Starr's Motion on Lewinsky Interview
The Associated Press
The United States of America, by Kenneth W. Starr, Independent Counsel, respectfully submits this motion for an order requiring Ms. Lewinsky to comply with the terms of her Immunity Agreement (the "Agreement") with the Office of the Independent Counsel ("OIC"). Ms. Lewinsky has refused an OIC request that she be debriefed by the House of Representatives, as required by the Agreement. The United States respectfully requests that this Court order Ms. Lewinsky to comply with the Agreement by allowing herself to be debriefed.
I. FACTUAL BACKGROUND
As this Court is no doubt aware, the United States Senate is currently conducting an impeachment trial of the president of the United States. According to public reports, it is expected that the House will be required to submit to the Senate its motion to witnesses as early as Monday, Jan. 25. Again according to public reports, some potential witnesses have spoken with the House managers as the managers attempt to determine which witnesses should be mentioned in their motion to the Senate.
On Jan. 21, 1999, House Judiciary Committee Chairman Henry J. Hyde, on behalf of the House of Representatives, as represented by its duly-appointed Managers, asked for the OIC's assistance in having Ms. Lewinsky debriefed by the House. The House stressed that it needs this debriefing to occur no later than Sunday, Jan. 24.
That same day, the OIC sent a letter to Ms. Lewinsky's counsel requesting that Ms. Lewinsky allow herself to be debriefed by the House managers. At approximately 1:20 p.m. this afternoon, Ms. Lewinsky informed the OIC that she does not intend to comply with this request.
II. THE IMMUNITY AGREEMENT PLAINLY REQUIRES MS. LEWINSKY TO BE DEBRIEFED BY ANY INSTITUTION THAT THE OIC SPECIFIES.
Ms. Lewinsky will be fully debriefed concerning her knowledge of and participation in any activities within the OIC's jurisdiction. This debriefing will be conducted by the OIC, including attorneys, law enforcement agents, and representatives of any other institutions as the OIC may require. Ms. Lewinsky will make herself available for any interviews upon reasonable request.
By the plain terms of the Agreement, Ms. Lewinsky has agreed to be debriefed by representatives of any institution, when so required by the OIC. She is also required to "make herself available for any interviews upon reasonable request." The duly appointed House Managers represent the House of Representatives, which plainly is an institution. The OIC has unambiguously requested that Ms. Lewinsky submit to such debriefing.
Accordingly, Ms. Lewinsky must allow herself to be debriefed by the House Managers or she will have violated the Agreement.
To be sure, Ms. Lewinsky has the right to have her "debriefing . . . conducted by the OIC." The OIC, of course, is fully willing to conduct these debriefings, if Ms. Lewinsky so desires. The suggestion in her counsel's letter that this provision is void if the OIC is "acting as an agent for others," is contrary to the Agreement, as there is no such limitation on Ms. Lewinsky's duties. A party to an agreement may not invent clauses to a contract that are not contained therein.
In any event, the OIC is not acting as an agent for the House Managers. The OIC has its own, continuing duty to provide the House with information relating to impeachment.
Ms. Lewinsky's counsel's other suggestion -- that a debriefing would be contrary to Senate rules -- is equally without merit. Senate Resolution 16 states, in relevant part:
"If the Senate agrees to allow either the House or the President to call witnesses, the witnesses shall first be deposed and the Senate shall decide after deposition which witnesses shall testify, pursuant to the impeachment rules."
Although it is plain that depositions may not be conducted absent a vote of the Senate, nothing in this resolution restricts the ability of the House to debrief witnesses in a non-deposition setting. Indeed, it would be strange for the Senate to prohibit the House and the President from doing the investigation necessary to determine whether they wish to call witnesses and which witnesses to list in their motions.
III. THIS COURT SHOULD GRANT AN ORDER REQUIRING MS. LEWINSKY TO COMPLY WITH THE IMMUNITY AGREEMENT OR FORFEIT ITS PROTECTION.
Under the Agreement, this Court has the authority to determine whether Ms. Lewinsky has "violated any provision of this Agreement." A declaratory judgment will ordinarily be granted only when it will either serve a useful purpose in clarifying the legal relations in issue or terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding." In this case, a declaratory judgment will resolve the uncertainty arising from this controversy between the OIC and Ms. Lewinsky by settling whether she has the right to refuse to be debriefed without forfeiting the protections of the Agreement.
Indeed, declaratory judgment is a common remedy when a party to a contract intends conduct that may be a breach.: "(A) party to a contract is not compelled to wait until he has committed an act which the other party asserts will constitute a breach, but may seek relief by declaratory judgment and have the controversy adjudicated in order that he may avoid the risk of damages or other untoward consequence." Accordingly, this Court has the power to issue a declaratory judgment before Ms. Lewinsky's actions become irreversible.
The Immunity Agreement plainly requires that Ms. Lewinsky allow herself to be debriefed by any institution at the request of the OIC. Ms. Lewinsky has the right to insist that the OIC conduct the debriefing, but she must comply with the plain terms of the Immunity Agreement. Accordingly, the United States respectfully requests that this Court enter an order requiring Ms. Lewinsky to submit to debriefing by the House.
The Senate's schedule requires the House to submit its motion to call witnesses as early as Monday, and the House has stressed its need to debrief Ms. Lewinsky this weekend. Accordingly, the United States respectfully requests that this Court act on this motion as an emergency matter. Specifically, we request a hearing on this matter today.
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