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White House Rebuttal, Pts. IV-VI

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.

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

Even if a Member of Congress should conclude that "high Crimes and Misdemeanors" have actually and properly been alleged, that conclusion alone is not sufficient to support an article of impeachment. In addition, the Member must conclude that the allegations against the President have been established by "clear and convincing" evidence. This is a legal term of art requiring evidence greater than in the ordinary civil case. The suggestion that a vote for impeachment of a democratically elected President represents no more, and requires no more, than the threshold showing necessary for a grand jury indictment reflects a serious disregard for the significance of this process.

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

This Committee should follow the lead of its predecessor in the Watergate proceedings. Twenty-four years ago, this Committee confronted the very same question presented here: what threshold of proof is required to approve articles of impeachment? Then, it was the consensus of all parties -- majority and minority counsel, as well as the attorney for the President -- that approval of an article must rest on clear and convincing evidence.

In the Watergate hearings, the President’s counsel, Mr. St. Clair, put the threshold-of-proof question in this way:

I think the American people will expect that this committee would not vote to recommend any articles of impeachment unless this committee is satisfied that the evidence to support it is clear, is clear and convincing. Because anything less than that, in my view, is going to result in recriminations, bitterness, and divisiveness among our people.

Majority counsel to this Committee, Mr. Doar, concurred that the clear-and-convincing measure was the appropriate gauge:

Mr. St. Clair said to you you must have clear and convincing proof. Of course there must be clear and convincing proof to take the step that I would recommend this committee to take. 

Emphasizing the political nature and consequences of impeachment, Mr. Doar reiterated that "as a practical matter, proof must be clear and convincing."

Minority counsel, Mr. Garrison, told the Committee that "when a member of the committee or a Member of the House votes to impeach, he should do so having made a judgment that the evidence convinces him that the President should be removed from office." And in their "Standard of Proof for Impeachment by the House" section of the Impeachment Inquiry, the Republican authors of the Minority Views formulated the standard as follows:

On balance, it appears that prosecution [of articles of impeachment by the House] is warranted if the prosecutor believes that the guilt of the accused is demonstrated by clear and convincing evidence. . . .

[W]e therefore take the position that a vote of impeachment is justified if, and only if, the charges embodied in the articles are proved by clear and convincing evidence. Our confidence in this proposition is enhanced by the fact that both the President’s Special Counsel and the Special Counsel to the Committee independently reached the same conclusion.

Finally, this Committee expressly found clear and convincing evidence supporting the obstruction-of-justice and abuse-of-power charges against President Nixon. See, e.g., Impeachment Inquiry at 33 ("[t]his report . . . contains clear and convincing evidence that the President caused action . . . to cover up the Watergate break-in"); id. at 136 ("[t]he Committee finds, based upon of [sic] clear and convincing evidence, that th[e] conduct[ ] detailed in the foregoing pages of this report constitutes ‘high crimes and misdemeanors’"); id. at 141 ("[t]he Committee finds clear and convincing evidence that a course of conduct was carried out [by President Nixon and his subordinates] to violate the constitutional rights of citizens").

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

As the Watergate precedent indicates, this Committee should not approve an article of impeachment for which the record evidence, taken as a whole, is anything less than clear and convincing. Put differently, each member must have a firm conviction, clearly and convincingly grounded in record evidence, that the President is guilty of the wrongdoing alleged. As former Attorney General Elliott Richardson warned on December 1, "‘[a] vote to impeach is a vote to remove. If members of the Committee believe that should be the outcome, they should vote to impeach. If they think that is an excessive sentence, they should not vote to impeach because if they do vote to impeach the matter is out their hands, and if the Senate convicts, out of its hands.’"

This clear-and-convincing standard is not the highest degree of proof known to our law, but the substantial showing it demands is commensurate with the gravity of impeachment itself. Exercise of the House’s accusatory impeachment power is itself an act that weakens the Presidency. Unlike the grand juror’s vote to indict, which affects a sole individual, affirmative votes on articles of impeachment jeopardize an entire branch of our national government and threaten the political viability of the single person (except for the Vice President) elected by the entire electorate. The clear-and-convincing requirement ensures that this momentous step is not lightly taken. Lower standards (probable cause or apparent preponderance of the evidence) are simply not demanding enough to justify the fateful step of an impeachment trial. They pose a genuine risk of subjecting the President, the Senate, and most of all the people who elected the President to a trial "on the basis of one-sided or incomplete information or insufficiently persuasive evidence." Moreover, those lower standards would be particularly inappropriate here, where this Committee has itself neither independently investigated the evidence nor heard from a single witness with first-hand knowledge of such facts. The respected impeachment scholar Michael Gerhardt has declared: "‘This idea that all [this Committee] need[s] to have is probable cause is in my mind ahistorical . . . . I do think that members, at least historically, have demanded more in terms of the kind of evidence that has to exist to initiate formal impeachment proceedings against the President and also to trigger a trial.’"

Exercise of the impeachment power by the House is a matter of the utmost seriousness. No member of this Committee or of the House as a whole should approve articles of impeachment unless that member is personally persuaded that a high crime or misdemeanor has been proven to have occurred by clear and convincing evidence. The precedent created in the Watergate proceedings could not be clearer. To break with that precedent and proceed on something less demanding would properly be viewed as a partisan effort to lower the impeachment bar. The President, the Constitution, and the American people deserve more. Proof by clear and convincing evidence, and nothing less, is necessary to justify each member’s affirmative vote for articles of impeachment.

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

The Committee is now in the process of completing its deliberations on this question of the utmost national gravity: whether to approve articles of impeachment against the President of the United States. Voting in favor of such articles would commence the somber process of annulling the electoral choice of the people of this country. Before analyzing, in the next three sections, with as much specificity as possible the charges the Committee apparently is considering, it is appropriate to examine the evidentiary record that serves as the basis for these grave judgments.

The record here is strikingly different from that on which the Committee acted twenty-four years ago in the Watergate proceedings. There, over several months of investigation, the Committee examined numerous fact witnesses and obtained and analyzed documents and other evidence; while it received a transmission of testimony and documents from the Watergate grand jury, it made its own independent evaluation of the evidence it had gathered. See Nixon Report at 9 (Judiciary Committee received statements of information from inquiry staff in which "a deliberate and scrupulous abstention from conclusions, even by implication, was observed").

Here, however, the Committee is almost wholly relying on the work of the Independent Counsel. Neither the Committee, its staff, nor counsel for the President have had the opportunity to confront the witnesses who have appeared before the OIC’s grand jury: to cross-examine them, assess their credibility, and elicit further information that might affect the testimony the witnesses gave. Indeed, the very genesis of this impeachment inquiry differs radically from the Watergate proceedings. Twenty-four years ago, this Committee itself made a decision to embark upon an impeachment inquiry. In the present case, however, this inquiry was generated by the judgment of Mr. Starr that he had identified "substantial and credible information . . . that may constitute grounds for impeachment." 28 U.S.C. § 595(c).

The Referral represents Mr. Starr’s effort to support that conclusion. The grand jury never authorized the transmission of or even reviewed the Referral, November 19, 1998 Testimony at 324-25 (Testimony of Mr. Starr) and, while Mr. Starr declined to address the question in his public testimony, we do not believe that the Referral itself was ever presented for substantive approval to Chief Judge Johnson or the Special Division of the Court of Appeals for the Purpose of Appointing Independent Counsels. Instead, the Referral reflects Mr. Starr’s own version of the vast amount of evidence gathered by the grand jury and the conclusions he draws from that evidence.

