THE IMPEACHMENT TRIAL
Jan. 20: Mills on Obstruction of Justice Allegations
From the Congressional Record
Ms. Counsel MILLS. Mr. Chief Justice, managers from the House of Representatives, Members of the Senate, good afternoon. My name is Cheryl Mills, and I am deputy counsel to the President. I am honored to be here today on behalf of the President to address you.
Today, incidentally, marks my 6-year anniversary in the White House. I am very proud to have had the opportunity to serve our country and this President.
It is a particular honor for me to stand on the Senate floor today. I am an Army brat. My father served in the Army for 27 years. I grew up in the military world, where opportunity was a reality and not just a slogan. The very fact that the daughter of an Army officer from Richmond, VA, the very fact that I can represent the President of the United States on the floor of the Senate of the United States, is powerful proof that the American dream lives.
I am going to take some time to address two of the allegations of obstruction of justice against President Clinton in article II: First, the allegation related to the box of gifts that Ms. Lewinsky asked Ms. Currie to hold for her; second, the allegation related to the President's conversation with Ms. Currie after his deposition in the Jones case.
Tomorrow my colleague, Mr. Kendall, will address the remaining allegations of obstruction of justice.
Over the course of the House managers' presentation last week, I confess I was struck by how often they referred to the significance of the rule of law. House Manager Sensenbrenner, for example, quoted President Theodore Roosevelt stating, 'No man is above the law and no man is below it . . . .' As a lawyer, as an American, and as an African American, it is a principle in which I believe to the very core of my being. It is what many have struggled and died for, the right to be equal before the law without regard to race or gender or ethnicity, disability, privilege, or station in life. The rule of law applies to the weak and the strong, the rich and the poor, the powerful and the powerless.
If you love the rule of law, you must love it in all of its applications. You cannot only love it when it provides the verdict you seek. You must love it when the verdict goes against you as well. We cannot uphold the rule of law only when it is consistent with our beliefs. We must uphold it even when it protects behavior that we don't like or is unattractive or is not admirable or that might even be hurtful. And we cannot say we love the rule of law but dismiss arguments that appeal to the rule of law as legalisms or legal hairsplitting.
I say all of this because not only the facts but 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. That is the rule of law in this case.
So as my colleagues and I discuss obstruction of justice against the President, we ask only that the rule of law be applied equally, neutrally, fairly, not emotionally or personally or politically. If it is applied equally, the rule of law exonerates Bill Clinton.
That said, I want to begin where Manager Hutchinson left off this weekend during a television program. The evidence does not support conviction of the President on any of the allegations of obstruction of justice. On the record now before the Senate, and that which was before the House, Manager Hutchinson said, 'I don't think you could obtain a conviction or that I could fairly ask for a conviction.' We agree. We agree. There are good reasons for Manager Hutchinson's judgment. And the most important, the evidence in the record and the law on the books, does not support the conclusion that the President obstructed justice.
Now, I know that Manager McCollum begged you in his presentation to not pay attention to details when the President's case was put forward. He went so far as to implore you not to get hung up on some of the details when the President and his attorneys try to explain this stuff--'The big picture is what you need to keep in mind, not the compartmentalization.' Manager McCollum was telling you, in effect, not to pay attention to the evidence that exonerates the President--'Don't pay attention to the details that take this case out of the realm of activities that are prohibited by the law.'
But the rule of law depends upon the details because it depends upon the facts and it depends upon the fairness of the persons called to judge the facts. I want to walk through the big picture and I want to walk through the facts.
I first want to discuss the real story, and then I want to focus on all those inconvenient details, or what Manager Buyer called those stubborn facts that didn't fit the big picture that the House managers want you to see.
Manager Barr suggested the fit between the facts and the law against the President in this case is as precise as the finely tuned mechanism of a Swiss watch. But when you put the facts together, they don't quite make out a Swiss watch; in fact, they might not even make good sausage.
So what is the big picture? The big picture is this: The President had a relationship with a young woman. His conduct was inappropriate. But it was not obstruction of justice. During the course of their relationship, the President and the young woman pledged not to talk about it with others. That is not obstruction of justice. The President ended their relationship before anyone knew about it. He ended it not because he thought it would place him in legal jeopardy; he ended it because he knew it was wrong. That is not obstruction of justice.
The President hoped that no one would find out about his indiscretion, about his lapse in judgment. That is not obstruction of justice, either. One day, however, long after he had ended the relationship, he was asked about it in an unrelated lawsuit, a lawsuit whose intent, at least as proclaimed by those who were pursuing it, was to politically damage him. That was their publicly announced goal. So he knew, the President knew that his secret would soon be exposed. And he was right.
It was revealed for public consumption, written large all over the world against his best efforts to have ended the relationship and to have put right what he had done wrong. That is the real big picture. That is the truth. And that is not obstruction of justice.
