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.

VII.      THE PRESIDENT DID NOT OBSTRUCT JUSTICE     

The term "obstruction of justice" usually refers to violations of 18 U.S.C. § 1503, the "Omnibus Obstruction Provision," which prohibits the intimidation of and retaliation against grand and petit jurors and judicial officers and contains a catch-all clause making it unlawful to "influence, obstruct, or impede the due administration of justice." It may also refer to 18 U.S.C. § 1512, which proscribes intimidating, threatening, or corruptly persuading, through deceptive conduct, a person in connection with an official proceeding.

For a conviction under § 1503, the government must prove that there was a pending judicial proceeding, that the defendant knew of the proceeding, and that the defendant acted "corruptly" with the specific intent to obstruct or interfere with the proceeding or due administration of justice. See, e.g., United States v. Bucey, 876 F.2d 1297, 1314 (7th Cir. 1989); United States v. Smith, 729 F. Supp. 1380, 1383-84 (D.D.C. 1990). Thus, if a defendant is unaware of a pending grand jury proceeding, he cannot be said to have obstructed it in violation of § 1503. See, e.g., United States v. Brown, 688 F.2d 1391, 1400 (9th Cir. 1992). Perhaps more significant is the "acting corruptly" element of the offense. Some courts have defined this term as acting with "evil and wicked purposes," see United States v. Banks, 942 F.2d 1576, 1578 (11th Cir. 1991), but at the very least to "act corruptly" under the statute, a defendant must have acted with the specific intent to obstruct justice. See United States v. Moon, 718 F.2d 1219, 1236 (2d Cir. 1983); United States v. Bashaw, 982 F.2d 168, 170 (6th Cir. 1992); United States v. Anderson, 798 F.2d 919, 928 (7th Cir, 1986); United States v. Rasheed, 663 F.2d 843, 847 (9th Cir. 1981). That is, it is not enough to prove that the defendant knew that a result of his actions might be to impede the administration of justice, if that was not his intent.

It is critical to note which actions cannot fall under the ambit of § 1503. First, false statements or testimony alone cannot sustain a conviction under § 1503. See United States v. Thomas, 916, F.2d 647, 652 (11th Cir. 1990); United States v. Rankin, 870 F.2d 109, 111 (3d Cir. 1989). Moreover, § 1503 does not apply to a party’s concealing or withholding discoverable documents in civil litigation. Most cases that have found § 1503 applicable to civil cases do not involve the production or withholding of documents. See United States v. London, 714 F.2d 1558 (11th Cir. 1983) (attorney forged court order and attempted to enforce it), cited in Richmark, 730 F. Supp. at 1532; Sneed v. United States, 298 F. 911 (5th Cir. 1924) (influencing juror in civil case); cited in Richmark, 730 F. Supp at 1532. While § 1503 can apply to concealment of subpoenaed documents in a grand jury investigation, the defendant must have knowledge of the pending grand jury investigation, must know that the particular documents are covered by a subpoena, and must willfully conceal or endeavor to conceal them from the grand jury with the specific intent to interfere with its investigation. See United States v. McComb, 744 F.2d 555 (7th Cir. 1984).

Section 1512 specifically applies to "witness tampering." To obtain a conviction under § 1512, the government must prove that a defendant knowingly engaged in intimidation, physical force, threats, misleading conduct, or corrupt persuasion with intent to influence, delay, or prevent testimony or cause any person to withhold objects or documents from an official proceeding. It is clear that a defendant must also be aware of the possibility of a proceeding and his efforts must be aimed specifically at obstructing that proceeding, whether pending or not; § 1512 does not apply to defendants’ innocent remarks or other acts unintended to affect a proceeding. See United States v. Wilson, 565 F. Supp. 1416, 1431 (S.D.N.Y. 1983).

Moreover, it is important to define the terms "corruptly persuade" and "misleading conduct," as used in § 1512. The statute itself explains that "corruptly persuades" does not include "conduct which would be misleading conduct but for a lack of a state of mind." 18 U.S.C. § 1515(a)(6). It is also clear from the case law that "misleading conduct" does not cover scenarios where the defendant urged a witness to give false testimony without resorting to coercive or deceptive conduct. See, e.g., United States v. Kulczyk, 931 F.2d 542, 547 (9th Cir. 1991) (no attempt to mislead; witnesses knew defendant was asking them to lie); United States v. King, 762 F.2d 232, 237 (2d Cir. 1985) (defendant who attempts to persuade witness to lie but not to mislead trier of fact does not violate § 1512).

Subornation of perjury is addressed in 18 U.S.C. § 1622. The elements of subornation are that the defendant must have persuaded another to perjure himself, and the witness must have actually committed perjury. See, e.g. United States v. Hairston, 46 F.3d 361, 376 (4th Cir. 1959), rev’d on other grounds, 361 U.S. 529 (1960). If actual perjury does not occur, there is simply no subornation. See id. at 376 (reversing conviction for subornation because of conclusion that, in applying Bronston, witness did not commit perjury due to his literally truthful testimony). Moreover, § 1622 requires that the defendant know that the testimony of witness will be perjurious -- i.e., knowing and willful procurement of false testimony is a key element of subornation of perjury. See Rosen v. NLRB, 735 F.2d 564, 575 n.19 (D.C. Cir. 1984) ("a necessary predicate of the charge of subornation of perjury is the suborner’s belief that the testimony sought is in fact false").

The Referral alleges various actions that it claims amount to obstruction of justice. Evidence that is contained in the Appendices and Supplements -- although omitted from the Referral -- thoroughly undermines each of these claims.

"The President and Ms. Lewinsky met and discussed what should be done with the gifts subpoenaed from Ms. Lewinsky."

"[H]e really didn’t -- he really didn’t discuss it."

Monica Lewinsky’s 8/20/98 grand jury testimony. App. at 1122.

The Referral claims that President Clinton endeavored to obstruct justice by engaging in a pattern of activity to conceal evidence, particularly gifts, regarding his relationship with Monica Lewinsky. Ref. at 165. See also Schippers Presentation at 34-35.

The Appendices and Supplements contain a wealth of information contradicting this claim. Upon review, it is clear that the full record simply does not support an obstruction-by-gift-concealment charge at all.

First, among Ms. Lewinsky’s ten different accounts of the meeting at which she and the President allegedly "discussed" concealing gifts, the Referral selectively and prejudicially chooses to cite the version most hurtful to the President (without disclosing the existence of other, exculpatory accounts of the same events). Second, the Referral omits other relevant statements by Ms. Lewinsky that would place the OIC’s account in a sharply different light. Third, the Referral suppresses uncontested statements made by the President and by Ms. Betty Currie that contradict the OIC’s concealment theory. Fourth, the Referral appropriates for itself the role of factfinder and -- by misleading characterizations of testimony -- attempts to deceive the Committee into adopting Ms. Lewinsky’s version of events where it appears to conflict with Ms. Currie’s version. Finally, the Referral suppresses the OIC’s doubts about its own theory -- doubts manifest in grand jury questioning but not acknowledged in the Referral itself.

Two events form the core of the OIC’s allegation that the President orchestrated the concealment of gifts he had given Ms. Lewinsky. The first is Ms. Lewinsky’s December 28, 1997, early morning meeting with the President. The second is Ms. Currie’s receipt of a box of gifts from Ms. Lewinsky, supposedly on the afternoon of that day.

The Referral presents these events in a manner that is grossly one-sided and deeply prejudicial to the President.

On December 28, 1997, Ms. Lewinsky came to the White House and met with the President to pick up her holiday gifts. According to Ms. Lewinsky, that was the only occasion on which an issue of the gifts’ relation to her subpoena was raised. See App. at 1130 (8/20/98 grand jury testimony of Ms. Lewinsky); see also App. at 1338 (8/26/98 deposition of Ms. Lewinsky).

Ms. Lewinsky was asked several times by the OIC about her December 28, 1997, meeting with the President, and in particular about discussions she may have had with the President about gifts she had received from him. In response, Ms. Lewinsky made at least ten distinct statements during the course of her original proffer, interviews, grand jury testimony and deposition. Although the OIC claims that there was a discussion between Ms. Lewinsky and the President on this subject, the actual testimony does not support the OIC’s contention.

Ms. Lewinsky’s statements are set forth below, listed in the order in which they were given, from earliest to latest in time:

These statements contain certain striking inconsistencies with the version of events presented by the OIC -- that the President and Ms. Lewinsky "met and discussed what should be done with the gifts subpoenaed from Ms. Lewinsky":

The statements also display numerous internal inconsistencies and anomalies that are significant in light of the charge and that caution against selecting any particular one:

With all these statements to draw on, the Starr Referral relied on number 4 above as if it were Ms. Lewinsky’s only statement on the matter and thus characterized this pivotal conversation as follows:

[A]t some point I said to him, "Well, you know, should I -- maybe I should put the gifts away outside my house somewhere or give them to someone, maybe Betty." And he sort of said -- I think he responded "I don’t know" or "Let me think about that." And [we] left that topic.

Ref. at 166 (quoting App. at 872 (8/6/98 grand jury testimony of Ms. Lewinsky)). In making the above statement the centerpiece of the President’s supposed assent to engage in concealment, the OIC selected one of only two (of Ms. Lewinsky’s ten) accounts in which the President’s alleged comments might support the inference that he was even contemplating further thought (though not action) in response to Ms. Lewinsky’s suggestion.