Unlike the impartial presentation to the Watergate committee from Special Prosecutor Jaworski, the Referral is a document advocating impeachment. It sets forth Mr. Starr’s best case for impeachment, not a neutral presentation of the facts. It reflects a careful selection and presentation of the evidence designed to portray the President in the worst possible light. It is being presented as a good faith summary of reliable evidence when it is in fact nothing of the kind. While we will address the specific allegations of perjury, obstruction of justice, and abuse of office (as best we can discern them) in the next sections, it is appropriate here to sketch out the untested nature of the underlying evidence, the material omissions in the Referral, and the indications of bias and overreaching that have characterized the OIC’s investigation. To demonstrate this is not to make an irrelevant ad hominem attack on the Independent Counsel but to point out how unreliable is the record before this Committee, and the caution and skepticism with which the narrative and conclusions of the Referral must therefore be viewed.

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

The Referral is based on grand jury information and as such has not been subjected to cross-examination -- the adversarial testing our system of justice employs for assessing the reliability of evidence. As the Supreme Court has stated, "Cross-examination is ‘the principal means by which the believability of a witness and the truth of his testimony are tested.’" Kentucky v. Stincer, 482 U.S. 730, 736 (1987) (citations omitted). Absent such testing, it is extremely difficult to make necessary judgments about the credibility of grand jury witnesses and the weight to be given their testimony.

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

Instead of transmitting to the Committee the information gathered by the OIC, Mr. Starr chose to give it his own spin. Had he sat across the table from the witnesses, it might have been that he based his judgments on such scrutiny. Since he did not, the grounds on which he credited some evidence and rejected other evidence are unknown. The decision to proceed in this way was a sharp departure from Special Prosecutor Leon Jaworski’s submission to Congress of "a simple and straightforward compilation of information gathered by the Grand Jury, and no more." In re Report and Recommendation of June 5, 1972 Grand Jury, 370 F. Supp. 1219, 1226 (D.D.C. 1974). As drafted, the Referral impedes the search for truth by cherry-picking the evidence and presenting (as we demonstrate in the next sections) a deeply misleading portrait of the record.

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

The Referral repeatedly and demonstrably omitted or mischaracterized directly relevant evidence that exonerates the President of the very allegations leveled by the OIC. For example:

The concealment-of-gifts-accusation. The Referral claims that the President and Ms. Lewinsky "discussed" concealing gifts at their December 28 visit, and that the President therefore orchestrated the pick-up of those gifts. The Referral ignores evidence to the contrary, such as:

·      Asked if President Clinton discussed concealment with her, Ms.       Lewinsky said, "[H]e really didn’t -- he didn’t really discuss it."

App. at 1122 (8/20/98 grand jury testimony of Ms. Lewinsky). As to who first conceived of the idea of involving Ms. Currie, the Referral omitted the key passage:

·      "A JUROR: Now, did you bring up Betty’s name or did the President bring up Betty’s name?

[MS. LEWINSKY]: I think I brought it up. The President wouldn’t have brought up Betty’s name because he really didn’t -- he didn’t really discuss it."

App. at 1122 (8/20/98 grand jury testimony of Ms. Lewinsky). And as to who broached the idea of actually picking up the gifts, the Referral again omitted this important testimony by Ms. Currie:

Q.      . . . Just tell us from moment one how this issue first arose and what you did about it and what Ms. Lewinsky told you.

A.      The best I remember it first arose with a conversation. I don’t know if it was over the telephone or in person. I don’t know. She asked me if I would pick up a box. She said Isikoff had been inquiring about gifts.

Supp. at 582 (5/6/98 grand jury testimony of Ms. Currie) (emphasis added).

The jobs-for-silence-accusation. The allegation that the President obstructed justice by procuring a job for Ms. Lewinsky in exchange for silence or false testimony rests on the Referral’s account of Ms. Lewinsky’s job search that simply excluded the contradictory evidence. Both Ms. Lewinsky and Mr. Jordan flatly denied that the job assistance had anything at all to do with Ms. Lewinsky’s testimony:

"I was never promised a job for my silence." App. at 1161 (8/20/98 grand jury testimony of Ms. Lewinsky).

"As far as I was concerned, [the job and the affidavit] were two very separate matters." Supp. at 1737 (3/5/98 grand jury testimony of Vernon Jordan).

Q.      Did [Ms. Lewinsky] ever directly indicate to you that she wanted her job in New York before she could finish [her affidavit] up with Mr. Carter?

A.      Unequivocally, no.

Q.      . . . Is there anything about the way she acted when speaking with you . . . that, as you sit here now, makes you think that perhaps she was attempting not to finalize whatever she was doing with Mr. Carter until she had a job in New York?

A.      Unequivocally, indubitably, no.

Supp. at 1827 (5/5/98 grand jury testimony of Vernon Jordan). And as to the circumstantial evidence, we demonstrate in Part VI.B.2 that the Referral omitted a host of probative and exculpatory facts that negate the existence of any improper quid pro quo.

The influencing-Betty-Currie-accusation. The Referral asserts that the President’s January 18 conversation was an attempt to influence Ms. Currie’s testimony. But the Referral omitted Ms. Currie’s clear testimony that this discussion did no such thing:

Q:      Now, back again to the four statements that you testified the President       made       to you that were presented as statements, did you feel pressured       when he told you those statements?

A:      None whatsoever.

* * *

Q:      Did you feel any pressure to agree with your boss?

A:      None.

Supp. at 668 (7/22/98 grand jury testimony of Ms. Currie) (emphasis added).

Q:      You testified with respect to the statements as the President made       them, and, in particular, the four statements that we’ve already       discussed. You felt at the time that they were technically accurate? Is       that a fair assessment of your testimony?

A:      That’s a fair assessment.

Q:      But you suggested that at the time. Have you changed your opinion       about it in retrospect?

A:      I have not changed my opinion, no.

Supp. at 667 (7/22/98 grand jury testimony of Ms. Currie).

The false-affidavit-accusation. The OIC accused the President of obstructing justice by suggesting that Ms. Lewinsky file an affidavit that he knew would be false. Ref. at 173. However, the OIC inexplicably never once quoted Ms. Lewinsky’s repeated, express denials that anyone had told or encouraged her to lie:

"Neither the Pres[ident] nor Mr. Jordan (or anyone on their behalf) asked or encouraged Ms. L[ewinsky] to lie." App. at 718 (2/1/98 Proffer).

"I think I told [Tripp] that -- you know, at various times the President and Mr. Jordan had told me I had to lie. That wasn’t true." App. at 942 (8/6/98 grand jury testimony of Ms. Lewinsky).

"I think because of the public nature of how this investigation has been and what the charges aired, that I would just like to say that no one ever asked me to lie and I was never promised a job for my silence." App. at 1161 (8/20/98 grand jury testimony of Ms. Lewinsky).

"Neither the President nor Jordan ever told Lewinsky that she had to lie." App. at 1398 (7/27/98 FBI Form 302 Interview of Ms. Lewinsky).

"Neither the President nor anyone ever directed Lewinsky to say anything or to lie . . . " App. at 1400 (7/27/98 FBI Form 302 Interview of Ms. Lewinsky).

The denying-knowledge-of executive-privilege-accusation. The Referral states that the President deceived the public by feigning ignorance of the executive privilege litigation:. According to the Referral, while in Africa, the President "was asked about the assertion of Executive Privilege, he responded ‘You should ask someone who knows.’ He also stated, ‘I haven’t discussed that with the lawyers. I don’t know.’"

   


To achieve the desired effect, the Referral first misstates the actual question posed. This is the actual exchange:

Q:      Mr. President, we haven’t yet had the opportunity to ask you about your decision to invoke executive privilege, sir. Why shouldn’t the American people see that as an effort to hide something from them?

The President:      Look, that’s a question that’s being answered back home by the people who are responsible to do that. I don’t believe I should be discussing that here.

Q.      Could you at least tell us why you think the first lady might covered by that privilege, why her conversation might fall under that?

The President      All I know is – I saw an article about it in the paper today. I haven’t discussed it with the lawyers. I don’t know. You should ask someone who does.

The foregoing are just examples of a technique employed throughout the Referral, which systematically omits or mischaracterizes material evidence that would have undermined its allegations.

