jority to link the President's responses to an official governmental function. The article provides that the President's responses "assumed to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives and exhibited contempt for the inquiry."

The Minority notes that the Majority's language in Article IV is not accidental. During Watergate, Article III of the articles of impeachment charged that President Nixon abused the power of his office by failing to comply with subpoenas for documents and things served on him by the Committee. The Nixon article alleged that the President's failure to respond to the subpoenas interposed the powers of the Presidency against lawful subpoenas of the House of Representatives and, as the Majority has alleged here, that the President "thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives." 266 Thus, the present-day Majority has attempted to conjure the ghost of Watergate by couching what are, at best, additional allegations of perjury in terms that are reminiscent of the true abuses of power that occurred during Watergate.

The Minority also takes strong exception to the Majority's efforts to set a "perjury trap" for the President. "A perjury trap is created when the government calls a witness * ** [to testify] for the primary purpose of obtaining testimony from him in order to prosecute him later for perjury." 267 Here, the responses on which the Majority relies to support Article IV all involve subjects on which the President testified either in his Jones deposition, or the grand jury, or both.268 Over and over since his testimony on those occasions, the President has acknowledged that he misled the country, largely to spare himself and his family the embarrassment of revealing his relationship with Ms. Lewinsky.269 When the Majority propounded its 81 questions to the President, it knew that he would not change his testimony simply to satisfy its demands. In essence, then, the Majority has manufactured a count of impeachment against the President simply by requiring him to respond, in writing, to its demands for additional information.

The President's responses to the 81 questions make clear that the Majority has not identified any new conduct of the President that warrants impeachment. Every one of the ten responses on which the Majority relies either quotes directly from, or cites to, earlier testimony that the President gave on the referenced subjects. Presumably, the Majority believes that it would be free to manufacture additional articles of impeachment simply by asking the President over and over again about topics on which he is certain not to change his answers, and then accusing the President of lying each time it did not like his responses. In contrast to Watergate, where the Committee premised its abuse of power allegations

266 Report of the Committee on the Judiciary, Impeachment of Richard M. Nixon, President of the United States, House Rep. No. 93-1305, 92nd Cong., 2d Sess. 4 (1974). 267 United States v. Chen, 933 F.2d 793, 796 (9th Cir. 1991).

268 Response No. 19 (cover stories); 20 (knowledge of subpoena served on Ms. Lewinsky); 24, 26, 27, 42, 43 (gifts exchanged with Ms. Lewinsky); 34 (Ms. Lewinsky's affidavit) and 52, 53 (statements to Ms. Currie).

269 See, e.g., 8/17/98 Tr. of Address to the Nation at 1.

on President Nixon's affirmative refusal to comply with Committee subpoenas, the Majority here has simply bootstrapped what it believes to be earlier instances of presidential perjury into a new abuse of power article. The Minority completely rejects the Majority's transparent effort to draw a parallel to the events of 1974.

IV. THE CREDIBILITY OF THE IMPEACHMENT INQUIRY HAS BEEN COMPROMISED

Aside from the substantive problems we have with both the lax standard of impeachment that has been applied by the Majority, and the many errors in the culpability of conduct identified, by the OIC, we are also concerned about the process which has brought the House to this point. Our concerns derive from both perceived unfairness and bias in the OIC investigation as well as the Committee's inquiry.

A. BIAS IN OIC INVESTIGATION

The OIC's conduct has raised a great many doubts regarding the fairness of an investigation which has brought this body to the brink of an impeachment vote. Collectively, these actions raise the question whether the OIC was motivated by an effort to conduct an impartial investigation or by prosecutorial zeal to damage a President. Our concerns arise from a number of reasons.

