Initial White House Rebuttal to Starr Report
From Clinton lawyer David Kendall's response to independent counsel Kenneth Starr's report to the House. See table of contents.
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).
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"
Tim Russert: "How important is it that we find out who is the author of those talking points?"The "talking points" were the basis of thinly veiled smears, groundless speculation, and allegations against President Clinton, White House aides and others close to the President:
"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.
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.
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.
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.
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