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

Mr. Starr’s conduct in the Lewinsky investigation has demonstrated a bias against the President. Understanding that bias is critical to evaluating the Referral -- to inform a proper weighing of the judgments Mr. Starr has made in selecting the evidence, presenting the evidence, and drawing conclusions from it.

Mr. Starr actively sought jurisdiction in the Lewinsky matter, despite his representations to the contrary.

After four years of fruitless investigation of the President and Mrs. Clinton on a variety of topics generically referred to in the news media as "Whitewater," the Starr investigation was at a standstill in early 1998 (the Independent Counsel himself had sought to resign in 1997). However, a telephone call from Ms. Tripp with allegations of obstruction and witness tampering in the Paula Jones case (which turned out to be false) offered Mr. Starr a dramatic way to vindicate his long, meandering, and costly investigation. Mr. Starr seized his chance energetically, promising Ms. Tripp immunity and using her to surreptitiously tape Ms. Lewinsky even before he made his request for jurisdiction to the Department of Justice.

Mr. Starr misrepresented how far he was willing to go in his attempts to obtain evidence against the President.

The fervor with which Mr. Starr has pursued President Clinton is manifest in his denial, under oath, that his agents sought on January 16th to have Ms. Lewinsky wear a wire to surreptitiously record the President and Mr. Jordan. See, e.g., Transcript of November 19, 1998 Hearing at 286 (testimony of Mr. Starr). Mr. Starr’s vehement denials notwithstanding, the evidence the OIC submitted with the Referral runs very much contrary to his version of the facts. Ms. Lewinsky’s testimony plainly contradicts Mr. Starr’s account, see App. at 1147 ("they told me that . . . I’d have to place calls or wear a wire to see -- to call Betty and Mr. Jordan and possibly the President"); id. at 1159 ("I didn’t allow him [President Clinton] to be put on tape that night"), as does statements by her attorneys, Time (Feb.16, 1998) at 49, and an interview memorandum of an FBI agent working for Mr. Starr himself, see App. at 1379 (1/16/98 FBI 302 Form Interview of Ms. Lewinsky). It is evident that Mr. Starr wanted Ms. Lewinsky to help set up the President or those close to him, but denied doing so in an effort to maintain a semblance of impartiality.

Mr. Starr gave immunity to anyone he thought could help him go after the President.

He granted immunity to one witness who had admitted engaging in illegal activity over a period of several months (Ms. Tripp), and another witness who was, as he stated, "a felon in the middle of committing another felony" (Ms. Lewinsky), Transcript of November 19, 1998 Hearing at 140 (testimony of Mr. Starr), all in an effort to gather information damaging to the President.

The OIC leaked grand jury information hurtful to the President.

The OIC investigation has been characterized by a flagrant and highly prejudicial (to the President) campaign of grand jury leaks. Mr. Starr and his office have been ordered by Chief Judge Johnson to "show cause" why they should not be held in contempt in light of "serious and repetitive prima facie violations of Rule 6(e)." Order (September 25, 1998) at 20. Leaks are significant not simply because they are illegal, but also because the leaks themselves were often inaccurate and represented an effort to use misinformation to put pressure on the President. For example, early leaks discussed the OIC’s view that the "talking points" were an effort to obstruct justice coming out of the White House:

[S]ources in Starr’s office have told NBC News that the information Lewinsky’s lawyers were offering was simply not enough . . . . Sources in Starr’s office and close to Linda Tripp say they believe the instructions (or talking points) came from the White House. If true, the could help support a case of obstruction of justice.

NBC Nightly News (Feb. 4, 1998) (emphasis added). The Referral barely mentions the "Talking Points" and makes no allegation that the President in fact had anything to do with this document.

The flaws in the Referral and the evidentiary record before the Committee are not academic. They reveal in concrete terms the weaknesses of the charges of perjury, obstruction of justice, and abuse of office that have been presented to the Committee. These charges are addressed in detail in the sections that follow.

VI.      THE PRESIDENT DID NOT COMMIT PERJURY

Will Rogers is reported to have said of a contemporary: "It’s not what he doesn’t know that bothers me, it’s what he knows for sure that just ain’t so." Defending what the President actually said under oath is much easier than defending phantom allegations based on what some claim the President said. In analyzing the allegation of perjury, we urge the Committee and the Congress to focus only on what is actually in the record, not on popular mythology, conventional (but incorrect) wisdom, or political spin.

For example, it has variously been asserted that in the grand jury the President denied that he had a "sexual relationship" with Ms. Lewinsky and that he broadly reaffirmed his earlier deposition testimony. In fact, in the grand jury, the President admitted to an "inappropriate intimate relationship" with Ms. Lewinsky that was physical in nature. In other words, any consideration of charges of perjury requires a focused look at the actual statements at issue. Again, we ask the Committee: Please, do not assume the conventional wisdom. Look, instead, at the actual record.

A.      Elements of Perjury

Given the difficulties of testifying under oath with precision, proof of perjury requires meeting a very high standard. A vast range of testimony that is imprecise, unresponsive, vague, and literally truthful, even if it is not completely forthcoming, simply is not perjury. The law is aware of human foibles and shortcomings of memory. Dissatisfaction with the President’s answers because they may be narrow, "hair splitting," or formalistic does not constitute grounds for alleging perjury.

Perjury requires proof that a defendant, while under oath, knowingly made a false statement as to material facts. See, e.g., United States v. Dunnigan, 507 U.S. 87, 94 (1993). The "knowingly" requirement is a high burden: the government must prove the defendant had a subjective awareness of the falsity of his statement at the time he made it. See, e.g., United States v. Dowdy, 479 F.2d 213, 230 (4th Cir. 1973); United States v. Markiewicz, 978 F.2d 786, 811 (2d Cir. 1992). Moreover, it is (of course) clear that a statement must be false in order to constitute perjury. It is equally beyond debate that certain types of answers are not capable of being false and are therefore by definition non-perjurious, no matter how frustrating they may be to the proceeding in which they are given: literally truthful answers that imply facts that are not true, see, e.g., United States v. Bronston, 409 U.S. 352, 358 (1973); truthful answers to questions that are not asked, see, e.g., United States v. Corr, 543 F.2d 1042, 1049 (2d Cir. 1976); and answers that fail to correct misleading impressions, see, e.g., United States v. Earp, 812 F.2d 917, 919 (4th Cir. 1987). The Supreme Court has made abundantly clear that it is not relevant for perjury purposes whether the witness intends his answer to mislead, or indeed intends a "pattern" of answers to mislead, if the answers are truthful or literally truthful.

In explaining the law of perjury, the Supreme Court and numerous lower federal courts have set forth four clear standards. These core principles, discussed below in some detail, must inform the Committee’s analysis here. First, the mere fact that recollections differ does not mean one party is committing perjury. Few civil cases arise where testimony about events is not in conflict -- even as to core matters at the heart of a case. When one party wins a case, the other is not routinely indicted for perjury. Common sense and the stringent requirements of perjury law make clear that much more is needed. Second, a perjury conviction under 18 U.S.C. § 1621 cannot rest solely on the testimony of a single witness and, at the very least as a matter of practice, no reasonable prosecutor would bring any kind of perjury case based on the testimony of one witness without independent corroboration -- especially if the witness is immunized, or is of questionable credibility. As the Supreme Court has made clear, a perjury case "ought not to rest entirely upon ‘an oath against an oath.’" United States v. Weiler, 323 U.S. 606, 608-09 (1945). Third, answers to questions under oath that are literally true but unresponsive to the questions asked do not, as a matter of law, fall under the scope of the federal perjury statute. That is so even if the witness intends to mislead his questioner by his answer and even if the answer is false by "negative implication." And fourth, answers to questions that are fundamentally ambiguous cannot, as a matter of law, be perjurious.