In so doing, the Referral failed to inform Congress that, in more than two-thirds of the different accounts given by Ms. Lewinsky, Ms. Lewinsky either described no response by the President at all or described his comment as "no response" or "didn’t really say anything." In other words, to the best of Ms. Lewinsky’s recollection he evidenced no intent to give the subject any thought. The OIC also failed to acknowledge that in one of her accounts, Ms. Lewinsky stated that she did not really remember the President’s response. The OIC did not tell Congress that in several accounts, Ms. Lewinsky reported that the President both did and did not respond to her suggestion. The OIC did not tell Congress that the only person ever to link Betty Currie’s name with the idea of concealment (and that in only three of her ten accounts) in the December 28 conversation was Ms. Lewinsky herself. The OIC did not tell Congress that in none -- not one -- of Ms. Lewinsky’s accounts did the President initiate discussion relating to concealment of gifts. The OIC did not tell Congress that in none of Ms. Lewinsky’s accounts did the President ask or tell Ms. Lewinsky to conceal gifts. The OIC did not tell Congress that in none of Ms. Lewinsky’s accounts does the President suggest to Ms. Lewinsky that she conceal gifts. The OIC did not tell Congress that in only two of Ms. Lewinsky’s ten accounts was there even the suggestion that the President wanted even to "think about it." And finally, the OIC did not tell Congress that in Ms. Lewinsky’s earliest and latest accounts of the December 28, 1997 meeting, she never mentioned any statement by the President suggesting any concealment of gifts from the Jones subpoena. Instead the OIC simply picked the one account it liked best, misrepresented it, and presented it as though it were the whole truth.

Those omissions and the resulting account of this "concealment" meeting result in a skewed version of events that professional prosecutors would notcondone. Yet the Starr Referral not only presents a distorted picture of the evidence, it recommends that this Committee vote to impeach the President of the United States on this demonstrably thin record.

The other incident said to support the obstruction-by-concealment theory was Ms. Currie’s receipt of a box of gifts from Ms. Lewinsky. Again, to support its position the Starr Referral presents a highly selective and deceptively one-sided account of the evidence. That account is distinguished by: (1) minimization of evidence favorable to the President concerning the origin of the idea of picking up gifts; (2) an outright falsehood as to the date of the gift pickup -- a falsehood obviously intended to suggest deep Presidential involvement in the events; and (3) a deceptive attempt to elevate the Referral’s theory through misleading and improper bolstering of one witness’s credibility.

Mr. Starr takes the position that the President told or suggested to Ms. Currie that she contact Ms. Lewinsky and pick up the gifts. Ref. at 167. But the President twice denied ever telling Ms. Currie to contact Ms. Lewinsky about the gifts. App. at 502 (President’s 8/17/98 grand jury testimony); App. at 565-66 (same). Ms. Currie herself has repeatedly said that it was Ms. Lewinsky (not the President) who asked her to pick up the gifts. Supp. at 581 (5/6/98 grand jury testimony of Betty Currie); Supp. at 582 (same); Supp. at 706 (7/22/98 grand jury testimony of Betty Currie); Supp. at 531 (1/24/98 FBI Form 302 Interview of Betty Currie). In short, the only two parties who could possibly have direct knowledge of such an instruction by the President have denied it.

Ms. Lewinsky stated that Ms. Currie told her that the President had told her to contact Ms. Lewinsky. See App. at 715 (2/1/98 Proffer): "Ms. Currie called Ms. L later that afternoon and said that the Pres. had told her Ms. L wanted her to hold onto something for her." But this statement was contradicted by Ms. Currie’s repeated statements that Ms. Lewinsky called her and asked her to pick up the gifts because people were asking "questions about stuff she had gotten." Supp. at 557 (1/27/98 grand jury testimony of Ms. Currie). The Referral does acknowledge one occasion on which Ms. Currie contradicted Ms. Lewinsky on this point, see Ref. at 167 (citing Supp. at 557 (1/27/98 grand jury testimony of Ms. Currie)):

But the Referral fails to quote Ms. Currie’s repeated contradicting of Ms. Lewinsky on this point. First, in her January 24 interview Ms. Currie said that:

"LEWINSKY called CURRIE and advised she had to return all the gifts CLINTON had given LEWINSKY as there was talk going around about the gifts." Supp. at 531 (1/24/98 FBI 302 Form Interview of Ms. Currie). Then, before the grand jury:

Supp. at 581 (5/6/98 grand jury testimony of Ms. Currie). And then again before the grand jury:

Supp. at 582 (5/6/98 grand jury testimony of Ms. Currie). This fact -- that Ms. Currie early on and then thereafter repeatedly insisted that Ms. Lewinsky raised the issue of the gifts -- is not to be found in the Referral.

The Referral also omits Ms. Lewinsky’s own testimony that it was she, and not the President, who first raised the prospect of Ms. Currie’s involvement.

App. at 1122 (8/20/98 grand jury testimony of Ms. Lewinsky); see also App. at 1481 (8/1/98 FBI Form 302 Interview of Ms. Lewinsky) ("LEWINSKY . . . suggested to the President that Betty Currie hold the gifts.") This fundamental and important fact -- that Ms. Lewinsky herself testified that the idea of Ms. Currie’s involvement originated with Ms. Lewinsky (and not with the President) -- is nowhere to be found in the Referral’s obstruction discussion.

Finally, as to whether Ms. Currie ever spoke of gifts to the President after she had picked up the gifts, the President denied ever speaking with Ms. Currie and as to Ms. Currie, she recalled only one circumstance relevant to this issue. In the course of questioning Ms. Currie about a January 21, 1998 telephone call she received from the President, a juror (not the OIC) put the following question to Ms. Currie:

Supp. at 705 (7/22/98 grand jury testimony of Ms. Currie). This exchange, and the fact that Ms. Currie stated her recollection with palpable certainty, are also entirely missing from the Referral.

In view of the foregoing distortions and omissions, no fair-minded factfinder could conclude from the evidence that the President instructed Ms. Currie to retrieve gifts from Ms. Lewinsky.

The Referral implies that the President told Ms. Currie to retrieve the gifts on Sunday, December 28, 1997, Ref. at 166 (and that she in fact retrieved the gifts on December 28), the same day he supposedly discussed the gifts issue at a morning meeting with Ms. Lewinsky. Ref. at 167. The plain purpose of this allegation is to suggest prompt action by the President to effectuate a concealment plan supposedly hatched with Ms. Lewinsky at that morning’s visit.

In support of that theory, the Referral makes the following assertion:

Ref. at 167 & n.237. This assertion -- that "[a]ccording to . . . Ms. Currie" she picked up gifts on December 28 -- is not true. The Referral’s (only) authority is page 108 of Ms. Currie’s May 6, 1998 grand jury testimony. That page of transcript reads as follows:

Supp. at 581 (5/6/98 grand jury testimony of Ms. Currie). Nowhere on that page or anywhere else does Ms. Currie say that she picked up the gifts on December 28.

This was no mere typographical error. For in Ms. Currie’s first interview with the OIC, she recalled that Ms. Lewinsky called her to pick up the gifts sometime in December. Supp. at 531 (1/24/98 FBI Form 302 Interview of Ms. Currie). And just a few pages earlier in her grand jury testimony, Ms. Currie told the grand jury that her best estimate was that she had retrieved the gifts "a couple weeks" after Ms. Lewinsky’s December 28 visit to the President. Supp. at 581 (5/6/98 grand jury testimony of Ms. Currie). Additionally, in her first (late-January 1998) appearance before the grand jury, Ms. Currie’s best recollection was that the gifts were picked up sometime within the previous six months. Supp. at 556-57 (1/27/98 grand jury testimony of Ms. Currie). Finally, Ms. Currie told the grand jury that she picked up the gifts on a workday, Supp. at 582, and December 28 was a Sunday. Although Ms. Currie never pinpointed a date, the record is clear that -- contrary to the Referral’s false assertion -- she never placed the date of the gift pickup on December 28.

The Referral’s deceptive attempts to bind Ms. Currie to its version of events -- effected by misstatement and omission -- are significant. They are explainable only by a willful attempt to bend the facts to fit the Referral’s theory. Other than Ms. Lewinsky’s own (as shown below, uncertain) accounts, the notion that the gifts were picked up on December 28 has no foundation in the record.

The Referral usurps the role of the fact-finder and substitutes its judgment for Congress’ by resolving evidentiary conflicts in favor of Ms. Lewinsky’s recollection and against Ms. Currie’s where that resolution hurts the President. The Referral states that Ms. Currie’s memory of the crucial conversation "generally has been hazy and uncertain," Ref. at 170, while Ms. Lewinsky’s testimony "is consistent and unequivocal." Ref. at 169. The statement that Ms. Lewinsky’s testimony was consistent and unequivocal is just not true. Indeed, Ms. Lewinsky actually told the grand jurors at one point that she could not remember Ms. Currie saying that the President told her to call about the gifts:

App. at 1141 (8/20/98 grand jury testimony of Ms. Lewinsky) (emphasis added). The Referral’s assertion to the contrary -- that "Ms. Lewinsky’s testimony on the issue is consistent and unequivocal" -- is utterly untrue. Ms. Lewinsky simply did not have the unwavering conviction the Referral attributes to her.

Indeed Ms. Lewinsky’s testimony concerning her February 1, 1998 proffer (which was not, as the OIC characterizes it, "testimony," Ref. at 169) was fraught with uncertainty. As Ms. Lewinsky herself told the grand jury:

App. at 1141 (8/20/98 grand jury testimony of Ms. Lewinsky) (emphasis added). Yet neither the Referral, nor any of its supporting materials, reflect any effort by the OIC to have Ms. Lewinsky clarify the "things that can be misinterpreted" in her proffer. Nor did the Referral inform the House of Ms. Lewinsky’s own doubts about the February 1 proffer.

The Referral then aggravates its own deceptions and omissions still further by twice quoting a statement of Ms. Currie to the effect that "[Ms. Lewinsky] may remember better than I. I don’t remember." Ref. at 167, 170. That quotation is thoroughly misleading in view of the foregoing statements by Ms. Lewinsky (omitted from the Referral) which made clear that her memory was certainly no better than Ms. Currie’s.

