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find a job in New York and testified that it is not possible that the President told her to talk to Mr. Jordan on this topic. 175 Moreover, as Mr. Jordan testified, “Lewinsky was never the main topic of any conversation with the President.” 176 The President's further response that he believed Mr. Jordan met with Ms. Lewinsky to give her advice about her move to New York—was fully accurate. C. ARTICLE III'S ALLEGATIONS OF OBSTRUCTION OF JUSTICE FAIL TO
ESTABLISH AN IMPEACHABLE OFFENSE The Committee has approved an article of impeachment alleging that the President obstructed justice. The article contends that the “means used to implement this course of conduct or scheme included one or more of the following acts: (1) on or about December 17, 1997, William Jefferson Clinton corruptly encouraged a witness in a Federal civil rights action brought against him to execute a sworn affidavit in that proceeding that he knew to be perjurious, false and misleading; (2) on or about December 17, 1997, William Jefferson Clinton corruptly encouraged a witness in a Federal civil rights action brought against him to give perjurious, false and misleading testimony if and when called to testify personally in that proceeding; (3) on or about December 28, 1997, William Jefferson Clinton corruptly engaged in, encouraged, or supported a scheme to conceal evidence that had been subpoenaed in a Federal civil rights action brought against him; (4) [b]eginning on or about December 7, 1997, and continuing through and including January 14, 1998, William Jefferson Clinton intensified and succeeded in an effort to secure job assistance to a witness in a Federal civil rights action brought against him in order to corruptly prevent the truthful testimony of that witness in that proceeding at a time when the truthful testimony of that witness would have been harmful to him; (5) on January 17, 1998, at his deposition in a Federal civil rights action brought against him, William Jefferson Clinton corruptly allowed his attorney to make false and misleading statements to a Federal judge characterizing an affidavit, in order to prevent questioning deemed relevant by the judge. Such false and misleading statements were subsequently acknowledged by his attorney in a communication to that judge.; (6) [o]n or about January 18 and January 20–21, 1998, William Jefferson Clinton related a false and misleading account of events relevant to a Federal civil rights action brought against him to a potential witness in that proceeding, in order to corruptly influence the testimony of that witness; (7) on or about January 21, 23 and 26, 1998, William Jefferson Clinton made false and misleading statements to potential witnesses in a Federal grand jury proceeding in order to corruptly influence the testimony of those witnesses. The false and misleading statements made by William Jefferson Clinton were repeated by the witnesses to the grand jury, causing the grand jury to receive false and misleading information.”
Staning deemed refacterizing an affined misleading tot corr
175 Currie 5/6/98 GJ at 169-83. 176 Jordan 3/5/98 GJ at 28 (emphasis added).
1. The President did not encourage Ms. Lewinsky to file a false affi
davit in the Jones case or testify falsely if deposed in that mat
ter. There is no doubt that Ms. Lewinsky and the President discussed the desirability of having her submit an affidavit in lieu of testifying, but there is no evidence that the President encouraged her to file a false affidavit, or encouraged her to lie if she were ultimately required to provide a deposition in the Jones case. The President testified during his grand jury appearance that “I believed then, I believe now, that Monica Lewinsky could have sworn out an honest affidavit, that under reasonable circumstances, and without the benefit of what Linda Tripp did to her, would have given her a chance not to be a witness in this case.” 177 The distinction between the submission of a truthful and a false affidavit is crucial to the Minority's firm conviction that there is no basis for impeachment. The Majority chooses to simply ignore the fact that the Jones case involved a claim of unwelcome, harassing conduct while the President's relationship with Ms. Lewinsky was purely consensual. Ms. Lewinsky was prepared to state truthfully that she was not the subject of harassment or any unwelcome advances, and the filing of an affidavit with that statement might have avoided the need for Ms. Lewinsky to reveal her relationship with the President. 178
Evidence transmitted to Congress by the Independent Counsel, but ignored by the Majority, is equally critical in assessing the Majority's allegations of obstruction of justice. For example, the President testified that he never asked Ms. Lewinsky to lie, and Ms. Lewinsky similarly testified that the President never told her to submit a false affidavit or to lie in any way. 179 Ms. Lewinsky's words on the subject are instructive. During her final appearance before the grand jury, Ms. Lewinsky testified in response to a grand juror's question that:
I think because of the public nature of how this investigation has been and what the charges aired, that I would just like to say that no one ever asked me to lie and I was
never promised a job for my silence.180 Ms. Lewinsky made the same point in her earlier proffer to the OIC. She wrote that “[n]either the Pres. nor Mr. Jordan (or anyone on their behalf) asked or encouraged Ms. L to lie.” 181 She also stated that she had asked the President if he wanted to see her affidavit before it was filed, and he said he did not. 182 Ms. Lewinsky believed her denial of a sexual relationship with the President to be
the Majorto Coneronship w
177 Clinton 8/17/98 GJ at 69. See also id. at 77 (“I believed then, I believe today, that she could execute an affidavit which, under reasonable circumstances with fair-minded, non-politically ori
. ented people, would result in her being relieved of the burden to be put through the kind of testimony that, thanks to Linda Tripp's work with you and with the Jones lawyers, she would have been put through"); 116 (“I also will tell you that I felt quite comfortable that she could have executed a truthful affidavit, which would not have disclosed the embarrassing details of the relationship that we had had”).
