Tuesday, December 8, 1998

Following is a portion of the 184-page White House rebuttal to impeachment charges, submitted to the House Judiciary Committee. See the Table of Contents or the Printable Version.

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

I.      INTRODUCTION

The President of the United States has not committed impeachable offenses. He repeatedly has acknowledged that what he did was wrong, he has apologized, and he has sought forgiveness. But his apologies, his acceptance of responsibility, and his contrition do not mean either that the President committed criminal acts or that the acts of which he is accused are impeachable offenses. Counsel for President Clinton respectfully submit this memorandum to demonstrate and document this contention.

We offer this memorandum mindful of the fact that this body now confronts one of the most difficult questions our Constitution poses to Congress: whether to invalidate the popular will expressed in the election of the President. "Voting in the presidential election," as Professor Charles Black wrote, "is certainly the political choice most significant to the American people." Accordingly, "[n]o matter can be of higher political importance than our considering whether, in any given instance, this act of choice is to be undone." Consideration both wise and deliberate must precede any decision to report articles of impeachment. For "the power of impeachment and removal is drastic one, not to be lightly undertaken . . . and especially sensitive with reference to the President of the United States."

We previously have submitted three memoranda to this Committee, addressing various issues arising out of the Independent Counsel’s September 11, 1998, Referral. In this submission, we comprehensively set out our response to the Referral based on the evidence now available to us; address certain questions stemming from the testimony of the Committee’s sole witness, Independent Counsel Kenneth W. Starr and correct fundamental misconceptions about this matter arising from deeply unfair or unsupported inferences drawn in the Referral and significant misstatements about the evidence in the press and elsewhere. For example, it is widely alleged among those favoring impeachment that the President "lied under oath" to the grand jury. But a review of the available evidence proves that this allegation often is based not on what the President actually said under oath but rather on what some of his accusers claim he said -- such as that in the grand jury he categorically denied having a sexual relationship with Ms. Lewinsky, or that he denied being alone with her, when in fact he explicitly acknowledged to the grand jury both that he had had an inappropriate intimate relationship with Ms. Lewinsky and that he had been alone with her. There are numerous other examples of allegations, now commonly believed, that are wholly -- not just somewhat -- unsupported even by the evidence presented to the Committee in the OIC referral. It is in part the purpose of this memorandum to separate fact and fiction and demonstrate why the record supports neither the charges made nor impeachment. We ask that readers set aside their preconceptions of what they think the evidence is, based on the biased presentation in the Starr Referral and subsequent inaccurate coverage, and look instead at the evidence itself.

At the outset, let us be clear. Extraordinary as it must seem in a matter of this gravity, the President has not been specifically notified what allegations are at issue here. The Referral itself cites "eleven possible grounds for impeachment" of the President, Ref. at 129, although it does not identify the rationale for including these grounds. In his presentation to the Committee, Mr. Schippers identified a somewhat different set of "fifteen separate events directly involving [the] President" which "could constitute felonies which, in turn, may constitute grounds to proceed with an impeachment inquiry." The Chairman apparently has indicated that the Committee may consider only two charges, while recent newspaper articles variously state that the Committee staff is drafting three charges or four charges. We have been provided only the most limited and in some instances no access to significant evidence in the Committee’s possession, elliptically referred to by Members at the November 19, 1998, testimony of the Independent Counsel. Without knowing what this evidence is, and being able to analyze and quote it, we cannot fairly or adequately rebut every allegation the Committee may later choose to bring forward from the Referral or elsewhere.

Moreover, the Committee has recently launched new investigative forays in areas not covered by the Referral. It has taken depositions related to Ms. Kathleen Willey, and it has authorized (but now apparently withdrawn) subpoenas for depositions and documents related to fundraising for the 1996 Presidential campaign. Simple fairness entitles us to an adequate opportunity to receive, review, and use the information in the Committee’s possession (for example, the transcripts of depositions from which we were excluded), be apprised of the specific charges the Committee is considering, and have a fair chance to discover and present evidence in rebuttal.

