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.

VIII.      THE PRESIDENT DID NOT ABUSE POWER

The Independent Counsel’s allegation that the President’s assertions of privilege constituted an abuse of power is baseless and disingenuous. As the Framers recognized, impeachment is justified only for "the abuse or violation of some public trust." The record is devoid of any such improper conduct, a conclusion that Mr. Schippers apparently also reached as demonstrated by his not including an abuse of office charge in his presentation to the Committee. To the contrary, the record demonstrates that the White House acted at all times based upon a good faith belief that its narrow assertions of privilege were appropriate and its claims were well founded in existing law. The OIC misstates the record with respect to the litigation over privilege and entirely omits reference to the occasions when the White House privilege claims were vindicated.

From the inception of the Lewinsky investigation, the OIC’s objective was clear -- to send Congress information that it believed constituted grounds for impeachment. Public commentators and members of Congress alike raised the issue of impeachment within days of the investigation becoming public. Indeed, Congressman Barr had already introduced a resolution on impeachment even before the Lewinsky investigation began. Thus, from the outset, the White House reasonably viewed impeachment proceedings as an imminent possibility. With that in mind, the President consulted with his lawyers and senior staff, and they consulted among themselves, about political and strategic issues with the expectation that these conversations were, and would remain, confidential. The President had every right and institutional obligation to seek to preserve the confidentiality of these strategic deliberations.

At no time was executive privilege asserted with any intention of preventing White House staff from providing the grand jury with the facts surrounding the President’s relationship with Ms. Lewinsky. Rather, it was asserted to protect the confidentiality of conversations dealing with the President’s official functions as he carried out his duties under the very real threat of impeachment. These conversations included discussions about whether and to what extent privileges should be asserted. White House Counsel consistently attempted to ensure that the OIC had all of the information necessary to complete its investigation. Because the OIC adopted the wholly untenable and absolutist position that no executive privilege existed whatsoever with respect to its investigation, the White House had no choice but to assert privilege as narrowly as possible and allow the courts to uphold precedent and resolve the legal dispute between the White House and the OIC.

In short, White House claims of privilege have always reflected a fundamental and good faith disagreement over legal questions. The sole reason for the assertion of privilege was to protect this President and future Presidents from unwarranted intrusions into confidential communications among senior staff.

It is indisputable that the President of the United States, if he is to perform his constitutionally assigned duties, must be able to obtain the most candid, forthright, and well-informed advice from a wide range of advisors on an even wider array of subjects on a daily basis. Only last year, the United States Court of Appeals for the District of Columbia Circuit reaffirmed that principle, emphasizing the importance of preserving the confidentiality of presidential communications "to ensure that presidential decision-making is of the highest caliber, informed by honest advice and full knowledge." In re Sealed Case, 121 F.3d 729, 750 (D.C. Cir. 1997). The subjects over which the President is entitled to receive confidential advice include national security interests but -- contrary to the unsupported view of the OIC -- are not limited to issues of national security. Under these well-established principles, the OIC’s apparent belief that the assertion of executive privilege over discussions about political and strategic decisions in the face of impending impeachment proceedings is per se an abuse of power is ludicrous. Indeed, Chief Judge Johnson upheld the White House’s claim that the communications over which it was asserting privilege were presumptively privileged and thus required the OIC to make a showing of need sufficient to overcome the privilege. Although she ultimately determined that the OIC had made that showing, Chief Judge Johnson never suggested in any way that the President’s assertion of executive privilege was groundless, improper, made in bad faith, or in any way an "abuse of power."

From the outset, the White House Counsel believed that the OIC’s invasion of the President’s confidential communications with his advisors was both inappropriate and unnecessary. Counsel reasonably relied upon the long-standing principle that a President is entitled to receive the frank, candid, and confidential advice that is essential to the execution of his constitutional, official, statutory, and other duties. Nevertheless, White House Counsel recognized its obligation to try to reach an accommodation with the OIC, as it had on numerous other occasions in this and other Independent Counsel investigations as well as Congressional inquiries. Thus, the White House attempted in good faith to initiate a process by which the OIC could obtain all of the information it deemed necessary for a prompt resolution to its investigation, without unnecessarily intruding into the domain of confidential presidential communications. This is precisely the process in which the White House attempted to engage when the OIC subpoenaed Bruce Lindsey, Assistant to the President and Deputy Counsel.

