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White House Rebuttal

Tuesday, December 8, 1998

Following is the text of the 184-page White House rebuttal to impeachment charges, submitted to the House Judiciary Committee today. Footnotes have been deleted. This page includes the Preface and a linked Table of Contents.

SUBMISSION BY COUNSEL FOR PRESIDENT CLINTON
TO THE COMMITTEE ON THE JUDICIARY OF THE
UNITED STATES HOUSE OF REPRESENTATIVES

December 8, 1998

PREFACE

In addition to the factual, legal and Constitutional defenses we present in this document, the President has asked us to convey a personal note: What the President did was wrong. As the President himself has said, publicly and painfully, "there is no fancy way to say that I have sinned."

The President has insisted that no legalities be allowed to obscure the simple moral truth that his behavior in this matter was wrong; that he misled his wife, his friends and our Nation about the nature of his relationship with Ms. Lewinsky. He did not want anyone to know about his personal wrongdoing. But he does want everyone -- the Committee, the Congress and the country -- to know that he is profoundly sorry for the wrongs he has committed and for the pain he has caused his family, his friends, and our nation.

But as attorneys representing the President in a legal and Constitutional proceeding, we are duty-bound to draw a distinction between immoral conduct and illegal or impeachable acts. And just as no fancy language can obscure the fact that what the President did was morally wrong, no amount of rhetoric can change the legal reality that the record before this Committee does not justify charges of criminal conduct or impeachable offenses.

The Framers, in their wisdom, left this Body the solemn obligation of determining not what is sinful, but rather what is impeachable. The President has not sugar-coated the reality of his wrongdoing. Neither should the Committee ignore the high standards of the Constitution to overturn a national election and to impeach a President.

   


TABLE OF CONTENTS

PREFACE      i

I.      INTRODUCTION      1

II.      THE FACTUAL BACKGROUND      5

A.      The Whitewater Investigative Dead-End      5

B.      The Paula Jones Litigation      8

C.      The President’s Grand Jury Testimony About Ms. Lewinsky      12

III.      THE CONSTITUTION REQUIRES PROOF OF OFFICIAL MISCONDUCT FOR IMPEACHMENT      13

A.      Under the Constitution the Conduct Alleged in the Referral Does Not Reach the Level of "High Crimes and Misdemeanors"      14

1.      Historical Background of "High Crimes and Misdemeanors"      14

2.      The Framers Believed that Impeachment Redresses Wrongful Public Conduct      18

3.      Our Constitution’s Structure Does Not Permit Impeachment for Reasons of the Sort Alleged in the Referral      21

B.      American Presidential Impeachment Practice and Contemporary Scholarship Confirm that Impeachment Is Only for Political Offenses Against the State Itself, Not for Private Wrongs      24

1.      Prior Impeachment Proceedings Against American Presidents      24

2.      Contemporary Views Confirm that Impeachment Is Not Appropriate Here      28

C.      Relevant Historical Precedents Demonstrate that No Impeachable Offense Has Been Alleged Here      31

1.      Alexander Hamilton      31

2.      The Failure of the Proposed Article of Impeachment Against President Nixon Alleging Fraudulent Tax Filings      33

IV.      THE CONSTITUTION REQUIRES CLEAR AND CONVINCING EVIDENCE TO APPROVE ARTICLES OF IMPEACHMENT      38

A.      This Committee Should Apply the Same Clear and Convincing Standard Observed by Its Predecessor in the Watergate Proceedings      38

B.      The Clear and Convincing Standard Is Commensurate with the Grave Constitutional Power Vested in the House      41

V.      THE COMMITTEE SHOULD NOT RELY ON THE REFERRAL’S ACCOUNT OF THE EVIDENCE      43

A.      The Information Presented to the Committee in the Referral Has Not Been Subjected to the Most Basic Adversarial Testing      46

B.      The Referral Differs Vastly From the Precedent of the Watergate "Road Map"      46

C.      The Resulting Referral Omitted a Wealth of Directly Relevant Exculpatory Evidence      47

D.      Mr. Starr’s Conduct in the Lewinsky Investigation Has Betrayed a Bias that Helps Explain the Lack of Neutrality in the Referral      51

VI.      THE PRESIDENT DID NOT COMMIT PERJURY      54

A.      Elements of Perjury      54

B.      Contradictory Testimony From Two Witnesses Does Not Indicate That One Has Committed Perjury      57

1.      It Must Be Proven that a Witness Had the Specific Intent to Lie      57

2.      A Perjury Case Must Not Be Based Solely Upon the Testimony of a Single Witness      59

C.      "Literal Truth" and Non-Responsive Answers Do Not Constitute Perjury      61

D.      Fundamentally Ambiguous Questions Cannot Produce Perjurious Answers      65

E.      It Is Expected and Proper for a Witness to be Cautious When Under Oath      69

F.      Specific Claims of Perjury      70

1.      Civil Deposition of January 17, 1998      71

2.      Grand Jury Testimony of August 17, 1998      86

VII.      THE PRESIDENT DID NOT OBSTRUCT JUSTICE      89

A.      The Elements of Obstruction of Justice      89

B.      Specific Claims of Obstruction      93

1.      There Is No Evidence that the President Obstructed Justice in Connection with Gifts Given to Ms. Lewinsky      93

2.      The President Did Not Obstruct Justice in Connection with Ms. Lewinsky’s Job Search      114

3.      The President Did Not Have an Agreement or Understanding with Ms. Lewinsky to Lie Under Oath      137

4.      The President Did Not Obstruct Justice by Suggesting Ms. Lewinsky Could File an Affidavit      141

5.      The President Did Not Attempt to Influence Betty Currie’s Testimony      148

6.      The President Did Not Attempt to Influence the Testimony of "Potential" Grand Jury Witnesses Through His Denials      152

VIII.      THE PRESIDENT DID NOT ABUSE POWER      156

A.      The President Properly Asserted Executive Privilege to Protect the Confidentiality of Communications with His Staff      158

1.      The White House Made Every Effort at Accommodation and Ultimately Asserted the Privilege as Narrowly as Possible      160

2.      The Court’s Ruling Upholding the White House’s Assertion of Executive Privilege Squarely Rebuts the OIC’s Abuse of Power Claim      165

B.      The President Was Entitled to Assert Attorney-Client Privilege to Protect the Right of Presidents to Request and Receive Confidential and Candid Legal Advice from White House Counsel      166

1.      The Governmental Attorney-Client Privilege Claim Was Grounded in the Law of the D.C. Circuit and the Supreme Court      167

2.      The Courts’ Rulings Squarely Rebut the OIC’s Claims of Abuse of Power      168

C.      The Privilege Litigation Did Not Delay the OIC’s Investigation      171

D.      Mr. Starr Misrepresents the Record to Claim that the President Deceived the American Public About the Executive Privilege Litigation      174

E.      The President’s Decision Not to Testify Before the Grand Jury Voluntarily Was Not an Abuse of Power      176

F.      False Public Denials About an Improper Relationship Do Not Constitute an Abuse of Office      176

1.      Subjecting a President to Impeachment Would Disrupt Our Constitutional Government      177

2.      The President’s Denial of an Improper Relationship Is Not Comparable to President Nixon’s Denials of Involvement in the Watergate Burglary and Cover-up      179

IX.      CONCLUSION      183

© Copyright 1998 The Washington Post Company

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