Preliminary Memorandum Concerning Referral of Office of Independent Counsel

Read in PDF Information (160kb)



David E. Kendall
Nicole K. Seligman
Emmet T. Flood
Max Stier
Glen Donath
Alicia L. Marti

725 12th Street, N.W.
Washington, DC 20005

Charles F.C. Ruff
Cheryl Mills
Lanny A. Breuer

The White House
Washington, DC 20005

September 11, 1998



Summary of Key Points of the President's Case in Anticipation of the Starr Report

1. The President has acknowledged a serious mistake - an inappropriate relationship with Monica Lewinsky. He has taken responsibility for his actions, and he has apologized to the country, to his friends, leaders of his party, the cabinet and most importantly, his family.

2. This private mistake does not amount to an impeachable action. A relationship outside one's marriage is wrong - and the President admits that. It is not a high crime or misdemeanor. The Constitution specifically states that Congress shall impeach only for "treason, bribery or other high crimes and misdemeanors." These words in the Constitution were chosen with great care, and after extensive deliberations.

3. "High crimes and misdemeanors" had a fixed meaning to the Framers of our Constitution - it meant wrongs committed against our system of government. The impeachment clause was designed to protect our country against a President who was using his official powers against the nation, against the American people, against our society. It was never designed to allow a political body to force a President from office for a very personal mistake.

4. Remember - this report is based entirely on allegations obtained by a grand jury - reams and reams of allegations and purported "evidence" that would never be admitted in court, that has never been seen by the President or his lawyers, and that was not subject to cross-examination or any other traditional safeguards to ensure its credibility.

5. Grand juries are not designed to search for truth. They do not and are not intended to ensure credibility, reliability, or simple fairness. They only exist to accuse. Yet this is the process that the Independent Counsel has chosen to provide the "evidence" to write his report.

6. The law defines perjury very clearly. Perjury requires proof that an individual knowingly made a false statement while under oath. Answers to questions that are literally true are not perjury. Even if an answer doesn't directly answer the question asked, it is not perjury if it is true - no accused has an obligation to help his accuser. Answers to fundamentally ambiguous questions also can never be perjury. And nobody can be convicted of perjury based on only one other person's testimony.

7. The President did not commit perjury. Most of the illegal leaks suggesting his testimony was perjurious falsely describe his testimony. First of all, the President never testified in the Jones deposition that he was not alone with Ms. Lewinsky. The President never testified that his relationship with Ms. Lewinsky was the same as with any other intern. To the contrary, he admitted exchanging gifts with her, knowing about her job search, receiving cards and notes from her, and knowing other details of her personal life that made it plain he had a special relationship with her.

8. The President has admitted he had an improper sexual relationship with Ms. Lewinsky. In a civil deposition, he gave narrow answers to ambiguous questions. As a matter of law, those answers could not give rise to a criminal charge of perjury. In the face of the President's admission of his relationship, the disclosure of lurid and salacious allegations can only be intended to humiliate the President and force him from office.

9. There was no obstruction of justice. We believe Betty Currie testified that Ms. Lewinsky asked her to hold the gifts and that the President never talked to her about the gifts. The President admitted giving and receiving gifts from Ms. Lewinsky when he was asked about it. The President never asked Ms. Lewinsky to get rid of the gifts and he never asked Ms. Currie to get them. We believe that Ms. Currie's testimony supports the President's.

10. The President never tried to get Ms. Lewinsky a job after she left the White House in order to influence her testimony in the Paula Jones case. The President knew Ms. Lewinsky was unhappy in her Pentagon job after she left the White House and did ask the White Housepersonnel office to treat her fairly in her job search. He never instructed anyone to hire her, or even indicated that he very much wanted it to happen. Ms. Lewinsky was never offered a job at the White House after she left - and it's pretty apparent that if the President had ordered it, she would have been.

11. The President did not facilitate Ms. Lewinsky's interview with Bill Richardson, or her discussions with Vernon Jordan. Betty Currie asked John Podesta if he could help her with her New York job search which led to an interview with Bill Richardson, and Ms. Currie also put her in touch with her longtime friend, Mr. Jordan. Mr. Jordan has made it clear that this is the case, and, as a private individual, he is free to offer job advice wherever he sees fit.

12. There was no witness tampering. Betty Currie was not supposed to be a witness in the Paula Jones case. If she was not called or going to be called, it was impossible for any conversations the President had with her to be witness tampering. The President testified that he did not in any way attempt to influence her recollection.

13. There is no "talking points" smoking gun. Numerous illegal leaks painted the mysterious talking points as the proof that the President or his staff attempted to suborn the perjury of Monica Lewinsky or Linda Tripp. The OIC's spokesman said that the "talking points" were the "key" to Starr even being granted authority to investigate the President's private life. Yet in the end, Ms. Lewinsky has apparently admitted the talking points were written by her alone [or with Ms. Tripp's assistance], and the President was not asked one single question about them in his grand jury appearance.