Prior to Mr. Lindsey’s grand jury appearance, White House Counsel met with the OIC on February 3, 1998, to discuss ways in which to ensure the OIC received all of the information it needed without unnecessarily encroaching upon areas subject to executive privilege. At that time and subsequently, the White House made clear that no factual information regarding the President’s relationship with Ms. Lewinsky would be withheld on the basis of privilege. Unfortunately, the OIC refused all efforts to devise a workable compromise -- insisting on an absolutist position that no privilege applied. The White House sought to protect internal discussions about how to handle press inquiries, what political strategies to consider, and how to advise the President concerning available political strategies. The White House also sought to protect the discussions about legal strategy, i.e., whether and to what extent to assert various privileges, and the political consequences of such strategies. None of this information was critical to the OIC’s understanding of the President’s relationship with Ms. Lewinsky or any of the factual allegations it was investigating. Rather, the discussions related to the President’s capacity to govern in the face of an ongoing investigation -- to pursue his legislative agenda, to ensure the continued leadership of the United States in the world community, and to maintain the confidence and support of the people who elected him.

Despite the admittedly private nature of the Lewinsky allegations, the White House Counsel’s Office was faced with strategic decisions involving official duties of the Presidency. For example, advisors had to deliberate among themselves and provide advice to the President about responses to the daily press inquiries, the State of the Union Address which was to be given within days of the public disclosure of the investigation, and the visit by Prime Minister Blair with its accompanying press conference. While these deliberations were important to the functioning of the Presidency and illustrated the President’s need for candid advice, they were not relevant to the OIC’s investigation. The OIC’s concerted effort to learn about the internal deliberations of White House Counsel and other advisors on political and legal strategy -- whether to assert privilege or not, how to handle the voluminous media inquiries, whether to refer to the Lewinsky matter during the State of the Union, and how to assure foreign leaders that the leadership of the country would be stable -- does not render the substance of those deliberations relevant.

Shortly after this meeting with the OIC on February 3, the White House reiterated its willingness to ensure that any facts -- as opposed to internal deliberations -- would be made available to the OIC. On March 4, the White House again proposed to allow senior advisors to testify about any factual information they had about the Lewinsky matter, including any information the President had communicated to them. Id. The only communication with non-attorneys sought to be protected were strategic deliberations and discussions. Id. The OIC flatly rejected this and all other overtures aimed at resolving the sensitive issue of executive privilege. Id.

White House Counsel had hoped to resolve potential privilege issues related to Mr. Lindsey and other senior advisors by asking the OIC to describe with particularity possible areas of inquiry so that counsel could determine whether they would implicate privileged information. Given Mr. Lindsey’s role as a key advisor and counsel to the President on a variety of issues, as well as his service as an intermediary between the President and his private counsel, the White House was justified in raising its concerns with the OIC. As noted, however, the OIC flatly rejected the request. The OIC had no interest in resolving the issues of privilege with the White House by a reasonable compromise.

Instead, the OIC filed motions to compel the testimony of Mr. Lindsey and other senior staff. Id. In the face of this absolutist position by the OIC, White House Counsel believed it had no choice but to proceed to seek a judicial resolution of the executive privilege claims. This decision was not made lightly, but was made with full recognition that it would not be politically popular and would subject the White House to accusations of delay. Nevertheless, because of the grave institutional concerns, i.e., to protect the ability of this President and future Presidents to receive confidential advice, White House Counsel felt obligated to recommend that the President assert privilege over a few narrow conversations. Thus, White House Counsel notified the President of the privilege issues, explained the OIC’s unwillingness to engage in the traditional accommodation process, and recommended that he invoke the presidential communications privilege to protect the institutional needs of the Presidency. The President accepted this recommendation and authorized the Counsel to assert the privilege. Thus, contrary to the OIC’s allegations, the President’s decision was not made on his own initiative to delay the investigation, but was made on the recommendation of counsel to protect the Presidency as an institution.

It is important to note that the scope of the assertion was narrow: these communications ultimately involved the limited testimony of only three senior Counsel’s Office lawyers. Each testified fully with respect to issues that did not implicate confidential advice and decision-making. Many current and former White House staff members, including many senior advisors, testified without asserting any privilege whatsoever. The ensuing litigation on executive privilege was based on principles that were critical to the institution of the Presidency.