So let's talk about the allegation of obstruction of justice, about the box of gifts that Ms. Currie received from Ms. Lewinsky. I want to begin by telling you another true story, 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 should she 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. He was not concerned about the gifts because he gives so many gifts to so many people. 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 the Jones 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. 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. In the course of that conversation, they discussed other things as well. Ms. Currie agreed to hold the box of gifts. After their discussion, Ms. Lewinsky packed up some but not all of the gifts that the President had given her over time. She kept out presents of particular sentimental value as well as virtually all of the gifts he had given her that very day on the 28th.
Ms. Currie went by Ms. Lewinsky's home after leaving work, picked up the box that 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 a friend. Ms. Currie had no idea the gifts were under subpoena.
So Ms. Lewinsky's request hardly struck her as criminal.
This story that I just told you is obviously very different from the story presented by the House managers. How can I tell such a story that is so at odds with that which has been presented by the House managers? The answer lies in the selective reading of the record by the House managers. But theirs is not the only version of the facts that needs to be told. So what details did they downplay or discard or disregard in their presentation to create allegations of obstruction of justice?
To be fair, the House managers acknowledged up front that their case is largely circumstantial. They are right. Let's walk through the House managers' presentation of the key events which they gave to you last week. Let's look at exhibit 1 which is in the packet that has been handed out to you.
First key fact: On December 19, Monica Lewinsky was served with a subpoena in the Paula Jones case. The subpoena required that she testify at that deposition in January 1998 and also to produce each and every gift given to her by President Clinton.
Second event: On December 28, Ms. Lewinsky and the President met in the Oval Office to exchange Christmas gifts, at which time they discussed the fact that the lawyers in the Jones case had subpoenaed all of the President's gifts.
Third key fact: During the conversation on the 28th, Ms. Lewinsky asked the question whether she should put away outside her home or give to someone--maybe Betty--the gifts. At that time, according to Ms. Lewinsky, the President responded, 'Let me think about it.'
Fourth fact they presented to you. That answer led to action. Later that day, Ms. Lewinsky got a call at 3:32 p.m. from Ms. Currie who said, 'I understand you have something to give me or that the President has said you have something for me.' It was the President who initiated the retrieval of the gifts and the concealment of the evidence.
Fifth event they presented: Without asking any questions, Ms. Currie picked up the box of gifts from Ms. Lewinsky, drove to her home, and placed the box under her bed.
That is what the House managers told you last week. Now, let's go through their story piece by piece. On December 19, Monica Lewinsky was served with a subpoena in the Jones case. The subpoena required her to testify at a deposition in January 1998, and also to produce each and every gift given to her by the President. This statement is factually accurate. It does not, however, convey the entire state of affairs. Ms. Lewinsky told the FBI that when she got the subpoena she wanted the gifts out of her apartment. Why? Because she suspected that lawyers for Jones would break into her apartment looking for gifts. She was also concerned that the Jones people might tap her phone. Therefore, she wanted to put the gifts out of reach of the Jones lawyers, out of harms way. The managers entirely disregarded Ms. Lewinsky's own independent motivations for wanting to move the gifts.
Let's continue. On December 28, 1997, Ms. Lewinsky and the President met in the Oval Office to exchange Christmas gifts, at which time they discussed the fact that the lawyers in the Jones case had subpoenaed all of the gifts from the President to Ms. Lewinsky. During conversation on December 28, Ms. Lewinsky asked the President whether she should put away the gifts out of her house some place, or give them to someone, maybe Betty. At that time, according to Ms. Lewinsky, the President said, 'Let me think about it.'
The House managers have consistently described the December 28 meeting exactly this way, as did the majority counsel for the House Judiciary, as did the Office of Independent Counsel. It has been said so often that it has become conventional wisdom. But it is not the whole truth. It is not the full record. Ms. Lewinsky actually gave 10 renditions of her conversation with the President. All of them have been outlined in our chart. Invariably, the one most cited is the one least favorable to the President. But even in that version, the one that is least favorable to the President, no one claims he ordered, suggested, or even hinted that anyone obstruct justice. At most, the President says, 'Let me think about it.' That is not obstruction of justice.
But what about the nine other versions? Some of the other versions which I have never heard offered by the House managers, versions that maybe you, too, have never heard, are the ones that put the lie to the obstruction of justice elevation.
Let's look at exhibit 2 which is in your material. You may have never heard, for example, this version of their conversation. This is Ms. Lewinsky speaking.
It was December 28th and I was there to get my Christmas gifts from him . . . and we spent maybe about 5 minutes or so, not very long, talking about the case. And I said to him, 'Well, do you think' . . . and I don't think I said get rid of, but I said, 'Do you think I should put away or maybe give to Betty or give someone the gifts?' And he--I don't remember his response. It was something like, 'I don't know,' or 'hmm' or there was really no response.
