From Clinton lawyer David Kendall's response to independent counsel Kenneth Starr's report to the House. See table of contents.

V. LIKELY OIC ALLEGATIONS OF OBSTRUCTION OF JUSTICE, SUBORNATION OF PERJURY, AND INTIMIDATION OF WITNESSES

The OIC obtained jurisdiction on January 16, 1998 to investigate possible obstruction of justice, subornation of perjury, and intimidation of witnesses in the Jones case. These crimes are quite specifically defined in the law, and the elements do not always have an obvious meaning. We consider first the definition and then the possible conduct to which these definitions might be applied.

The term "obstruction of justice" usually refers to violations of 18 U.S.C. § 1503, the "Omnibus Obstruction Provision," which prohibits the intimidation and retaliation against grand and petit jurors and judicial officers and contains a catch-all clause making it unlawful to "influence, obstruct, or impede the due administration of justice." It may also refer to 18 U.S.C. § 1512, which proscribes intimidating, threatening, or corruptly persuading, through deceptive conduct, a person in connection with an official proceeding.

For a conviction under § 1503, the government must prove that there was a pending judicial proceeding, that the defendant knew of the proceeding, and that the defendant acted "corruptly" with the specific intent to obstruct or interfere with the proceeding or due administration of justice. See, e.g., United States v. Bucey, 876 F.2d 1297, 1314 (7th Cir. 1989); United States v. Smith, 729 F. Supp. 1380, 1383-84 (D.D.C. 1990). Thus, if a defendant is unaware of a pending grand jury proceeding, he cannot be said to have obstructed it in violation of § 1503. See, e.g., United States v. Brown, 688 F.2d 1391, 1400 (9th Cir. 1992). Perhaps more significant is the "acting corruptly" element of the offense. Some courts have defined this term as acting with "evil and wicked purposes." See United States v. Banks, 942 F.2d 1576, 1578 (11th Cir. 1991). Four federal courts of appeals have held that to "act corruptly" under the statute, a defendant must have acted with the specific intent to obstruct justice. See United States v. Moon, 718 F.2d 1219, 1236 (2d Cir. 1983); United States v. Bashaw, 982 F.2d 168, 170 (6th Cir. 1992); United States v. Anderson, 798 F.2d 919, 928 (7th Cir, 1986); United States v. Rasheed, 663 F.2d 843, 847 (9th Cir. 1981). That is, it is not enough to prove that the defendant knew that a result of his actions might be to impede the administration of justice, if that was not his intent.

It is critical to note which actions cannot fall under the ambit of § 1503. First, false statements or testimony alone cannot sustain a conviction under § 1503. See United States v. Thomas, 916, F.2d 647, 652 (11th Cir. 1990); United States v. Rankin, 870 F.2d 109, 111 (3d Cir. 1989). For instance, in United States v. Wood, 6 F.3d 692, 697 (10th Cir. 1993), the United States Court of Appeals for the Tenth Circuit found that a defendant's false statements to the Federal Bureau of Investigation during a grand jury investigation did not violate § 1503, because they did not have the natural and probable effect of impeding the due administration of justice. Moreover, § 1503 does not apply to a party's concealing or withholding discoverable documents in civil litigation. See, e.g., Richmark v. Timber Falling Consultants, 730 F. Supp. 1525, 1532 (D. Or. 1990) (because of the remedies afforded by the Federal Rules of Civil Procedure, § 1503 does not cover party discovery in civil cases, and "[t]he parties have not cited and the court has not found any case in which a person was charged with obstruction of justice for concealing or withholding discovery in a civil case"). Most cases that have found § 1503 applicable to civil cases do not involve the production or withholding of documents. See United States v. London, 714 F.2d 1558 (11th Cir. 1983) (attorney forged court order and attempted to enforce it), cited in Richmark, 730 F. Supp. at 1532; Sneed v. United States, 298 F. 911 (5th Cir. 1924) (influencing juror in civil case); cited in Richmark, 730 F. Supp at 1532. While § 1503 can apply to concealment of subpoenaed documents in a grand jury investigation, the defendant must have knowledge of the pending grand jury investigation, must know that the particular documents are covered by a subpoena, and must willfully conceal or endeavor to conceal them from the grand jury with the specific intent to interfere with its investigation. See United States v. McComb, 744 F.2d 555 (7th Cir. 1984).

