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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.


VIII. THE LEWINSKY EXPANSION OF THE WHITEWATER INVESTIGATION

The expansion of the Independent Counsel's jurisdiction to encompass the Jones case and Ms. Lewinsky did not occur by accident or easily. The OIC deliberately and purposefully sought this expansion on an emergency basis. Media accounts that the Attorney General herself requested this expansion are highly misleading.

On January 16, 1998, upon the OIC's request, the Special Division of the Court of Appeals for the Purpose of Appointing Independent Counsels expanded the OIC's jurisdiction to allow it to investigate "whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law . . . in dealing with witnesses, potential witnesses, attorneys, or others concerning the civil case Jones v. Clinton." Order, Div. No. 94-1 (Jan. 16, 1998) (Div. for Purpose of Appointing Independent Counsel) (D.C. Cir.). The series of events that led to this expansion of authority raise serious questions as to the motivations and manipulations of the OIC in securing this expanded jurisdiction.

Under the Independent Counsel statute, if the "independent counsel discovers or receives information about possible violations of criminal law by [covered persons], which are not covered by the prosecutorial jurisdiction of the independent counsel, the independent counsel may submit such information to the Attorney General." 28 U.S.C. § 593 (c)(2)(A). The Attorney General is then to conduct a preliminary investigation. 28 U.S.C. § 592. The statute did not give the OIC authority to conduct its own preliminary investigation in order to gather or create evidence to present to the Attorney General to support a request for an expansion of jurisdiction.

According to media reports, Ms. Linda Tripp contacted the OIC on Monday, January 12, 1998. There was no particular logic to this contact, and she could easily have taken her concerns to state or federal authorities. In any event, the OIC arranged for Ms. Tripp to wear an F.B.I. recording device and tape surreptitiously a conversation that she had with Ms. Lewinsky the next day, Tuesday, January 13, 1998 (Ms. Lewinsky had not yet filed an affidavit in the Jones case). On Friday, January 16, 1998, at the OIC's request, Ms. Tripp lured Ms. Lewinsky to a meeting, where she was apprehended by OIC agents, who confronted her and attempted to pressure her into doing surreptitious taping herself. She was informed that an immunity agreement was contingent on her not contacting her lawyer.

That same day, the Special Division agreed to expand the OIC's authority, based upon the Independent Counsel's earlier application to the Attorney General and on the tapes that the OIC had already created: "In a taped conversation with a cooperating witness, Ms. Lewinsky states that she intends to lie when deposed. In the same conversation, she urges the cooperating witness to lie in her own upcoming deposition. . . . Independent Counsel Starr has requested that this matter be referred to him." (Text of Attorney General's Petition to Special Division, The Associated Press, January 29, 1998.)

The Independent Counsel later suggested that the expansion of authority prior to the taping was unnecessary, as it was already within his jurisdiction. However, the Lewinsky matter had no connection whatsoever to the Whitewater activities, or any other activities, then being investigated by the OIC. In addition, the Attorney General specifically stated in her referral to the Special Division that she was seeking an expansion of the Independent Counsel's jurisdiction. Or, as former independent counsel Michael Zeldin pointed out, "If he had jurisdiction to investigate it when he wired her, why did he have to go to court to get it afterward? In some ways, he is talking out of both sides of his mouth. . . . It seems to me arguable that he obtained evidence unlawfully . . . ." Chicago Tribune, January 25, 1998. And former independent counsel Lawrence Walsh declared, "A prosecutor has no business getting into that case [Paula Jones] unless there's something terrible happening. I question Starr's judgment in going into it so hard." Chicago Tribune, January 25, 1998.

Furthermore, the sequence of events suggests that Independent Counsel Starr deliberately delayed requesting the expansion of jurisdiction. Neither Monica Lewinsky nor President Clinton had made any statements under oath in the Jones case (at least that had been filed with any court) when Linda Tripp approached the OIC on January 12. The only evidence the OIC possessed at that time were tapes illegally created by Tripp. The OIC itself proceeded to tape the Tuesday, January 13 conversation between Tripp and Lewinsky. Ms. Lewinsky's affidavit was not filed in the Jones case until January 16, and the OIC had petitioned the Attorney General the day before for an expansion of authority based on the evidence (the Tripp tapes and the OIC's tape) that he had acquired without any authority to do so.

Ms. Tripp remained through the day at the hotel where Ms. Lewinsky was apprehended by the OIC on Friday, January 16, 1998. During that day, Ms. Jones' lawyers repeatedly tried to contact Ms. Tripp for a meeting, but she was unavailable. Ibid. Late in the afternoon, when it became clear that Ms. Lewinsky would not cooperate in the surreptitious taping of others, the Jones lawyers received a call arranging a meeting with Ms. Tripp for that night, so she could help them prepare for the President's deposition next day. Ibid. It seems probable that Ms. Tripp, who was acting as the OIC's agent under an immunity agreement, must have gotten approval for this briefing from the OIC. Ms. Tripp met with the Jones lawyers at her home in Maryland that night and briefed them on the illegal tapes she had made of Ms. Lewinsky , so they could use the contents of those tapes in their questioning of the President. Ms. Tripp is under investigation in the state of Maryland because she secretly recorded Ms. Lewinsky and then shared the existence and contents of those tapes with the Jones lawyers. It is a crime in that state, punishable by imprisonment up to five years and a fine of up to $10,000, for a person to "wilfully" record a conversation without the consent of both parties or to "wilfully" disclose the contents of such an illegally recorded conversation. Md. Code Ann. § 10-402 (1997).

On January 17, armed with the information obtained from Ms. Tripp, Ms. Jones' attorneys deposed President Clinton in great detail regarding Ms. Lewinsky. At about this time, the OIC sought to prevent press coverage of its attempt to have Ms. Lewinsky cooperate in secret taping.

This entire sequence of events – the OIC's delay in requesting jurisdiction, the OIC's pressure on reporters to withhold public disclosure of the matter, the OIC's unwillingness to permit Ms. Lewinsky to contact her lawyer, and the OIC's dispatch of Ms. Tripp to brief the Jones lawyers about the fruits of her illegal taping the day before they were to depose the President – suggests an intention by the OIC to ensure that the expansion of jurisdiction was kept a secret until the President and Ms. Lewinsky had given testimony under oath and (if Ms. Lewinsky could be so persuaded) she had been enlisted to do surreptitious taping. In other words, rather than taking steps to defer or avoid any possible interference with the Jones case, the OIC did everything in its power – and some things outside its authority – to set up a case against the President.

© Copyright 1998 The Washington Post Company

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