Despite the narrowness of the privilege asserted by the White House, the OIC took the position that executive privilege was inapplicable in the face of a grand jury subpoena because the discussions the OIC sought related in some way to the President’s personal conduct. The OIC argued, therefore, that it did not have to demonstrate any need for the information and that it was entitled to immediate and full disclosure of all strategic and political communications. This position, which was squarely at odds with decisions of the Supreme Court and the D.C. Circuit, was rejected by Chief Judge Johnson.

She upheld the White House’s claim that the communications over which it was asserting privilege were indeed presumptively privileged and flatly rejected the OIC’s absolutist position. In re Grand Jury Proceedings, 5 F. Supp.2d 21, 25-27 (D.D.C 1998). Having found that the communications were presumptively privileged, the Court required the OIC to make a showing of need sufficient to overcome the privilege. Id. at 28-29. After reviewing the OIC’s factual proffer, the Court concluded that the OIC had met its burden with respect to the areas identified to the Court. At no time, however, did the Court suggest that the President’s assertion of executive privilege was groundless, improper, made in bad faith, or in any way an abuse of power.

We respectfully suggest that the White House’s claim of executive privilege furnishes no ground for impeachment. The facts the OIC selectively omits from the Referral, as recounted above, unequivocally support the legitimacy of the White House’s decision to raise the issue of executive privilege. The OIC not only continues to reiterate its claim that executive privilege is inapplicable in a grand jury context but also omits the critical fact that Judge Johnson validated the White House’s assertion of the privilege and required the OIC to demonstrate a sufficient showing of need before it obtained the information.

Impeachment is, of course, the ultimate threat to a President’s constitutional status. It is hardly surprising, therefore, that the President would need to consult with his staff to discuss how to address that threat. Because impeachment implicates the interests of the President in his official capacity as opposed to his personal capacity, he must rely on Counsel’s Office lawyers to advise him. White House Counsel took the position that, in the impeachment context, the government attorney-client privilege should apply to communications between the President or his advisors and the Counsel’s Office on matters relating to his official duties. This advice was based on sound policy: without an assurance of confidentiality, the President’s access to official legal advice suffers because both he and his lawyers necessarily avoid communicating candidly if their discussions may be disclosed. It is hardly "abuse of office" for a President to follow advice based on a well-founded interpretation of law and important institutional considerations.

The OIC challenged sound legal authority recognizing the attorney-client privilege in the governmental context and sought to compel access to all confidential communications between the President and his government lawyers. The White House Counsel’s decision to assert the governmental attorney-client privilege was based upon a careful consideration of the applicable law, the likelihood of impeachment proceedings, and the important ethical and institutional obligations of the Counsel’s Office to the Office of the President.

For centuries, the law has recognized that the attorney-client privilege is absolute in protecting the confidentiality of attorney-client communications. The D.C. Circuit has also upheld the attorney-client privilege in the context of confidential communications between government lawyers and the government officials they represented. See, e.g., Mead Control, Inc. v. Dept. of the Air Force, 566 F.2d 242 (D.C. Cir. 1977). Courts recognize that a government official, like every other citizen, must be able to provide information to and seek advice from government lawyers without fear of public disclosure to ensure well-advised and fully-informed decision-making.

A recent Supreme Court case, which was decided during the courts’ consideration of the White House’s privilege claims, rejected the OIC’s sweeping attack on the attorney-client privilege and further supported the White House’s position. In Swidler & Berlin v. United States, U.S. , 1998 U.S. Lexis 4214, *7 (1998), the OIC argued that the personal attorney-client privilege should automatically give way to the needs of a criminal investigation. The Court rejected the OIC’s position and found "no case authority for the proposition that the privilege applies differently in a criminal and civil context," id. at *7, thus supporting the principle that the privilege remains absolute in a grand jury context. Accordingly, the President’s position with respect to the absolute nature of governmental attorney-client privilege had a substantial legal basis.