Section 1512 specifically applies to "witness tampering." However, by its terms, it does not purport to reach all forms of witness tampering, but only tampering by specified means. In order to obtain a conviction under § 1512, the government must prove that a defendant knowingly engaged in intimidation, physical force, threats, misleading conduct, or corrupt persuasion with intent to influence, delay, or prevent testimony or cause any person to withhold objects or documents from an official proceeding. While there is no "pending proceeding" requirement for convictions under § 1512, it is clear that a defendant must be aware of the possibility of a proceeding and his efforts must be aimed specifically at obstructing that proceeding, whether pending or not; § 1512 does not apply to defendants' innocent remarks or other acts unintended to affect a proceeding. See United States v. Wilson, 565 F. Supp. 1416, 1431 (S.D.N.Y. 1983).

Moreover, it is important to define the terms "corruptly persuade" and "misleading conduct," as used in § 1512. The statute itself explains that "corruptly persuades" does not include "conduct which would be misleading conduct but for a lack of a state of mind." 18 U.S.C. § 1515(a)(6). It is also clear from the caselaw that "misleading conduct" does not cover scenarios where the defendant urged a witness to give false testimony without resorting to coercive or deceptive conduct. See, e.g., United States v. Kulczyk, 931 F.2d 542, 547 (9th Cir. 1991) (no attempt to mislead witnesses knew defendant was asking them to lie); United States v. King, 762 F.2d 232, 237 (2d Cir. 1985) (defendant who attempts to persuade witness to lie but not to mislead trier of fact does not violate § 1512).

Subornation of perjury is addressed in 18 U.S.C. § 1622. The elements of subornation are that the defendant must have persuaded another to perjure himself, and the witness must have actually committed perjury. See, e.g. United States v. Hairston, 46 F.3d 361, 376 (4th Cir. 1959), rev'd on other grounds, 361 U.S. 529 (1960). If actual perjury does not occur, there is simply no subornation. See id. at 376 (reversing conviction for subornation because of conclusion that, in applying Bronston, witness did not commit perjury due to his literally truthful testimony). Moreover, § 1622 requires that the defendant know that the testimony of witness will be perjurious – i.e., knowing and willful procurement of false testimony is a key element of subornation of perjury. See Rosen v. NLRB, 735 F.2d 564, 575 n.19 (D.C. Cir. 1984) ("a necessary predicate of the charge of subornation of perjury is the suborner's belief that the testimony sought is in fact false").

Based upon illegal OIC leaks and press reports, we believe that the OIC's principal claims of obstruction, intimidation and subornation – the three prongs of the January 1998 expansion of jurisdiction – appear to arise out of:

(1) "Talking Points"
The so-called "talking points" have been widely hailed as the linchpin of any charge of subornation of perjury or obstruction of justice. Not only were they touted as the "smoking gun" of the investigation, they were instrumental in the OIC efforts to secure an expansion of its jurisdictional authority. Charles Bakaly, the OIC spokesman, appearing on Meet the Press, emphasized the critical nature of this document to the expansion of the OIC jurisdiction:

Tim Russert: "How important is it that we find out who is the author of those talking points?"

Charles Bakaly: "Well, in the grant of jurisdiction that the special division of the D.C. Circuit Court of Appeals gave to Judge Starr after the request of the Attorney General, that was the key mandate to look into, those kinds of issues of subornation of perjury and obstruction of justice."

NBC Meet the Press, July 5, 1998 (emphasis added).

"And NBC News has learned more about another critical piece of evidence. A memo first discovered by Newsweek that Linda Tripp claims was given to her by Monica Lewinsky. Sources in Starr's office and close to Linda Tripp say they believe the instructions came from the White House. If true, that could help support a case of obstruction of justice." NBC Nightly News, February 4, 1998.

"Prosecutors suspect the President and his longtime friend, Vernon Jordan, tried to cover up allegations that Mr. Clinton was involved sexually with former White House intern Monica Lewinsky and other women, which is why this document, obtained last night by NBC News, could be a smoking gun. It's called 'Points to Make in Affidavit.' Prosecutors say it might as well be called "How to Commit Perjury in the Paula Jones Case." NBC News at Sunrise, January 22, 1998.