14. Invocation of privileges was not an abuse of power. The President's lawful assertion of privileges in a court of law was only made on the advice of his Counsel, and was in significant measure validated by the courts. The legal claims were advanced sparingly and as a last resort after all attempts at compromise by the White House Counsel's office were rejected to protect the core constitutional and institutional interests of this and future presidencies.

15. Neither the President nor the White House played a role in the Secret Service's lawful efforts to prevent agents from testifying to preserve its protectivefunction. The President never asked, directed or participated in any decision regarding the protective function privilege. Neither did any White House official. The Treasury and Justice Departments independently decided to respond to the historically unprecedented subpoenas of Secret Service personnel and to pursue the privilege to ensure the protection of this and future presidents.

16. The President did not abuse his power by permitting White House staff to comment on the investigation. The President has acknowledged misleading his family, staff and the country about the nature of his relationship with Ms. Lewinsky, and he has apologized and asked for forgiveness. However, this personal failing does not constitute a criminal abuse of power. If allowing aides to repeat misleading statements is a crime, then any number of public officials are guilty of misusing their office for as long as they fail to admit wrong doing in response to any allegation about their activities.

17. The actions of White House attorneys were completely lawful. The White House Counsel attorneys provided the President and White House officials with informed, candid advice on issues raised during this investigation that affected the President's official duties. This was especially necessary given the fact that impeachment proceedings against the President were a possible result of the OIC's investigation from Day One. In fact, throughout the investigation, the OIC relied on the White House Counsel's office for assistance in gathering information and arranging interviews and grand jury appearances. The Counsel's office's actions were well known to the OIC throughout the investigation and no objection was ever voiced.

This means that the OIC report is left with nothing but the details of a private sexual relationship, told in graphic details with the intent to embarrass. Given the flimsy and unsubstantiated basis for the accusations, there is a complete lack of any credible evidence to initiate an impeachment inquiry concerning the President. And the principal purpose of this investigation, and the OIC's report, is to embarrass the President and titillate the public by producing a document that is little more than an unreliable, one-sided account of sexual behavior.

Where's Whitewater? The OIC's allegations reportedly include no suggestion of wrongdoing by the President in any of the areas which Mr. Starr spend four years investigating: Whitewater, the FBI files and the White House travel office. What began as an inquiry into a 24 year old land deal in Arkansas has ended as an inquest into brief, improper personal encounters between the President and Monica Lewinsky. Despite the exhaustive nature of the OIC's investigation into the Whitewater, FBI files and travel office matters, and a constant stream of suggestions of misconduct in the media over a period of years, to this day the OIC has never exonerated the President or the First Lady of wrongdoing.



This document is intended to be a preliminary response to the Referral submitted by the Office of Independent Counsel to The Congress. Because we were denied the opportunity to review the content, nature or specifics of the allegations made against the President by the Office of Independent Counsel (OIC), we do not pretend to offer a point-by-point refutation of those allegations, or a comprehensive defense of the President.

We commend the House of Representatives for the extraordinary steps it has taken to safeguard the secrecy of the OIC's allegations. Unfortunately, its efforts were thwarted by unnamed sources familiar with the details of the OIC's allegations -- sources that could only come from the OIC itself -- who saw fit to leak elements of the allegations to the news media.

Based on these illegal leaks, as well as our knowledge of the President's testimony, we offer this document as a summary outline of his side of the case. We will provide you with a specific rebuttal as soon as we have had a chance to review the materials that the OIC has already transmitted to you.

The simple reality of this situation is that the House is being confronted with evidence of a man's efforts to keep an inappropriate relationship private. A personal failure that the President has acknowledged was wrong, for which he apologized, and for which he accepts complete responsibility. A personalfailure for which the President has sought forgiveness from members of his family, members of the Cabinet, Members of Congress, and the American people. Such a personal failing does not, however, constitute "treason, bribery and high crimes and misdemeanors" that would justify the impeachment of the President of the United States.

The President himself has described his conduct as wrong. But no amount of gratuitous details about the President's relationship with Ms. Lewinsky, no matter how salacious, can alter the fact that:

4) The President did not abuse the power of his office.

Impeachment is a matter of incomparable gravity. Even to discuss it is to discuss overturning the electoral will of the people. For this reason, the Framers made clear, and scholars have long agreed, that the power should be exercised only in the event of such grave harms to the state as "serious assaults on the integrity of the processes of government," or "such crimes as would so stain a president as to make his continuance in office dangerous to public order." Charles L. Black, Impeachment: A Handbook 38-39 (1974). We do not believe the OIC can identify any conduct remotely approaching this standard. Instead, from press reports, if true, it appears that the OIC has dangerouslyoverreached to describe in the most dramatic of terms conduct that not only is not criminal but is actually proper and lawful.