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

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

The "knowingly" element of perjury is not satisfied by the mere showing that the testimony of two witnesses differs, or that the testimony of a witness is, in fact, not correct. Rather, it must be proven that a witness had a subjective awareness that a statement was false at the time he provided it. See, e.g., United States v. Dowdy, 479 F.2d 213, 230 (4th Cir. 1973); United States v. Markiewicz, 978 F.2d 786, 811 (2d Cir. 1992). This is an extremely high standard. That standard is not satisfied when incorrect testimony is provided as a result of confusion, mistake, faulty memory, carelessness, misunderstanding, mistaken conclusions, unjustified inferences testified to negligently, or even recklessness. See, e.g., Dunnigan, 507 U.S. at 94; United States v. Dean, 55 F.3d 640, 659 (D.C. Cir. 1995); see also Department of Justice Manual, 1997 Supplement, at 9-69.214. As Professor Stephen A. Saltzburg testified to this Committee on December 1, 1998, "American judges and lawyers . . . know that [perjury] is a crime that we purposely make difficult to prove. We make it difficult to prove because we know that putting any person under oath and forcing that person to answer ‘under penalty of perjury’ is a stressful experience. . . . Honest mistakes are made, memories genuinely fail, nervous witnesses say one thing and in their minds hear themselves saying something different, and deceit in answers to questions about relatively trivial matters that could not affect the outcome of a proceeding but that intrude deeply into the most private areas of a witness’s life causes little harm." Perjury Hearing of December 1, 1998 (Statement of Professor Stephen A. Saltzburg at 1). Indeed, Mr. Starr has recognized that people who have experienced the same event -- even the same significant event -- may emerge with conflicting recollections, and that that does not necessarily mean one of them is committing perjury:

MR. LOWELL: . . . do you not think it would have been a less distorted picture, to use your words, to know that when [Ms. Lewinsky] left the room, she was followed by agents, and that she swore under an oath that she, quote, "felt threatened that when she left, she would be arrested," end quote? Don’t you think that completes the picture a little bit?

MR. STARR: I think her perception was incorrect.

Transcript of November 19, 1998 Hearing at 139 (emphasis added).

MR. STARR:      . . . we talked at a high level of generality, as I understand it, not in a person-specific way, with respect to what a cooperating witness would do.

REP. DELAHUNT: You realize that Ms. Lewinsky’s testimony contradicts you.

MR. STARR: I am aware that there may be other perceptions, but that is what we, in fact, asked.

Id. at 288 (emphasis added). The OIC’s press spokesman Charles Bakaly, appearing on a television program immediately after Mr. Starr’s testimony, attempted to explain this conflict between Ms. Lewinsky’s sworn testimony and Mr. Starr’s sworn testimony this way: "Well, you know, again, people have different versions of things." ABC Nightline, November 19, 1998 (emphasis added). The law, in short, gives ample breathing space to conflicting testimony or recollection before leaping to allegations of perjury.

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

In a perjury prosecution under 18 U.S.C. § 1621, the falsity of a statement alleged to be perjurious cannot be established by the testimony of just one witness. This ancient common law rule, referred to as the "two-witness rule," has survived repeated challenges to its legitimacy and has been judicially recognized as the standard of proof for perjury prosecutions brought under § 1621. See, e.g., Weiler v. United States, 323 U.S. 606, 608-610 (1945) (discussing the history and policy rationales of the two-witness rule); United States v. Chaplin, 25 F.3d 1373, 1377-78 (7th Cir. 1994) (two-witness rule applies to perjury prosecutions). The Department of Justice recognizes the applicability of the two-witness rule to perjury prosecutions brought under § 1621. See Department of Justice Manual, 1997 Supplement, at 9-69.265.

The crux of the two-witness rule is that "the falsity of a statement alleged to be perjurious must be established either by the testimony of two independent witnesses, or by one witness and independent corroborating evidence which is inconsistent with the innocence of the accused." Department of Justice Manual, 1997 Supplement, at 9-69.265 (emphasis in original). The second witness must give testimony independent of the first which, if believed, would "prove that what the accused said under oath was false." Id.; United States v. Maultasch, 596 F.2d 19, 25 (2d Cir. 1979). Alternatively, the independent corroborating evidence must be inconsistent with the innocence of the accused and "of a quality to assure that a guilty verdict is solidly founded." Department of Justice Manual, 1997 Supplement, at 9-69.265; United States v. Forrest, 639 F.2d 1224, 1226 (5th Cir. 1981). It is therefore clear that a perjury conviction under § 1621 cannot lie where there is no independent second witness who corroborates the first, or where there is no independent evidence that convincingly contradicts the testimony of the accused.

Section 1623 does not literally incorporate the "two-witness rule," but it is nonetheless clear from the case law that perjury prosecutions under this statute require a high degree of proof, and that prosecutors should not, as a matter of reason and practicality, even try to bring perjury prosecutions based solely on the testimony of a single witness. In Weiler v. United States, 323 U.S. 606, 608-09 (1945), the Supreme Court observed that "[t]he special rule which bars conviction for perjury solely upon the evidence of a single witness is deeply rooted in past centuries." The Court further observed that "equally honest witnesses may well have differing recollections of the same event," and hence "a conviction for perjury ought not to rest entirely upon ‘an oath against an oath.’" Id. at 609 (emphasis added). Indeed, the common law courts in seventeenth-century England required the testimony of two witnesses as a precondition to a perjury conviction, when the testimony of a single witness was in almost all other cases sufficient. See Chaplin, 25 F.3d at 1377 (citing Wigmore on Evidence § 2040(a) at 359-60 (Chadbourne rev. 1978)). The common law courts actually adopted the two-witness rule from the Court of Star Chamber, which had followed the practice of the ecclesiastical courts of requiring two witnesses in perjury cases. Id. The English rationale for the rule is as resonant today as it was in the seventeenth century: "[I]n all other criminal cases the accused could not testify, and thus one oath for the prosecution was in any case something as against nothing; but on a charge of perjury the accused’s oath was always in effect evidence and thus, if but one witness was offered, there would be merely . . . an oath against an oath." Id. And, as noted above, no perjury case should rest merely upon "an oath against an oath." As a practical matter, the less reliable the single witness, the more critically the independent corroboration is required.

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

A third guiding principle is that literal truth, no matter how frustrating it may be, is not perjury. In United States v. Bronston, 409 U.S. 352 (1973), the leading case on the law of perjury, the Supreme Court addressed "whether a witness may be convicted of perjury for an answer, under oath, that is literally true but not responsive to the question asked and arguably misleading by negative implication." Id. at 352. The Court directly answered the question "no." It made absolutely clear that a literally truthful answer cannot constitute perjury, no matter how much the witness may have intended by his answer to mislead.

Bronston involved testimony taken under oath at a bankruptcy hearing. At the hearing, the sole owner of a bankrupt corporation was asked questions about the existence and location of both his personal assets and the assets of his corporation. The owner testified as follows:

Q:      Do you have any bank accounts in Swiss banks, Mr.                               Bronston?

A:      No, sir.

Q:      Have you ever?

A:      The company had an account there for about six months in Zurich.

Q:      Have you any nominees who have bank accounts in Swiss banks?

A:      No, sir.

Q:      Have you ever?

A:      No, sir.

Id. at 354. The government later proved that Bronston did in fact have a personal Swiss bank account that was terminated prior to his testimony. The government prosecuted Bronston "on the theory that in order to mislead his questioner, [Bronston] answered the second question with literal truthfulness but unresponsively addressed his answer to the company’s assets and not to his own --thereby implying that he had no personal Swiss bank account at the relevant time." Id. at 355.

The Supreme Court unanimously rejected this theory of perjury. It assumed for purposes of its holding that the questions referred to Bronston’s personal bank accounts and not his company’s assets. Moreover, the Court stated, Bronston’s "answer to the crucial question was not responsive," and indeed "an implication in the second answer to the second question [is] that there was never a personal bank account." Id. at 358. The Court went so far as to note that Bronston’s answers "were not guileless but were shrewdly calculated to evade." Id. at 361. However, the Court emphatically held that implications alone do not rise to the level of perjury, and that Bronston therefore could not have committed perjury. "[W]e are not dealing with casual conversation and the statute does not make it a criminal act for a witness to willfully state any material matter that implies any material matter that he does not believe to be true." Id. at 357-58. The Court took pains to point out the irrelevance of the witness’s intent: "A jury should not be permitted to engage in conjecture whether an unresponsive answer, true and complete on its face, was intended to mislead or divert the examiner." Id. at 359.

