David Schipper’s Report to the House Judiciary Committee

The following is the text of the report to the House Judiciary Committee from David P. Schippers, the committee’s chief investigative counsel in the impeachment inquiry.

Report by David Schippers to the House Judiciary Committee.

On Oct. 5, 1998, I came before this Committee to advise you of the results of our analysis and review of the Referral from the Office of the Independent Counsel. We concluded that there existed substantial and credible evidence of several separate events directly involving the President that COULD constitute grounds for impeachment. At that time I specifically limited my review and report to evidence of possible felonies. In addition, I asserted that the Report and analysis was merely a litany of crimes that MIGHT HAVE been committed.

On October 7, the House of Representatives passed Resolution 581 calling for an inquiry to determine whether the House should exercise its constitutional duty to impeach President William Jefferson Clinton.

Thereafter, this Committee heard testimony from several experts and other witnesses, including the Independent Counsel, Kenneth Starr.

Since that time, my staff and I, as requested, have conducted ongoing investigations and inquiries. We have received and reviewed additional information and evidence from the Independent Counsel, and have developed additional information from diverse sources.

Unfortunately, because of the extremely strict time limits placed upon us, a number of very promising leads had to be abandoned. We just ran out of time. In addition, many other allegations of possible serious wrongdoing cannot be presented publicly at this time by virtue of circumstances totally beyond our control.

For example, we uncovered more incidents involving probable direct and deliberate obstruction of justice, witness tampering, perjury and abuse of power. We were, however, informed both by the Department of Justice and by the Office of the Independent Counsel that to bring forth publicly that evidence at this time would seriously compromise pending criminal investigations that are nearing completion. We have bowed to their suggestion.

First of all, allow me to assert my profound and unqualified respect for the Office of the President of the United States. It represents to the American people and to the world, the strength, the philosophy and most of all, the honor and integrity that makes us a great nation and an example for developing people.

Because all eyes are focused upon that high office, the character and credibility of any temporary occupant of the office is vital to the domestic and foreign welfare of the citizens. Consequently, serious breaches of integrity and duty of necessity adversely influence the reputation of the United States.

When I appeared in this Committee Room a little over two months ago, it was merely to analyze the Referral and report. Today, after our investigation, I have come to a point that I prayed I would never reach. It is my sorrowful duty now to accuse President William Jefferson Clinton of obstruction of justice, false and deliberately misleading statements under oath, witness tampering, abuse of power, and false statements to and obstruction of the Congress of the United States in the course of this very impeachment inquiry. Whether these charges are high crimes and misdemeanors and whether the President should be impeached is not for me to say or even to give an opinion. That is your job. I am merely going to set forth the evidence and testimony before you so that you can judge.

As I stated earlier, this is not about sex or private conduct, it is about multiple obstructions of justice, perjury, false and misleading statements, witness tamperings and abuses of power, all committed or orchestrated by the President of the United States.

Before we get into the President’s lies and obstruction, it is important to place the events in the proper context. We have acknowledged all along that if this were only about sex, you would not now be engaged in this debate. But the manner in which the Lewinsky relationship arose and continued is important. It is illustrative of the character of the President and the decisions he made.

Monica Lewinsky, a 22-year-old intern, was working at the White House during the government shutdown in 1995. Prior to their first intimate encounter, she had never even spoken with the President. Sometime on November 15, 1995, Ms. Lewinsky made an improper gesture to the President. What did the President do in response? Did the President immediately confront her or report to her supervisor as you would expect? Did he make it clear that such conduct would not be tolerated in the White House?

That would have been an appropriate reaction, but it was not the one the President took. Instead, the President of the United States of America invited this unknown young intern into a private area off the Oval Office, where he kissed her. He then invited her back later and when she returned, the two engaged in the first of many acts of inappropriate contact.

Thereafter, the two concocted a cover story. If Ms. Lewinsky was seen, she was bringing papers to the President. That story was totally false. The only papers she brought were personal messages having nothing to do with her duties or those of the President. After Ms. Lewinsky moved from the White House to the Pentagon, her frequent visits to the President were disguised as visits to Betty Currie. Those cover stories are important, because they play a vital role in the later perjuries and obstructions.

Over the term of their relationship the following significant matters occurred:
1. Monica Lewinsky and the President were alone on at least twenty-one occasions;
2. They had at least eleven personal sexual encounters, excluding phone sex: Three in 1995, Five in 1996 and Three in 1997;
3. They had at least 55 telephone conversations, some of which at least 17 involved phone sex;
4. The President gave Ms. Lewinsky 24 presents; and,
5. Ms. Lewinsky gave the President 40 presents.