Finally, the OIC’s account of the differences in Ms. Currie’s and Ms. Lewinsky’s recollections is aggravated by another, very curious fact. As the Referral once mentions, and as Ms Currie repeatedly stated, Ms. Lewinsky had said that she "was uncomfortable retaining the gifts" not because the President asked her to conceal them from Paula Jones’ lawyers, but "because people were asking questions about the stuff she had gotten." Ref. at 167 and citations in Part VI.B.1.b.1, above. That statement presents a rather different explanation then the one offered up in the Referral. Yet neither the Referral, nor 3183 pages of Appendices, nor 4610 pages of Supplement contain any evidence that Ms. Lewinsky has ever contradicted Ms. Currie’s account of that statement. The absence of contradictory evidence is itself a significant piece of evidence supportive of the view that Ms. Currie’s recollection is the correct one.

But the importance of this runs much deeper. Notwithstanding that she testified twice before the grand jury, was deposed once, and was interviewed by the OIC at least 18 different times, Ms. Lewinsky was apparently never asked whether she ever stated to Ms. Currie that people were asking questions about the President’s gifts. Indeed, in all the time following Ms. Currie’s January 27 testimony, the OIC apparently never asked Ms. Lewinsky to reconcile the basic tensions in the conflicting accounts. Rather than attempting to determine the truth of this important issue, the OIC preferred to leave this crucial difference unexplored and then argue the relative credibility of the witnesses to Congress and conclude without reason that Ms. Lewinsky’s recollection "makes more sense." In view of the OIC’s statutory duty to provide any "substantial and credible information" pertaining to impeachment, the insidious refusal to elicit direct evidence on this sensitive point is extraordinary -- and wholly unfair.

The Referral says, and it is not disputed, that the President gave Ms. Lewinsky a number of gifts during their December 28, 1997 meeting. Ref. at 166. This fact alone obviously undermines the Referral’s theory that he sought to conceal gifts to her on that same day. The Referral goes on to say that Ms. Lewinsky was "asked why the President gave her more gifts on December 28 when he understood she was under an obligation to produce gifts in response to the subpoena." Ibid. But the actual question posed was this: "What do you think the President was thinking when he is giving you gifts when there’s a subpoena covering the gifts? I mean, does he think in any way, shape or form that you’re going to be turning these gifts over?" App. at 886 (8/6/98 grand jury testimony of Ms. Lewinsky).

In response, the Starr Referral inserted Ms. Lewinsky’s speculation about why the President may have given her the gifts, quoting from her August 6 testimony, and adding a certain emphasis:

Ref. at 166 (quoting App. at 886-87 (8/6/98 grand jury testimony of Ms. Lewinsky) (emphasis added by OIC)).

This explanation of the December 28 gift-giving is severely unfair. First, the addition of the emphasis suggests that the President had explained to Ms. Lewinsky that gifts, including gifts given on December 28, were going to be concealed. There is no support for this, and as we have established above, all the evidence is to the contrary.

Second, the OIC’s account relies on Ms. Lewinsky’s speculation when the President’s own testimony was available. In that testimony, given before the grand jury on August 17, the President -- responding to questions about the December 28 meeting -- stated that "this gift business . . didn’t bother me," App. at 496, and that "I wasn’t troubled by this gift issue," App. at 497. The President went on to say that he "fe[lt] comfortable giving [Ms. Lewinsky] gifts in the middle of discovery in the Paula Jones case" because "there was no existing improper relationship at that time" and that he "wasn’t worried about it [and] thought it was an all right thing to do." App. at 498. The Referral obscures these direct statements in favor of Ms. Lewinsky’s speculation.

Strikingly absent from the Referral is any discussion of the fact that, under its own misleading theory, the President was both giving gifts and taking them back on the very same day. The Referral makes no effort to explain this dramatic anomaly and does not convey to Congress any sense of the fact that such behavior is -- and must seem -- very odd under the Referral’s theory.

That omission is all the more conspicuous in view of the OIC’s questions and comments on this issue during the President’s and Ms. Lewinsky’s grand jury testimony. Sensing the difficulty for its own theory, the OIC asked: "Mr. President, if your intent was, as you earlier testified, that you didn’t want anybody to know about this relationship you had with Ms. Lewinsky, why would you feel comfortable giving her gifts in the middle of discovery in the Paula Jones case?" App. at 498. The President answered that he was not troubled by the gifts because at the time he gave them there was no improper relationship. App. at 498. No mention of this exchange appears in the Referral.

Again, during Ms. Lewinsky’s first grand jury appearance the OIC prosecutor remarks: "Although, Ms. Lewinsky, I think what is sort of -- it seems a little odd and, I guess really the grand jurors wanted your impression of it, was on the same day that you’re discussing basically getting the gifts to Betty to conceal them, he’s giving you a new set of gifts." App. at 887-88 (emphasis added). And again, no mention is made in the Referral of the fact that the OIC and the grand jurors regarded it as "odd" that there was gift-giving on the same day the President allegedly caused his gifts to be recovered. A fair prosecutor would have acknowledged this "oddity" and reported the President’s answers to this "oddity," answers which resolve the apparent "oddity," and undermine the prosecutor’s theory. The OIC did neither.

The Referral concludes that "[g]iven his desire to conceal the relationship, it makes no sense that the President would have given Ms. Lewinsky more gifts on the 28^th unless he and Ms. Lewinsky understood that she would not produce all of her gifts in response to her subpoena." Ref. at 171. This statement is directly contrary to the only available evidence touching on this issue -- namely the President’s own testimony that he simply was not troubled by the gifts. App. at 494-98. The OIC has suppressed relevant direct evidence and then asked Congress to draw negative inferences from circumstantial theorizing.

Ultimately, the Referral’s failure to include or even refer to the President’s directly material testimony in the "impeachable acts" discussion of supposed "concealment" of gifts has no legitimate explanation. The obstruction-by-gift-concealment charge rests on an unjustifiable six-prong strategy unworthy of any fair prosecutor. The Referral first presents a highly argumentative and one-sided account of disputed facts. Second, it flatly misrepresents certain key dates and events in an effort to heighten that prejudicial effect. Third, it suppresses numerous facts contradicting the Referral’s concealment theory. Fourth, the Referral artificially engineers the impression that one witness is more credible than the other -- in stark defiance of record facts and in the apparent hope that its sophistries would go unnoticed by the factfinder. Fifth, the Referral suggests a false clarity about important evidentiary issues which are in fact fundamentally ambiguous. The Referral’s authors clearly chose to leave these ambiguities unexplored where honest investigation would have resolved them. Finally, the Referral suppresses record evidence reflecting its authors’ own doubts about the theory advanced.

Impeachment on such distorted "evidence" of obstruction as the Referral presents would be a travesty.

The OIC alleges that the President "endeavored to obstruct justice by helping [Ms.] Lewinsky obtain a job in New York at a time when she would have been a witness against him were she to tell the truth during the Jones case." Ref. at 181. To support this claim, the OIC has created a wholly misleading chronology of events that omits crucial facts, presents only partial accounts of others, and places artificial weight on selected events occurring in late December 1997 and early January 1998. The OIC’s account relies almost exclusively on the testimony of one witness yet conceals that witness’ contradictory statements. The effect is to try to create a sense that Ms. Lewinsky’s interest in a New York job arose in reaction to her involvement in the Jones suit and that the President’s efforts to help her were excessive and performed with intent somehow to buy her silence, when the actual evidence is to the contrary.

There is no direct evidence that the President or Mr. Jordan assisted Ms. Lewinsky with her job search in exchange for silence or false testimony. Indeed, all the direct evidence is to the contrary. As Ms Lewinsky unequivocally stated: "[N]o 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). Mr. Jordan’s testimony was also clear and unequivocal: "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). The Referral must therefore resort to selective citation to circumstantial evidence to try to make its case. But, as we establish in detail below, the circumstantial "evidence" does not support the notion that a job was procured for Ms. Lewinsky in an effort to obstruct justice in the Jones litigation. It supports the direct evidence to the contrary.

The Referral poses the job-search issue as "whether the President’s efforts in obtaining a job for Ms. Lewinsky were to influence her testimony or simply to help an ex-intimate without concern for her testimony." Ref. at 185. Mr. Starr acknowledges that there is no direct evidence that the President assisted Ms. Lewinsky in obtaining a job in exchange for her lying or remaining silent. Ref. at 185 n.361. The OIC also acknowledges that the "case" is entirely circumstantial; rests on an interpretation of selected circumstances it describes as "key events." Ref. at 181. The centerpiece of the charge is the notion that the President employed Mr. Vernon Jordan to place Ms. Lewinsky in an out-of-town job so as to induce Ms. Lewinsky either to leave town, to file a false affidavit, or to remain silent in such a way as to obstruct justice in the Jones case.

Here is the Referral’s key passage, a chronology manifestly constructed to create a false impression of obstruction:

Ref. at 183-84 (footnotes omitted) (emphasis in original). As we will show, this passage is woefully misleading. In fact, the timing of Ms. Lewinsky’s January 8^th interview had nothing to do with the Jones matter. And the fact of Mr. Jordan’s January 8 call to Mr. Perelman was never communicated to the Revlon executive who scheduled Ms. Lewinsky’s January 9 interview and who decided to hire her that very day.

Indeed, closer inspection of the evidence contained in the appendices and supplements gives the lie to the Referral’s theory and makes the following facts absolutely clear:

When the events leading up to Ms. Lewinsky’s job offer are reconstructed in fuller detail, when the one-sidedness of the Referral’s account is recognized, and when its crucial omissions are exposed, it becomes plain that there was no impropriety and no obstruction of justice in connection with her job search. The case for obstruction simply evaporates.