You also may not have heard this version. This is a juror speaking, a grand juror speaking to Ms. Lewinsky.
The Juror: Now, did you bring up Betty's name or did the President bring up Betty's name?
And this is at the meeting on the 28th.
Ms. Lewinsky: I think I brought it up. The President wouldn't have brought up Betty's name because he really didn't--he really didn't discuss it . . . .
And you probably have not heard this version.
Lewinsky advised that Clinton was sitting in a rocking chair in the study. Lewinsky asked Clinton what she should do with the gifts Clinton had given her and he either did not respond or responded 'I don't know'. Lewinsky is not sure exactly what was said, but she is certain that whatever Clinton said, she had no clear image in her mind of what to do next.
Why haven't we heard these versions? Because they weaken an already fragile circumstantial case. If Ms. Lewinsky says that the President doesn't respond at all, then there is absolutely no evidence for the House managers' obstruction of justice theory, even under their version of events. So these versions get disregarded to ensure that the House managers' big picture doesn't get cluttered by all those details. It is those facts, those stubborn facts, that just don't fit.
But the most significant detail the managers disregard because it doesn't fit is the President's testimony. The President testified that he told Ms. Lewinsky that she had to give the Jones lawyers whatever gifts she had. Why? As the House managers predicted we would ask, because it is a question that begs to be asked, why would the President give Ms. Lewinsky gifts if he wanted her to give them right back? The only real explanation is he truly was, as he testified, unconcerned about the gifts. The House managers want you to believe that this gift giving was a show of confidence; that he knew Ms. Lewinsky would conceal them. But then why, under their theory, ask Ms. Currie to go pick them up? Why not know that Ms. Lewinsky is just going to conceal them? Better still, why not just show her the gifts and tell her to come by after the subpoena date has passed?
It simply doesn't make sense. The President's actions entirely undermine the House managers' theory of obstruction of justice.
But let's continue with their version of events. That answer, the 'Let-me-think-about-it' answer, that answer led to action. Later that day, Ms. Lewinsky got a call at 3:32 p.m. from Ms. Currie who said, 'I understand you have something to give me or the President said you have something to give me.' It was the President who initiated the retrieval of the gifts and the concealment of the evidence.
Here is where the House managers have dramatically shortchanged the truth because the whole truth demands that Ms. Currie's testimony be presented fairly.
In telling their story, the managers do concede that there is a conflict in the testimony between Ms. Lewinsky and Ms. Currie, but they strive mightily to get you to disregard Ms. Currie's testimony by telling you that her memory on the issue of how she came to pick up the gifts was 'fuzzy'--fuzzy. In particular, Manager Hutchinson told you:
I will concede there is a conflict in the testimony on this point with Ms. Currie. Ms. Currie, in her grand jury testimony, had a fuzzy memory, a little different recollection. She testified that, the best she can remember, Ms. Lewinsky called her, but when she was asked further, she said that maybe Ms. Lewinsky's memory is better than hers on that issue. That is what the House managers want to you believe about Ms. Currie. That is not playing fair by Ms. Currie. It is not playing fair by the facts. Why? Because Ms. Currie was asked about who initiated the gift pick-up five times. Her answer each time was unequivocal--5 times. From the first FBI interview just days after the story broke in the media, to her last grand jury appearance, Ms. Currie repeatedly and unwaveringly testified that it was Ms. Lewinsky who contacted her about the gifts.
Her memory on this issue is clear. What does she say? Let's look at exhibit 3, the first time she is asked:
Lewinsky called Currie and advised she had returned all gifts Clinton had given to Lewinsky, as there was talk going around about the gifts.
The second time:
Monica said she was getting concerned and she wanted to give me the stuff the President had given her, or give me a box of stuff. It was a box stuff.
Third time, and this was a prosecutor asking Ms. Currie the question:
Just tell us for a moment how this issue first arose, and what you did about it, and what Ms. Lewinsky told you.
Ms. Currie: The best I remember, it first arose with conversation. I don't know if it was over the phone or in person; I don't know. She asked me if I would pick up a box. She said Isikoff had been inquiring about the gifts.
The fourth time:
The best I remember, she said she wanted me to hold these gifts--hold this--I'm sure she said gifts, a box of gifts--I don't remember--because people were asking questions, and I said fine.
The fifth time:
The best I remember is, Monica called me and asked me if she can give me some gifts, if I would pick up some gifts for her.
The last time, the fifth time, when a grand juror completely misstated Ms. Currie's testimony regarding how the gift exchange was initiated by suggesting that the President had directed her to pick up the gifts, Ms. Currie was quick to correct the juror:
Question. Ms. Currie, I want to come back for a second to the box of gifts and how they came to be in your possession. As I recall your earlier testimony the other day, you testified that the President asked you to telephone Ms. Lewinsky, is that correct?