The rulings of both the District Court and Court of Appeals belie any notion that the claim of attorney-client privilege was an abuse of power. The District Court rejected the OIC’s position that government attorneys and clients are not entitled to have confidential communications. In re Grand Jury Proceedings, 5 F.Supp.2d 21, 31-32 (D.D.C. 1998). To the contrary, the Court held that such conversations are covered by the attorney-client privilege. Ibid. Performing a need analysis similar to that which it employed with respect to the executive privilege claim, the Court balanced the President’s interests against those of the grand jury and ultimately determined that the grand jury was entitled to the information. Id. at 32-39. Thus, despite the fact that the Court ultimately ruled in favor of the OIC, the Court never suggested -- or even hinted -- that the privilege claim was anything but legitimate.

On appeal, a sharply divided D.C. Circuit ruled that the President had an attorney-client privilege with White House Counsel in the civil context, but not in response to a grand jury subpoena. In re Lindsey, 158 F.3d 1263, 1271-78 (D.C. Cir. 1998). Judge Tatel dissented, finding that the Court’s opinion did not account for "the unique nature of the Presidency, its unique need for confidential legal advice, or the possible consequences of abrogating the attorney-client privilege for a President’s ability to obtain such advice." Id. at 1286. Judge Tatel’s recognition of the validity of the privilege demonstrates that the President’s position was not frivolous and necessarily negates any claim that the President abused the power of his Office by advancing such a claim. This point is brought home by Justice Breyer’s dissent from the denial of certiorari, joined by Justice Ginsburg, that "[t]he divided decision of the Court of Appeals makes clear that the question presented by this petition has no clear legal answer and is open to serious legal debate." Office of the President v. Office of Independent Counsel, No. 98-316, 67 U.S.L.W. 3321 (Nov. 10, 1998).

One further point is worth noting. Conspicuously absent from the Referral is any mention of the President’s personal attorney-client privilege claim concerning the communications that Mr. Lindsey had with the President’s private counsel, Robert Bennett. The White House argued that these communications were covered by the President’s personal attorney-client privilege because Mr. Lindsey was acting as an intermediary between the President and Mr. Bennett -- a position rejected by the OIC. In re Lindsey, 158 F.3d at 1279-80.

The Court of Appeals rejected the OIC’s position. The Court recognized the "tradition of federal courts’ affording ‘the utmost deference to Presidential responsibilities.’" Id. at 1280 (quoting Clinton v. Jones, 117 S. Ct. 1636, 1652 (1997)). The Court also acknowledged "the President’s undisputed right to have an effective relationship with personal counsel, consonant with carrying out his official duties." Id. at 1282. Given the "unavoidable, virtually full-time demands of the office [of the President]," id. at 1280, the Court found that the President’s use of Mr. Lindsey as an intermediary was "at least reasonably necessary." Ibid. Thus, the Court held that "while acting in this capacity [Mr. Lindsey’s] communications came within the President’s personal attorney-client privilege." Ibid. The Court remanded the case to the District Court so it could determine in which instances Mr. Lindsey was serving as an intermediary so that he could claim privilege, on the President’s behalf, over those communications.

The OIC also claims that the invocation of privilege was intended to delay its investigation. Ref. at 207 n.473. If delay occurred, the OIC has only itself to blame. First, the procedural history recounted above establishes that the White House attempted to reach a reasonable accommodation before any witnesses testified. The OIC rejected that offer, choosing instead to litigate these issues. Throughout the litigation, the Office of the President frequently sought to avoid any delay by proposing and/or agreeing to expedited briefing schedules involving privilege litigation, and the courts ruled swiftly.

Second, privilege claims were advanced only as to a narrow portion of the testimony of three witnesses. The OIC originally filed motions to compel the testimony of two senior staff members and one Counsel’s Office lawyer. The litigation only temporarily postponed the testimony of the two senior staff members; they both appeared and testified fully. The privilege assertions ultimately involved the testimony of only three senior Counsel’s Office lawyers. Each of these individuals testified at length regarding any facts they may have possessed about their knowledge of the President’s relationship with Ms. Lewinsky. Moreover, the questions as to which they asserted privilege were narrow in scope.

Finally, independent of any litigation, substantial delay in the overall investigation has been self-inflicted. The OIC has called presidential advisors before the grand jury as many as six times, sometimes for only one- or two-hour sessions. Some witnesses appeared to testify only to wait for hours and then be told to return on another day.

