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'The Law of Obstruction of Justice Protects the President'

Federal Document Clearing House
Thursday, January 21, 1999; Page A18

Gregory B. Craig and Cheryl D. Mills defended President Clinton at his Senate impeachment trial yesterday; Craig argued that Clinton is not guilty of the perjury allegations in Article I, and Mills that the president did not obstruct justice, as alleged in Article II. Following are excerpts from their presentations, starting with Craig's:

Craig: The president's defense is based on the grand jury transcript itself. I urge you to read that transcript, watch the videotape. You will see this president make painful, difficult admissions, beginning with his acknowledgment of an improper and wrongful relationship with Monica Lewinsky. You will see that the president was truthful. . . .

If the president didn't obstruct justice, he didn't commit perjury when he denied it. . . . The most striking thing about Article I is what it does not say. It alleges perjury generally, but it does not allege a single perjurious statement specifically. . . . The requirement that a defendant be given adequate notice of what he is charged with carries constitutional dimensions, and the failure to provide that notice violates due process of law. . . .

The [House] managers have sought to merge the Jones testimony with the grand jury testimony -- to confuse these two events, to blend and blur them together. The Senate must understand that these two events were different in every way.

In the president's testimony in the Jones case, the president was evasive, misleading, incomplete in his answers and, as I said to the House Judiciary Committee, maddening.

But in the federal grand jury, President Clinton was forthright and forthcoming. He told the truth, the whole truth and nothing but the truth for four long hours. . . . When he appeared before the grand jury, [he] did not deny a sexual relationship with Miss Lewinsky. He admitted to one. . . . He did not deny that he was alone with Ms. Lewinsky. He repeatedly acknowledged that he had been alone with her on many occasions.

The managers argued that the Jones testimony is relevant because, they say, the president perjured himself when he told the grand jury that his testimony in the Jones case was truthful. . . . What he said was, "My goal in this deposition was to be truthful, but not particularly helpful. I was determined to walk through the minefield of this deposition without violating the law, and I believe I did." . . .

Even if you believe that the president crossed the line in his Jones deposition, you cannot conclude that he should be removed for it. He was not impeached for it. This case is about the grand jury and the grand jury alone. . . .

Craig discussed the House majority report's citation of what it called "direct lies" by the president when he testified that he and Lewinsky had inappropriate contact on "certain occasions."

This was a direct lie, say the managers, because according to Ms. Lewinsky, between November 15th, 1995, and December 28th, 1997, they were alone at least 20 times and had, she says, 11 sexual encounters. To use the words "on certain occasions" in this context is, according to the managers, perjurious, false and misleading. . . .

That phrase, "on certain occasions," carries no phrase of frequency or numerosity. It sort of means it happened every now and then. . . .

[When a grand juror asked Lewinsky how often she and Clinton had telephone conversations with sexual overtones, Lewinsky replied:] "Not always, on a few occasions."

The managers are trying to remove the president from office . . . [because he said] "on occasion" -- when Ms. Lewinsky described that frequency of that event precisely the same way. There is simply no way that the president's use of the words "on certain occasions" or "on occasion" can be taken as an effort to mislead or deceive the members of the grand jury, or to conceal anything. . . .

Craig cited the House Judiciary Committee debate in which some members questioned the seriousness of a two-month discrepancy between Clinton's and Lewinsky's testimony about when their relationship began. Craig said the charge is so frivolous that the House would not have included it if it had considered it.

Then, noting what the managers call the "heart of the perjury," Craig examined the various definitions of "sexual relations" that have been cited in the case.

How can you accept the argument of the House managers that the president should be removed from office because his definition, which is the dictionary definition, does not comport with theirs? . . .

[In a videotape from Clinton's deposition in the Jones case,] you will hear the president's lawyer Mr. [Robert S.] Bennett -- and Mr. Ruff referred to this yesterday -- urging the Jones lawyers to abandon this definition, to leave it behind, and ask direct questions of the president as to what he did. The record would certainly have been clearer for all of us if [they] had followed Mr. Bennett's advice. . . .

The true nub of the managers' allegation that the president committed perjury is that he described some of the contact one way, and [Lewinsky] described it another. Not surprisingly, the managers choose to believe Ms. Lewinsky's description of these events. . . .

The entire basis for a grand jury perjury prosecution comes down to Monica Lewinsky's assertion that there was a reciprocal nature to their relationship and that the president touched her private parts with the intent to arouse or gratify her, and the president's denial that he did so.

Putting aside whether this is the type of difference of testimony which should justify an impeachment of a president, I do not believe that a case involving this kind of conflict between two witnesses would be brought by a prosecutor, since it would not be won at trial. . . .

Addressing the charge that Clinton lied to the grand jury when he said he was not paying attention during the Jones deposition when his lawyer, Bennett, said Lewinsky had "filed an affidavit saying that there is absolutely no sex. There is absolutely no sex of any kind, in any manner, shape or form with President Clinton," Craig argued that it was likely the president had not heard the misstatement and had no obligation to correct his counsel even if he had heard it.

If you . . . are convinced he has heard, does he have any obligation to say something? And if he doesn't, then this case, this allegation, amounts to nothing. . . .

Now there's a second allegation [involving] . . . the president's now-famous testimony about Mr. Bennett's statement about Ms. Lewinsky's affidavit: "It depends upon what the meaning of 'is' is." . . .

Now, the president [who at the time of the testimony has not had sex with Lewinsky for a year by his testimony, 10 months by hers] makes a political mistake here, and gives in to his instinct to play his own lawyer; to be his own advocate. . . . He is not committing perjury. He is committing the offense of nitpicking and arguing with the prosecutors. He's arguing a point.