Ms. Lewinsky worked in the White House from late 1995 until early April 1996. In early April, she was advised by Mr. Tim Keating that she was being transferred from the White House to the Pentagon; Mr. Keating told her that she might be able to return to the White House after the November 1996 election. App. at 1503-04 (8/3/98 FBI Form 302 Interview of Ms. Lewinsky). Following the 1996 election, Ms. Lewinsky tried for months throughout 1997 to get a job in the White House or in the Old Executive Office Building. During that period, the President told her that Mr. Bob Nash and later Ms. Marsha Scott were the people who could help her get a job in the White House. App. at 1458 (7/31/98 FBI Form 302 Interview of Ms. Lewinsky). Ms. Lewinsky wrote to and met several times with Ms. Scott in 1997 about a White House job. App. at 1458-59 (7/31/98 FBI Form 302 Interview of Ms. Lewinsky). The President was aware of Ms. Lewinsky’s continuing efforts to work in the White House. App. at 564-65 (President’s 8/17/98 grand jury testimony). While still hoping for a White House job, Ms. Lewinsky began to think about working in New York. Ultimately, Ms. Lewinsky was never offered another White House job, and when (in early October 1997) it became clear to her that she would not be offered one, she turned her focus entirely to New York.

On July 3, 1997, Ms. Lewinsky notified the President that she was thinking of moving to New York. App. at 1414 (7/29/98 FBI 302 Interview of Ms. Lewinsky). She told him of her interest in a United Nations job and explicitly asked for his help in getting a position in New York. App. at 788 (8/6/98 grand jury testimony of Ms. Lewinsky). Ms. Lewinsky again raised the prospect of moving to New York in a September 2, 1997 e-mail message to a friend. App. at 2811. According to Ms. Lewinsky, by October 6, 1997, she was "mostly resolved to look for a job in the private sector in New York." App. at 1544 (8/13/98 FBI Form 302 Interview of Ms. Lewinsky). On October 9^th or 11^th, Ms. Lewinsky asked the President if Mr. Vernon Jordan might be able to assist her with her New York job search, App. at 822-24 (8/6/98 grand jury testimony of Ms. Lewinsky); 1079 (8/20/98 grand jury testimony of Ms. Lewinsky). The idea of obtaining Mr. Jordan’s assistance may have originated with Ms. Tripp. App. at 822-24 (8/6/98 grand jury testimony of Ms. Lewinsky).

Ms. Lewinsky believed that her discussions with the President about a job were "part of her relationship with" the President. App. at 1461 (7/31/98 FBI From 302 Interview). According to Ms. Lewinsky, she prepared a list of jobs she was interested in the private sector in New York. App. at 824 (8/6/98 grand jury testimony of Ms. Lewinsky); App. at 1585. In early November, Ms. Lewinsky met with Mr. Jordan who agreed to help her at that time. App. at 824 (8/6/98 grand jury testimony of Ms. Lewinsky). All of these events took place long before Ms. Lewinsky’s name ever appeared on any witness list in the Jones matter. Indeed, it could not be clearer that Ms. Lewinsky’s wish to move to New York and her efforts to involve the President and others in that search antedated and were unrelated to the Jones matter.

As to the actual job interviews and offers Ms. Lewinsky later obtained, no relevant circumstances reflect any attempt to obstruct justice. A fuller account of Ms. Lewinsky’s job search makes this absolutely plain.

Ms. Lewinsky interviewed for and was ultimately offered a job at the United Nations. That job interview was arranged by Mr. John Podesta acting at the behest of Ms. Betty Currie. Supp. at 3404 (4/30/98 grand jury testimony of Bill Richardson). Ms. Currie testified that she was acting on her own in undertaking these efforts. Supp. at 592 (5/6/98 grand jury testimony of Betty Currie). In the course of a casual conversation with Ambassador Richardson, Mr. Podesta suggested that Ambassador Richardson interview a former White House employee who was moving to New York. Supp. at 3395 (1/28/98 FBI Form 302 Interview of Bill Richardson). It was not uncommon for Ambassador Richardson to interview persons on a courtesy basis. Supp. at 3418 (4/30/98 grand jury testimony of Bill Richardson. He was impressed with Ms. Lewinsky’s resume. Supp. at 3411 (4/30/98 grand jury testimony of Bill Richardson). Ambassador Richardson never spoke to the President about Ms. Lewinsky. He never spoke to Mr. Jordan about Ms. Lewinsky. Supp. at 3422 (4/30/98 grand jury testimony of Bill Richardson). Ambassador Richardson felt no pressure to hire Ms. Lewinsky. Supp. at 3423 (4/30/98 grand jury testimony of Bill Richardson). Ms. Lewinsky was interviewed on October 31, 1997, long before her name appeared on the witness list in the Jones case. Supp. at 3718 (5/27/98 grand jury testimony of Mona Sutphen).

She was offered a job at the U.N. and ultimately refused it. There is no evidence that the job offer was related to the Jones case and no suggestion that she was coerced or even encouraged to take it. Moreover, there is no evidence that the U.N. job interview and subsequent offer were part of any effort to silence Ms. Lewinsky, or induce her to leave Washington, or cause her to lie in connection with the Jones case.

Ms. Lewinsky obtained help in finding a private-sector job from several sources. In late October-early November 1997, Ms. Lewinsky informed her then-boss at the Pentagon, Mr. Kenneth Bacon, that she wanted to seek employment in New York. Supp. at 11 (2/26/98 FBI Form 302 Interview of Kenneth Bacon). This was well before her name appeared on the witness list in the Jones case. She told Mr. Bacon that her mother was moving to New York and that she wanted to work in public relations. Id. Mr. Bacon then had a conversation with Mr. Howard Paster, the Chairman and CEO of Hill & Knowlton about Ms. Lewinsky’s job search. Mr. Paster said that Ms. Connie Chung may have been looking for a researcher. Id. On November 24, 1997, Mr. Bacon wrote to Mr. Paster enclosing Ms. Lewinsky’s resume and thanking him for his willingness to talk to Ms. Chung about Ms. Lewinsky. Id. Mr. Bacon’s involvement reflects several fundamental facts concerning Ms. Lewinsky’s search for a New York job: (1) the effort was initiated by her; (2) the effort predated the relevant period in the Jones matter; and 3) the effort proceeded on multiple fronts -- with, as we will see, only very limited involvement by the President.

At the heart of the Referral’s obstruction charge is the notion that the President used Mr. Jordan to obtain a job for Ms. Lewinsky in New York in order to silence her or induce her to lie in the Jones case. However, the person who contacted Mr. Jordan on Ms. Lewinsky’s behalf was Ms. Currie. Supp. at 592-93 (5/6/98 grand jury testimony of Betty Currie); Supp. at 1704 (3/3/98 grand jury testimony of Vernon Jordan); see also Supp. at 1755 (3/5/98 grand jury testimony of Vernon Jordan). Ms. Currie took an active role with Mr. Jordan. They were old friends, and she felt comfortable approaching him to help Ms. Lewinsky. Supp. at 592-94 (5/6/98 grand jury testimony of Betty Currie).

The Referral says that Mr. Jordan contacted people from three private companies with recommendations for Ms. Lewinsky. Ref. at 93. Those people were Mr. Peter Georgescu, the Chairman and CEO of Young & Rubicam (the parent of Burson-Marsteller); Ms. Ursula Fairbairn, the Executive Vice President of Human Resources at American Express; and Mr. Richard Halperin, the Executive Vice President and Special Counsel at MacAndrews & Forbes, the parent company of Revlon. Ms. Lewinsky applied for positions with all three companies. As the record makes clear, neither the President nor Mr. Jordan put any pressure on these companies to hire Ms. Lewinsky or tried to engineer the timing of her hiring to coincide with activity in the Jones case.     

Burson Marsteller. Mr. Jordan telephoned Mr. Georgescu in early December 1997, asking him to take a look at a young White House person for a job. Mr. Jordan did not, in Mr. Georgescu’s words, engage in a "sales pitch" about Ms. Lewinsky. Supp. at 1222 (3/25/98 FBI Form 302 Interview of Peter Georgescu). Mr. Georgescu told Mr. Jordan that the company "would take a look at Ms. Lewinsky in the usual way," Supp. at 1219 (1/29/98 FBI Form 302 Interview of Peter. Georgescu), and that his own involvement would be "arm’s length," Supp. at 1222 (3/25/98 FBI Form 302 Interview of Peter Georgescu). After Mr. Georgescu set up the initial interview, Ms. Lewinsky would be "on [her] own from that point." Ibid. Ms. Lewinsky then interviewed with a Ms. Celia Berk of Burson-Marsteller. According to Ms. Berk, her company’s actions in Ms. Lewinsky’s interviewing process were handled "by the book." Supp. at 111 (3/31/98 FBI Form 302 Interview of Celia Berk). Ms. Lewinsky’s "recruitment process," she said, "was somewhat accelerated, but it went through the normal stops." Ibid. Burson-Marsteller never offered Ms. Lewinsky a job.

American Express. The person Mr. Jordan spoke with at American Express was Ms. Ursula Fairbairn, the head of Human Resources. Ref. 93. According to Ms Fairbairn, there was nothing unusual for board members or company officers to recommend talented people for work at American Express. Supp. at 1087 (1/29/98 FBI Form 302 Interview of Ursula Fairbairn). Indeed Mr. Jordan had recently made another employment recommendation to Ms. Fairbairn at American Express. Supp. at 1087 (1/29/98 FBI Form 302 Interview of Ursula Fairbairn). Ms. Fairbairn felt that no pressure was exerted by Mr. Jordan. Supp. at 1087 (1/29/98 FBI Form 302 Interview of Ursula Fairbairn).

The person Ms. Lewinsky interviewed with was an American Express official in Washington named Mr. Thomas Schick. Ref. at 95. According to Mr. Schick, he never talked to Mr. Jordan at any time during this process. He also said that he felt absolutely no pressure to hire Ms. Lewinsky. Supp. at 3521 (1/29/98 FBI Form 302 Interview of Thomas Schick). Ms. Lewinsky interviewed with Mr. Schick on December 23, 1997. According to Ms. Lewinsky’s account of that interview, she was told that she lacked the qualifications necessary for the position. App. at 1480 (8/1/98 FBI Form 302 Interview of Ms. Lewinsky). Ms. Lewinsky was never offered a job at American Express. Supp. at 1714 (3/3/98 grand jury testimony of Vernon Jordan).