The OIC also has expended substantial time and effort exploring irrelevant subjects, such as White House contacts with the press or matters of personal opinion. For example, the OIC asked Mr. Lindsey, "[W]hat do you think about learning that the President lied to you personally about this matter?" When Mr. Lindsey questioned the relevance of an inquiry into his personal feelings, the OIC lawyer persisted and asked, "So are you just too embarrassed to answer the question, sir?" Supp. at 2447 (8/28/98 grand jury testimony of Bruce Lindsey). Such lines of inquiry serve no legitimate purpose and appear designed simply to create a confrontation or embarrass and humiliate a witness.

Another aspect of the OIC’s allegation is its claim that the President misused his presidential prerogative by asserting and then withdrawing privilege claims in order to delay the investigation. Ref. at 206-209. The OIC specifically cites to the privilege claim raised, and subsequently withdrawn, relating to the testimony of Nancy Hernreich, Director of Oval Office Operations, as a basis for this contention. Transcript of November 19, 1998 Hearing at 197-98. The OIC argues that an executive privilege claim with respect to Ms. Hernreich was illegitimate because she "does have an important function at the White House; she manages the Oval Office operations . . . [B]ut that is not the kind of function that the principle of executive privilege was meant to protect." Id. at 198. This contention is both legally and factually incorrect.

First, an individual’s title or job description does not determine whether her communications fall within executive privilege. As set forth in the Court of Appeals decision in In re Sealed Case, virtually any individual who participates in the deliberative process can take part in a communication or provide information that becomes subject to executive privilege; e.g., the information provided by a paralegal that becomes part an advisor’s recommendation. In re Sealed Case, 121 F.3d at 752-53. Thus, neither Ms. Hernreich’s role nor her title precludes her conversations from being subject to executive privilege.

Moreover, the OIC disregards the unique events surrounding this privilege claim. Ms. Hernreich was one of the first individuals subpoenaed by the OIC whose testimony would potentially raise privilege concerns. Because the OIC refused to describe the areas of inquiry with respect to Ms. Hernreich, the White House was unable to give her any guidance in advance of her testimony. Thus, at her first grand jury appearance, Ms. Hernreich took the precautionary step of preserving the privilege. Subsequently, the White House voluntarily and unilaterally narrowed the scope of the communications over which privilege was being asserted and offered to allow Ms. Hernreich, along with other non-lawyer advisors, to testify fully about any factual information she possessed.

On March 6, some ten days after Ms. Hernreich’s appearance, and without notice to the White House, the OIC filed its motion to compel her testimony, despite the fact that the White House had already informally indicated to the OIC that no privilege would be asserted with respect to her testimony. On March 17, in response to the OIC’s motion (and before the Court had ruled on the issue), the White House formally withdrew its privilege claims with respect to Ms. Hernreich’s testimony. At that point, Ms. Hernreich could have testified before the grand jury about those communications. Yet, the OIC waited two full months before requesting Ms. Hernreich to return to the grand jury. Such conduct by the OIC illustrates the hollowness of the OIC’s claim of delay caused by the President.

The OIC attempts to buttress its abuse of power claim by arguing that the President deceived the American public by feigning ignorance of the executive privilege litigation. The OIC bases its contention upon the following statement in its Referral:

Ref. at 156; Transcript of November 19, 1998 Hearing at 611-62. The OIC completely misstates the question posed to the President and, by carefully selecting a portion of the President’s answer, takes his response entirely out of context. The actual exchange follows, with the omitted portion in bold:

The full question and answer establish that the President was not being asked about "the assertion of Executive Privilege," but about the very narrow issue of the privilege vis-à-vis the First Lady, which was one of the many press rumors in circulation when the story broke.

As the OIC well knows, at this time, the OIC had refused to describe the areas of its inquiry to determine which, if any, raised privilege concerns. Consequently, the White House Counsel’s discussion with the President about possible privilege claims was limited to possible issues that might arise during a witness’s testimony and did not identify particular individuals who might claim privilege. Thus, the President could not possibly have known what conversations the First Lady participated in, if any, which might have fallen within the scope of executive privilege.

The OIC also contends that it was an abuse of power for the President, at a time when both his personal and official interests were at stake, not to volunteer to testify before the grand jury until August. Ref. at 159-61. This claim is wholly unfounded.