"A three page summary telling Linda R. Tripp how to lie in the Paula Jones sexual misconduct lawsuit remains a key reason why independent counsel Kenneth Starr wants to question top White House aides in the Monica Lewinsky sex-and-lies grand jury investigation. Mr. Starr, according to lawyers and other close to the grand jury probe, wants to know what White House Deputy Counsel Bruce R. Lindsey and senior aide Sidney Blumenthal know about the source of the summary, or 'talking points,' that were given to Mrs. Tripp by Miss Lewinsky, the former White House intern. The summary, which prosecutors are convinced was not written by Miss Lewinsky, could corroborate accusations of a White House attempt to obstruct justice and suborn perjury in the Jones suit, sources said." Washington Times, May 18, 1998.

"Because of Lindsey's earlier discussions with Tripp about the Willey incident, prosecutors appear to be trying to learn whether he had any role in helping Lewinsky prepare the three-page document. Lindsey, who has been summoned to the grand jury twice, has denied any connection to the talking points." Washington Post, March 10, 1998.

"'If the author of the talking points is anywhere near the president,' said Jonathan Turley, law professor at George Washington University in Washington, "this case will take a dramatic turn against the White House." USA Today, July 1, 1998.

"The document has emerged as possible evidence of obstruction of justice as Starr investigates whether Clinton or his associates made attempts to conceal the president's encounters with women." USA Today, June 29, 1998.

"Based largely on two pieces of evidence, those talking points and the secret tapes made by Ms. Tripp of her conversations with Ms. Lewinsky, Mr. Starr is trying to determine whether the President, Mr. Jordan, Ms. Lewinsky or others set about to obstruct justice in the Jones case by lying, concealing evidence and tampering with witnesses. These are the central charges in the case, and the participants' versions appear to diverge." New York Times, March 7, 1998.

"Starr wants to find out if anyone in the White House was involved in preparing the talking points." The Plain Dealer, February 19, 1998.

"The evidence that strikes dread in the White House is a three-page document called 'the talking points.' "The author of the talking points will most likely be found, is in real danger of going to jail and may not want to go alone for long." William Safire, New York Times, February 12, 1998.

"The memo is a critical piece of evidence to Whitewater independent counsel Kenneth Starr because it could be proof of an effort to induce Tripp to lie under oath. Starr's investigators are exploring whether anyone close to Clinton prepared or knew about the talking points." USA Today, February 6, 1998.

And the "talking points" were regarded throughout the investigation as the critical piece of evidence in any charge of subornation of perjury or obstruction of justice:

"It seems clear that Starr's focus is now on building a case that Clinton or his agents tried to sway the testimony of witnesses in the Jones case. A critical piece of evidence is the 'talking points' memo that Lewinsky gave her friend Linda Tripp, apparently advising Tripp on how to fudge her testimony. The document is the only known physical evidence of witness tampering, and its authorship remains one of the great mysteries of the Lewinsky matter." Chicago Tribune, April 3, 1998 (emphasis added).

"The talking points, which seemed intended to coach Ms. Tripp in possible testimony about Mr. Clinton, are central to Mr. Starr's effort to determine whether obstruction of justice occurred." New York Times, July 27, 1998.

"Prosecutors regard the legalistic, three-page talking points, intended to guide Tripp's testimony in the Jones lawsuit, as a key piece of evidence in a possible case of obstruction of justice . 'Anyone who wrote a document like that is out of is mind,' one prosecutor said. "Those talking points are the smoking gun." Pittsburgh Post-Gazette, February 8, 1998 (emphasis added).

"Leakers from the Starr chamber have implied that the talking points are instructions to lie. But lawyers routinely give there clients talking points before a grand jury. The Lewinsky case is about something else, spelled S-E-X." Clarence Page, Sun-Sentinel, June 4, 1998 (emphasis added).

"But a three page document known as the 'talking points' may prove to be the most important. . . 'The talking points are the closest thing to a smoking gun in this case. . .' legal scholar Paul Rothstein said Tuesday." USA Today, July 1, 1998.

"The talking points memorandum and the Tripp-Lewinsky tapes form the backbone of the independent counsel's inquiry into whether anyone lied or obstructed justice over Ms. Lewinsky's relationship with President Clinton." New York Times, June 11, 1998.