First, many of our problems arise from the Independent Counsel law, and its interaction with impeachment proceedings in particular. The law gives little guidance or specification regarding the manner in which impeachment referrals are to occur. As already noted, in this case, the OIC chose to ignore the Watergate precedent of special prosecutor Jaworski who saw fit to provide only unedited grand jury transcripts to the Committee. Instead, Mr. Starr developed his own impeachment standards, and then went out of his way to argue the case for impeachment to the Congress. It was just such authority that allowed the Referral to be characterized as a "referral with an attitude." 270 Similarly, it was Mr. Starr's unbending advocacy which caused his ethics adviser Samuel Dash to resign the day after his congressional testimony.271

Second, doubts have been raised regarding the appropriateness of the initial selection of Mr. Starr by the three-judge panel. Questions have been raised regarding the propriety of a luncheon meeting between Judge Sentelle, a member of the three-judge panel, and Senator Faircloth, one of President Clinton's severest political critics, shortly before Mr. Starr's appointment as Independent Counsel. Issues have also arisen regarding the appropriateness of Mr. Starr's continued representation of business interests, such as

270 Linda Greenhouse, Testing of a President, N.Y. Times, Sept. 12, 1998, at A1. 271 In his resignation letter, Professor Dash wrote:

I resign for a fundamental reason. Against my strong advice, you decided to depart from your usual professional decision-making by accepting the invitation of the House Judiciary Committee to appear before the committee and serve as an aggressive advocate for the proposition that the evidence in your referral demonstrates that the President committed impeachable offenses. In doing this you have violated your obligations under the Independent Counsel statute and have unlawfully intruded on the power of impeachment which the Constitution gives solely to the House.

Letter from Samuel Dash, Professor, Georgetown University Law Center, to Kenneth W. Starr, Independent Counsel (Nov. 20, 1998).

the tobacco industry, who were involved in litigation directly adverse to positions taken by the President. These concerns were compounded when Mr. Starr tentatively accepted a lucrative academic position at Pepperdine University which was largely funded by Richard Mellon Scaife, another harsh critic of the President.

Third, questions have been raised regarding the appropriateness of Mr. Starr's advocacy in support of Paula Jones with respect to constitutional issues arising in her civil lawsuit against President Clinton. Prior to being named Independent Counsel, a lawyer for Paula Jones approached Mr. Starr about drafting an amicus brief arguing against the President's claim of immunity in the Jones case,272 and Mr. Starr ultimately agreed to represent pro bono a conservative women's group, the Independent Women's Forum, in their filing of a legal brief opposing the President on this matter.273 The representation of the Independent Women's Forum did not end until August 8, 1994, four days after Mr. Starr became Independent Counsel.274 Mr. Starr also appeared on the MacNeil/Lehrer Newshour to argue against the President's immunity claim.275

A fourth concern arises from the fact that the OIC appears to have been made aware of allegations of possible wrongdoing at least one week before he sought to expand his investigation into this area. Based on newspaper accounts and Mr. Starr's own testimony, the following time line can be constructed.

-In mid-October of 1997, around the time when Linda Tripp began illegally taping her telephone conversations with Monica Lewinsky, someone placed an anonymous phone call to the Rutherford Institute, the conservative organization funding Ms. Jones's lawsuit, saying that the President was having an affair.276

-On November 21, 1997, David Pyke, one of Ms. Jones's lawyers, called Ms. Tripp to say that Lucianne Goldberg had contacted him about a woman having an affair with the President.277 Ms. Tripp confirmed for Mr. Pyke that she knew a woman who was having a two-year affair with the President that started when she was a White House intern.278 When dis

272 Impeachment Hearing on Inquiry Pursuant to H. Res. 581, 105th Cong., 2d Sess. 119 (1998).

273 Id. at 123; Declaration of Daniel F. Attridge ¶ 13, Jones v. Clinton (D.D.C.) (No. 98-042). 274 Decl. of Daniel F. Attridge ¶ 13, Jones v. Clinton (D.D.C.) (No. 98-042).

275 MacNeil/Lehrer NewsHour: Presidential Immunity (PBS television broadcast, May 24, 1994) (transcript available on Lexis). Also raising concern is the fact that Mr. Starr, as a partner at Kirkland & Ellis, was consulted by, and gave legal advice to, lawyers for Paula Jones on approximately half-a-dozen occasions. Morning Edition: Questions on Starr-Jones Connection (NPR radio broadcast, Oct. 15, 1998) (transcript available on Lexis). Richard Porter, another Kirkland & Ellis lawyer and former aide to Vice President Dan Quayle, was asked in May 1994, while the Independent Counsel was a partner there, to serve as counsel to Ms. Jones; Mr. Porter declined the representation but faxed the declaration of a Jones witness to the Chicago Tribune. Second Decl. of Daniel F. Attridge ¶2, Jones v. Clinton (D.D.C.) (No. 98-042). In addition, Mr. Porter suggested that Nelson Lund, formerly a counsel to President Bush, represent Ms. Jones in her lawsuit, but Mr. Lund declined the representation and instead recommended Gilbert Davis and Joseph Cammarata. Robert Novak, Ex-Bush Aides Helped Jones Find Lawyers, Chicago Sun-Times, May 15, 1994, at 41. Ms. Jones ultimately hired both Mr. Davis and Mr. Cammarata. Id.