   


The Supreme Court in Bronston provided several rationales for its holding that literally true, non-responsive answers are by definition non-perjurious, regardless of their implications. First, the Court noted that the burden always rests squarely on the interrogator to ask precise questions, and that a witness is under no obligation to assist the interrogator in that task. The Court "perceive[d] no reason why Congress would intend the drastic sanction of a perjury prosecution to cure a testimonial mishap that could readily have been reached with a single additional question by counsel alert -- as every counsel ought to be-–to the incongruity of petitioner’s unresponsive answer." Id. at 359. Moreover, the Court noted that because of the adversarial process, perjury is an extraordinary and unusual sanction, since "a prosecution for perjury is not the sole, or even the primary safeguard against errant testimony." Id. at 360. The perjury statute cannot be invoked "simply because a wily witness succeeds in derailing the questioner -- so long as the witness speaks the literal truth." Id.

Bronston is just one of scores of cases across the federal circuits that make clear that the definition of perjury must be carefully limited because perjury prosecutions are dangerous to the public interest since they "discourage witnesses from appearing or testifying." Id. at 359. For instance, in United States v. Earp, 812 F.2d 917 (4th Cir. 1987), the defendant, a member of the Ku Klux Klan, had stood guard during the attempted burning of a cross on the lawn of an interracial couple, and further evidence demonstrated that he had personally engaged in other attempts to burn crosses. During questioning before a grand jury, however, he denied ever having burned crosses on anyone’s lawn. He was convicted of perjury, but the United States Court of Appeals for the Fourth Circuit reversed his conviction, because "like the witness in Bronston, [the defendant’s] answers were literally true although his second answer was unresponsive." Id. at 919. That is, the defendant had not actually succeeded in his cross-burning attempts, so it was literally true that he had never burned crosses on anyone’s lawn. The court noted that "while he no doubt knew full well that he had on that occasion tried to burn a cross, he was not specifically asked either about any attempted cross burnings." Id. Every federal court of appeals in the nation concurs in this reading of Bronston.

D.      Fundamentally Ambiguous Questions Cannot Produce Perjurious Answers

A fourth guiding principle is that ambiguous questions cannot produce perjurious answers. When a question or a line of questioning is "fundamentally ambiguous," the answers to the questions posed are insufficient as a matter of law to support a perjury conviction." See, e.g., United States v. Finucan, 708 F.2d 838, 848 (1st Cir. 1983); United States v. Lighte, 782 F.2d 367, 375 (2d Cir. 1986); United States v. Tonelli, 577 F.2d 194, 199 (3d Cir. 1978); United States v. Bell, 623 F.2d 1132, 1337 (5th Cir. 1980); United States v. Wall, 371 F.2d 398, 400 (6th Cir. 1967); United States v. Williams, 552 F.2d 226, 229 (8th Cir. 1977). In other words, when there is more than one way of understanding the meaning of a question, and the witness has answered truthfully as to his understanding, he cannot commit perjury. Many courts have emphasized that "defendants may not be assumed into the penitentiary" by "sustain[ing] a perjury charge based on [an] ambiguous line of questioning." Tonelli, 577 F.2d at 199.

United States v. Lattimore, 127 F. Supp. 405 (D.D.C. 1955), is the key case dealing with ambiguous questions in the perjury context. In Lattimore, a witness was questioned before the Senate Internal Security Subcommittee about his ties to the Communist party. He was asked whether he was a "follower of the Communist line," and whether he had been a "promoter of Communist interests." He answered "no" to both questions, and was subsequently indicted for committing perjury. The United States District Court for the District of Columbia found that the witness could not be indicted on "charges so formless and obscure as those before the Court." Id. at 413. The court held that "‘follower of the Communist line’ is not a phrase with a meaning about which men of ordinary intellect could agree, nor one which could be used with mutual understanding by a questioner and answerer unless it were defined at the time it were sought and offered as testimony." Id. at 110. As the court explained further:

[The phrase] has no universally accepted definition. The Government has defined it in one way and seeks to impute its definition to the defendant. Defendant has declined to adopt it, offering a definition of his own. It would not necessitate great ingenuity to think up definitions differing from those offered either by the Government or defendant. By groundless surmise only could the jury determine which definition defendant had in mind.

Id. at 109.

Many other cases stand for the proposition that a witness cannot commit perjury by answering an inherently ambiguous question. For instance, in United States v. Wall, 371 F.2d 398 (6th Cir. 1967), a witness was asked whether she had "been on trips with Mr. X," and she answered "no." The government could prove that in fact the witness, who was from Oklahoma City, had been in Florida with "Mr. X." However, the government could not prove that the witness had traveled from Oklahoma City to Florida with "Mr. X." The court noted (and the government conceded) that the phrase "been on trips" could mean at least two different things: "That a person accompanied somebody else travelling with, or it can mean that they were there at a particular place with a person." The court then stated that "[t]he trouble with this case is that the question upon which the perjury charge was based was inarticulately phrased, and, as admitted by the prosecution, was susceptible of two different meanings. In our opinion, no charge of perjury can be based upon an answer to such a question." Id. at 399-400.

Similarly, in United States v. Tonelli, 577 F.2d 194 (3d Cir. 1978), the defendant answered negatively a question whether he had "handled any pension fund checks." The government then proved that the defendant had actually handled the transmission of pension fund checks by arranging for others to send, mail, or deliver the checks. The government charged the defendant with perjury. The court held that perjury could not result from the government’s ambiguous question. The court explained:

      It is clear that the defendant interpreted the prosecutor’s questions about ‘handling’ to mean ‘touching’ . . . To sustain a perjury charge based on the ambiguous line of questioning here would require us to assume [defendant] interpreted ‘handle’ to include more than ‘touching.’ The record will not allow us to do so and as the Court of Appeals for the Fifth Circuit has observed ‘[e]specially in perjury cases defendants may not be assumed into the penitentiary.’

Id. at 199-200.

United States v. Bell, 623 F.2d 1132, 1137 (5th Cir. 1980), is yet another example of this doctrine. In Bell, a witness was asked before a grand jury, "Whether personal or business do you have records that are asked for in the subpoena," and the witness answered, "No, sir, I do not." It was later established that the witness’s files clearly contained relevant records. Nonetheless, the court held that the question was ambiguous, and therefore incapable of yielding a perjurious answer. The witness interpreted the question to ask whether he had brought the records with him that day, and not whether he had any records anywhere else in the world.

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

Every lawyer knows that in preparing a witness for a deposition one important task is to counsel the witness to be cautious in answering questions under oath, not to guess or give an answer as to which the witness is not sure, and not to volunteer information to opposing counsel that is not specifically sought by the question. For example, one legal text advises, "[C]ounsel will want to drill the deponent to answer questions as she would at the deposition: short and to the point, with nothing volunteered." Lawyers are advised they should instruct a client: "If you do not know or do not remember, say that. You do not get extra points by guessing. If you are pretty sure of the answer but not 100% sure, say that. . . . You do not get extra points for giving perfectly clear and complete answers. Normally if there is some ambiguity in your answer, that will be a problem for the opposing party, not for you." Id. at 222. As Mr. Starr testified to the Judiciary Committee at one point, "I have to be careful of what I say, because of not having universal facts." Transcript of November 19, 1998 Hearing at 386. And Mr. Starr declined repeatedly to answer questions under oath, stating on numerous occasions that he would have to "search his recollection," and qualifying many of the answers he did give with such phrases as "to the best of my recollection" and "if my recollection serves me." See, e.g., Transcript of November 19, 1998 Hearing at 107 ("But the letter, if my recollection serves me, goes to the circumstances with respect to the events of the evening of January 16th.") (emphasis added); Id. at 122 (" . . . But they were only conversations, and it never ripened -- I’m talking about with Mr. Davis -- and it never ripened into an arrangement, an agreement, to the best of my recollection, to do anything because of the circumstances that then occurred.") (emphasis added); Id. at 247 ("I’m unable to answer that question without -- you know, I will have to approach -- you’re saying any information relating to any -- and I would have to search my recollection. I’ve prepared today for questions that go to this referral. So I will have to search my recollection.") (emphasis added); Id. at 343 ("With respect to the travel office I would frankly have to search my recollection to see exactly where we were and when we were there.") (emphasis added); Id. at 358 ("We discussed with Sam [Dash] a variety of issues. I would have to search my recollection with respect to any specific observations that Sam gave us with respect to this.") (emphasis added). This is what a well-prepared witness does when testifying under oath. No amount of pressure should force a witness to assert recall where there is none, or to answer a question not asked. A failure to do so is neither remarkable nor criminal.