178 The Minority specifically notes, in that regard, that obstruction of justice requires proof of a specific intent to obstruct a judicial proceeding. United States v. Bashaw, 982 F.2d 168, 170 (6th Cir. 1992); United States v. Moon, 718 F.2d 1219, 1236 (2d Cir. 1983); United States v. Rasheed, 663 F.2d 843, 847 (9th Cir. 1981). There simply is no such proof in this case.
179 Clinton 8/17/98 GJ at 4, 7; Lewinsky 7/27/98 302 at 12.
true because they had never had sexual intercourse. 183 Nor did Ms. Lewinsky contrive that definition for purposes of litigation. Rather, she made the point to Ms. Tripp in a surreptitiously recorded conversation in which Ms. Lewinsky said that “[h]aving sex is having intercourse.” 184 Moreover, she deemed the matter to be a personal one, and none of Paula Jones' business. 185
The Majority also fails to mention Ms. Lewinsky's crucial testimony that her affidavit was in no way contingent on her receiving assistance with her search for employment. Ms. Lewinsky told the OIC's investigators that:
[t]here was no agreement with the President, JORDAN, or anyone else that LEWINSKY had to sign the Jones affidavit before getting a job in New York. LEWINSKY never demanded a job from JORDAN in return for a favorable affidavit. Neither the President nor JORDAN ever told
LEWINSKY she had to lie. 186 Indeed, the evidence makes clear that Ms. Tripp was the only person to suggest a jobs-for-affidavit trade. Ms. Lewinsky repeatedly made that point in her interviews with the OIC's staff, and in her grand jury appearances. 187
In a further effort to support claims of obstruction of justice, the Majority apparently adopts the OIC's argument that the President and Ms. Lewinsky improperly agreed to use "cover stories” to hide their relationship, and that Ms. Lewinsky could use those cover stories if she were unable to avoid a deposition appearance. While the Majority does not specifically articulate the grounds for its charge, the OIC's Referral acknowledges that these cover stories were created long before Ms. Lewinsky was subpoenaed in the Jones case. The OIC nevertheless asserts that the stories were unlawfully continued after the subpoena was served, and that the President failed to advise Ms. Lewinsky to abandon them when she prepared her affidavit. 188
The Minority believes it constitutionally insignificant that two people in an inappropriate workplace relationship would attempt to conceal their relationship. And, far from inculpating the President, the Minority believes that the long-standing cover stories employed by the President and Ms. Lewinsky actually exculpate him. It is obvious that these cover stories were not designed to obstruct justice, but simply to prevent family members, friends, staff, and the public from learning of the President's concededly inappropriate relationship. Indeed, Ms. Lewinsky testified that she and the President did not discuss denying their relationship after Ms. Lewinsky learned she was a witness in the Jones case. 189 During one of Ms.
183 Lewinsky 2/1/98 Proffer at 10; Lewinsky 7/27/98 OIC 302 at 12.
187 Lewinsky 8/2/98 OIC 302 at 7 (“TRIPP told LEWINSKY not to sign the affidavit until LEWINSKY had a job”); Lewinsky 8/6/98 GJ at 182 (reporting that Tripp said, “Monica, promise me you won't sign the affidavit until you get the job. Tell Vernon you won't sign the affidavit until you get the job because if you sign the affidavit before you get the job, they're never going to give you the job”). 188 Referral at 180. 189 Lewinsky 8/20/98 GJ at 63–64.
Lewinsky's grand jury appearances, the following exchange occurred:
Q. Is it possible that you had these discussions (about
A. I don't believe so. No.
A. I pretty much can . . : . 190 Thus, the record actually undermines the Majority's contention that the President intended to obstruct justice.