276 Rene Sanchez & David Segal, Mysterious Efforts Permeate Lewinsky, Jones Allegations, Wash. Post, Jan. 31, 1998, at A13.

277 Supplemental Materials to the Referral to the U.S. House of Representatives Pursuant to Title 28, U.S. Code, Section 595(c) Submitted by the Office of Indep. Counsel, Sept. 9, 1998, H.R. Doc. No. 316, 105th Cong., 2d Sess. 2531-32 (reprinting Lewinsky/Tripp Phone Tr. 005 at 91102).

278 Id.

cussing her becoming involved with the Jones lawsuit, Ms. Tripp told Mr. Pyke that she should appear to be a hostile witness.2

279

-On November 24, 1997, the Jones lawyers subpoenaed Ms. Tripp.280 Ms. Goldberg, in January of 1998, began to explore how Ms. Tripp could contact the OIC about the Lewinsky affair.281 Ms. Goldberg contacted Mr. Porter, the Kirkland & Ellis lawyer who had the opportunity to represent Paula Jones, who, in turn, contacted Jerome Marcus, a Philadelphia attorney.282

-On January 8, 1998, Mr. Marcus called Paul Rosenzweig, one of the OIC attorneys to convey Ms. Tripp's information.283 -On January 9, 1998, Mr. Rosenzweig informed Deputy Independent Counsel Jackie M. Bennett, Jr., what he had heard about a White House intern and the President.284 Also on that day, Ms. Goldberg spoke to Mr. Conway to get Ms. Tripp a new, more conservative lawyer; Ms. Tripp hired Mr. Conway's recommendation, James Moody.2 285

-On January 12, Ms. Tripp finally called the OIC, herself, and spoke to Mr. Bennett.286 That night, the OIC promised to seek immunity for Ms. Tripp from federal prosecution for the illegal taping; the OIC also promised to help Ms. Tripp if state authorities began to investigate the taping.287

-On January 16, the Special Division gave permission for the OIC to expand its jurisdiction into the Lewinsky allegations.288 That day, the OIC gave Ms. Tripp an immunity agreement to protect her from federal prosecution for the taping.289 Knowing that Ms. Tripp had connections to the Jones case, the OIC failed to include in her agreement a clause that prevented Ms. Tripp from speaking to anyone about the OIC's investigation.290 Ms. Tripp spoke to the Jones's lawyers that night, after speaking to the OIC and after leading the OIC to Ms. Lewinsky at the Ritz-Carlton Hotel, thereby setting up the President for his deposition in the Jones case.291

In particular, we are concerned that rather than immediately reporting any of these facts to the Department of Justice, Mr. Starr's office sought to create their own exigency which left the Attorney General with little choice but to approve his requested extension in

279 Id.

280 Alan C. Miller & Judy Pasternak, Starr's Office Let Tripp Give Details to Jones' Lawyers, L.A. Times, Oct. 11, 1998.

281 Id.

282 Id.

283 Id.; The Independent Counsel testified before the Judiciary Committee that "[o]n January 8, an attorney in our office was informed that a witness, who was Linda Tripp, who had been a witness in prior investigations in our office, had information that she wanted to provide. A message was conveyed back that she should provide her information directly." Impeachment Hearing on Inquiry Pursuant to H. Res. 581, 105th Cong., 2d Sess. 66 (1998).

284 Miller & Pasternak, supra.

285 Id.

286 Id.

287 Id.

288 Appendices to the Referral to the U.S. House of Representatives Pursuant to Title 28, U.S. Code, Section 595(c) Submitted by the Office of the Indep. Counsel, Sept. 9, 1998, H.R. Doc. No. 311, 105th Cong., 2d Sess. 6 (1998) (reprinting January 16, 1998 Order of the Special Division). 289 Miller & Pasternak, supra.