Answer. Pardon? The President asked me to telephone Ms. Lewinsky?
Juror. Is that correct?
Ms. Currie. About?
Juror. About the box of gifts. I am trying to recall and understand exactly how the box of gifts came to be in your possession.
Ms. Currie. I don't recall the President asking me to call about a box of gifts.
Juror. How did you come to be in possession of the box of gifts?
Ms. Currie. The best I remember, Ms. Lewinsky called me and asked me if she can give me the gifts--if I would pick up some gifts for her.
The record reflects that Ms. Currie's testimony on this issue was clear--five times--every time she was asked.
What, then, are the managers talking about when they say that Ms. Currie concedes that Ms. Lewinsky might have a better memory than herself on this issue? They are talking about something a little different; that was whether she, Ms. Currie, had told the President that she had picked up the box of gifts from Ms. Lewinsky. Let's put it in context. After being asked the same question for the fourth time and reiterating for the fourth time that Ms. Lewinsky contacted her about the gifts, the prosecutor asked Ms. Currie:
Well, what if Ms. Lewinsky said that Ms. Currie spoke to the President about receiving the gifts from Ms. Lewinsky?
Ms. Currie responds:
Then she may remember better than I. I don't remember.
Not once did Ms. Currie equivocate on the central fact Ms.
Lewinsky asked her to retrieve the gifts. The President testified, consistent with Ms. Currie's testimony, that he never asked Ms. Currie to retrieve the gifts from Ms. Lewinsky. So why is Ms. Currie's testimony distorted and discounted by the House managers?
They are asking you to make one of the most awesome decisions the Constitution contemplates. They owe you, they owe the President, they owe the Constitution, and they owe Betty Currie an accurate presentation of the facts.
But what about that supposedly corroborating cell phone call from Betty Currie to Monica Lewinsky on December 28? The managers highlighted this call, which they claim is the call in which Ms. Currie told Ms. Lewinsky that she understood she had something for her, the gifts. This, they say, is the linchpin that closes the deal on their version of the facts.
What the managers downplay, as Mr. Ruff discussed yesterday, is the fact that this call to arrange the pickup of the gifts comes after the time Ms. Lewinsky repeatedly testified that the gifts were picked up by Ms. Currie. In citing the cell phone record as corroboration, they also disregard Ms. Currie's testimony that she picked up the gifts leaving from work on her way home; that would have been from Washington to Arlington. That is inconsistent with the call from Arlington.
Most significantly, the managers purposely avoided telling you about the length of the call. As Mr. Ruff pointed out yesterday, the call is for 1 minute, or less. According to Ms. Lewinsky's own testimony, when she spoke to Ms. Currie to arrange the gift pickup, they talked about other matters, as well as the box. They had a conversation. That is a lot of talk: I have a box. When can you come pick it up? Where do you want me to meet you? And other chitchat. That is a lot of talk for a call that lasts 1 minute, or less. It is all but inconceivable that all this took place in the call. Since Ms. Currie placed a call to Ms. Lewinsky, though, the House managers want you to believe that.
What next? The House managers told you, without asking any questions, Ms. Currie picked up the box of gifts from Ms. Lewinsky, drove to her home, which, incidentally, is inconsistent with their theory because she is going in the wrong direction. She is supposed to be going to the hospital--if she picked up the gifts, on their theory--and she placed the box under her bed. Then they posit this question: Why would Ms. Currie pick up the gifts from Ms. Lewinsky? Why on earth would she do such a thing? Their answer: She must have been ordered to pick up the gifts by the President. They conclude, without any testimonial report, that there would be no reason for Betty Currie, out of the blue, to retrieve the gifts, unless instructed to do so by the President. Why else would she do it?
Well, the record before you offers the answer. As Ms. Currie told the FBI during her first interview in January of 1998, Ms. Lewinsky was a friend. She had been helpful and supportive when she was dealing with some very painful personal tragedies. Ms. Currie enjoyed what she saw as a motherly relationship with Ms. Lewinsky. They would often talk about each other's families, about their own activities, and other chitchat. Why does she agree to hold the box of gifts for Ms. Lewinsky? Because she is a friend. And that is not obstruction of justice.
Now, think about the story as I told it to you, and about the different story the managers presented. Ms. Lewinsky was concerned about the gifts after receiving a subpoena from the Jones lawyers. She was worried they might search her apartment and she wanted to get the gifts out of her home. She met with the President, and what does he do? He gives her more gifts--more gifts.
When she asked what to do about the gifts, at most she says, 'Let me think about it.' Those are the words that Lewinsky has acknowledged on several occasions, that he may have said nothing.
Ms. Lewinsky is still concerned about the gifts. She decides to put them away, keeping the gifts that have sentimental value, and giving to her lawyer the gifts she thinks the Jones lawyers are looking for, and giving to Ms. Currie those items that she really would like back but that she can live without. She tells Ms. Currie that she has some gifts from the President that she wants her to hold because there is talk going around about the gifts. Ms. Currie picks them up after work on her way home.