The bottom line is this: the secrecy surrounding an extramarital relationship, standing alone, is far too weak a foundation on which to construct a criminal case, let alone an impeachment of the President. There simply is no evidence that the President sought to have Ms. Lewinsky file a false affidavit or give false testimony in the Jones case. 2. The President did not Obstruct Justice by Concealing Gifts that
he Gave to Ms. Lewinsky There is no dispute that the President and Lewinsky exchanged gifts. Nor is it disputed that some of those gifts were transferred by Lewinsky to the President's secretary, Betty Currie, on December 28, 1997, the same day that the President and Lewinsky had a brief meeting at the White House. The article's allegation of obstruction is based on its contention that this transfer of gifts was initiated by the President with the intent to make them unavailable for production in response to a document subpoena served on Lewinsky by lawyers for Paula Jones. 191 Referral at 169–71. A full and fair review of all the relevant testimony strongly suggests that Lewinsky initiated the transfer to Currie without any intervention by the President, and that the President was unconcerned about the possibility that gifts might be produced to the Jones lawyers. In fact, the President testified that he told Ms. Lewinsky that she would have to turn over to the Jones lawyers whatever gifts she had. 192
To reach the conclusions contained in this article, the Majority has overlooked key evidence. For example, the Independent Counsel alleges that Lewinsky and the President “discussed the possibility of moving some of the gifts out of her possession.” A review of the actual testimony, however, reveals that the Independent Counsel's assertion lacks a basis in the evidence he sent. Ms. Lewinsky testified that when she told the President on December 28, 1997, "maybe I should put the gifts outside my house somewhere or give them to someone, maybe Betty[,}” the President did not respond in the affirmative, but said “I don't know” or “[ljet me think about that.” 193 This is hardly the stuff of obstruction.
The Independent Counsel chose to state the President's response, without bothering to mention the other nine times they asked Ms. Lewinsky the question. 194 Moreover, Ms. Currie stated repeatedly that Ms. Lewinsky called her and raised the issue of picking up the gifts and that the President never asked her to call Ms. Lewinsky for the gifts:
190 Lewinsky 8/20/98 GJ at 63. 191 Referral at 166.
192 Clinton 8/17/98 GJ at 43. “And I told (Ms. Lewinsky) that if they asked her for gifts, she'd have to give them whatever she had, and that that's what the law was.”
193 Lewinsky 8/6/98 GJ at 152.
A. My recollection—the best I remember is Monica calling me and asking me if I'd hold some gifts for her. I said I would.
Q. And did the President know you were holding these things?
A. I don't know.
Q. Didn't he say to you that Monica had something for you to hold?
A. I don't remember that. I don't. 195
Q. Exactly how (did] that box of gifts come into your possession?
A. I do not recall the President asking me to call about a box of gifts. 196 The OIC's argument that the President was concerned about the gifts is inconsistent with evidence that, during the meeting on December 28, he gave Lewinsky additional presents for Christmas. 197 It strains believability to suggest that the President was concerned enough about the gifts to cause Lewinsky to surrender possession of them, yet at the same time was foolish enough to give her more gifts that would have to be produced on the very same day. The President's testimony is clear that he told Lewinsky she would have to produce any gifts that remained in her possession, and that Lewinsky-and not he-was worried about having to produce them. 198
The Referrals conclusion is also unsupported by Currie's testimony that Lewinsky, and not Currie, initiated the telephone call that resulted in Currie retrieving the gifts from Lewinsky's Watergate apartment. According to Currie, Lewinsky called her and expressed concern that people whom Currie understood to mean Newsweek magazine reporter Michael Isikoff—were asking questions about the gifts. 199 The Independent Counsel acknowledges that “Currie testified that Ms. Lewinsky, not Ms. Currie, placed the call and raised the subject of transferring the gifts[,)” but thereafter discounts Currie's testimony by arguing that she ultimately said that Lewinsky might have a better recollection of these events. 200
The Majority claims to have proved that Ms. Currie called Ms. Lewinsky about picking up the gifts, rather than the other way
194 Ms. Lewinsky made at least ten distinct statements on this subject during the course of her original proffer, interviews, grand jury testimony and deposition. Although the OIC claims that there was a discussion between Ms. Lewinsky and the President on this subject, the actual testimony does not support the OIC's contention. Lewinsky 2/1/98 proffer at 7; Lewinsky 7/27! 98 interview statement at 7; Lewinsky 8/1/98 interview statement at 11; Lewinsky 8/6/98 GJ at 152; Lewinsky 8/13/97 interview statement at 7; Lewinsky 8/20/98 GJ at 65–66 and 70; Lewinsky 8/24 interview statement at 4; Lewinsky 9/3/98 interview statement at 2.
195 Currie 5/6/98 GJ at 105–6.