F.      Specific Claims of Perjury

With these principles in mind, it is apparent that there is no basis for a charge of perjury here, either with respect to the President’s Jones deposition or his subsequent grand jury testimony.

1.      Civil Deposition of January 17, 1998

a.      Nature of Relationship

The primary allegation of perjury arising from President Clinton’s deposition testimony of January 17, 1998, appears to be that he lied under oath about the nature of his relationship with Ms. Lewinsky when he denied in that civil case that he had a "sexual affair," a "sexual relationship," or "sexual relations" with Ms. Lewinsky. See Ref. at 131; Schippers Presentation at 25. In the deposition, President Clinton asserted: (1) that he did not have a "sexual affair" with Ms. Lewinsky within the undefined meaning of that term, Dep. at 78; (2) that Ms. Lewinsky was correct in her statement that she did not have a "sexual relationship" with the President within the undefined meaning of that term, id. at 204; and (3) that he did not have "sexual relations" with Ms. Lewinsky as that term was defined by the Jones lawyers and limited by Judge Wright, ibid. The allegation that President Clinton perjured himself with respect to any of these deposition statements is without merit.

First, it is by now more than clear that the undefined terms "sexual affair," "sexual relations" and "sexual relationship" are at best ambiguous, meaning different things to different people, and that President Clinton’s belief that the terms refer to sexual intercourse is supported by courts, commentators, and numerous dictionaries -- a point ignored in the Referral and Mr. Schippers’ presentation to the Committee despite the obvious problem with premising a perjury claim on such ambiguous terms. As one court has stated, "[i]n common parlance the terms ‘sexual intercourse’ and ‘sexual relations’ are often used interchangeably." J.Y. v. D.A., 381 N.E.2d 1270, 1273 (Ind. App. 1978). Dictionary definitions make the same point. For example,

Webster’s Third New International Dictionary (1st ed. 1981) at 2082, defines "sexual relations" as "coitus;"

Random House Webster’s College Dictionary (1st ed. 1996) at 1229, defines "sexual relations" as "sexual intercourse; coitus;"

Merriam-Webster’s Collegiate Dictionary (10th ed. 1997) at 1074, defines "sexual relations" as "coitus;"

Black’s Law Dictionary (Abridged 6th ed. 1991) at 560, defines "intercourse" as "sexual relations;" and

Random House Compact Unabridged Dictionary (2d ed. 1996) at 1755, defines "sexual relations" as "sexual intercourse; coitus."

The President’s understanding of these terms, which is shared even by several common dictionaries, could not possibly support a prosecution for perjury. How would a prosecutor prove these dictionaries "wrong?"

Irrespective of the view that "sexual relations" means intercourse, the evidence is indisputable that this is indeed what President Clinton believed. Perjury requires more than that a third party believes President Clinton was wrong about the meaning of these terms (a point on which the allegation plainly founders); it also requires proof that President Clinton knew he was wrong and intentionally lied about it. But the evidence demonstrates that the President honestly held that belief well before the Jones deposition. The genuineness of President Clinton’s beliefs on this subject is even supported by the OIC’s account of Ms. Lewinsky’s testimony during an interview with the FBI:

[A]fter having a relationship with him, Lewinsky deduced that the President, in his mind, apparently does not consider oral sex to be sex. Sex to him must mean intercourse.

App. at 1558 (8/19/98 FBI 302 Form Interview of Ms. Lewinsky).

And finally, Ms. Lewinsky herself took the position that her contact with the President did not constitute "sex" and reaffirmed that position even after she had received immunity and began cooperating with the OIC. For example, in one of the conversations surreptitiously taped by Ms. Tripp, Ms. Lewinsky explained to Ms. Tripp that she "didn’t have sex" with the President because "[h]aving sex is having intercourse." Supp. at 2664; see also Supp. at 1066 (grand jury testimony of Neysa Erbland stating that Ms. Lewinsky had said that the President and she "didn’t have sex"). Ms. Lewinsky reaffirmed this position even after receiving immunity, stating in an FBI interview that "her use of the term ‘having sex’ means having intercourse. . . ." App. at 1558 (8/19/98 FBI 302 Form Interview of Ms. Lewinsky). Likewise, in her original proffer to the OIC, she wrote, "Ms. L[ewinsky] was comfortable signing the affidavit with regard to the ‘sexual relationship’ because she could justify to herself that she and the Pres[ident] did not have sexual intercourse." App. at 718 (2/1/98 Proffer). In short, the evidence supports only the conclusion that the President’s responses with respect to these undefined terms were truthful and at worst good faith responses to indisputably ambiguous questions. The Referral and the Committee have adduced no evidence to the contrary.

Second, the President’s statement in his deposition that he had not had "sexual relations" with Ms. Lewinsky as that term was defined by the Jones lawyers and substantially narrowed by Judge Wright also is correct. Neither the OIC in its Referral nor Mr. Schippers in his presentation to the Committee laid out the sequence of events that led to the limited definition of "sexual relations" which was ultimately presented to President Clinton and which he was required to follow. At the deposition, the Jones attorneys presented a broad, three-part definition of the term "sexual relations" to be used by them in the questioning. Judge Wright ruled that two parts of the definition were "too broad" and eliminated them. Dep. at 22. The President, therefore, was presented with the following definition (as he understood it to have been amended by the Court):

Definition of Sexual Relations

For the purposes of this deposition, a person engages in "sexual relations" when the person knowingly engages in or causes -

(1)      contact with the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to arouse or gratify the sexual desire of any person;

(2)      contact between any part of the person’s body or an object and the genitals and anus of another person; or

(3)      contact between the genitals or anus of the person and any part of another person’s body.

"Contact" means intentional touching, either directly or through clothing.

This definition substantially narrowed the meaning of the term as it was used by the Jones lawyers. It rendered an overly broad definition bizarrely narrow and contorted. But despite that narrowing, and the resulting peculiarity of what was and was not covered, the Jones lawyers chose to stick with it rather than ask direct questions, see Dep. at 23, as they were invited to do by the President’s counsel. Dep. at 25. When they asked the President about "sexual relations" with Ms. Lewinsky in the deposition, they did so with explicit reference to this definition. See Dep. at 78 ("And so the record is completely clear, have you ever had sexual relations with Monica Lewinsky, as that term is defined in Deposition Exhibit 1, as modified by the Court?") (emphasis added).

It is plain that this narrow definition did not include certain physical acts -- an interpretation shared by many commentators, journalists, and others. See, e.g., Perjury Hearing of December 1, 1998 (Statement of Professor Stephen A. Saltzburg at 2) ("That definition defined certain forms of sexual contact as sexual relations but, for reasons known only to the Jones lawyers, limited the definition to contact with any person for the purpose of gratification."); MSNBC Internight, August 12, 1998 (Cynthia Alksne) ("[W]hen the definition finally was put before the president, it did not include the receipt of oral sex"); "DeLay Urges a Wait For Starr’s Report," The Washington Times (August 31, 1998) ("The definition of sexual relations, used by lawyers for Paula Jones when they questioned the president, was loosely worded and may not have included oral sex"); "Legally Accurate," The National Law Journal (August 31, 1998) ("Given the narrowness of the court-approved definition in [the Jones] case, Mr. Clinton indeed may not have perjured himself back then if, say, he received oral sex but did not reciprocate sexually"). This interpretation may be confusing to some. It may be counter-intuitive. It may lead to bizarre answers. But it certainly was not objectively wrong. And it was not the President’s doing.