And so he says that whether Mr. Bennett's statement is false depends upon what the meaning of "is" is. Mr. Bennett's statement is true if "is" means an ongoing relationship. But Mr. Bennett's statement is false if "is" means at any time ever in time. . . . Making this argument is not perjury. . . .

If you convict and remove President Clinton on the basis of these allegations, no president of the United States will ever be safe from impeachment again. . . . It is not up to the Senate to remove the president from office for private conduct that does not involve abuse of presidential power and does not seriously disrupt the president's capacity to function as chief justice of -- as chief executive of the United States. And it would be folly to think [that,] to vindicate the rule of law in the United States, the Senate is obliged to reverse a national election and remove a president from office before the completion of his term. . . .

Mills: The law of obstruction of justice protects the president. It does not condemn him. And the managers cannot deny the president the protection that is provided by the law and still insist that they are acting to uphold the law. His conduct, while clearly not attractive or admirable, is not criminal. . . .

I want to begin by telling you . . . the real story of the now-famous gifts. It takes place on December 28, 1997. On that day, the president gave Ms. Lewinsky holiday gifts. During her visit with the president, Ms. Lewinsky has said that she raised the subpoena that she had received from the Jones lawyers on the 19th and asked him what she should do about the gifts.

The president has said he told her, whenever it was that they discussed it, that she would have to give over whatever she had. . . . Unbeknownst [to] the president, however, Ms. Lewinsky had been worrying about what to do with [the] gifts ever since she got the subpoena. She was concerned that Jones's lawyers might even search her apartment, so she wanted to get the gifts out of her home.

After Ms. Lewinsky's visit with the president, Ms. [Betty] Currie walked her from the building. Then or later, either in person or on the phone, Ms. Lewinsky told Ms. Currie that she had a box of gifts that the president had given her that she wanted Ms. Currie to hold, because people were asking questions. . . .

Ms. Currie . . . went by Ms. Lewinsky's home after leaving work, picked up the box, which had a note on it that said "do not throw away," and she took it home.

Ms. Currie did not raise Ms. Lewinsky's request with the president because she saw herself as doing a favor for her friend. Ms. Currie had no idea the gifts were under subpoena. And so Ms. Lewinsky's request hardly struck her as criminal. . . .

The House managers, Mills said, had ignored contrary facts and testimony, and presented no facts of their own, to support their conclusion that Clinton and Lewinsky discussed concealing the gifts and that Currie picked them up from Lewinsky on Clinton's orders. Using Clinton's testimony, and testimony from Lewinsky and Currie that she said the managers had ignored or played down, she said "the facts clearly do not support their version of events."

To believe the managers' version of events you must not only disbelieve the president, you must also disbelieve Miss Currie. Miss Currie has said that the president did not ask her to pick up the gifts. Miss Currie has said that Ms. Lewinsky asked her to pick up the gifts. So the managers have downplayed Miss Currie's credibility in this instance. They have urged you to think of her as acting as, quote, "a loyal secretary to the president."

Of course she's loyal. But it is, may I say, an insult to Betty Currie and to millions of other loyal Americans to suggest that loyalty breeds dishonesty. . . . Betty Currie is a loyal person, and Betty Currie is an honest person. These are the facts. That is not obstruction of justice. . . .

Mills then moved to the Oval Office conversation between Clinton and Currie on Sunday, Jan. 18, the day after Clinton's deposition in the Jones case.

In the course of their conversation, the president asked Ms. Currie a series of questions and made some statements about his relationship with Ms. Lewinsky -- all of which seemed to seek her concurrence, or reaction, or her input.

The managers' theory is that the president, by his comment, corruptly tried to influence Ms. Currie's potential testimony in the Jones case in violation of the obstruction of justice laws. . . .

There is no case for obstruction of justice. Why? There is no evidence whatsoever of any kind of threat or intimidation. And as we discussed, the U.S. attorney's manual indicates that without a threat or intimidation, there is no corrupt influence. Without corrupt influence, there is no obstruction of justice. . . .

Nor, Mills said, could the managers prove any intent to obstruct justice. Clinton's statement during his Jones deposition that Jones's lawyers should "ask her" whatever questions they had were not designed to steer them toward a potential witness he intended to suborn, but merely reasonable responses. In fact, Mills said, it is more logical to assume that Currie -- who knew something of his relationship with Lewinsky -- was the last person he would want called as a witness. He had been so taken aback by the previous day's questions about Lewinsky that he talked to Currie "to see what she knew." He was thinking, Mills said, "about the media. That is the big picture. That is not obstruction of justice."

In closing, Mills, an African American, challenged the assertions by the managers that Clinton's conduct in the dismissed Jones sexual harassment case was a violation of Jones's civil rights, and that the Senate's failure to convict Clinton would undermine the very foundation of civil rights in this country.

I speak as but one woman, but I know I speak for others as well. I know I speak for the president.

Bill Clinton's grandfather owned a store. His store catered primarily to African Americans. Apparently his grandfather was one of only four white people in town who would do business with African Americans. And he taught his grandson that the African Americans who came into his store were good people, and they worked hard, and they deserved a better deal in life.

The president has taken his grandfather's teachings to heart, and he has worked every day to give all of us a better deal, an equal deal. I'm not worried about the future of civil rights. I'm not worried because Ms. Jones had her day in court and Judge [Susan Webber] Wright determined that all of the matters we are discussing here today were not material to her case, and ultimately decided that Ms. Jones, based on the facts and the law in that case, did not have a case against the president. . . .


© Copyright The Washington Post Company

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