MacAndrews & Forbes/Revlon. The person Mr. Jordan first contacted at MacAndrews & Forbes was an Executive Vice President named Mr. Richard Halperin. Ref. at 93. It was not unusual for Mr. Jordan to call him with an employment recommendation. Supp. at 1281 (1/26/98 FBI Form 302 Interview of Richard Halperin); see also Supp. at 1294 (4/23/98 grand jury testimony of Richard Halperin) (same). In fact, Mr. Jordan had recommended at least three other person besides Ms. Lewinsky to MacAndrews & Forbes. Supp. at 1746-47 (3/5/98 grand jury testimony of Vernon Jordan). On this occasion, Mr. Jordan told Mr. Halperin that Ms. Lewinsky was bright, energetic and enthusiastic and encouraged him to meet with Ms. Lewinsky. Supp. at 1286 (3/27/98 Interview of Richard Halperin). Mr. Halperin did not think there was anything unusual about Mr. Jordan’s request. Id. In Mr. Jordan’s telephone call, Mr. Halperin testified that Mr. Jordan did not "ask [Halperin] to work on any particular kind of timetable," Supp. at 1294 (4/23/98 grand jury testimony of Richard Halperin), and Mr. Halperin said that "there was no implied time constraint or requirement for fast action." Supp. at 1286 (3/27/98 FBI Form 302 Interview of Richard Halperin).

Ms. Lewinsky interviewed with Mr. Halperin on December 18, 1997, in New York. Supp. at 1282 (1/26/98 FBI Form 302 Interview of Richard Halperin). At the end of the Lewinsky interview, Mr. Halperin thought Ms. Lewinsky would be "shipped to Revlon" for consideration of opportunities there. Supp. at 1287 (3/27/98 FBI Form 302 Interview of Richard Halperin). Earlier that week, Mr. Halperin had sent Ms. Lewinsky’s resume to Mr. Jaymie Durnan of MacAndrews & Forbes for his consideration. Ibid.

Mr. Durnan became aware of Ms. Lewinsky in mid-December 1997. Supp. at 1053 (3/27/98 FBI Form 302 Interview of Jaymie Durnan). At that time, he reviewed her resume and decided to interview her after the first of the year. Ibid. (He was going on vacation the last two weeks of December.) Ibid. When he returned from vacation, he had his assistant schedule an interview with Ms. Lewinsky for January 7, 1998, but, because of scheduling problems, he rescheduled the interview for the next day January 8, 1998. Supp. at 1049 (1/26/98 FBI Form 302 Interview of Jaymie Durnan). Mr. Durnan’s decision to interview Ms. Lewinsky was made independently of the decision by Mr. Halperin to interview her. Indeed, only when Mr. Durnan interviewed Ms. Lewinsky in January did he discover that she had had a December interview with Mr. Halperin. Ibid.

Ms. Lewinsky interviewed with Mr. Durnan on the morning of January 8^th. Mr. Durnan thought she was impressive for entry level work. Supp. at 1049 (1/26/98 FBI Form 302 Interview of Jaymie Durnan). After that interview, Mr. Durnan concluded that Ms. Lewinsky would have "fit in" at the parent company (MacAndrews & Forbes), but that there was nothing available at the time that matched her interest. He also thought she might be suitable for MacAndrews & Forbes’ subsidiary Revlon. Supp. at 1054 (3/27/98 FBI Form 302 Interview of Jaymie Durnan). He decided to send her resume to Revlon. He left a message for Ms. Allyn Seidman (Senior VP of Corporate Communications) at Revlon and forwarded Ms. Lewinsky’s resume to her. Supp. at 1049-50 (1/26/98 FBI Form 302 Interview of Jaymie Durnan).

That same day, Mr. Jordan spoke to Mr. Ronald Perelman, CEO of MacAndrews & Forbes, by telephone and mentioned to Mr. Perelman that Ms. Lewinsky had interviewed with MacAndrews & Forbes. However, Mr. Jordan made no specific requests and did not ask Mr. Perelman to intervene. Supp. at 3273 (1/26/98 FBI Form 302 Interview of Ronald Perelman); Supp. at 3276 (3/27/98 FBI Form 302 Interview of Ronald Perelman). Later that day, Mr. Durnan spoke to Mr. Perelman, who mentioned that he had had a call from Mr. Jordan about a job candidate. Mr. Perelman simply told Mr. Durnan "let’s see what we can do," and Mr. Perelman later told Mr. Jordan that they would do what they could. Mr. Jordan expressed no time constraint to Mr. Perelman. Ibid.

By the time Mr. Perelman spoke to Mr. Durnan, Mr. Durnan had already passed on Ms. Lewinsky’s resume to Ms. Seidman at Revlon. Supp. at 1049-50 (1/26/98 FBI Form 302 Interview of Jaymie Durnan). After speaking with Mr. Perelman, Mr. Durnan actually spoke to Ms. Seidman about Ms. Lewinsky for the first time. Supp. at 1054-55 (3/27/98 FBI Form 302 Interview of Jaymie Durnan). Upon speaking to Ms. Seidman about Ms. Lewinsky, Mr. Durnan did not tell Ms. Seidman that CEO Perelman had expressed an interest in Lewinsky. Supp. at 1055 (3/27/98 FBI Form 302 Interview of Jaymie Durnan). Rather, he simply told Ms. Seidman that if she liked Ms. Lewinsky, she should hire her. Supp. at 1050 (1/26/98 FBI Form 302 Interview of Jaymie Durnan).

According to Mr. Durnan, Mr. Perelman never said or implied that Ms. Lewinsky had to be hired. Indeed, Mr. Durnan concluded that Ms Lewinsky’s hiring was not mandatory. Supp. at 1055 (3/27/98 FBI Form 302 Interview of Jaymie Durnan). According to Ms. Seidman, Mr. Durnan told Ms. Seidman that he thought she should interview Ms. Lewinsky because he thought she was a good candidate. Supp. at 3634 (4/23/98 grand jury testimony of Allyn Seidman). In fact, there is nothing in the record to suggest that Ms. Seidman even knew that Mr. Perelman had any interest at all in Ms. Lewinsky. Supp. at 3643 (4/23/98 grand jury testimony of Allyn Seidman). And there’s no evidence that Mr. Perelman instructed or suggested to Ms. Seidman that she conduct that interview. Supp. at 3642 (4/23/98 grand jury testimony of Allyn Seidman). Having seen his name in Ms. Lewinsky’s application materials, Ms. Seidman was aware that Ms. Lewinsky had some connection with Mr. Jordan, but there is no evidence that Ms. Seidman was aware of Mr. Jordan’s January 8^th call to Mr. Perelman. Supp. at 3643 (4/23/98 grand jury testimony of Allyn Seidman).

In fact, the next day when Ms. Seidman interviewed Ms. Lewinsky, she liked her so well she decided to hire her that very day. Supp. at 3643 (4/23/98 grand jury testimony of Allyn Seidman). And when Ms. Seidman decided to hire Ms. Lewinsky, there is no evidence that Mr. Perelman or Mr. Durnan or Mr. Halperin told her to do that. Supp. at 3643 (4/23/98 grand jury testimony of Allyn Seidman). The decision to hire Ms. Lewinsky was made by Ms. Seidman completely unaware of Mr. Jordan’s January 8 telephone call.

As the foregoing narrative establishes, there was a great deal more to Ms. Lewinsky’s job search that the Referral acknowledges. Indeed, the events of December and January (upon which the Referral’s obstruction theory places such reliance) assume quite a different cast when the details are filled in. It becomes clear that the Referral has completely suppressed a host of pertinent facts, every one of them relevant to the question whether Ms. Lewinsky’s job was procured at a crucial time in the Jones case in exchange for a false affidavit or to buy her silence. Among those set forth in the above narrative, those omitted facts include the following:

·      that Ms. Lewinsky was simultaneously pursuing New York jobs through avenues other than the President and his associates, Supp. at 11 (2/26/98 FBI Form 302 Interview of Kenneth Bacon);

·      that those efforts occurred well before her name appeared on the witness list in the Jones case, Supp. at 11 (2/26/98 FBI Form 302 Interview of Kenneth Bacon);

·      that Mr. Jordan put no pressure on Mr. Peter Georgescu of Young & Rubicam/Burson Marsteller and that Mr. Georgescu told Mr. Jordan that the company "would take a look at Ms. Lewinsky in the usual way." Supp. at 1219 (1/29/98 FBI Form 302 Interview of Peter Georgescu), that Mr. Georgescu’s involvement would be "arm’s length," and that after he set up the initial interview, Ms. Lewinsky would be "on [her] own from that point," Supp. at 1222 (3/25/98 FBI Form 302 Interview of Peter Georgescu);

·      that Ms. Lewinsky’s interview with a Ms. Celia Berk of Burson-Marsteller was handled "by the book", Supp. at 111 (3/31/98 FBI Form 302 Interview of Celia Berk), and that it "went through the normal stops." Ibid.;

·      that Burson-Marsteller never offered Ms. Lewinsky a job;

·      that Ms. Lewinsky’s initial contact with American Express was not extraordinary because according to Ms. Ursula Fairbairn, there was nothing unusual for board members or company officers to recommend talented people for work at American Express, Supp. at 1087 (1/29/98 FBI Form 302 Interview of Ursula Fairbairn);

·      that Mr. Jordan had recently made another employment recommendation to Ms. Fairbairn at American Express, Supp. at 1087 (1/29/98 FBI Form 302 Interview of Ursula Fairbairn);

·      that Ms. Fairbairn felt that no pressure was exerted by Mr. Jordan, Supp. at 1087 (1/29/98 FBI Form 302 Interview of Ursula Fairbairn);

·      that the person Ms. Lewinsky interviewed with at American Express, an official named Mr. Thomas Schick, never talked to Mr. Jordan at any time during this process, Supp. at 3521 (1/29/98 FBI Form 302 Interview of Thomas Schick);