Moreover, the Jones lawyers had the opportunity to ask questions which would have elicited details about the President’s relationship with Ms. Lewinsky but chose not to develop the issue. As an alternative to relying on the definition provided by the Jones lawyers, the President’s counsel invited the Jones lawyers to "ask the President what he did, [and] what he didn’t do . . . ." Dep. at 21. The Jones lawyers ignored the invitation and stuck with their definition even as it was limited. As the Supreme Court has explained, "[i]f a witness evades, it is the lawyer’s responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination." Bronston v. United States, 409 U.S. 352, 358-59 (1973).

b.      Being Alone with Ms. Lewinsky

President Clinton’s deposition testimony regarding whether he was alone with Ms. Lewinsky at various times and places does not constitute perjury. The fundamental flaw in the charge is that it is based on a mischaracterization of the President’s testimony -- the President did not testify that he was never alone with Ms. Lewinsky.

Both the Starr Referral and Mr. Schippers’ presentation to the Committee start from the incorrect premise that the President testified that he was never alone with Ms. Lewinsky. See Ref. at 154 ("[T]he President lied when he said ‘I don’t recall’ in response to the question whether he had ever been alone with Ms. Lewinsky."); Schippers Presentation at 29 ("[T]he President may have given false testimony under oath . . . regarding his statement that he could not recall being alone with Monica Lewinsky."). In fact, the President did not deny that he had been alone with Ms. Lewinsky. For example, the President answered "yes" to the question "your testimony is that it was possible, then, that you were alone with her . . . ?". Dep. at 53.

Whatever confusion or incompleteness there may have been in the President’s testimony about when and where he was alone with Ms. Lewinsky cannot be charged against the President. The Jones lawyers failed to follow up on incomplete or unresponsive answers. They were free to ask specific follow-up questions about the frequency or locale of any physical contact, but they did not do so. This failure cannot be used to support a charge of perjury. Bronston, 409 U.S. at 360.

c.      "Minimizing" Gifts that Were Exchanged

A separate perjury charge is based on the assertion that in his deposition the President "minimized" the number of gifts he exchanged with Ms. Lewinsky. Ref. at 151; Schippers Presentation at 29. Again, the evidence simply does not support this allegation. To start with, even the charge of "minimizing" the number of gifts concedes the only potentially material issue -- the President acknowledged that he did exchange gifts with Ms. Lewinsky. There is not much that is safe from a perjury prosecution if mere "minimization" qualifies for the offense.

As weak as the "minimization" charge is, it is also wrong. A fair reading of the President’s deposition testimony makes clear that, when asked about particular gifts, the President honestly stated his recollection of the particular item. See Dep. at 75 ("Q. Do you remember giving her an item that had been purchased from The Black Dog store at Martha’s Vineyard? A. I do remember that . . . ."). Moreover, when the President could not recall the precise items that he had exchanged, he asked the Jones lawyers to tell him so that he could confirm or deny as the facts required. See ibid.

In essence, this allegation is yet another complaint that President Clinton was not more forthcoming (or that he did not have a more precise memory on these issues), which is plainly not a ground for alleging perjury.

d.      Conversations with Ms. Lewinsky About Her Involvement in the Jones Case

Both the Referral and Mr. Schippers’ presentation allege perjury in the Jones deposition with respect to President Clinton’s conversations with Ms. Lewinsky about her involvement in the Jones case. See Ref. at 160; Schippers Presentation at 32. Specifically, it is alleged that the President committed perjury in his deposition when he failed to (1) acknowledge that he knew that Ms. Lewinsky had been subpoenaed at the time he had last seen and spoken to her; and (2) acknowledge that he had spoken to Ms. Lewinsky about the possibility that she would testify in the Jones case. Ibid. Once again, the charge of false testimony is based on a wholly inaccurate reading of the President’s deposition. The President acknowledged that he knew that Ms. Lewinsky had been subpoenaed, that he was not sure when was the last time he had seen and spoken with her (but that it was sometime around Christmas), and that he had discussed with her the possibility that she would have to testify.

(1) The allegation that the President denied knowing that Ms. Lewinsky had been subpoenaed the last time he spoke to her illustrates the problem of taking selected pieces of testimony out of context. Messrs. Starr and Schippers isolate the following exchange in the deposition:

Q.      Did she tell you she had been served with a subpoena in this       case?

A.      No. I don’t know if she had been.

Dep. at 68. From this incomplete excerpt, they claim that the President perjured himself by denying that he knew that Ms. Lewinsky had been subpoenaed the last time he had spoken with her. See Ref. at 163.

The charge is unsupported by the evidence. First, the testimony immediately following this exchange demonstrates both that the President was not hiding that he knew Ms. Lewinsky had been subpoenaed by the time of the deposition and that the Jones lawyers were well aware that this was the President’s position:

Q.      Did anyone other than your attorneys ever tell you that Monica       Lewinsky had been served with a subpoena in this case?

A.      I don’t think so.

¼

A.      Bruce Lindsey, I think Bruce Lindsey told me that she was, I       think maybe that’s the first person [who] told me she was. I       want to be as accurate as I can.

¼

Q.      Did you talk to Mr. Lindsey about what action, if any, should be       taken as a result of her being served with a subpoena?

A.      No.

Dep. at 68-70. It is evident from the complete exchange on this subject that the President was not generally denying that he knew that Ms. Lewinsky had been subpoenaed in the Jones case. The questions that the Jones lawyers were asking the President also make clear that this is what they understood the President’s testimony to be.

Second, the President’s testimony cannot fairly be read as an express denial of knowledge that Ms. Lewinsky had been subpoenaed the last time he had spoken to her before the deposition. Most importantly, the President was not asked whether he knew that Ms. Lewinsky had been subpoenaed on December 28th, which was the last time he had seen her. When the President answered the question, "Did she tell you she had been served with a subpoena in this case?", he plainly was not thinking about December 28th. To the contrary, the President’s testimony indicates that he was totally confused about the dates of his last meetings with Ms. Lewinsky, and he made that abundantly clear to the Jones lawyers:

Q.      When was the last time you spoke with Monica Lewinsky?

A.      I’m trying to remember. Probably sometime before Christmas. She came by to see Betty sometime before Christmas. And she was there talking to her, and I stuck my head out, said hello to her.

Q.      Stuck your head out of the Oval Office?

A.      Uh-huh, Betty said she was coming by and talked to her, and I said hello to her.

Q.      Was that shortly before Christmas or –

A.      I’m sorry, I don’t remember. Been sometime in December, I think, and I believe -- that may not be the last time. I think she came to one of the, one of the Christmas parties.

Dep. at 68 (emphasis added). His statement that he did not know whether she had been subpoenaed directly followed this confused exchange and was not tied to any particular meeting with her. By that time it is totally unclear what date the answer is addressing.

The Referral ignores this confusion by selectively quoting the President as testifying "that the last time he had spoken to Ms. Lewinsky was in December 1997 . . . ‘probably sometime before Christmas.’" Ref. at 163 (quoting Dep. at 68). Given his confusion, which the Jones lawyers made no attempt to resolve, it is difficult to know what was being said, much less to label it false and perjurious.

