committed perjury in his deposition when he failed to acknowledge that he knew that Ms.

154 Clinton 1/17/98 Depo at 69.

155 Ms. Lewinsky confirmed the accuracy of the President's recollection of this conversation in her testimony. See Lewinsky 8/24/98 302 ("LEWINSKY advised CLINTON may have said during this conversation that every woman he had ever spoken to was going to be on the witness list.").

156 Clinton 1/17/98 Depo at 70-71.

157 United States v. Dunnigan, 507 U.S. 87, 94 (1993).

Lewinsky had been subpoenaed at the time he had last seen and spoken to her. The President acknowledged, however, that he knew that Ms. Lewinsky had been subpoenaed, but that he was not sure when was the last time he had seen and spoken with her (but that it was sometime around Christmas), and that he had discussed with her the possibility that she would have to testify.

The allegation that the President denied knowing that Ms. Lewinsky had been subpoenaed the last time he spoke to her illustrates the problem of taking selected pieces of testimony out of context.

Q. Did she tell you she had been served with a subpoena in this case?

A. No. I don't know if she had been. 158

This testimony does not support the charge that the President perjured himself by denying that he knew that Ms. Lewinsky had been subpoenaed the last time he had spoken with her. First, the testimony immediately following this exchange demonstrates both that the President was not hiding that he knew Ms. Lewinsky had been subpoenaed by the time of the deposition and that the Jones lawyers were well aware that this was the President's position:

Q. Did anyone other than your attorneys ever tell you that Monica Lewinsky had been served with a subpoena in this case?

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A. Bruce Lindsey, I think Bruce Lindsey told me that she was, I think maybe that's the first person [who] told me she was. I want to be as accurate as I can.

Q. Did you talk to Mr. Lindsey about what action, if any, should be taken as a result of her being served with a subpoena?

A. No. 159

It is evident from the complete exchange on this subject that the President was not generally denying that he knew that Ms. Lewinsky had been subpoenaed in the Jones case. The questions that the Jones lawyers were asking the President also make clear that this is what they understood the President's testimony to be. Second, the President's testimony cannot fairly be read as an express denial of knowledge that Ms. Lewinsky had been subpoenaed the last time he had spoken to her before the deposition. Most importantly, the President was not asked whether he knew that Ms. Lewinsky had been subpoenaed on December 28th, which was the last time he had seen her. When the President answered the question, "Did she tell you she had been served with a subpoena in this case?", he plainly was not thinking about December 28th. To the contrary, the President's testimony indicates that he was thoroughly confused about the dates of his last meetings with Ms. Lewinsky, and he made that abundantly clear to the Jones lawyers: Q. When was the last time you spoke with Monica Lewinsky?

158 Clinton 1/17/98 Depo at 68.
159 Clinton 1/17/98 Depo at 68-70.

A. I'm trying to remember. Probably sometime before
Christmas. She came by to see Betty sometime before
Christmas. And she was there talking to her, and I stuck
my head out, said hello to her.

Q. Stuck your head out of the Oval Office?

A. Uh-huh, Betty said she was coming by and talked to her, and I said hello to her.

Q. Was that shortly before Christmas or

A. I'm sorry, I don't remember. Been sometime in December, I think, and I believe that may not be the last time. I think she came to one of the, one of the Christmas parties. 160

His statement that he did not know whether she had been subpoenaed directly followed this confused exchange and was not tied to any particular meeting with her. By that time it is totally unclear what date the answer is addressing. Given his confusion, which the Jones lawyers made no attempt to resolve, it is difficult to know what was being said, much less to label it false and perjurious.

6. The President Did Not Commit An Impeachable Offense When He Testified about Who Had Informed Him That Lewinsky Had Received a Subpoena in the Jones Case

Article II also appears to encompass the claim that the President perjured himself by failing to identify Vernon Jordan as one of the individuals who told him that Ms. Lewinsky had been served with a subpoena. In fact, when asked who had informed him that Ms. Lewinsky had been subpoenaed, the President began to identify the individuals who had conveyed that information to him, but the Jones attorneys did not consider the matter sufficiently important to elicit all of the responsive information. To support his perjury claim, the Majority Counsel unfairly rips a single sentence of the Jones deposition out of context without ever acknowledging that the President, in response to very next question, began to amend and expand on his answer to the question at issue. The exact sequence is as follows:

Q. Did anyone other than your attorneys ever tell you that Monica Lewinsky had been served with a subpoena in this case?

G. I don't think so.

Q. Did you ever talk with Monica Lewinsky about the possibility that she might be asked to testify in this case? Q. Bruce Lindsey. I think Bruce Lindsey told me that she was, I think maybe that's the first person who told me she

was. 161

The Jones attorneys then proceeded to question the President about the specifics of his conversation with Lindsey concerning this subject. After the President had responded fully to these questions, the Jones attorneys failed to ask the obvious follow-up question that had been invited by the President's use of the qualifier "first": who else besides your lawyers told you that Ms. Lewinsky had been

160 Clinton 1/17/98 Depo at 68 (emphasis added).
161 Clinton 1/17/98 Depo. at 68-69 (emphasis added).

served with a subpoena? Criminal sanctions cannot attach to a deposition answer that is incomplete on its face if the lawyer posing the questions is not even interested enough to pursue obvious follow-up questions. Our system of justice does not impose criminal sanctions "simply because a wily witness succeeds in derailing the questioner-so long as the witness speaks the literal truth." 162