This story is consistent with the President's lack of concern about the gifts. The managers have tried to deflect the inexplicable contradiction created by their own theory. They want you to believe the President would really give Ms. Lewinsky gifts only to take them back on the very same day. Of course he wouldn't. No one would.
The only explanation they can conjure is torture: The President gave her gifts which he intended to take back that same afternoon to show his confidence that she would conceal the relationship. 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 Ms. Currie.
Ms. Currie has said that the President did not ask her to pick up the gifts. Ms. Currie has said that Ms. Lewinsky asked her to pick up the gifts. The managers have downplayed Ms. Currie's credibility in this incident. They have urged you to think of her as acting as 'a loyal secretary to the President.'
Of course she is loyal. But it is, may I say, an insult to Betty Currie and to millions of other loyal Americans to suggest that loyalty breeds despondency. If Ms. Currie was despondent, why would she have told the counsel about the conversation between the President and her that the managers have recounted as being so damaging? Why would she have said anything at all about that conversation? Why? Because she is honest. And loyalty and honesty are not mutually exclusive. Betty Currie is a loyal person, and Betty Currie is an honest person.
These are the facts. That is not obstruction of justice.
I believe I can best sum up by using the words of Manager Buyer who quoted President John Adams. 'Facts are stubborn things. Whatever may be our issues, or inclinations, or the dictates of our passions, they cannot alter the state of the facts and the evidence.'
Those stubborn facts. Manager Buyer went on to say, 'I believe John Adams was right.' Facts and evidence. Facts are stubborn things. You can color the facts, like calling Ms. Currie's memory fuzzy. You can shade the facts by not telling you the length of that supposed corroborating phone call. You can misrepresent the facts by giving only 1 of 10 versions of Ms. Lewinsky's testimony about the President's response to her question about the gifts. You can hide the facts, like not telling you of Ms. Lewinsky's personal motivation for wanting the gifts. But the truthful facts are stubborn; they won't go away. Like the telltale heart, they keep pounding. And they keep coming. They won't go away. Those stubborn, stubborn facts. They show that this was not obstruction of justice.
I now will talk about the President's conversation with Ms. Currie on January 18. It is not difficult to understand these events if you have lived a life in which you are the subject of extraordinary media attention and extraordinary media scrutiny. Most American lives are not like that. Our jobs and our personal lives are not usually the subject for daily media consumption. As Senators, you obviously know well what that life is like.
On January 18, the President talked to Ms. Currie about the Jones deposition and in particular about his surprise at some of the questions the Jones lawyers had asked about Ms. Lewinsky. 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 comments, corruptly tried to influence Ms. Currie's potential testimony in the Jones case in violation of the obstruction of justice law. They acknowledge that the President knew nothing about the independent counsel's investigation. So they have focused on the Jones case as the place to lodge their obstruction of justice allegation. Ms. Currie was not scheduled to be a witness in that case. And, as you will see, the President had other things on his mind.
Before I go into the facts surrounding these conversations, I want to first focus briefly on the law, as the managers did in their presentation. There are two relevant obstruction of justice statutes: 18 U.S.C., 1503, which is the general obstruction of justice statute; and 18 U.S.C. 1512, the more specific statute which prohibits witness tampering.
There are differences between these two statutes, but for our purpose their essential elements are similar. Both require the Government to prove that the person being accused, one, acted knowingly; two, with specific intent; three, to corruptly affect and influence, in 1503, and corruptly persuade, in 1512, either the due administration of justice, under 1503, or the testimony of a person in an official proceeding, under 1512, to try to persuade the testimony of a person in an official proceeding. For conviction, each and every element must be proven beyond a reasonable doubt. If the prosecution fails to prove even one element, the jury is obliged to acquit. In this case, none of the elements is present.
First, a little more about the law. You have to do more than make false statements to someone who might or might not testify in a judicial proceeding to obstruct justice. In United States v. Aguilar, an opinion by Chief Justice Rehnquist and quoted by the House managers, the Supreme Court addressed the Government's requirement and showed that the defendant knew his actions were likely to affect a judicial proceeding. There, the U.S. district court judge was accused and convicted of lying to an FBI agent about a conversation with another judge and about what he said about his knowledge of some wiretapping. The Supreme Court reversed the conviction under 1502, the general obstruction of justice statute, holding that the facts were insufficient to make the case. They said in this material:
We do not believe that uttering false statements to an investigative agent--and that seems to be all that was proved here--who might or might not testify before a grand jury is sufficient to make out a violation of the catch-all provision of 1503. . . . But what use will be made of false testimony given to an investigative agent who has not been subpoenaed or otherwise directed to appear before the grand jury is far more speculative. We think it cannot be said to have the 'natural and probable effect' of interfering with the due administration of justice.