These are the essential facts which form the backdrop for all of the events that followed. During the fall of 1997, things were relatively quiet Monica Lewinsky was working at the Pentagon and looking for a high paying job in New York. The President’s attempt to stall the Paula Jones case was still pending in the Supreme Court, and nobody seemed to care one way or another what the outcome would be. Then, in the first week of December 1997, things began to unravel.

I do not intend to discuss the sexual details of the President’s encounters with Ms. Lewinsky. However, I do not want to give this Committee the impression that those encounters are irrelevant. In fact, they are highly relevant because the President repeatedly lied about that sexual relationship in his deposition, before the grand jury, and in his responses to this Committee’s questions. He has consistently maintained that Ms. Lewinsky performed acts on him, while he never touched her in a sexual manner. This characterization not only directly contradicts Ms. Lewinsky’s testimony, but it also contradicts the sworn ghis point that he gave his account of what had happened to me and he said that Monica – and it came very fast. He said, ‘Monica Lewinsky came at me and made a sexual demand on me.’ He rebuffed her. He said, ‘I’ve gone down that road before, I’ve caused pain for a lot of people and I’m not going to do that again.’ She threatened him. She said that she would tell people they’d had an affair, that she was known as the stalker among her peers, and that she hated it and if she had an affair or said she had an affair then she wouldn’t be the stalker anymore.

And then consider what the President told Mr. Blumenthal moments later: And he said, ‘I feel like a character in a novel. I feel like somebody who is surrounded by an oppressive force that is creating a lie about me and I can’t get the truth out. I feel like the character in the novel Darkness at Noon.’ And I said to him, ‘When this
happened with Monica Lewinsky, were you alone?’ He said, ‘Well, I was within eyesight or earshot of someone.At one point, Mr. Blumenthal is asked by the grand jury to describe the President’s manner and demeanor during the exchange.

Q. In response to my question how you responded to the President’s story about a threat or discussion about a threat from Ms. Lewinsky, you mentioned you didn’t recall specifically. Do you recall generally the nature of your response to the President?

A. It was generally sympathetic to the President. And I certainly believed his story. It was a very heartfelt story, he was pouring out his heart, and I believed him.

* Betty Currie

When Betty Currie testified before the grand jury, she could not recall whether she had another one-on-one discussion with the President on Tuesday, January 20 or Wednesday, January 21. But she did state that on one of those days, the President summoned her back to his office. At that time, the President recapped their now-infamous Sunday afternoon post-deposition discussion in the Oval Office. I believe you all remember that meeting. That’s when the President made a series of statements to Ms. Currie, some of which Ms. Currie could not possibly have known the answers. (e.g. ‘Monica came on to me and I never touched her, right?’)

When he spoke to her on January 20 or 21, he spoke in the same tone and demeanor that he used in his January 18 Sunday session.

Ms. Currie stated that the President may have mentioned that she might be asked about Monica Lewinsky.

It is abundantly clear that the President’s assertions to staff were designed for dissemination to the American people. But it is equally important to understand that the President intended his aides to relate that false story to investigators and grand jurors alike. We know that this is true for the following reasons: the Special Division had recently appointed the Office of Independent Counsel to investigate the Monica Lewinsky matter; the President realized that Jones’ attorneys and investigators were investigating this matter; the Washington Post journalists and investigators were exposing the details of the Lewinsky affair; and, an investigation relating to perjury charges based on Presidential activities in the Oval Office would certainly lead to interviews with West Wing employees and high level staffers. Because the President would not appear before the grand jury, his version of events would be supplied by those staffers to whom he had lied. The President actually acknowledged that he knew his aides might be called before the grand jury. In addition, Mr. Podesta testified that he knew that he was likely to be a witness in the ongoing grand jury criminal investigation. He said that he was ‘sensitive about not exchanging information because I knew I was a potential witness.’ He also recalled that the President volunteered to provide information about Ms. Lewinsky to him even though Mr. Podesta had not asked for these details.

In other words, the President’s lies and deceptions to his White House aides, coupled with his steadfast refusal to testify had the effect of presenting a false account of events to investigators and grand jurors. The President’s aides believed the President when he told them his contrived account. The aides’ eventual testimony provided the President’s calculated falsehoods to the grand jury which in turn, gave the jurors an inaccurate and misleading set of facts upon which to base any decisions.