The present memorandum is thus necessarily limited in scope, and we will make a further submission to address any new or revised allegations the Committee may decide to pursue.

II.      THE FACTUAL BACKGROUND

Certain undisputed facts are relevant to the legal analysis in this memorandum, in addition to those set forth in previous submissions.

A.      The Whitewater Investigative Dead-End

The Lewinsky investigation had its antecedent in the long-running Whitewater investigation. On August 5, 1994, Kenneth W. Starr was appointed Independent Counsel by the Special Division to conduct an investigation centering on two Arkansas entities, Whitewater Development Company, Inc., and Madison Guaranty Savings and Loan Association. The Office of Independent Counsel’s ("OIC") investigation dragged on slowly and inconclusively, without any charges being lodged against either the President or Mrs. Clinton. The Independent Counsel himself announced his resignation in February 1997 to become Dean of the Pepperdine Law School but, after a firestorm of media criticism, he backtracked and resumed his duties.

Without any expansion of his jurisdiction, Mr. Starr then began to conduct an investigation into rumors of extramarital affairs involving the President. In the Spring of 1997, Arkansas state troopers who had once been assigned to the Governor’s security detail were interviewed, and "[t]he troopers said Starr’s investigators asked about 12 to 15 women by name, including Paula Corbin Jones. . . ." Woodward & Schmidt, "Starr Probes Clinton Personal Life," The Washington Post (June 25, 1997) at A1 (emphasis added). "The nature of the questioning marks a sharp departure from previous avenues of inquiry in the three-year old investigation . . . . Until now, . . . what has become a wide-ranging investigation of many aspects of Clinton’s governorship has largely steered clear of questions about Clinton’s relationships with women . . . ." One of the most striking aspects of this new phase of the Whitewater investigation was the extent to which it focused on the Paula Jones case. One of the troopers interviewed declared, "‘They asked me about Paula Jones, all kinds of questions about Paula Jones, whether I saw Clinton and Paula together and how many times.’"

At his testimony before this Committee on November 19, 1998, Mr. Starr conceded that his agents had conducted these interrogations and acknowledged that he had not sought expansion of his jurisdiction from the Attorney General or the Special Division of the Court of Appeals, but he contended that these inquiries were somehow relevant to his Whitewater investigation: "we were, in fact, interviewing, as good prosecutors, good investigators do, individuals who would have information that may be relevant to our inquiry about the President’s involvement in Whitewater, in Madison Guaranty Savings and Loan and the like." However, the OIC was obviously engaged in an effort to gather embarrassing information concerning the President. Indeed, a recent article in the New York Times Magazine notes that Deputy Independent Counsel Jackie Bennett was "known among fellow prosecutors as the office expert on the President’s sex life long before anyone had heard of Monica Lewinsky."

B.      The Paula Jones Litigation

In January 1998, the OIC finally succeeded in transforming its investigation from one focused on long-ago land deals and loans in Arkansas into one involving a different topic (sex) and more recent events in Washington, D.C. The Lewinsky investigation grew out of the pretrial discovery proceedings in the civil suit Ms. Paula Corbin Jones had filed against the President in May 1994, making certain allegations about events three years earlier when the President was Governor of Arkansas. Discovery had been stayed until the Supreme Court’s decision on May 27, 1997, denying Presidential immunity. Shortly thereafter, Ms. Jones selected a new spokesperson, Ms. Susan Carpenter-McMillan, and retained new counsel affiliated with the conservative Rutherford Institute, who began a public relations offensive against the President. "‘I will never deny that when I first heard about this case I said, "Okay, good. We’re gonna get that little slimeball,"’ said Ms. Carpenter-McMillan, a staunch Republican." While Ms. Jones’ previous attorneys, Messrs. Gilbert Davis and Joseph Cammarata, had largely avoided the media, public personal attacks now became the order of the day as the Jones civil suit became a partisan vehicle to try to savage the President. Ms. Jones’ husband, Steve, even announced his intention to use judicial process to obtain and disseminate pejorative personal information concerning the President:

Therefore, when the Congress raises the issue of impeachment, the House (and ultimately the Senate) confront this inescapable question: is the alleged misconduct so profoundly serious, so malevolent, that it justifies undoing the people’s decision? Is the wrong alleged of a sort that not only demands removal of the President before the ordinary electoral cycle can do its work, but also justifies the national trauma that accompanies the impeachment process itself?

The wrongdoing alleged here does not remotely meet that standard.

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

Three American Presidents have been the subject of impeachment proceedings. Each was impeached (or threatened with impeachment) for allegedly wrongful official conduct and not for alleged misdeeds unrelated to the exercise of public office.

John Tyler. In 1841, President Tyler succeeded William Henry Harrison after the latter’s death in office. He immediately ran into political differences with the Whig majority in Congress. After Tyler vetoed a Whig-sponsored tariff bill, a Whig Congressman offered a resolution of impeachment against President Tyler. The resolution proffered nine impeachment articles, each alleging high crimes and misdemeanors constituting crimes against the government in the performance of official duties. The allegations included withholding assent to laws indispensable to the operation of government and assuming to himself the whole power of taxation, abuse of the appointment and removal power, and abuse of the veto power.

The resolution was rejected. But the fundamental premise of each charge was that the President had committed crimes against the United States in the exercise of official duties.

Andrew Johnson. President Johnson is, of course, the only president actually to have been impeached. President Johnson ran afoul of the Reconstruction Congress after the death of President Lincoln. After President Johnson notified Secretary of War Stanton that he was removed from office, the Congress voted an impeachment resolution in 1868 based on the President’s supposed violation of the Tenure of Office Act. Ultimately, eleven articles were adopted against him and approved by the House.

As in the case of President Tyler, all the allegations concerned allegedly wrongful official conduct said to be harmful to the processes of government. The leading House manager in the Senate trial was Rep. Benjamin Butler, who defined impeachable offenses as follows: "We define, therefore, an impeachable high crime and misdemeanor to be one in its nature or consequences subversive of some fundamental or essential principle of government, or highly prejudicial to the public interest . . . ."

On May 26, 1868, President Johnson was acquitted by a single vote. Although the vote was overwhelmingly partisan, seven Republican Senators broke with the party and voted for acquittal. Sen. William Pitt Fessenden was one of those seven. He did not vote for impeachment because, as he put it, an impeachable offense must be "of such a character to commend itself at once to the minds of all right thinking men, as beyond all question, an adequate cause for impeachment. It should leave no reasonable ground of suspicion upon the motives of those who inflict the penalty."/

Richard Nixon. Five articles of impeachment were proposed against then-President Nixon by this Committee in 1974. Three were approved. Two were not. As with the charges against Presidents Tyler and Johnson, the approved articles alleged official wrongdoing. Article I charged President Nixon with "using the powers of his high office [to] engage[ ] . . . in a course of conduct or plan designed to delay, impede and obstruct" the Watergate investigation. Article II described the President as engaging in "repeated and continuing abuse of the powers of the Presidency in disregard of the fundamental principle of the rule of law in our system of government" thereby "us[ing] his power as President to violate the Constitution and the law of the land." Article III charged the President with refusing to comply with Judiciary Committee subpoenas in frustration of a power necessary to "preserve the integrity of the impeachment process itself and the ability of Congress to act as the ultimate safeguard against improper Presidential conduct."

The precedents speak clearly. The allegation against President Tyler and the articles actually approved against Presidents Johnson and Nixon all charged serious misconduct amounting to misuse of the authority of the Presidential office. As Professor Sunstein expressed it in his testimony before this body’s Subcommittee on the Constitution, American presidential impeachment proceedings have targeted "act[s] by the President, that amount[ ] to large-scale abuse of distinctly Presidential authority." The Referral contains nothing of the kind.