In responding to the defendant's criticism of the Court's holding, Mr. Chief Justice Rehnquist wrote, under the defense theory:
A man could be found guilty of violating 1503 if he knew of a pending investigation and lied to his wife about his whereabouts at the time of the crime, thinking that an FBI agent might interview her and that she might in turn be influencing her statements to that agent about her husband's false accounts of where he was.
The intent to obstruct justice is indeed present, but the man's culpability is a good deal less clear from the statute than we would usually require in order to impose criminal liability.
So I want to begin by focusing on the 'corruptly persuade' elements of witness tampering. What does it mean to corruptly persuade? The term is vague, and the legislative history on the specific point is not very clear. We do know it means more than harassing, which is described as badgering or pestering conduct, since 1512 makes intentional harassment a misdemeanor a lesser offense of 'corruptly persuade,' which is a felony. The U.S. Attorneys' Manual gives some guidance. A prosecution under 1512 would require the Government to prove beyond a reasonable doubt, one, an effort to threaten, force or intimidate another person and; two, an intent to influence the person's testimony. Thus, 'corruptly persuade' for career prosecutors requires some element of threat or intimidation or pressure.
Keeping that overview in mind, let's look at the facts. On January 17, 1998, the President called Ms. Currie after his deposition and asked her to meet with him the following day. On January 18, the President and Ms. Currie met, and the President told her about some of those surprising questions he had been asked in his deposition about Ms. Lewinsky. In the course of their conversation, according to Ms. Currie, the President posed a series of questions and made statements including: You were always there when she was there, right? We were never really alone. You could see and hear everything. Monica came on to me, and I never touched her, right? And she wanted to have sex with me, and I can't do that.
Our analysis of this issue could stop here. 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. Attorneys' Manual indicates that without a threat or intimidation, there is no corrupt influence. Without corrupt influence, there is no obstruction of justice. But the evidence reveals much more. Not only does the record lack any evidence of threat or intimidation, the record specifically contains Ms. Currie's undisputed testimony which exonerates the President of this charge. This is Ms. Currie's testimony and is the fourth exhibit in the materials.
Question to Ms. Currie:
Now, back again to the four statements that you testified the President made to you that were presented as statements, did you feel you were pressured when he told you those statements?
Question: What did you think, or what was going through your mind about what he was doing?
At the time I felt that he was--I want to use the word shocked or surprised that this was an issue, and he was just talking.
Question: That was your impression, that he wanted you to say--because he would end each of the statements with 'Right?,' with a question.
I do not remember that he wanted me to say 'Right.' He would say, 'Right?' and I could have said, 'Wrong.'
Question: But he would end each of these questions with a 'Right?' and you could either say whether it was true or not true.
Did you feel any pressure to agree with your boss?
The evidence on this issue is clear. There was no effort to intimidate or pressure Ms. Currie, and she testified that she did not feel pressured. Betty Currie's testimony unequivocally establishes that the managers' case lacks any element of threat or intimidation. There is no evidence, direct or circumstantial, that refutes this testimony. This is not obstruction of justice.
But let's not stop there. Let's look at the intent element of the obstruction of justice laws--in other words, whether the President had the intent to influence Ms. Currie's supposed testimony, or potential testimony.
In an attempt to satisfy this element of the law, the managers overreached in their presentation to create the appearance that the President had the necessary specific intent. They argue that, based upon the way he answered the questions in the Jones deposition, he purposely referred to Ms. Currie in the hopes that the Jones lawyers would call her as a corroborating witness. Therefore, according to their theory, he had the specific intent.
The facts belie their overreaching. The House managers suggested to you that the President increased the likelihood that Ms. Currie would be called as a witness by challenging the plaintiff's attorney to question Ms. Currie. A review of the transcript, however, shows that the President's few references to Ms. Currie were neither forced nor needlessly interposed. They were natural, appropriate; they were responsive. Indeed, the only occasion when he suggested the Jones lawyers speak to Ms. Currie is when they asked if it was typical for Ms. Currie to be in the White House after midnight. He understandably said, 'You have to ask her.' Hardly a challenge. It is a reasonable response to an inquiry about someone else's activities.
The managers' conjecture about the President's state of mind, however, fails on an even more basic level. If you believe the managers' theory, if you believe that the President went to great lengths to hide his relationship with Ms. Lewinsky, then why on Earth would he want Ms. Currie to be a witness in the Jones case? If there was one person who knew the extent of his contact with Ms. Lewinsky, it was Ms. Currie. While she did not know the nature of his relationship with Ms. Lewinsky, Ms. Currie did know and would have testified to Ms. Lewinsky's visits in 1997, the notes and messages that Ms. Lewinsky sent the President, the gifts that Ms. Lewinsky sent the President, and the President's support of the efforts to get Ms. Lewinsky a job. With just that information, it would have only been a matter of time before the Jones lawyers discovered the relationship--not that they needed Ms. Currie's testimony; they didn't need it for any of this. Ms. Tripp was already on the December 5, 1997, witness list, and she was already scheduled for a deposition.