·      that Mr. Schick stated that he felt absolutely no pressure to hire Ms. Lewinsky, Supp. at 3521 (1/29/98 FBI Form 302 Interview of Thomas Schick);

·      that during Ms. Lewinsky’s interview with Mr. Schick on December 23, 1997, she was told that she lacked the qualifications necessary for the position, App. 1480 (8/1/98 FBI Form 302 Interview of Ms. Lewinsky);

·      that Ms. Lewinsky was never offered a job at American Express;

·      that the person Mr. Jordan first contacted at MacAndrews & Forbes/Revlon was an Executive Vice President named Mr. Richard Halperin who said that it was not unusual for Mr. Jordan to call him with an employment recommendation, Supp. at 1281 (1/26/98 FBI Form 302 Interview of Richard Halperin), and that he did not think there was anything unusual about Mr. Jordan’s request, Supp. at 1286 (3/27/98 FBI Form 302 Interview of Richard Halperin);

·      that in Mr. Jordan’s call to Mr. Halperin, Mr. Jordan did not "ask [Halperin] to work on any particular kind of timetable," Supp. at 1294 (4/23/98 grand jury testimony of Richard Halperin), and that "there was no implied time constraint or requirement for fast action," Supp. at 1286 (3/27/98 FBI Form 302 Interview of Richard Halperin);

·      that Ms. Lewinsky’s interview with Mr. Halperin was scheduled for December 18, 1997 in New York at her request, Supp. at 1282 (1/26/98 FBI Form 302 Interview of Richard Halperin);

·      that earlier that week, Mr. Halperin, with no input from Mr. Jordan or MacAndrews and Forbes CEO Ronald Perelman, had sent Ms. Lewinsky’s resume to Jaymie Durnan for his consideration, Ibid.;

·      that Mr. Durnan became aware of Ms. Lewinsky in mid-December 1997, Supp. at 1053 (3/27/98 FBI Form 302 Interview of Jaymie Durnan), and that at that time, he reviewed her resume and decided to interview her after the first of the year, Ibid.;

·      that when Mr. Durnan returned from vacation, he had his assistant schedule an interview with Ms. Lewinsky for January 7, 1998, but, because of scheduling problems, he rescheduled the interview for the next day January 8,1998, Supp. at 1049 (1/26/98 FBI Form 302 Interview of Jaymie Durnan);

·      that Mr. Durnan’s decision to interview Ms. Lewinsky was made independently of the decision by Mr. Halperin to interview her;

·      that when Ms. Lewinsky interviewed with Mr. Durnan on the morning of January 8^th, Mr. Durnan thought she was impressive for entry level work, Supp. at 1049 (1/26/98 FBI Form 302 Interview of Jaymie Durnan);

·      that Mr. Durnan concluded that Ms. Lewinsky would have "fit in" at the parent company (MacAndrews & Forbes Holdings) but that there was nothing available at the time that matched her interest and so, for that reason, he referred her to Revlon, thinking she might be suitable for that company, Supp. at 1054 (3/27/98 FBI Form 302 Interview of Jaymie Durnan). He decided to send her resume to Revlon;

·      that, as the Referral makes so much of, Mr. Jordan did speak to CEO Ronald Perelman on January 8, 1998, but that Mr. Jordan made no specific requests and did not ask Mr. Perelman to intervene, Supp. at 3273 (1/26/98 FBI Form 302 Interview of Ronald Perelman); Supp. at 3276 (3/27/98 FBI Form 302 Interview of Ronald Perelman);

·      that in that call, Mr. Jordan did not say that there was any time constraint involved in considering Ms. Lewinsky for a job, Supp. at 3276 (3/27/98 FBI Form 302 Interview of Ronald Perelman);

·      that on that same day, Mr. Perelman spoke to Mr. Durnan about Ms. Lewinsky, but he simply told Mr. Durnan "let’s see what we can do," Ibid., and later told Mr. Jordan only that they would do what they could, Ibid.;

·      that at the time Mr. Perelman spoke to Mr. Durnan, Mr. Durnan had already passed Ms. Lewinsky’s resume over to Ms. Allyn Seidman (Senior VP Corporate Communications) at Revlon, Supp. at 1049-50 (1/26/98 FBI Form 302 Interview of Jaymie Durnan);

·      that upon first speaking to Ms. Seidman about Ms. Lewinsky, Mr. Durnan did not tell Ms. Seidman that CEO Perelman had expressed an interest in Lewinsky. Supp. at 1055 (3/27/98 FBI Form 302 Interview of Jaymie Durnan). Rather, he simply told Ms. Seidman that if she liked ML, she should hire her, Supp. at 1050 (1/26/98 FBI Form 302 Interview of Jaymie Durnan);

·      that Mr. Perelman never said or implied that Ms. Lewinsky had to be hired and that Mr. Durnan concluded that Ms Lewinsky’s hiring was not mandatory, Supp. at 1055 (3/27/98 FBI Form 302 Interview of Jaymie Durnan);

·      that according to Ms. Seidman, Mr. Durnan told Ms. Seidman that he thought she should interview Ms. Lewinsky because he thought she was a good candidate, Supp. at 3634 (4/23/98 grand jury testimony of Allyn Seidman);

·      that according to Ms. Seidman, when she interviewed Ms. Lewinsky, she liked her a great deal and so decided to hire her that very day, Supp. at 3643 (4/23/98 grand jury testimony of Allyn Seidman);

·      and that when Ms. Seidman decided to hire Ms. Lewinsky, there is no evidence that Mr. Perelman or Mr. Durnan or Mr. Halperin told her to do that, Supp. at 3643 (4/23/98 grand jury testimony of Allyn Seidman).

Every one of the foregoing facts is relevant to the case for obstruction of justice. Every one of them suggests that there was no obstruction. And every one of them is missing from the Referral.

Ms. Lewinsky expressly told the OIC that her principal reason for moving to New York was her understanding -- growing throughout 1997 and confirmed on October 6, 1997 -- that she would never work in the White House again:

Despite the fact that Ms. Lewinsky stated that this was her "main reason for look[ing] for a job in New York," that statement is nowhere to be found in the Referral. And despite the fact that she apparently reached this decision on October 6, 1997, that fact too is not part of the Referral’s chronology of "key events." These two facts sharply undermine the OIC’s insistence that the President’s assistance to Ms. Lewinsky in obtaining a job in New York was motivated by an intent to obstruct justice in the Jones case’s December-January discovery proceedings, but they are missing from the Referral.

The OIC’s chronology of key events plainly intends to suggest that Ms. Lewinsky’s Jones affidavit was signed in exchange for a New York job. What the chronology omits are the following statements made by Ms. Lewinsky showing that there simply was no job-for-affidavit deal of any kind:

and that the only person who suggested that she sign the affidavit in exchange for a job was Ms. Tripp:

Five distinct statements by Ms. Lewinsky make Ms. Tripp the sole source of the job-for-affidavit notion which the OIC holds out as the heart of the obstruction case. Ms. Lewinsky’s recitation of Ms. Tripp’s statements are the only direct evidence contained in the appendices bearing on that idea. Yet these statements are nowhere to be found in the Referral.

Finally, the OIC’s chronology of key events fails to include the following three statements of Ms. Lewinsky bearing directly on the core of this issue. The first was made in Ms. Lewinsky’s original proffer on February 1, 1998:

The second was made in her very first interview with the OIC:

App. at 1398 (7/27/98 FBI Form 302 Interview of Ms. Lewinsky). The third was made at the close of Ms. Lewinsky’s grand jury testimony in response to a question from a grand juror:

App. at 1161 (8/20/98 grand jury testimony of Ms. Lewinsky).

From initial proffer to the last minutes of her grand jury appearance, the testimony of Ms. Lewinsky (the OIC’s principal witness) has been clear and consistent on this obstruction issue: she was never asked or encouraged to lie or promised a job for silence or for a favorable affidavit.

There was no obstruction of justice in connection with Ms. Lewinsky’s job search. That search was undertaken long before her involvement in the Jones case was known to anyone. It involved individuals other than the President and his friends. It resulted in several dead ends. It was not conducted according to any timetable, explicit or tacit. It was completed without pressure of any kind and without reference to the Jones case.

The Referral’s insinuations to the contrary are just that. When the omissions and falsely suggestive juxtapositions are examined, the truth becomes clear: The jobs-based obstruction charge lacks even the most basic circumstantial support.

      The Committee appears to be considering an article of impeachment concerning the assertion in the Referral that President Clinton and Ms. Lewinsky had an understanding or agreement that they would lie under oath in the Jones case about their relationship. Ref. at 173; see also Schippers Presentation at 13 ("the two agreed that they would employ the same cover story in the Jones case"). Both the Starr Referral and the Majority’s presentation simply ignore the fact that neither Ms. Lewinsky nor the President testified that they had any such agreement regarding their testimony in the Jones case. To the contrary, Ms. Lewinsky stated repeatedly that she was neither asked nor encouraged to lie, by the President or anyone else on his behalf. And Ms. Lewinsky never testified that the President ever discussed with her in any way the substance or content of his own testimony. There simply was no such agreement, and neither the OIC nor the majority have cited any testimony by either of the supposed conspirators that supports one. This allegation of obstruction of justice attempts to rest solely on the shaky basis that the President and Ms. Lewinsky attempted to conceal the improper nature of their relationship while it was on-going.

In the Referral, Mr. Starr inexplicably never once quotes Ms. Lewinsky’s repeated, express denials that anyone had told her to lie in the Jones case and therefore does not even attempt to reconcile them with his theory of obstruction:

The Referral alleges that during the course of their admittedly improper relationship, the President and Ms. Lewinsky concealed the nature of their relationship from others. This is hardly a remarkable proposition. The use of "cover stories" to conceal such a relationship, apart from any proceeding, is, however unpraiseworthy, not unusual and certainly not an obstruction of justice. Ms. Lewinsky’s explicit testimony clearly indicates that the conversations she said she had with the President about denying the relationship had occurred long before her involvement in the Jones case. The following exchange occurred between Ms. Lewinsky and a grand juror:

App. at 1119 (8/20/98 grand jury testimony of Ms. Lewinsky).