IV. WIN, WIN, WIN

President Clinton also implemented a win-at-all-costs strategy. We know this because of testimony presented by Dick Morris to the federal grand jury.

Mr. Morris, a former presidential advisor, testified that on January 21, 1998, he met President Clinton and they discussed the turbulent events of the day. The President again denied the accusations against him. After further discussions, they decided to have an overnight poll taken to determine if the American people would forgive the President for adultery, perjury, and obstruction of justice. When Mr. Morris received the results, he called the President:

And I said, ‘They’re just too shocked by this. It’s just too new, it’s too raw.’ And I said, ‘And the problem is they’re willing to forgive you for adultery, but not for perjury or obstruction of justice or the various other things.’ Morris recalls the following exchange: Morris: And I said, ‘They’re just not ready for it.’ meaning
the voters. President: Well, we just have to win, then.

The President, of course, cannot recall this statement.

Worst of all, in order to win, it was necessary to convince the public, and hopefully the grand jurors who read the newspapers, that Monica Lewinsky was unworthy of belief. If the account given by Monica to Linda Tripp was believed, then there would emerge a tawdry affair in and near the Oval Office. Moreover, the President’s own perjury and that of Monica Lewinsky would surface. How do you do this? Congressman Graham showed you. You employ the full power and credibility of the White House and its press corps to destroy the witness. Thus on January 19, 1998:
Inside the White House, the debate goes on about the best way to destroy That Woman, as President Bill Clinton called Monica Lewinsky. Should they paint her as a friendly fantasist or a malicious stalker?

Again: ‘That poor child has serious emotional problems,’ Rep. Charles Rangel, Democrat of New York, said Tuesday night before the State of the Union. ‘She’s fantasizing. And I haven’t heard that she played with a full deck in her other experiences.’

Listen to Gene Lyons, an Arkansas columnist on January 30: But it’s also very easy to take a mirror’s eye view of this thing, look at this thing from a completely different direction and take the same evidence and posit a totally innocent relationship in which the president was, in a sense, the victim of someone rather like the woman who followed David Letterman around.

From another ‘source’ on February 1: Monica had become known at the White House, says one source, as ‘the stalker.’

And on February 4: The media have reported that sources describe Lewinsky as ‘infatuated’ with the president, ‘star struck’ and even ‘a stalker.’

Listen to this on January 31: One White House aide called reporters to offer information about Monica Lewinsky’s past, her weight problems and what the aide said was her nickname – ‘The Stalker.’

Junior staff members, speaking on the condition that they not be identified, said she was known as a flirt, wore her skirts too short, and was ‘A little bit weird.’
Little by little, ever since allegations of an affair between U.S. President Bill Clinton and Lewinsky surfaced 10 days ago, White House sources have waged a behind-the-scenes campaign to portray her as an untrustworthy climber obsessed with the President.

Just hours after the story broke, one White House source made unsolicited calls offering that Lewinsky was the ‘troubled’ product of divorced parents and may have been following the footsteps of her mother, who wrote a tell-all book about the private lives of three famous opera singers.

One story had Lewinsky following former Clinton aide George Stephanopoulos to Starbucks. After observing what kind of coffee he ordered, she showed up the next day at his secretary’s desk with a cup of the same coffee to ‘surprise him.’

Sound familiar? It ought to because that is the exact tactic used to destroy Paula Jones. The difference is that these evil rumors were emanating from the White House, the Bastion of the free world. And to protect one man from being forced to answer for his deportment in the highest office in the land.

Now let’s turn to President Clinton’s Grand Jury appearance.

On August 16, 1998, the President’s personal attorney, David Kendall provided the following statement: “There is apparently an enormous amount of groundless speculation about the President’s testimony tomorrow. The truth is the truth. Period. And that’s how the President will testify.

On August 17, 1998, the President testified. He admitted to the grand jury that, after the allegations were publicly reported, that he made ‘misleading’ statements to particular aides whom he knew would likely be called to testify before the Grand Jury:

Q. Do you recall denying any sexual relationship with Monica Lewinsky to the following people: Harry Thomasson, Erskine Bowles, Harold Ickes, Mr. Podesta, Mr. Blumenthal, Mr. Jordan, Ms. Betty Currie? Do you recall denying any sexual
relationship with Monica Lewinsky to those individuals?