"The talking points memo, whose authorship is unknown, is of keen interest to Starr." Baltimore Sun, February 26, 1998.

"It is unclear who wrote the talking points and whether they were given to Ms. Tripp on Jan. 14 to encourage her to give false testimony in the Paula Corbin Jones sexual misconduct lawsuit against the President. These are questions of intense interest to the independent counsel Kenneth W. Starr, said lawyers close to his investigation. "The talking points could be an important piece of physical evidence showing that there were unlawful efforts to encourage false testimony in the Jones case." New York Times, February 19, 1998.

"That suggests one particular piece of evidence will play a huge role: the list of written talking points Lewinsky gave her friend Linda Tripp on how to testify in the Paula Jones sexual harassment case. Who wrote the document is one of the key questions, whoever did could be charged with obstruction of justice." Chicago Tribune, February 15, 1998.

After all of the rumor and speculation regarding a connection between the White House and the "talking points," President Clinton was not asked one single question relating to the talking points during his August 17 deposition. Ms. Lewinsky is reported to have testified that she wrote the document without any assistance other than conversations she had with Linda Tripp. In the venerable tradition of Whitewater allegations, the "talking points" were surfaced as important and damning evidence of wrongdoing, but in the fullness of time and after investigation, have apparently vanished entirely. Only the stigma remains.

(2) Ms. Lewinsky's Transfer of Gifts to Betty Currie

The President frequently gives gifts to and receives gifts from friends and supporters; he gave Ms. Lewinsky the same kind of gifts he has shared with others. He was not concerned about the Jones lawyers' knowledge of the gifts. In the Jones deposition, he acknowledged knowing Ms. Lewinsky, acknowledged seeing her, acknowledged she had given him gifts, and acknowledged he had given her gifts. Moreover, in his grand jury testimony, he acknowledged giving Ms. Lewinsky good-bye gifts on December 28, 1997, shortly before she moved to New York, a date which we believe to be after Ms. Currie picked up the box of gifts from Ms. Lewinsky. The gifts simply were not a concern to him.

It is our understanding that Ms. Lewinsky may have testified that she raised with the President a concern about the Jones lawyers' request for gifts from the President and that, shortly thereafter, Ms. Currie appeared at her home stating that she understood Ms. Lewinsky had something for her. Ms. Lewinsky apparently testified that she then provided to Ms. Currie for safekeeping a box containing some of the gifts received from the President.

For Ms. Lewinsky's account to be credible, Ms. Currie must have been asked by the President to contact Ms. Lewinsky for the box. However, her account conflicts directly both with that of the President and with what we believe to be Ms. Currie's testimony. The President told Ms. Lewinsky she would have to produce what she had in response to a request. He did not ever suggest that gifts from him should be disposed of, and he did not ever ask or instruct Ms. Currie to pick up the gifts from Ms. Lewinsky. We believe that Ms. Currie's testimony corroborates this recollection. Ms. Currie has apparently testified that Ms. Lewinsky initiated the contact with her about the box, asking Ms. Currie to come by her apartment building, giving a sealed box to her, and asking her to hold on to it. Ms. Currie has no knowledge that the President ever even knew about the box prior to public disclosures about it, and the President testified that he did not learn about the box until after the OIC investigation became public.

(3) Job Assistance to Ms. Lewinsky

The President made certain efforts to try to assure that Ms. Lewinsky had a fair shot at a job other than her Pentagon position, where she was not happy, and he generally was aware of other efforts by his secretary Ms. Currie and his friend Mr. Jordan. These actions were totally appropriate. At no time did the President ask that Ms. Lewinsky be accorded specially favorable or unfavorable treatment because of his relationship with her or for any other reason. These actions began well before Ms. Lewinsky was ever named a witness in the Jones litigation, and they were in no way intended to influence Ms. Lewinsky to keep secret what was at that time an already terminated relationship. There is no evidence of any link whatsoever between the President's actions and possible testimony by Ms. Lewinsky in the Jones case.

In April 1996, Ms. Lewinsky was reassigned from the White House to the Pentagon. Although the transfer was viewed as a promotion, the President became aware that Ms. Lewinsky was upset about it, did not see it as a positive change, and feared that the transfer would be appear to be a demotion or "black mark" on her resume. To the extent that Ms. Lewinsky was criticized for spending more time in the West Wing than was required by her responsibilities in the Office of Legislative Affairs, the President felt responsible.