(2) The claim that President Clinton did not acknowledge speaking with Ms. Lewinsky about whether she might have to testify similarly is not a fair or accurate reading of the deposition. In response to the question, "Have you ever talked to Ms. Lewinsky about the possibility that she might have to testify in this lawsuit?", the President’s answer did not end with the statement "I’m not sure." Instead, the President continued with the statement "and let me tell you why I’m not sure," at which point he described his recollection of having spoken with Ms. Lewinsky about how Ms. Jones’ lawyers and the Rutherford Institute were going to call every woman to whom he had ever talked. Ibid. It is evident the President’s answer referred to the time period before Ms. Lewinsky was on a witness list -- i.e., when her participation was still a "possibility" only. Indeed, Ms. Lewinsky confirmed the accuracy of the President’s recollection of this conversation in her testimony, a fact that also is missing from the Referral. See App. at 1566 (8/24/98 FBI 302 Form Interview of Ms. Lewinsky) ("LEWINSKY advised CLINTON may have said during this conversation that every woman he had ever spoken to was going to be on the witness list.").

Thus, the President did in fact accurately describe a conversation with Ms. Lewinsky about potential testimony. That the Jones lawyers failed to follow-up with questions that would elicit whether that was the only conversation, or whether there were additional conversations once Ms. Lewinsky was on the witness list and her testimony was no longer a mere possibility, is not perjury. It is simply a confused deposition record that could have been clarified contemporaneously.

e.      Conversations with Mr. Jordan About Ms. Lewinsky

The pattern of mischaracterizing the President’s deposition testimony to construct a perjury charge is repeated in a final perjury allegation regarding the President’s deposition answers to questions about conversations with Mr. Jordan about Ms. Lewinsky. The Referral alleges that the President was "asked during his civil deposition whether he had talked to Mr. Jordan about Ms. Lewinsky’s involvement in the Jones case" and that he "stated that he knew Mr. Jordan had talked to Ms. Lewinsky about her move to New York, but stated that he did not recall whether Mr. Jordan had talked to Ms. Lewinsky about her involvement in the Jones case." Ref. at 186; see also Schippers Presentation at 40. The problem with this allegation is that President Clinton was never asked "whether he had talked to Mr. Jordan about Ms. Lewinsky’s involvement in the Jones case," and he did not deny doing so.

In support of the charge, the Referral quotes the following exchange from the President’s deposition about who told the President that Ms. Lewinsky had been subpoenaed:

Q.      Did anyone other than your attorneys ever tell you that Monica                   Lewinsky had been served with a subpoena in this case?

A.      I don’t think so.

Ref. at 186 (emphasis added in Referral). This exchange does not address whether the President spoke with Mr. Jordan about Ms. Lewinsky’s involvement in the Jones suit. And the excerpt is itself misleading. The Referral omits the President’s next answer, even though it is obvious from the text, and the OIC was told by the President in his grand jury testimony, App. at 518-19, that this answer was intended to finish the President’s response to the previous question:

A.      Bruce Lindsey, I think Bruce Lindsey told me that she was, I                   think maybe that’s the first person told me she was. I want to                   be as accurate as I can.

   


Plainly, the President was not testifying that no one other than his attorneys had told him that Ms. Lewinsky had been subpoenaed. The Jones lawyers did not pursue this by asking logical follow-up questions, such as whether, if Mr. Lindsey was the first person were there others, or whether Mr. Jordan had subsequently shared that information with him. The bottom line is that President Clinton did not deny, in the quoted passage or elsewhere, knowing that Mr. Jordan had spoken to Ms. Lewinsky about the Jones matter.

Nor do the other two cited passages of the President’s deposition testimony help the OIC’s case. In response to a question about whether in the two weeks before January 17 anyone had reported to him that they had had a conversation with Ms. Lewinsky about the Jones case, the President replied "I don’t believe so." Dep. at 72. The President was not questioned specifically about whether he had ever spoken to Mr. Jordan or anyone else about Ms. Lewinsky’s involvement in the Jones case. The President’s response, accordingly, did not rule out all conversations with Mr. Jordan about Ms. Lewinsky’s involvement in the case, as the Referral suggests, but only in the two-week period prior to the deposition and only conversations relaying accounts of conversations with Ms. Lewinsky. Even conversations with Mr. Jordan about her involvement in the case would not have been covered. The Referral does not identify any reports to the President about any conversation that Mr. Jordan had with Ms. Lewinsky in that time period -- instead, it recounts only that, ten days before the deposition, Mr. Jordan may have told the President that the affidavit was signed. See Ref. at 187.

Finally, the President’s answer to the question whether it had been reported to him that Mr. Jordan had "met with Monica Lewinsky and talked about [the Jones] case," Dep. at 72 (emphasis added), obviously cannot be read to support this charge of perjury. In response to this question, the President acknowledged that he knew that Mr. Jordan and Ms. Lewinsky had met. The President’s further response -- that he believed Mr. Jordan met with Ms. Lewinsky to give her advice about her move to New York was fully accurate. Again, the President was not asked whether he was aware that Mr. Jordan had talked to Ms. Lewinsky about her involvement in the Jones case. Since he was not asked the question, it is implausible to suggest that he lied in the answer.

2.      Grand Jury Testimony of August 17, 1998

Proponents of impeachment repeatedly contend in the most general terms that President Clinton committed perjury in the grand jury on August 17, 1998. When this allegation is framed in specific terms, it is often based on the false belief that President Clinton denied in the grand jury having had any sexual contact with Ms. Lewinsky. For example, in the Committee’s perjury hearing held last week, Chairman Hyde discounted the Referral’s charge that President Clinton had lied to the grand jury about the commencement date of his relationship with Ms. Lewinsky and then stated, "I don’t rank that up with lying to the grand jury, saying he didn’t have a sexual relationship." Remarks of Chairman Hyde at Perjury Hearing of December 1, 1998; see also Statement of Judge Charles Wiggins at 2 ("the President was called as a witness before the grand jury and he repeated his story that he did not have a sexual relationship with Monica Lewinsky. Subsequently the President acknowledged that his story was false or misleading and that he in fact had such a relationship with Ms. Lewinsky.")

These accounts of President Clinton’s grand jury testimony are not accurate. In his August 17, 1998 grand jury testimony, President Clinton acknowledged that he had engaged in "inappropriate intimate contact" with Ms. Lewinsky. Section II.C, supra. He also acknowledged that his conduct was "wrong." Ibid. What the President denied in the grand jury was having "sexual relations" with Ms. Lewinsky only as that term was defined by the Jones lawyers and substantially restricted by Judge Wright. He did not go into the details of those encounters because of privacy considerations, although he did testify that they did not involve either sexual intercourse or "sexual relations" as defined at the Jones deposition after Judge Wright struck two-thirds of it. Ms. Lewinsky, on the other hand, was forced by the OIC to describe in graphic detail her recollection of these encounters. See Schippers Presentation at 27.

This simply is not a case of perjury. In addition to the inconsequential subject matter of the allegation -- the precise nature of the admitted physical contact between the President and Ms. Lewinsky -- the factual record would not support a prosecution for perjury. That record is one essentially of "oath against oath," a formula that centuries of common law jurisprudence has rejected as the basis for perjury. As the Supreme Court has stated, "equally honest witnesses may well have differing recollections of the same event," and hence "a conviction for perjury ought not to rest entirely upon ‘an oath against an oath.’" United States v. Weiler, 323 U.S. 606, 609 (1945); see also Griswold v. Hazard, 141 U.S. 260, 280 (1891) (Harlan, J.) ("The difference in recollection of gentlemen . . . often happens, without any reason to suspect that any of them would intentionally deviate from the line of absolute truth."). Mr. Starr admitted in his testimony before the Judiciary Committee on November 19, 1998, that the OIC credited Ms. Lewinsky’s testimony only where there was corroboration. Transcript of November 19, 1998 Hearing at 235-36. On the narrow point at issue here, however, there can be no independent corroboration.

In sum, the facts do not support a perjury count based on the President’s grand jury testimony. It is hard to imagine how what is at most a difference of recollection over the precise details of the admitted physical contact between President Clinton and Ms. Lewinsky could be considered grounds for a perjury charge, much less grounds for impeachment.

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