WJC. I recall telling a number of those people that I didn’t have, either I didn’t have an affair with Monica Lewinsky or didn’t have sex with her. And I believe, sir, that you’ll have to ask them what they thought. But I was using those terms in the normal way people use them. You’ll have to ask them what they thought I was saying.

Q. If they testified that you denied sexual relationship with Monica Lewinsky, or if they told us that you denied that, do you have any reason to doubt them, in the days
after the story broke; do you have any reason to doubt them?

WJC. No.

The President then was specifically asked whether he knew that his aides were likely to be called before the grand jury.

Q. It may have been misleading, sir, and you knew though, after January 21st when the Post article broke and said that Judge Starr was looking into this, you knew that they might be witnesses. You knew that they might be called into a grand jury, didn’t you?

WJC. That’s right. I think I was quite careful what I said after that. I may have said something to all these people to that effect, but I’ll also- whenever anybody asked me any details, I said, look, I don’t want you to be a witness or I turn you
into a witness or give you information that would get you in trouble. I just wouldn’t talk. I, by and large, didn’t talk to people about it.

Q. If all of these people – let’s leave Mrs. Currie for a minute. Vernon Jordan, Sid Blumenthal, John Podesta, Harold Ickes, Erskine Bowles, Harry Thomasson, after the story broke, after Judge Starr’s involvement was known on January 21st, have said that you denied a sexual relationship with them. Are you denying that?

WJC. No.

Q. And you’ve told us that you —

WJC. I’m just telling you what I meant by it. I told you what I meant by it when they started this deposition.

Q. You’ve told us now that you were being careful, but that it might have been misleading. Is that correct?

WJC. It might have been *** So, what I was trying to do was to give them something they could – that would be true, even if misleading in the context of this deposition, and keep them out of trouble, and let’s deal – and deal with what I thought was the almost ludicrous suggestion that I had urged someone to lie or tried to suborn perjury, in other words.

As the President testified before the grand jury, he maintained that he was being truthful with his aides:

[GRAND JURY TAPE #3]

He stated that when he spoke to his aides, he was very careful with his wording. The President stated that he wanted his statement regarding ‘sexual relations’ to be literally true because he was only referring to intercourse.

However, recall that John Podesta said that the President denied sex ‘in any way whatsoever’ ‘including oral sex.’

The President told Mr. Podesta, Mr. Bowles, Ms. Williams, and Harold Ickes that he did not have a ‘sexual relationship’ with that woman.

And also take note of this fact:

Seven days after the President’s grand jury appearance, the White House issued a document entitled, ‘Talking Points January 24, 1998.’ (Chart W; Exhibit 16) This ‘Talking Points’ document outlines proposed questions that the President may be asked. It also outlines suggested answers to those questions. The ‘Talking Points’ purport to state the President’s view of sexual relations and his view of the relationship with Monica Lewinsky. (Exhibit 17) The ‘Talking Points’ state as follows:

Q. What acts does the President believe constitute a sexual relationship?

A. I can’t believe we’re on national television discussing this. I am not about to engage in an ‘act-by-act’ discussion of what constitutes a sexual relationship.

Q. Well, for example, Ms. Lewinsky is on tape indicating that the President does not believe oral sex is adultery. Would oral sex, to the President, constitute a sexual relationship?

A. Of course it would.

Based upon the foregoing, the President’s own talking points refute the President’s ‘literal truth’ argument.

I would like to take a few moments to address some of the matters that have been put before you by the President’s defenders over the past few days.

Ever since this inquiry began, we have heard the complaint that no factual witnesses were being called by the Majority. Actually, there are many factual witnesses: Monica Lewinsky, Vernon Jordan, Betty Currie, Sidney Blumenthal, Erskine Bowles, John Podesta; all of whom have testified one or more times under oath either in a formal deposition or before a grand jury. With minimal exceptions, I have avoided reference to interviews and the like. Interviewees are not under oath and usually the report does not reflect the exact words of the witness. I note, though, that the President did rely on unsworn interviews and produced no factual witnesses whatsoever.

Some Members have suggested that none of those witnesses have been subjected to cross-examination. The answer is twofold:

First, this is not a trial, it is in the nature of an inquest. Any witness whose testimony is referred to in this proceeding, will be subjected to full cross-examination if a trial results in the Senate. That is the time to test credibility. As it stands, all of the factual witnesses are uncontradicted and amply corroborated.