The OIC apparently believes that any government official who is the subject of a criminal investigation must immediately testify or risk impeachment. Because he was initially invited to appear voluntarily, the President had the right to decide the timing of his testimony. It became clear early in the OIC’s investigation that this was not a run-of-the-mill grand jury investigation but was instead a focused effort to target the President himself. The President’s decision to decline invitations to testify was entirely appropriate, given the nature of the OIC’s investigation.

President Clinton has acknowledged that he misled the American public when he denied having an improper relationship with Lewinsky. However, his public denial of this relationship does not warrant impeachment. A comparison to Watergate is illuminating, for false statements allegedly made by President Nixon were an important part of that inquiry.

Twenty-four years ago, Chairman Rodino stated that the Judiciary Committee’s approach during the Nixon inquiry would be to consider "whether or not serious abuses of power or violations of the public trust have occurred, and if they have, whether under the Constitution, they are grounds for impeachment" The Watergate impeachment investigation focused on whether President Nixon’s allegedly false public statements rose to the level of abuse of power, but the subject matter was quite different. President Nixon’s statements related to official matters of state and were allegedly part of a comprehensive scheme to undermine the political process and to obstruct justice by encouraging and condoning perjury by senior members of his administration, paying hush money to criminal defendants, and using the CIA to thwart the FBI investigation. This Committee finally charged that his false statements were calculated to lull the public into believing that the administration was adequately investigating alleged governmental wrongdoing -- in other words, he lied about his official actions.

President Clinton’s misleading public denial of an improper relationship with Ms. Lewinsky, although admittedly wrong, is not such an abuse of power. President Clinton did not misuse the FBI, conceal governmental law-breaking, or misuse the official powers of the President. To the contrary, the underlying conduct addressed by his public statements was indisputably private.

To consider the President’s misleading public denials of an improper relationship impeachable would radically lower the constitutional bar to impeachment. For better or worse, allegations of public untruthfulness by Presidents -- often on important matters of state -- have been levelled at most Presidents. President Reagan faced accusations about his truthfulness regarding Iran-Contra. President Bush confronted similar charges, with The New York Times characterizing his statements on the subject as "incredible." President Johnson faced a "credibility gap" regarding his statements about the Viet Nam war. President Kennedy lied about the Bay of Pigs, and President Eisenhower lied about Gary Powers and the U2 incident. And many have suggested that Presidents Wilson and Franklin Roosevelt were less than fully candid about the prospective involvement of the United States in World Wars I and II. These examples demonstrate how dangerous it would be to make it an impeachable offense to lie to the public. All of these alleged misstatements related to public policy. If they were in fact untrue, they denied the public and Congress an opportunity to exercise their democratic prerogative to affect those policies. Accordingly, if false public statements are to satisfy the constitutional standard for impeachment, it is difficult to conceive of a single Presidency in the last century that would not have been subject to potential impeachment proceedings.

In hotly contested policy disputes, accusations often fly regarding the truthfulness of a President’s statements. Such accusations may or may not be justified. But to devalue the impeachment currency by making lack of truthfulness, real or perceived, an impeachable offense would potentially inflate many policy disagreements into impeachment inquiries.

This danger is compounded by the inevitable uncertainty regarding the type of statements that would be penalized. Would it be impeachable to promise to take an action before an election, such as raising taxes or staying out of war, and then to reverse position after the election? Or to fail to disclose a physical infirmity? Would all Presidential untruths be impeachable?

Surely misstatements about public policy are more significant than misstatements about private indiscretions. False public statements about sexual indiscretions or other personal activities simply do not affect policymaking and do not implicate the powers of the presidency.

President Clinton’s conduct differs markedly from the gross abuses of power alleged by this Committee to have been committed by President Nixon. The charges against President Nixon were based upon his public misstatements involving official misconduct. One of the nine means by which this Committee asserted that President Nixon had violated his Oath of Office was by

For more than two years, President Nixon repeatedly denied any personal or White House involvement in or responsibility for (1) the burglary of the DNC headquarters to obtain political intelligence regarding the Presidential election, (2) the subsequent cover-up, involving misuse of law enforcement, and (3) the scope of other illegal activities involving presidential powers carried out by and for the former President. The first such false statement was made on June 22, 1972, when Nixon publicly characterized as accurate his Press Secretary’s statement that "The White House has no involvement whatever in this particular incident" (referring to the Watergate break-in).