290 Impeachment Hearing on Inquiry Pursuant to H. Res. 581, 105th Cong., 2d Sess. 126 (1998).

291 Miller & Pasternak, supra.

jurisdiction. These concerns are exacerbated by the fact that Mr. Starr failed to disclose any previous contacts between himself and his firm and the Jones legal team to the Department of Justice.292 Fifth, an ongoing investigation into illegal grand jury leaks by the OIC does not give us much further comfort. On June 19, Chief U.S. District Judge Norma Holloway Johnson issued an order holding that "serious and repetitive" leaks to the news media about the OIC's investigation of the Lewinsky allegations justified an inquiry into whether the OIC broke the rule barring dissemination of grand jury material.293 Subsequently, in a September 25, 1998 ruling, Judge Johnson appointed a special master to conduct an independent investigation of the alleged OIC leaks of grand jury material, "[d]ue to serious and repetitive prima facie violations of Rule 6(e).2 294 To date the court has identified 24 separate instances of possibly illegal grand jury leaks. Whether or not one agrees with the OIC view that it is not illegal to leak information which is merely likely to be submitted to the grand jury, or the D.C. Circuit view that such leaks are illegal,295 it is not difficult to see that the better course of discretion in a politically charged investigation such as this would have been to avoid leaking any information.

Sixth, we are concerned that the OIC may have violated Department of Justice guidelines in gathering its evidence. The Department of Justice rules provide that an attorney for the government should not communicate with a targeted person who government knows is represented by an attorney.296 At the time the Independent Counsel confronted Ms. Lewinsky at the Ritz Carlton, she plainly was a target of the newly-expanded investigation. Yet at that initial confrontation with Ms. Lewinsky, the Independent Counsel tried to negotiate an immunity deal with her without her lawyer, Frank Carter, being present.297

Finally, and perhaps most seriously, we are deeply concerned that the OIC intentionally omitted or downplayed exculpatory evidence concerning President Clinton in its referral. For example,

292 When members of the OIC went to meet with the Deputy Attorney General to seek permission to expand their jurisdiction to investigate these issues notes were taken by participants at the meeting that were released for the first time by the Committee on December 10, 1998. Reference to those notes indicate that at no time did anyone from the OIC even mention to the Justice Department that Mr. Starr or his firm (1) had been contacted to be Ms. Jones's attorney, (2) had given legal advice to Ms. Jones's attorneys, (3) had considered filing a brief on Ms. Jones's behalf, or (4) had helped Ms. Tripp contact the OIC with her illegally obtained tapes. 293 Order to Show Cause, Misc. No. 98-55, slip. op. at 4 (D.D.C. June 19, 1998).

294 In re Grand Jury Proceedings, Misc. No. 98-228, 1998 U.S. Dist LEXIS 17290, at *32-*38. 295 It has long been the rule in the D.C. Circuit that the law against disclosing "matters occurring before the grand jury," prohibits disclosing "not only what has occurred and what is occurring, but also what is likely to occur." In re Motions of Dow Jones & Company, 1998 U.S. App. LEXIS 8676 (D.C. Cir. May 5, 1998) (emphasis added) (quoting, SEC v. Dresser Indus., 628 F.2d 1368, 1382 (D.C. Cir. 1980).

296 DOJ Manual § 9-13.240 ("an attorney for the government should not overtly communicate, or cause another to communicate overtly, with a represented person who the attorney for the government knows is a target of a federal criminal or civil enforcement investigation and who the attorney for the government knows is represented by an attorney concerning the subject matter of the representation without the consent of the lawyer representing such a person."). 297 These tactics also may violate Department of Justice policy which prohibits federal prosecutors from contacting a represented person to discuss an immunity deal without the consent of the attorney representing that person. 28 CFR 77.8. This regulation is intended to ensure that a person's right to counsel is respected. Under this policy, the Independent Counsel never should have contacted Ms. Lewinsky on January 16th and attempted to negotiate an immunity deal with her, without the prior consent of her attorney Frank Carter. In addition, the Independent Counsel may have violated Department of Justice policy by forcing Ms. Lewinsky's mother, Marcia Lewis, to appear twice before the grand jury. It is against Department of Justice policy to subpoena close family member of targets before the grand jury. U.S. Attorney's Manual §923.211.