Second, if any Member or the President’s counsel had specific questions for any of these witnesses, he or she was free to bring that witness in to testify in this proceeding.

Although the President’s lawyers admit that his actions in the Jones case and in the Lewinsky matter were immoral and I think they said maddening, acts, they argue that they do not rise to the level of criminal activity and certainly not to the level of impeachable offenses. They produced another gaggle of witnesses to testify that this really is not so bad, it’s only lying about sex, that only private conduct is involved and really the Congress should just close up the book, slap the President on the hand, and well, just get on with politics as usual. Some even suggested that prosecutors would not even consider an indictment based upon the evidence available here. That remains to be seen. I doubt if any of those experts have read all the evidence I have read. We know that prosecutors are in possession of this evidence and perhaps much more. Whether to indict is their decision. And whether the offenses of President Clinton are criminally chargeable is of no moment. This is not a criminal trial, nor is it a criminal inquiry. It is a fundamental precept that an impeachable offense need not be a criminal act.

Concerning the perjury issue:

It is noteworthy that the President’s argument is focused on only one aspect of his testimony – that regarding whether he had sexual relations. He glosses over or ignores the perjury claims premised on his denial of being alone with Ms. Lewinsky, his denial of any involvement in obtaining a job for her in his January 17 deposition, his falsely minimizing the number of occasions on which he had encounters with Ms. Lewinsky and his lies regarding gifts to and from Ms. Lewinsky.

They also argue that because the President ‘believed’ that he was telling the truth and there is no proof that he did not so believe, then he is not guilty of perjury. That totally misstates the law of perjury. They assert that under the law, the subjective belief of the defendant is what controls. In fact, however, the question of perjury is judged by an objective standard as to what is ‘reasonable’ under the circumstances, not the nebulous subjective standard advanced by the President’s counsel.

The President’s subjective belief is not sufficient. He admits that he is an attorney and at the time of his deposition, was represented by Mr. Bennett as well as Mr. Ruff. He had an independent duty to review the definition of sexual relations and to determine whether in fact his conduct fell within that definition. He cannot rely on his attorney who was not in possession of all the facts to divorce himself from a determination of the truth. He cannot rely on what his attorney ‘thinks’ when he, the President, is the only person who knows the relevant facts and is able to determine whether his conduct fell within the definition. In other words, there must be a reasonable basis for the President’s subjective belief, to have any merit. There was no reasonable basis.

Similarly, the argument that there is ‘no proof’ that the President did not believe he was telling the truth as to whether he engaged in ‘sexual relations’ under the Jones definition, ignores the record. The proof that the President’s ‘subjective belief’ is contradicted by the evidence is overwhelming and has been addressed in detail. For the President now to advance the assertion that he had a subjective belief that his conduct did not constitute ‘sexual relations’ continues the subterfuge and obstruction begun in the Jones case, continued in the grand jury and presented here before Congress.

Materiality
Another argument propounded by those who oppose impeachment is that the President’s lies were not material to the Jones case. That is, the Lewinsky information was private and irrelevant. That argument, though, was disposed of by Judge Susan Webber Wright in her order of December 11, 1997.

She said:

“The Court finds, therefore, that the plaintiffis entitled to information regarding any individuals with whom the President had sexual relations or proposed or sought to have sexual relations and who were during the relevant time frame [five years prior to May 8, 1991, to the present] state or federal employees. Plaintiff is also entitled to information regarding every person whom the President asked, during the relevant time frame, to arrange a private meeting between himself and any female state of federal employee which was attended by no one else and was held at any location other than his office [footnote omitted]. The Court cannot say that such information is not reasonably calculated to lead to the discovery of admissible evidence.”

More than a month before the President’s deposition, and six days before the President suggested that Monica Lewinsky could sign an affidavit to avoid testifying, the Judge had clearly concluded that the subject matter was neither private nor irrelevant. So much for the materiality issue. If the President’s testimony concerning Monica Lewinsky was not material, the Judge who was physically present during the deposition would never have allowed it.

Judge Wright’s Order is not the only decision on the materiality questions. A recently unsealed opinion from the United States Court of Appeals for the District of Columbia Circuit conclusively decided the issue.