Impeachable acts need not be criminal acts. As Professor Black has noted, it would probably be an impeachable act for a President to move to Saudi Arabia so he could have four wives while proposing to conduct the Presidency by mail and wireless from there; or to announce and adhere to a policy of appointing no Roman Catholics to public office; or to announce a policy of granting full pardons, in advance of indictment or trial, to federal agents or police who killed anyone in the line of duty in the District of Columbia./ None of these acts would be crimes, but all would be impeachable. This, because they are all "serious assaults on the integrity of government."/ And all of these acts are public acts having public consequences.

Holders of public office should not be impeached for conduct (even criminal conduct) that is essentially private. That is why scholars and other disinterested observers have consistently framed the test of impeachable offenses in terms of some fundamental attack on our system of government, describing impeachment as being reserved for:

In a recent statement, 400 historians warned of the threat to our constitutional system posed by these impeachment proceedings. The Framers, they wrote, "explicitly reserved [impeachment] for high crimes and misdemeanors in the exercise of executive power." Impeachment for anything short of that high standard would have "the most serious implications for our constitutional order."

That view accords with the position expressed by 430 legal scholars and communicated by letter to the House leadership and the leadership of this Committee./ The legal scholars’ letter underscores that high crimes and misdemeanors must be of a seriousness comparable to "treason" and "bribery" that are distinguished by a "grossly derelict exercise of official power." That standard, as the law professors note, is simply not met here even on the facts alleged. "If the President committed perjury regarding his sexual conduct, this perjury involved no exercise of Presidential power as such." In other words, "making false statements about sexual improprieties is not a sufficient basis to justify the trial and removal from office of the President of the United States." To continue an impeachment inquiry under such circumstances would pose a heavy cost to the Presidency with no return to the American people.

Thus, as Professor Michael Gerhardt summarized the matter in his recent testimony before a subcommittee of this body, there is "widespread recognition [of] a paradigmatic case for impeachment." In such a case, "there must be a nexus between the misconduct of an impeachable official and the latter’s official duties." The Referral presents no such case.

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

That impeachment was reserved for serious public wrongdoing of a serious political nature was no mere abstraction to the authors of the Constitution. The ink on the Constitution was barely dry when Congress was forced to investigate wrongdoing by one of the Framers. In 1792-93, Congress investigated then-Secretary of the Treasury Alexander Hamilton for alleged financial misdealings with James Reynolds, a convicted securities swindler. Secretary Hamilton was interviewed by members of Congress, including the House Speaker and James Monroe, the future President. He admitted to making secret payments to Mr. Reynolds, whose release from prison the Treasury Department had authorized. Mr. Hamilton acknowledged that he had made the payments but explained that he had committed adultery with Reynolds’ wife; that he had made payments to Mr. Reynolds to cover it up; that he had had Mrs. Reynolds burn incriminating correspondence; and that he had promised to pay the Reynolds’ travel costs if they would leave town./

The Members of Congress who heard Secretary Hamilton's confession concluded that the matter was private, not public; that as a result no impeachable offense had occurred; and that the entire matter should remain secret. Although President Washington, Vice-President Adams, Secretary of State Jefferson and House Minority leader James Madison (two of whom had signed the Constitution) all eventually became aware of the affair, they too maintained their silence. And even after the whole matter became public knowledge some years later, Mr. Hamilton was appointed to the second highest position in the United States Army and was speedily confirmed by the Senate./

It is apparent from the Hamilton case that the Framers did not regard private sexual misconduct as creating an impeachable offense. It is also apparent that efforts to cover up such private behavior, including even paying hush money to induce someone to destroy documents, did not meet the standard. Neither Hamilton's very high position, nor the fact that his payments to a securities swindler created an enormous "appearance" problem, were enough to implicate the standard. These wrongs were real, and they were not insubstantial, but to the Framers they were essentially private and therefore not impeachable.