The Starr Referral cites only one specific statement that Ms. Lewinsky claims the President made to her regarding the substance of her testimony. Ms. Lewinsky testified that "At some point in the conversation, and I don’t know if it was before or after the subject of the affidavit came up, [the President] sort of said, ‘You know, you can always say you were coming to see Betty or that you were bringing me letters.’" App. at 843 (8/6/98 grand jury testimony of Ms. Lewinsky). As an initial matter, the President stated in his grand jury testimony that he did not recall saying anything like that in connection with Ms. Lewinsky’s testimony in the Jones case:

App. at 568. The President testified that he and Ms. Lewinsky "might have talked about what to do in a non-legal context at some point in the past," but that he had no specific memory of that conversation. App. at 569.

Even if that conversation did take place, neither of those two ambiguous statements would be false, and neither statement was ever made by Ms. Lewinsky in the Jones case. Ms. Lewinsky stated on several occasions that the so-called "cover stories" were not false. In her handwritten proffer, Ms. Lewinsky stated that the President told her if anyone asked her about her visits to the Oval Office, that she could say "she was bringing him letters (when she worked in Legislative Affairs) or visiting Betty Currie (after she left the White House)." App. at 709 (2/1/98 Proffer). Ms. Lewinsky expressly told the OIC: "There is truth to both of these statements." App. at 709 (2/1/98 Proffer) (emphasis added). Ms. Lewinsky also said that this conversation took place "prior to the subpoena in the Paula Jones case." App. at 718 (2/1/98 Proffer) (emphasis added). Ms. Lewinsky alleged that the President mentioned these explanations again after the President told her she was on the witness list and reiterated that "[n]either of those statements [was] untrue." App. at 712 (2/1/98 Proffer) (emphasis added). Ms. Lewinsky also stated in her proffer that "[t]o the best of Ms. L’s memory, she does not believe they discussed the content of any deposition that Ms. L might be involved in at a later date." App. at 712 (2/1/98 Proffer).

Ms. Lewinsky testified to the grand jury that she did bring papers to the Oval Office and that on some occasions, she visited the Oval Office only to see Ms. Currie:

Q:      Did you actually bring [the President] papers at all?

A:      Yes.

Q:       All right. And tell us a little about that.

A:      It varied. Sometimes it was just actual copies of letters. . . .

App. at 774-75 (8/6/98 grand jury testimony of Ms. Lewinsky).

App. at 775 (8/6/98 grand jury testimony of Ms. Lewinsky).

Mr. Starr and the Schippers’ presentation ignore Ms. Lewinsky’s assertion that the so-called "cover stories" were literally true, attempting instead to build an obstruction case on the flimsy assertions that (1) her White House job never required her to deliver papers for the President’s signature; and (2) her true purpose in visiting the Oval Office was to see the President, and not Ms. Currie. Ref. at 176-77. In other words, the OIC suggests that these responses might have been misleading. But literal truth is a critical issue in perjury and obstruction cases, as is Ms. Lewinsky’s belief that the statements were, in fact, literally true.

The Starr Referral alleges that President Clinton endeavored to obstruct justice based on Ms. Lewinsky’s testimony that the President told her, "Well maybe you can sign an affidavit" in the Jones case. See App. at 843; Ref. at 173. The President never told Ms. Lewinsky to file a false affidavit or otherwise told her what to say in the affidavit -- indeed the OIC makes no contention that the President ever told Ms. Lewinsky to file a false affidavit. But a suggestion that perhaps she could submit written testimony in lieu of a deposition, if he made it, is hardly improper -- let alone an obstruction of justice. The President was aware that other potential deponents in the Jones case had filed affidavits in an attempt to avoid the expense, burden, and humiliation of testifying in the Jones case, and that there was a chance that doing so might enable Ms. Lewinsky to avoid testifying. Even if the affidavit did not disclose every possible fact regarding their relationship, since the Jones case concerned allegations of nonconsensual sexual solicitation, a truthful albeit limited affidavit might have allowed her to have avoided giving a Jones deposition.

The President’s testimony overwhelmingly indicates that he had no intention that Ms. Lewinsky file a false affidavit -- and no testimony to the contrary has been presented. No fewer than eight times in his testimony to the grand jury, the President explained that he thought she could and would execute a truthful affidavit that would establish she was not relevant to the Jones case:

"You know, I believed then, I believe now, that Monica Lewinsky could have sworn out an honest affidavit, that under reasonable circumstances, and without the benefit of what Linda Tripp did to her, would have given her a chance not to be a witness in this case." App. at 521.

"I believed then, I believe today, that she could execute an affidavit which, under reasonable circumstances with fair-minded, non-politically oriented people, would result in her being relieved of the burden to be put through the kind of testimony that, thanks to Linda Tripp’s work with you and with the Jones lawyers, she would have been put through. I don’t think that’s dishonest, I don’t think that’s illegal." App. at 529.

"But I also will tell you that I felt quite comfortable that she could have executed a truthful affidavit, which would not have disclosed the embarrassing details of the relationship that we had had, which had been over for many, many months by the time this incident occurred." App. at 568-69.

"I said I thought this could be a truthful affidavit. And when I read it, since that’s the way I would define it, since -- keep in mind, she was not, she was not bound by this sexual relations definition, which is highly unusual; I think anybody would admit that. When she used a different term, sexual relationship, if she meant by that what most people meant by it, then that is not an untruthful statement." App. at 474-75.

"I believe that the common understanding of the term, if you say two people are having a sexual relationship, most people believe that includes intercourse. So, if that’s what Ms. Lewinsky thought, then this is a truthful affidavit. I don’t know what was in her mind. But if that’s what she thought, the affidavit is true." App. at 475.

"Q:      Did you tell her to tell the truth?

"I believe at the time that she filled out this affidavit, if she believed that the definition of sexual relationship was two people having intercourse, then this is accurate. And I believe that is the definition that most ordinary Americans would give it.

If you said Jane and Harry have a sexual relationship, and you’re not talking about people being drawn into a lawsuit and being given definitions, and then a great effort to trick them in some way, but you are just talking about people in ordinary conversations, I’ll bet the grand jurors, if they were talking about two people they know, and said they have a sexual relationship, they meant they were sleeping together; they meant they were having intercourse together." App. at 473.

There is simply no evidence that contradicts the President’s stated intention that the affidavit be limited but truthful. In other words, there is simply no evidence that the President had any "corrupt" intent, which is a requisite element of obstruction of justice.

Ms. Lewinsky’s repeated statements that she was not asked or encouraged to lie similarly negate the allegation that the President asked or encouraged her to file a false affidavit, and yet Mr. Starr omitted these statements from his Referral:

Furthermore, Ms. Lewinsky states that she believed, when she executed the affidavit, that it was accurate given what she believed to be the definition of a "sexual relationship":

Moreover, Ms. Lewinsky told the OIC that she believed the President himself made such a distinction: "After 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).

In short, the President never told Ms. Lewinsky what to say in the affidavit, he knew that Ms. Lewinsky had her own lawyer to protect her interests, and he expressly declined the opportunity to review the content of the affidavit, according to Ms. Lewinsky, see App. at 1489 (8/2/98 FBI Form 302 Interview of Ms. Lewinsky). The President repeatedly testified that he did not intend Ms. Lewinsky to file a false affidavit, and the above-referenced statements of Ms. Lewinsky indicate that, at the time she executed it, she believed her affidavit was literally true.

The OIC’s allegation depends on the argument that it is somehow was an obstruction of justice to fail to ensure that Ms. Lewinsky volunteered in her affidavit all information that the Jones lawyers might have used to attack the President in their politically motivated lawsuit. There simply is no such duty under the law, nor does the OIC cite any basis for such a duty. Civil litigation is based upon an adversarial process of determining truth, and a party is under no affirmative obligation to assist an opponent in every way it can.

The OIC also claims that the President obstructed justice by allegedly suggesting a misleading answer to a hypothetical question posed to him by Ms. Lewinsky. Ref. at 178. Ms. Lewinsky told the grand jury that in a phone conversation with the President on January 5, she told him that Mr. Carter had asked her some sample questions that she was unsure of how to answer. App. at 912-13 (8/6/98 grand jury testimony of Ms. Lewinsky). One of the questions was how she got her job at the Pentagon. Id. Ms. Lewinsky told the grand jury that "when I told him the questions about my job at the Pentagon, he said, ‘Well, you could always say that the people in Legislative Affairs got it for you or helped you get it.’ And there was a lot of truth to that. I mean, it was a generality, but that was -- I said ‘Well that’s a good idea. Okay.’" App. at 917 (8/6/98 grand jury testimony of Ms. Lewinsky) (emphasis added). In her written proffer, Ms. Lewinsky also told the OIC that the President told her she could say "The people in Legislative Affairs helped you." App. at 717 (2/1/98 Proffer). She also stated, "this is, in fact, part of the truth -- but not the whole truth." Id. A third time, "Lewinsky advised [the OIC] that that explanation was true, but it was not the entire truth." App. at 1489 (8/2/98 FBI Form 302 Interview of Ms. Lewinsky).

The OIC claims that this conversation recounted by Ms. Lewinsky was an obstruction of justice because the President encouraged Ms. Lewinsky to file a false affidavit. This conclusion ignores the fact that the conversation recounted by Ms. Lewinsky had nothing to do with her affidavit. But that is only the first problem with the OIC’s claim. The Referral also failed to include any of Ms. Lewinsky’s three separate statements that what the President allegedly had told her to say had "a lot of truth" to it. And, in claiming that that story was misleading because Ms. Lewinsky "in fact had been transferred because she was around the Oval Office too much," Ref. at 178, the OIC ignored the fact that the question asked was not why Ms. Lewinsky was transferred out of the White House but rather how she got her job at the Pentagon.