In the opinion, filed under seal on May 26, 1998, the court addressed Ms. Lewinsky’s argument that she could not have committed perjury or obstruction of justice because her false affidavit did not involve facts material to the Jones case. In a three to zero decision, the Court of Appeals rejected that argument. Citing Supreme Court precedent, the court examined ‘whether the misrepresentation or concealment was predictably capable of affecting, i.e., had a natural tendency to affect, the official decision.’ The judges unanimously concluded:

‘There can be no doubt that Lewinsky’s statements in her affidavit were — in the words of Kungys v. United States — ‘predictably capable of affecting’ this decision. She executed and filed her affidavit for this very purpose.’

Of course, if Ms. Lewinsky’s relationship with President Clinton was a material issue when she signed her affidavit, it certainly was a material issue when the President testified at a deposition. And just as those lies could support perjury and obstruction of justice charges against Ms. Lewinsky, they support perjury and obstruction of charges against the President. Both Ms. Lewinsky and the President are subject to the same criminal code.

However, even if the three judges on the D.C. Court of Appeals were wrong, and if for some hypothetical reason, the President’s relationship with Ms. Lewinsky was not material in the Jones case, there can be no doubt in the President’s or anyone else’s mind, that the relationship was absolutely material when he lied to the grand jury and lied to this Committee in his written responses about that relationship.

UNFAIRNESS

Perhaps the most strident complaint from the President’s supporters is what they perceive as the ‘fundamental unfairness’ of this process. They have, however, been hard put to point with any degree of specificity to any unfair actions.

First, with reference to the Office of the Independent Counsel, did they treat the President unfairly? They invited him to testify before the grand jury on six occasions before issuing a subpoena. Even then, they withdrew the subpoena and allowed Mr. Clinton the dignity of appearing voluntarily. During his grand jury testimony, which, by the way, was given in the White House and not the District Court, the President was permitted to have his lawyers present at all times. The prosecutors allowed him to read a statement into the record and to rely on that statement in lieu of an answer some nineteen times. Finally, the time allotted for questioning the President was limited. Not one of these courtesies is afforded any other witness before a grand jury.

Second, in the dealings with this Committee the President has been treated with extraordinary courtesy and fairness. Examples abound:

1. The Rodino Watergate format was adopted giving the White House the privilege of:
a. Responding to evidence received and testimony adduced,
b. Suggesting additional testimony or other evidence to make a complete record,
c. Attending all executive or open hearings at which witnesses are called; and
d. Questioning witnesses before the Committee

2. The President’s counsel was permitted to cross examine Judge Starr for a full hour.

3. A complete hearing was held, in part because of a White House request, concerning standards for impeachment.

4. The President’s counsel was allowed access to the secure room to assist in preparing his defense.

5. The Committee afforded the President thirty hours, or the equivalent of four days, to present witnesses or other defense evidence.

6. The staff met with White House counsel to try working out a method of cooperation, and

7. The Chairman repeatedly asked the White House to submit any exculpatory evidence.

Despite all of these efforts, the Chairman continues to suffer from accusations of unfairness. What more do they want?

On the other hand how fair have the President and his supporters been?

Was it fair to procure and produce false affidavits from prospective witnesses in the Jones case and thus subject those witnesses to prosecution for perjury? How about employing every conceivable means, including perjury and obstruction, to defeat the legal rights of a single woman who claimed that she had been wronged? How fair was it to stand by and allow his friends to attack that woman’s character with remarks like ‘drag a $10.00 bill through a trailer camp and you never know what will turn up?’ Was it fair to Monica Lewinsky to construct an elaborate lie that made it appear that she was a predator who threatened to lie about a sexual encounter if the President didn’t succumb to her advances. By the way, if the dress had not turned up that story would have been President Clinton’s defense. The stage had already been set, the scenery was in place and the actors had been given their lines.

Was it fair for the President to coach Betty Currie knowing that she would likely testify under oath and expose her to possible criminal charges? And how about the constant trashing of anyone who had the courage to criticize, or to refuse to go along with the game plan? Is it fair to make misstatements about the Independent Counsel’s Referral and then use those misstatements as a basis to attack Judge Starr’s credibility?

As to the last, my staff and I have had the unenviable task of reviewing the President’s latest submission consisting of almost two hundred pages. For the most part there was nothing new. It had all been presented to you in one form or another by the experts brought in by the Minority and President which, by the way, far outnumbered those produced by the Republican Members. Most of the arguments have been dealt with in my presentation, but a few points should be highlighted.