The President has confessed to indiscretions with Ms. Lewinsky and accepted responsibility and blame. The allegations concerning obstruction, intimidation, perjury and subornation of perjury that we anticipate from the OIC are extravagant attempts to transform a case involving inappropriate personal behavior into one of public misconduct justifying reversal of the judgment of the electorate of this country.










1 2 Max Farrand, The Records of the Federal Convention of 1787 550 (Rev. ed. 1966).

2 See Raoul Berger, Impeachment: The Constitutional Problems, 67-73 (1973).

3 Michael J. Gerhardt, The Constitutional Limits to Impeachment and Its Alternatives, 68 Tex. L. Rev. 1, 82 (1989) (emphasis added).

4 Joseph Story, Commentaries on the Constitution § 745 (1st Ed. 1833); Federalist 65 at 331.

5 Of course that election takes place through the mediating activity of the Electoral College. See U.S.Const. art. II, § 1, cl.2-3 and amend. XII.

6 At the time of the Constitution's framing, "[c]ognizable `high Crimes and Misdemeanors' in England, . . . generally concerned perceived malfeasance--which may or may not be proscribed by common law or statute--that damaged the state or citizenry in their political rights." Julie O'Sullivan, The Interaction Between Impeachment and the Independent Counsel Statute, 86 Geo. L.J. 2193, 2210 (1998) (emphasis added) (forthcoming).

7 John R. Labovitz, Presidential Impeachment 94 (1978).

8 Berger, Impeachment at 61.

9 Ronald D. Rotunda, An Essay on the Constitutional Parameters of Federal Impeachment, 76 Ky. L.J. 707, 724 (1987 1988).

10 Gerhardt, 68 Tex. L. Rev. at 85.

11 Charles L. Black, Impeachment: A Handbook 38-39 (1974).

12 Id.

13 Labovitz at 26.

14 Rotunda at 726.

15 Id.

16 Julie O'Sullivan, The Interaction Between Impeachment and the Independent Counsel Statute, 86 Geo. L.J. at 2220.

17 Clinton v. Jones, ___ U.S. ___, 117 S.Ct. 1636 (1997).

18 See, e.g., "Starr Probes Clinton Personal Life--Whitewater Prosecutors Question Troopers About Women," The Washington Post (June 25, 1997), at A1.

19 Cf. United States v. Lundwall, 1 F. Supp. 2d 249, 251-54 (S.D.N.Y. 1998) (noting that "[c]ases involving prosecutions for document destruction during civil pre-trial discovery are notably absent from the extensive body of reported § 1503 case law," and that "there are a great many good reasons why federal prosecutors should be reluctant to bring criminal charges relating to conduct in ongoing civil litigation," but concluding that systematic destruction of documents sought during discovery should satisfy § 1503).

20 The term "talking points" refers to a document apparently provided by Ms. Lewinsky to Ms. Tripp in January 1998 regarding possible testimony in the Jones case.

21 "Perjury" was not even in the original grant of jurisdiction to the OIC but reportedly is now the crux of the OIC's case.

22 There are two basic federal perjury statutes: 18 U.S.C. § 1621, and 18 U.S.C. § 1623. Section 1621 applies to all material statements or information provided under oath "to a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered." Section 1623, in contrast, applies only to

testimony given before a grand jury and other court proceedings. Although there are differences between the two statutes, the four basic elements of each are substantially the same.

23 While Bronston involved a perjury conviction under the general perjury statute, 18 U.S.C. § 1621, lower federal courts have uniformly relied on it in reviewing perjury convictions under § 1623(a), which makes it unlawful to make any false material declaration "in any proceeding before or ancillary to any court or grand jury of the United States." See, e.g., United States v. Porter, 994 F.2d 470, 474 n. 7 (8th Cir.1993); United States v. Reveron Martinez, 836 F.2d 684, 689 (1st Cir.1988); United States v. Lighte, 782 F.2d

367, 372 (2d Cir.1986).

24 See also United States v. Finucan, 708 F.2d 838, 847 (1st Cir. 1983) (intent to mislead is insufficient to support conviction for perjury); United States v. Lighte, 782 F.2d 367, 374 (2d Cir. 1986) (literally true answers by definition non-perjurious even if answers were designed to mislead); United States v. Tonelli, 577 F.2d 194, 198 (3d Cir. 1978) (perjury statute is not to be invoked because a "wily witness succeeds in derailing the questioner"). United States v. Abroms, 947 F.2d 1241, 1245 (5th Cir. 1991) (unambiguous and literally true answer is not perjury, even if there was intent to mislead); United States v. Eddy, 737 F.2d 564, 569 (6th Cir. 1984) ("An `intent to mislead' or `perjury by implication' is insufficient to support a