In the summer of 1997, the President spoke to Marsha Scott, the deputy personnel director at the White House, and inquired about the possibility of a position being available for Ms. Lewinsky in the White House. He never ordered Ms. Scott or anyone else to provide her special treatment or directed that she be given a job at the White House. He simply wanted to assure that she had been treated fairly and asked only that Ms. Scott look into the possibility of a position at the White House for Ms. Lewinsky if it was appropriate. Ms. Lewinsky was never offered an opportunity to return to the White House – as a result of that conversation or otherwise.

In the fall of 1997, Ms. Betty Currie spoke to Mr. John Podesta about finding a job for Ms. Lewinsky in New York, and Mr. Podesta ultimately spoke to Ambassador Bill Richardson about the matter. The Ambassador agreed to interview Ms. Lewinsky for a position in his New York office. The President was not involved in arranging the Richardson interview. When Ms. Lewinsky indicated to Ms. Currie that she preferred a job in the private sector, Ms. Currie contacted Mr. Jordan, her long-time friend, to see whether he would be willing to make inquiries regarding a job opportunity for Ms. Lewinsky in the private sector. Mr. Jordan referred her for interviews at American Express and Revlon, and to the advertising agency of Young & Rubicam. As Mr. Jordan said in his January 22, 1998 statement on the matter:

Throughout my professional career, I have been privileged to assist people with their vocational aspirations. I have done so for two reasons. first, I stand on the shoulders of many individuals who have helped me. Second, I believe "to whom much is given much is required" so I have tried to lend a helping hand.

For many years now . . . I am consulted by individuals, young and old, male and female, black and white, Hispanic and Asian, rich and poor, cabinet members and secretaries, for assistance. And I have met with some success, from paralegals to mailroom clerks, to corporate directors, to CEO's.

I was pleased to be helpful to Ms. Lewinsky whose drive, ambition, and personality were impressive. She was referred by Ms. Betty Currie, a secretary to the president.

Mr. Jordan is a private individual who is free to offer job assistance to whomever he chooses.

Questions have been raised about a connection between the timing of Ms. Lewinsky's affidavit (which was executed January 7 and filed January 16) and the timing of any job offer. There was no connection. Francis Carter, Esq., Ms. Lewinsky's attorney at the time she executed the affidavit, apparently has stated that Ms. Lewinsky never asked him to delay the filing of an affidavit until after she had secured a job in New York and never suggested when the affidavit should be filed. The Washington Post, June 19, 1998. Indeed, Mr. Carter has reported that he himself delayed the filing of the affidavit while he attempted to persuade the Jones attorneys to withdraw the subpoena to Ms. Lewinsky. Ibid.

Indeed, it was totally appropriate for Mr. Jordan to refer Ms. Lewinsky to Francis Carter to represent her in the Jones litigation. Mr. Carter is a highly respected lawyer who would owe his duty to Ms. Lewinsky and represent her interests. Assuring a witness has her own counsel in whom she may confide is the surest and most appropriate way to protect the integrity of the process. As Mr. Jordan indicated in his January 22 statement, the referral was "at her request" and Mr. Jordan simply "took her to Mr. Carter's office, introduced them, and returned to my office." Ms. Lewinsky paid Mr. Carter herself. Mr. Carter has said that Mr. Jordan brought Ms. Lewinsky to his office, introduced them, and told him that she had been subpoenaed in the Jones case and needed an attorney. The Washington Post, June 19, 1998. According to Mr. Carter, Mr. Jordan did not suggest what should be done or how the matter should be handled, but promptly left. Ibid. Mr. Carter has stated, "I never received any kind of information from [Ms. Lewinsky] at any time that contradicted anything that's in that affidavit." Ibid.

Finally, in January of 1998, the President asked Mr. Erskine Bowles whether the legislative affairs office where Ms. Lewinsky once had worked would be able to give Ms. Lewinsky a reference that would not be negative. The President understood from Ms. Lewinsky that she thought she could get a good reference from The Department of Defense but hoped for a White House reference that was at least neutral. The President did not instruct anyone to provide such a reference and did not follow up on the inquiry. This innocuous query for an honest reference cannot conceivably be a basis for any charge of wrongdoing.