So why would the President want her to testify? The answer is simple. He didn't. The President was not thinking about Ms. Currie becoming a witness in the Jones case. Indeed, she is the last person the President would have wanted the Jones lawyers to question. And even if the Jones lawyers had wanted to question Ms. Currie, it is highly unlikely they would have been allowed to do so, given the posture of the case at that time.
Judge Wright ordered the parties in August of 1997 to exchange names and addresses of all witnesses no later than December 5, 1997. Ms. Currie was not on their final witness list. Moreover, the cutoff date for all discovery was January 30. By the time the President's deposition was over, it was really too late to call Ms. Currie as a witness.
Finally, you need to remember that in the context of the Jones case Ms. Currie was, at best, a peripheral witness on a collateral matter that the court ultimately determined was not essential to the core issues in the case. She had only knowledge of a small aspect of a much larger case--all the more reason not to view her as a potential witness.
The President was not thinking about Ms. Currie becoming a witness in the Jones case. So what was the President thinking? The President explained to the grand jury why he spoke to Ms. Currie after the deposition. It had nothing to do with Ms. Currie being a potential witness. That was not his concern. The President was concerned that his secret was going to be exposed and the media would relentlessly inquire until the entire story and every shameful detail was public. The President's concern was heightened by an Internet report that morning that he spoke to Betty which alluded to Ms. Lewinsky and to Ms. Currie and to issues that the Jones lawyers had raised. The President was understandably concerned about media inquiries, a concern everyone who lives and serves in the public eye likely can understand.
In trying to prepare for what he saw as the inevitable media attention, he talked to Ms. Currie to see what her perceptions were and what she recalled. He talked to her to see what she knew.
Remember, some of the questions that the Jones lawyer asked the President were so off base. For example, they asked him about visits from Ms. Lewinsky between midnight and 6 a.m. where Ms. Currie supposedly cleared her in. The President wanted to know whether or not Ms. Currie agreed with this perception or whether she had a different view, whether she agreed that Ms. Lewinsky was cleared in when he was present or had there been other occasions that he didn't know about. He also wanted to assess Ms. Currie's perception of the relationship. He knew the first person who would be questioned about media accounts, particularly given that she was in the Internet report, was going to be Ms. Currie.
The House managers did the President a disservice in suggesting in the end that his five pages of testimony about why he spoke to Ms. Currie ultimately amounts to a four-word sound bite to refresh his recollection. He obviously said a lot more.
Why did they say that? Because they needed to establish intent, and the testimony and the facts do not show intent. That is the truth. That is all of the facts.
The President's intent was never to obstruct justice in the Jones case. It was to manage a looming media firestorm, which he correctly foresaw. As the President told the grand jury, 'I was trying to get the facts and trying to think of the best defense we could construct in the face of what I thought was going to be a media onslaught.'
He was thinking about the media. That is the big picture. That is not obstruction of justice.
In the end, of course, you must make your own judgments about whether the managers have made a case for convicting the President of obstructing justice on either of these allegations. We believe they have not, because the facts, those stubborn facts, don't support the allegations. Neither does the rule of law. We are not alone in that conclusion.
We want to share with you some of the remarks from a bipartisan panel of prosecutors who spoke to the House Judiciary panel, some of which you saw earlier with Mr. Craig. I have taken a very brief clip of their testimony that dealt with allegations of obstruction of justice against the President for, as you will see, then Representative and now Senator Schumer focused in on one of the two allegations that I address today.
(Text of videotape presentation:)
Mr. Sullivan. Mrs. Currie testified that she did not feel that the president came and asked her some questions in a leading fashion--'Was this right? Is this right? Is this right?'--after his deposition was taken in the Jones case. And she testified that she did not feel pressured to agree with him and that she believed his statements were correct----
Rep. Schumer. Correct, right.
Mr. Sullivan [continuing]. And agreed with him. He--the quote is, 'He would say, 'Right,' and I could have said, 'Wrong,' Now that is not a case for obstruction of justice. It is very common for lawyers, before the witness gets on the stand, to say, 'Now you're going to say this, you're going to say this, you're going to say this.'
Rep. Schumer. Right.
Mr. Sullivan. Now it doesn't make a difference if you've got two participants to an event and you try to nail it down, so to say.
Rep. Schumer. Do all of you agree with that, with the Currie--the Currie----
Mr. Weld. Yeah.