Finally, the OIC suggests that the President was "knowingly responsible" for a misstatement of fact to a federal judge because he failed to correct a statement made by his lawyer to the court in the Jones deposition. The President testified to the grand jury that the lawyers’ argument at the start of the deposition "passed [him] by." There is of course no legal obligation imposed on a client to listen to every word his attorney says, and there is no evidence that the President focused on or absorbed his attorney’s remark. Without any evidence whatsoever, the OIC asserts that the President knew what was said, knew he was somehow responsible for it, knew it was incorrect, and ignored a duty to correct it. Yet, again, this is a wholly unsupported allegation of obstruction of justice.

The OIC charges that President Clinton obstructed justice and improperly attempted to influence a witness when he spoke with Ms. Currie the day after his deposition in the Jones case. The OIC’s claims are the product of extraordinary overreaching and pejorative conjecture -- a transparent attempt to draw the most negative inference possible about lawful conduct.

The President’s actions could not as a matter of law give rise to either charge because Ms. Currie was not a witness in any proceeding at the time he spoke with her; there was no reason to suspect she would play any role in the Jones case; her name had not appeared on any of the Jones witness lists; she had not been named as a witness in the Jones case; and the discovery period in the case was down to its final days. Nor did the President have any reason to suspect that the OIC had embarked on a wholly new phase of its four-year investigation, one in which Ms. Currie would later be called by the OIC as a witness. To obstruct a proceeding or tamper with a witness, there must be both a proceeding and a witness. Here, there was (as far as the President knew) neither. Furthermore, Ms. Currie testified that she felt no pressure to agree with the questions that the President asked her. Despite the Referral’s suggestion to the contrary, there was no reason the President should not have spoken with Ms. Currie about Ms. Lewinsky.

Indeed, it is hardly surprising that the President would have reached out to Ms. Currie after the deposition. As he knew, Ms. Currie was Ms. Lewinsky’s friend. The President had just faced unexpected, detailed, and hostile questioning from fierce political opponents in the Jones case about Ms. Lewinsky. He was obviously puzzled at being asked such precise, and in some cases such bizarrely inaccurate, questions about a past secret relationship. The President also explained that he was expecting media questions, based on the Drudge Report indicating that Newsweek was pursuing the story of his relationship with Ms. Lewinsky. The President testified:

App. at 593. He had no one to whom he could talk freely about the relationship, but he nonetheless had a desire to find out what might have transpired with Ms. Lewinsky (e.g., was she -- to Ms. Currie’s knowledge -- aiding his opponents in the Jones case?) and to test whether his recollection was accurate, since he had not anticipated or prepared for such detailed questions.

The President explained to the grand jury, "[W]hat I was trying to determine was whether my recollection was right and that she was always in the office complex when Monica was there . . . . I was trying to get the facts down. I was trying to understand what the facts were. . . . I was trying to get information in a hurry. I was downloading what I remembered." App. at 507-08. It was his belief that Ms. Currie was unaware that he had engaged in improper activity with Ms. Lewinsky, since she had not been in the White House complex when Ms. Lewinsky had visited on weekends in 1995-96, and he wanted to reassure himself that that was so. He also recalled that in 1997, after the improper relationship ended, he had asked Ms. Currie to try always to be present when Ms. Lewinsky visited. He wanted to inquire whether that was also Ms. Currie’s recollection. The President testified "I was not trying to get Betty Currie to say something that was untruthful. I was trying to get as much information as quickly as I could." App. at 508.

Ms. Currie was also asked about this conversation with the President in the grand jury, and her testimony supports the President’s assertion that he was merely trying to gather information. First, Ms. Currie stated in her first interview with the OIC that "Clinton then mentioned some of the questions he was asked at his deposition. Currie advised the way Clinton phrased the queries, they were both statements and questions at the same time." Supp. at 534 (1/24/98 FBI Form 302 Interview of Ms. Currie). The interview further reflects that "Currie advised that she responded ‘right’ to each of the statements because as far as she knew, the statements were basically right . . . " Id. Ms. Currie was asked in the grand jury:

A:      That’s a fair assessment.

A:      I have not changed my opinion, no.

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

Supp. at 668 (7/22/98 grand jury testimony of Ms. Currie) (emphasis added). Ms. Currie also testified, "I said ‘Right’ to him because I thought they were correct, ‘Right, you were never alone with Monica.’ . . . " Supp. at 665 (7/22/98 grand jury testimony of Ms. Currie).

Ms. Currie’s testimony supports the President’s assertion that he was looking for information as a result of his deposition. Neither the testimony of Ms. Currie nor that of the President -- the only two participants in this conversation -- supports the inference that the conversation had an insidious purpose. Furthermore, at the time he discussed Ms. Lewinsky with Ms. Currie, Ms. Currie was not expected to be, nor was she, a witness. When the President became aware that the OIC was investigating his relationship with Ms. Lewinsky, he repeatedly told Ms. Currie to tell the truth: "I said, Betty, just don’t worry about me. Just relax, go in there, and tell the truth." App. at 591. The President told the grand jury:

App. at 593. And when questioned by the OIC shortly thereafter, Ms. Currie in fact recounted what she knew about Ms. Lewinsky, unaffected by the conversation at issue. Neither participant in the conversation intended that it affect her testimony, and it did not. Again, the charge is without merit.

The Referral also alleges that the President endeavored to obstruct justice by denying to several of his aides that he had a sexual relationship with Ms. Lewinsky. Ref. at 197. The statements made to the Presidential aides (Messrs. John Podesta, Erksine Bowles, Harold Ickes, and Sidney Blumenthal) cited in the Referral were made either on the day the Lewinsky story broke (January 21, 1998) or within a few days of that date. Those statements were concurrent in time with the President’s repeated public statements to the country denying "sexual relations" with Ms. Lewinsky and were virtually identical in substance. Having made this announcement to the whole country on television, it is simply absurd to believe that he was somehow attempting to corruptly influence the testimony of aides when he told them virtually the same thing at the same time.

The Supreme Court has stated that in order to constitute obstruction of justice, actions must be taken "with an intent to influence judicial or grand jury proceedings." United States v. Aguilar, 515 U.S. 592, 599 (1995). There is no evidence that the President had the intent to do so when he made the alleged statements to these four individuals. The President spoke with the individuals regarding the allegations that had been made against him because of the long-standing professional and personal relationships that he shared with them and the responsibility that he felt to address the concerns that he assumed they would have after hearing such allegations. There is simply no evidence that he spoke with them for any other reason, and certainly not that he spoke with them intending to obstruct any proceeding.

The mere repetition of a public denial to these aides could not possibly affect the grand jury process. The testimony elicited from these aides in the grand jury regarding the President’s statements was hearsay. The aides were not witnesses to any sexual activity, and they had no first-hand knowledge pertinent to the denials. The President never attempted to influence their testimony regarding their own personal knowledge or observations. Any testimony about the President’s remarks was merely cumulative of the President’s own nationally broadcast statements. The suggestion that the President violated section 1503’s prohibition on "influenc[ing], obstruct[ing], or imped[ing] the due administration of justice" is groundless.

Furthermore, the Referral cites no evidence, and there is none, for the assertion that the President knew these individuals were going to be grand jury witnesses at that very early stage of the investigation. The Referral does not allege that any of them were under subpoena when the statements were made -- indeed they were not. The Referral cites the President’s testimony that he knew it was possible that if he provided people with factual details surrounding the allegations that had been made that they might be called as witnesses. But his point was that he did not want to make them into witnesses through admissions, not that he believed they would be. As the Supreme Court has made clear, the possibility that one may or may not be a witness is simply insufficient to establish obstruction in this context. "[I]f the defendant lacks knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct." United States v. Aguilar, supra, 515 U.S. at 599 (emphasis added). Because of this requirement, the Supreme Court has held that false statements made to an individual who merely has the potential to be a witness, even if the individual is a federal investigative or law enforcement agent, do not constitute obstruction of justice: "We do not believe that uttering false statements to an investigating agent who might or might not testify before a grand jury is sufficient to make out a violation of the catchall provision of § 1503 [of the obstruction of justice statute]." Id. at 600. Thus, the Referral fails to allege the most essential elements of obstruction.

Nor is there evidence that the President’s statements constituted

"witness tampering" in violation of section 1512. To make out such a violation, the government must show that the behavior knowingly occurred through one of the specific means set forth in the statute: intimidation, physical force, threats, misleading conduct or corrupt persuasion -- with intent to influence testimony in a legal proceeding. None of those requisite means is present or even alleged in the Starr Referral. The efforts must be aimed specifically at obstructing a known legal proceeding. See United States v. Wilson, 565 F. Supp. 1416, 1431 (S.D.N.Y. 1983). As explained above, any statements made to those individuals were made for reasons wholly separate from and unrelated to any legal proceedings. Again, there is simply no evidence that when the President repeated to aides substantially the same statement he made to the whole country that he had any thought whatsoever of the grand jury proceedings, let alone the corrupt intent to influence the grand jury through the testimony of Presidential aides who were not even witnesses at that time. Under the Referral’s theory, the OIC could have subpoenaed to the grand jury any citizen who heard the President’s denial and thus have created a new violation of law.

In sum, the President’s statements to his aides could not have obstructed justice as a matter of law. Their legal duty was to answer the prosecutor’s questions and to tell the truth honestly as they knew it, and the President’s comments in no conceivable way affected that duty.

The OIC suggests that the President’s delay in acknowledging a relationship with Ms. Lewinsky somehow contributed to an obstruction of justice because it affected how the prosecutors would conduct the investigation. This claim is unfounded, as a matter of law. The President had no legal obligation to appear before the grand jury absent compulsion and every reason not to do so, given the OIC’s tactics, illegal leaking, and manifest intent to cause him damage.

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