perjury conviction."); United States v. Williams, 536 F.2d 1202, 1205 (7th Cir. 1976) (literally true statement cannot form basis of perjury conviction even if there was intent to mislead); United States v. Robbins, 997 F.2d 390, 394 (8th Cir. 1993); United States v. Boone, 951 F.2d 1526, 1536 (9th Cir. 1991) (literally true statement is not actionable); United States v. Larranaga, 787 F.2d 489, 497 (10th Cir. 1986) (no perjury where answer literally truthful and prosecutor's questioning imprecise); United States v. Shotts, 145 F.3d 1289, 1297 (11th Cir. 1998) ("An answer to a question may be non-responsive, or may be subject to conflicting interpretations, or may even be false by implication. Nevertheless, if the answer is literally true, it is not perjury."); United States v. Dean, 55 F.3d 640, 662 (D.C. Cir. 1995) (perjury charge cannot be based upon evasive answers or even misleading answers so long as such answers are literally true).

25 Many other cases as well hold that ambiguous questions cannot produce perjurious answers. See, e.g., Lighte, 782 F.2d at 376 (questions fundamentally ambiguous because of imprecise use of "you," "that," and "again"); United States v. Farmer, 137 F.3d 1265, 1270 (10th Cir. 1998) (question "Have you talked to Mr. McMahon, the defendant about your testimony here today?" ambiguous because phrase "here today" could refer to "talked" or to "testimony;" conviction for perjury could not result from the question); United States v. Ryan, 828 F.2d 1010, 1015-17 (3d Cir. 1987) (loan application question asking for "Previous Address (last 5 years)" fundamentally ambiguous because unclear whether "address" refers to residence or mailing address, and "previous" could mean any previous address, the most recent previous address, or all previous addresses; based on ambiguity, perjury cannot result from answer to question); United States v. Markiewicz, 978 F.2d 786, 809 (2d Cir. 1992) (question "[D]id you receive any money that had been in bingo hall" ambiguous, and incapable of producing perjurious answer, when it did not differentiate between witness's personal and business capacities). See also United States v. Manapat, 928 F.2d 1097, 1099 (11th Cir. 1991); United States v. Eddy, 737 F.2d 564, 565-71 (6th Cir.

1984); United States v. Hilliard, 31 F.3d 1509 (10th Cir. 1994).

26 Time, Feb. 16, 1998, at 49.

27 "Linda Tripp Briefed Jones Team on Tapes," The Washington Post, Feb. 14, 1998, at A1.

28 The Washington Times, Feb. 15, 1998,at A1, reported:

29 Under the Maryland electronic surveillance statute, which criminalizes taping without the consent of both parties, it is a violation of the statute simply to disclose that an illegal tape has been made, since the term "Contents", as used in the statute to define what may not be disclosed, is defined to include "any information concerning the identity of the parties to the communication or the existence, substance, purport, or meaning of that communication." Md. Code Ann. § 10-401(7) (1997) (emphasis added).

30 There is no doubt that the Jones lawyers believed they had a significant tactical advantage due to their knowledge of theTripp tapes. They may also have known that Ms. Tripp was an OIC agent. After being asked a highly specific series of questions about Ms. Lewinsky, the President replied, "I don't even know what you're talking about, I don't think," and one of the Jones lawyers, James Fisher, responded, "Sir, I think this will come to light shortly, and you'll understand" (p. 85).

31 Recent news reports indicate that Ms. Tripp was specifically warned at the Radio Shack store where she brought her tape recorder that it was illegal to tape in Maryland without the consent of the other party. See, e.g., "Tripp Was Told of Law at Store," The Baltimore Sun, Aug. 28, 1998, at A1.

32 "Pressgate", Brill's Content, August 1998, at 128.

33 See, e.g., Stephen Brill, "Pressgate" in Brill's Content (August 1998) at 127 ("Isikoff says that when he talked to Starr deputy Jackie Bennett, Jr., on Thursday [January 15],Bennett begged him to wait until Friday before trying to call Jordan, the White House, or Lewinsky about his story. ... Isikoff says he agreed to hold off in exchange for getting a full report on how the stings had gone.").

September 1998

September 10, 1998

September 30, 1998

September 1, 1998

September 2, 1998

September 3, 1998

September 4, 1998

September 28, 1998

September 29, 1998

September 24, 1998

September 25, 1998

September 8, 1998

September 9, 1998

September 18, 1998

September 14, 1998

September 21, 1998

September 15, 1998

September 22, 1998

September 16, 1998

September 23, 1998

September 17, 1998

Initial Response To Referral

Referral of Office of Independent Counsel

President and First Lady | Vice President and Mrs. Gore
Record of Progress | The Briefing Room
Gateway to Government | Contacting the White House | White House for Kids
White House History | White House Tours | Help
Privacy Statement


Site Map

Graphic Version

T H E   W H I T E   H O U S E