Rep. Schumer. And on the other two, the Lewinsky parts of this, is there----
Mr. Davis. I think to some----
Rep. Schumer. I mean, I don't even understand how they could--how Starr could think that he would have a case, not with the president of the United States, but with anybody here, when it seems so natural and so obvious that there would be an overriding desire not to have this public and to have everybody--have the two of them coordinate their stories--that is, the president and Miss Lewinsky--if there were not the faintest scintilla of any legal proceeding coming about. It just strikes me as an overwhelming stretch. Am I wrong to characterize it that way? You gentlemen all have greater experience than I do.
Mr. Davis. I think you're right. And also, the problem a prosecutor would face would be that in these cases, there is relationship between these people unrelated to the existence of the Paula Jones case--the relationship. And that's the motivation----
Rep. Schumer. Correct.
And Mr. Weld, do you disagree with--do you agree with that?
Rep. Sensenbrenner. The gentleman's time--the gentleman's time----
Rep. Schumer. Could I just ask Mr. Weld for a yes or no----
Rep. Sensenbrenner. I'm sorry, Mr. Schumer. Mr. Schumer----
Rep. Schumer [continuing]. For a yes or no answer to that?
Can you answer that yes or no, Governor?
Mr. Weld. I think it's a little thin, Mr. Congressman.
Rep. Schumer. Thank you.
Mr. Noble. Again, it's a specific-intent crime, and the question is, what was the President thinking when he said this? We can look at his words and try and analyze his words. But Ms. Currie says that she didn't believe he was trying to influence her and that if she'd said something different from him, if she believed something different from him, she would have felt free to say it. So for that reason, I believe, you just don't have the specific intent necessary to prove obstruction of justice with regard to the comment that you just asked me.
Manager Hutchinson is keeping very good company. He, like the other prosecutors, does not believe the record before you establishes obstruction of justice. We agree.
Before I close, I do want to take a moment to address a theme that the House managers sounded throughout their presentation last week--civil rights. They suggested that by not removing the President from office, the entire house of civil rights might well fall. While acknowledging that the President is a good advocate for civil rights, they suggested that they had grave concerns because of the President's conduct in the Paula Jones case.
Some managers suggested that we all should be concerned should the Senate fail to convict the President, because it would send a message that our civil rights laws and our sexual harassment laws are unimportant.
I can't let their comments go unchallenged. 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. 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 am not worried about the future of civil rights. I am not worried because Ms. Jones had her day in court and Judge 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.
I am not worried, because we have had imperfect leaders in the past and will have imperfect leaders in the future, but their imperfections did not roll back, nor did they stop, the march for civil rights and equal opportunity for all of our citizens.
Thomas Jefferson, Frederick Douglass, Abraham Lincoln, John F. Kennedy, Martin Luther King, Jr: we revere these men. We should. But they were not perfect men. They made human errors,
but they struggled to do humanity good. I am not worried about civil rights because this President's record on civil rights, on women's rights, on all of our rights is unimpeachable.
Ladies and gentlemen of the Senate, you have an enormous decision to make. And in truth, there is little more I can do to lighten that burden. But I can do this: I can assure you that your decision to follow the facts and the law and the Constitution and acquit this President will not shake the foundation of the house of civil rights. The house of civil rights is strong because its foundation is strong.
And with all due respect, the foundation of the house of civil rights was never at the core of the Jones case. It was never at the heart of the Jones case. The foundation of the house of civil rights is in the voices of all the great civil rights leaders and the soul of every person who heard them. It is in the hands of every person who folded a leaflet for change. And it is in the courage of every person who changed. It is here in the Senate where men and women of courage and conviction stood for progress, where Senators--some of them still in this chamber; some of them who lost their careers--looked to the Constitution, listened to their conscience, and then did the right thing.
The foundation of the house of civil rights is in all of us who gathered up our will to raise it up and keep on building. I stand here before you today because others before me decided to take a stand, or as one of my law professors so eloquently says, 'because someone claimed my opportunities for me, by fighting for my right to have the education I have, by fighting for my right to seek the employment I choose, by fighting for my right to be a lawyer,' by sitting in and carrying signs and walking on long marches, riding freedom rides and putting their bodies on the line for civil rights.
I stand here before you today because America decided that the way things were was not how they were going to be. We, the people, decided that we all deserved a better deal. I stand here before you today because President Bill Clinton believed I could stand here for him.
Your decision whether to remove President Clinton from office, based on the articles of impeachment, I know, will be based on the law and the facts and the Constitution. It would be wrong to convict him on this record. You should acquit him on this record. And you must not let imagined harms to the house of civil rights persuade you otherwise. The President did not obstruct justice. The President did not commit perjury. The President must not be removed from office.
The CHIEF JUSTICE. The Chair recognizes the majority leader.
LEADER LECTURE SERIES
Mr. LOTT. Once again, I invite all Senators to attend the leader lecture series this evening at 6 p.m. in the Old Senate Chamber. I have already announced former President George Bush will be the speaker.
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