Some have responded to the argument that the conduct at issue in the Referral is private by contending that the President is charged with faithfully executing the laws of the United States and that perjury would be a violation of that duty. That argument, however, proves far too much. Under that theory, any violation of federal law would constitute an impeachable offense, no matter how minor and no matter whether it arose out of the President’s private life or his public responsibilities. Lying in a deposition in a private lawsuit would, for constitutional purposes, be the equivalent of lying to Congress about significant conduct of the Executive Branch -- surely a result those advocates do not contemplate. More importantly, as the next section demonstrates, we know from the bipartisan defeat of the tax fraud article against President Nixon that the "faithfully execute" theory has been squarely rejected.

As previously indicated, this Committee’s investigation of President Nixon in 1973-74 had to confront the question of just what constitutes an "impeachable offense." That investigation resulted in the Committee’s approval of three articles of impeachment alleging misuse of the Presidential Office and rejection of two others. Those decisions constitute part of the common law of impeachment, and they stand for the principle that abuse of the Presidential Office is at the core of the notion of impeachable offense.

That conclusion was no happenstance. It resulted from a concordance among Committee majority and minority views as to the standard of impeachable offenses. One of the first tasks assigned to the staff of the Judiciary Committee when it began its investigation of President Nixon was to prepare a legal analysis of the grounds for impeachment of a President. The staff concluded that:

A memorandum setting forth views of certain Republican Members similarly emphasized the necessarily serious and public character of any alleged offense:

Notwithstanding their many differences, the Judiciary Committee investigating President Nixon was in substantial agreement on the question posed here: an impeachable wrong is an offense against our very system, a constitutional evil subversive of the government itself.

Against that backdrop, it is clear that the Committee’s vote not to approve a proposed tax-fraud type article was every bit as significant a precedent as the articles it did approve. The proposed article the Committee ultimately declined to approve charged that President Nixon both "knowingly and fraudulently failed to report certain income and claimed deductions [for 1969-72] on his Federal income tax returns which were not authorized by law." The President had signed his returns for those years under penalty of perjury, and there was reason to believe that the underlying facts would have supported a criminal prosecution against President Nixon himself. Yet the article was not approved. And it was not approved because the otherwise conflicting views of the Committee majority and minority were in concord: submission of a false tax return was not so related to exercise of the Presidential Office as to trigger impeachment.

Thus, by a bipartisan vote greater than a 2-1 margin, the Judiciary Committee rejected the tax-evasion article. Both Democrats and Republicans spoke against the idea that tax evasion constituted an impeachable offense. Congressman Railsback (R-Ill.) opposed the article saying that "there is a serious question as to whether something involving his personal tax liability has anything to do with [the] conduct of the office of the President." Congressman Owens (D-Utah) stated that, even assuming the charges were true in fact, "on the evidence available, these offenses do not rise, in my opinion, to the level of impeachment." Congressman Hogan (R-Md.) did not believe tax evasion an impeachable offense because the Constitution’s phrase "high crime signified a crime against the system of government, not merely a serious crime." And Congressman Waldie (D-Cal.) spoke against the article, saying that "there had not been an enormous abuse of power," notwithstanding his finding "the conduct of the President in these instances to have been shabby, to have been unacceptable, and to have been disgraceful even."/

These voices, and the overwhelming vote against the tax evasion article, underscore the fact that the 1974 Judiciary Committee’s judgment was faithful to its legal conclusions. It would not (and did not) approve an article of impeachment for anything short of a fundamental offense against our very system of government. In the words of the Nixon Impeachment Inquiry Report:

This Committee should observe no less stringent a standard. If this Committee is faithful to its predecessor, it will conclude that the Referral’s allegations (and the perjury allegations in particular) do not satisfy the high threshold required to approve articles of impeachment.

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