The Independent Counsel's Referral also freely speculated that the President's incomplete answer was motivated by his reluctance to mention Jordan, who continues to be investigated by the Independent Counsel for alleged obstruction of justice relating to Webster Hubbell.163 The Independent Counsel's insinuations in this regard, however, studiously ignores the fact that the President truthfully identified Bruce Lindsey as one of the individuals who told him that Lewsinky had been subpoenaed. 164 Lindsey, like Jordan, has long been under an unfair cloud of suspicion resulting from the Independent Counsel's investigation into supposedly "obstructionist" activities. If the President, as the Independent Counsel claims, omitted mentioning Jordan out of concern about "admitting any possible link" between Ms. Lewinsky and a person who was already under investigation for "obstructing justice," then this same logic would have militated against mentioning Lindsey. The Independent Counsel's logically inconsistent speculation only serves to highlight the persistent factual weaknesses in the allegations of criminal wrongdoing that have been uncritically adopted by the Majority.

7. The President Did Not Commit An Impeachable Offense When He Testified about Whether Anyone Had Reported to Him about a Conversation with Ms. Lewinsky Concerning the Jones Case in the Two Weeks Prior to the Deposition

During the Jones deposition, the President was asked whether, in the "past two weeks" (before January 17) anyone had reported to him that they had had a conversation with Ms. Lewinsky about the Jones lawsuit. The President replied he "did not believe so." 165 This allegedly constituted a false statement because Jordan informed the President during a phone call on January 7 that the Lewinsky affidavit had been signed. 166

The record does not, however, demonstrate that Mr. Jordan told the President about a conversation with Ms. Lewinsky. Jordan made a phone call to the President on January 7 informing him that the Lewinsky affidavit had been signed, but Jordan did not speak with the President about his discussion with Lewinsky on that day. 167 Instead, as Jordan testified before the grand jury, he simply conveyed to the President that the affidavit had been signed (he refers to the conversation with the President as "a simple information flow"). 168

Simply put, the information conveyed by Mr. Jordan to the President on December 7 did not imply that he had talked to Ms.

162 United States v. Bronston, 409 U.S. 352, 360 (1973).

163 Referral at 189.

164 Clinton 1/17/98 Depo at 68-69.

165 Clinton 1/17/98 Depo at 68-69.

166 Referral at 187.

167 Referral at 187.

168 Referral at 187-88.

Lewinsky that day. For all the President knew, Jordan learned about the signing of the affidavit from the lawyer that Jordan had put Ms. Lewinsky in touch with, Frank Carter. Indeed, Mr. Jordan had previously transmitted information he learned from Mr. Carter directly to the President. 169

8. The President Did Not Commit An Impeachable Offense When He Testified about whether he had heard that Mr. Jordan and Ms. Lewinsky had met to discuss the Jones case

When asked during the Jones deposition whether the President had heard that Jordan and Ms. Lewinsky had met to discuss the Jones case; the President recounted his belief that the two had met to discuss the job search-about which the President readily acknowledged an awareness. It is alleged that this was a false statement because the President had talked to Jordan about Ms. Lewinsky's involvement in the Jones case. 170

Q. Has it ever been reported to you that [Vernon Jordan] met with Monica Lewinsky and talked about this case?

A: I knew that he met with her. I think Betty suggested that he meet with her. Anyway, he met with her. I, I thought that he talked to her about something else. I didn't know that I thought he had given her some advice about her move to New York, 171

The President, however, was asked only about his knowledge of meetings between Jordan and Ms. Lewinsky concerning the Jones case. The assertion that the President "did not recall whether Mr. Jordan had talked to Ms. Lewinsky about her involvement in the Jones case," is misleading.172 The President was never simply asked whether he was aware that Jordan had ever talked with Ms. Lewinsky about her involvement in the Jones case. Instead, the President recounted his belief that the two had met to discuss the job search-about which the President readily acknowledged an

awareness.

The President's failure to recall that Jordan told him of meeting with Ms. Lewinsky concerning the Jones case, rather than job search, was not intentionally false. Rather, there is substantial evidence to suggest that the President's belief that the meetings between Jordan and Ms. Lewinsky only involved her job search was reasonable because the job search was a major part of the contacts between Ms. Lewinsky and Mr. Jordan. For example, up until December 19, Mr. Jordan's only conversations with Ms. Lewinsky concerned her search for a job in New York. 173 Furthermore, Ms. Lewinsky's job search was one of the topics discussed by Mr. Jordan with the President during their December 19 meeting during which Mr. Jordan told the President that Ms. Lewinsky had been subpoenaed. 174 Mrs. Currie asked Mr. Jordan to help Ms. Lewinsky

169 See Jordan 5/5/98 GJ at 224-26 (Jordan sometimes relayed information to President concerning Lewinsky that he learned from Carter).

170 Referral, at 186.

171 Clinton 1/17/98 Depo at 72 (emphasis added).

172 Referral at 186.

173 Jordan 3/3/98 GJ at 92.

174 Jordan 3/3/98 GJ at President. 171 ("I said "You know. I'm trying to help her get a job and I'm going to continue to do that."")

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