More than two months later, on August 29, 1972, the President held another press conference, during which he discussed the various pending investigations. In attempting to persuade the public that no special prosecutor was necessary, the President stated

At the time he made this statement, the President knew that Mr. Dean had conducted no investigation, had not concluded that members of the White House or administration were beyond suspicion, and in fact was working to thwart the FBI’s investigation. In other words, President Nixon used his Presidential powers to conceal governmental law-breaking.

This Committee’s investigation ultimately revealed that President Nixon engaged in an elaborate cover-up scheme that included using his secret intelligence operation to pay both for illegal activities and subsequent blackmail money for the cover-up. On March 21, 1973, President Nixon urged the paying of hush money to Mr. E. Howard Hunt, and instructed Administration witnesses on how to commit perjury. He also used people within the Justice Department to give him information about what was transpiring within the grand jury, then passed that information along to Messrs. Haldeman and Ehrlichman, whom he knew to be targets of the investigation, in violation of Rule 6(e) of the Federal Rules of Criminal Procedure. He used his "plumbers" group to subvert the IRS and CIA, authorized illegal intelligence gathering activities, attempted to use CIA funds to pay off the Watergate burglars, directly interfered with the Justice Department’s ITT investigation, and ordered the FBI to interfere with the Watergate Special Prosecution Force by sealing the WSPF offices after the Saturday Night Massacre. He also pressured the CIA to interfere with the FBI’s investigation of the Watergate break-in -- a conversation captured on tape. And he used the IRS to investigate his "enemies" and the FCC to try to take away the broadcasting licenses of press organizations investigating him.

These plain abuses of power cannot be equated with President Clinton’s attempt to keep a private indiscretion secret. Unlike the series of lies told by President Nixon, President Clinton’s denials bore no relationship to his use of the powers of the presidency. They did not deal with policy or governmental action but were designed to protect himself and his family from embarrassment caused by a purely personal indiscretion. Whereas President Nixon used governmental agencies including the CIA and FBI to thwart the investigation into his lies, President Clinton did nothing of the sort. Thus, while the pervasive and persistent lies of President Nixon to the American public about the nature and extent of official law enforcement activities could reasonably have been viewed as affecting the nature of our Constitutional government and thus warranting impeachment, President Clinton’s denial of a private indiscretion cannot.

IX.      CONCLUSION

Short of committing force of arms in defense of the Nation, the Framers of the Constitution did not contemplate a more solemn or awesome responsibility than the impeachment of the President. The Framers rejected amorphous and vague standards such as "maladministration" or "corruption" in favor of "Treason, Bribery or other High Crimes and Misdemeanors," which has always been taken to mean offenses against the constitutional system itself. Indeed, Benjamin Franklin once referred to impeachment as the constitutional alternative to assassination. So it is with the utmost gravity that we submit this brief. We believe a careful and fair review of the real record of this case – not the political attacks, but the real record – cannot justify the impeachment of the President.

Once again, we rely on the judgment of the House, as did the Framers, to separate fact from myth, the record from the rhetoric, and the sinful from the impeachable. On behalf of the President, we thank the Committee for reviewing this brief.

Finally, we conclude where the President asked us to begin: by conveying to you his profound and personal sense of contrition. Let nothing in this brief, nothing in our defense, nothing in your analysis of the facts or our arguments on the law confuse the reality that what the President did was wrong. For his wrongs he has admitted his regret, and he has sought the forgiveness of his family, friends, and fellow Americans.

The sole duty, the solemn obligation of the House is not to sit in judgment of the morality of the President’s conduct, but rather to decide whether or not you will call upon the Senate to remove from office the duly elected President of the United States. On that issue, and that issue alone, we believe there is no cause -- on the facts, on the law, or under the Constitution -- to overturn the national election and impeach the President.

            Respectfully submitted,

David E. Kendall      Gregory B. Craig      Charles F.C. Ruff     Nicole K. Seligman      Cheryl D. Mills     Emmet T. Flood    Lanny A. Breuer     Max Stier    Alicia L. Marti