In paragraph 2 of the Preface the statement is made, ‘he did not want anyone to know about his personal wrongdoing.’ That personal wrongdoing includes perjury, obstruction and the like. Of course he did not want anyone to know, and he lied and had others lie to conceal it.

The introduction contains this statement: ‘He repeatedly has acknowledged that what he did was wrong, he has apologized, and he has sought forgiveness.’ We all know that he has only admitted what he could not deny, and has continued to play games about the rest.

Stripped to its basic elements, the President’s submission merely states:

That the President lied. That it was okay to lie to the people, because it was nobody’s business but his own; that his conduct is not a ‘high crime or misdemeanor’; that he would never be convicted of perjury or obstruction in a court of law; that the Jones suit was bogus, therefore, his testimony did not matter (do you settle bogus suits for $700,000 after you have won?); Judge Starr was a prosecutor most foul; Judge Starr purposely failed to include relevant exculpatory evidence; and finally, impeachment is such a big step that this Committee should not put the country through it. By the way, who put the country through this? The President, by his actions.

The Submission is the ultimate use of the: ‘Legal Technicality Concept.’

We have heard all this before. This Submission is a last ditch effort of a president caught in his own legacy of lies, scandal, and abuse of the highest office in the land. The American people deserve better. They do not deserve legal hair splitting, prevarication and dissembling.

Most disturbing to me was the series of misrepresentations regarding the Referral and the material produced to support it. Let me give you a few salient examples:

* Regarding the President’s and Ms. Lewinsky’s testimony the Submission omits a key passage of a quotation in the following testimony. They say: For example, the President answered ‘yes’ to the question ‘your testimony is that it was possible, then, that you were alone with her …?’

The full testimony includes another clause and a longer answer from the President:

Q. So I understand, your testimony is that it was possible, then, that you were alone with her, but you have no specific recollection of that ever happening?

A. Yes, that’s correct. It’s possible that she, in, while she was working there, brought something to me and that at the time she brought it to me, she was the only one there. That’s possible.

The President thus testified that despite the theoretical possibility that he was alone with Ms. Lewinsky, he had no recollection of it – and even that possibility was limited to while she worked at the White House and when she was delivering papers. Given that the President and Ms. Lewinsky had been alone less than three weeks earlier, as well as numerous other times over a span of over two years, there is reason to doubt the truthfulness of his answer.

* The President was asked in the deposition, ‘Did anyone other than your attorneys ever tell you that Monica Lewinsky had been served with a subpoena in this case?’ According to the White House, when the President responded negatively – ‘I don’t think so’ – he meant something other than the words he uttered: ‘Plainly, the President was not testifying that no one other than his attorneys had told him that Ms. Lewinsky had been subpoenaed.’ Now they are trying to tell you that ‘No’ means ‘Yes.’

* The White House submission notes that Ms. Lewinsky stated that no one asked her to lie. The Referral makes this very point. Rather, the President suggested false and misleading cover stories that Ms. Lewinsky could includein a false affidavit designed to keep her from testifying. Ms. Lewinsky has since testified that the affidavit was false and misleading. Moreover, the President’s attorney used this false affidavit during the President’s deposition in an attempt to cut off questioning about Ms. Lewinsky. In criminal law terms, this activity was a conspiracy to lie or to obstruct justice, as is explained in the Referral.

* Concerning evidence regarding the transfer of gifts, the White House contends that the Referral omits a ‘fundamental and important fact’ – that it was Ms. Lewinsky who, in her December 28 conversation with the President, first mentioned Ms. Currie as a possible holder of the gifts. In fact, the Referral twice quotes Ms. Lewinsky’s testimony that she asked the President if ‘I should put the gifts outside my house somewhere or give them to someone, maybe Betty.’

* The White House submission contends that ‘a wealth of information contradict[s]’ the allegation that the President obstructed justice with regard to gifts he had given Ms. Lewinsky. As the most dramatic contradiction, highlighted as the epigraph to the section, the Submission juxtaposes (i) the Independent Counsel’s statement that ‘[t]he President and Ms. Lewinsky met and discussed what should be done with the gifts subpoenaed from Ms. Lewinsky,’ and (ii) Ms. Lewinsky’s statement in the Grand Jury that ‘he really didn’t – he really didn’t discuss it.’ In truth, ‘he really didn’t discuss it’ came in response to a second, more specific question, after Ms. Lewinsky had spent several hundred words recounting her conversation with the President about the gifts. The White House’s quotation is so brazenly misleading that I will quote the full excerpt:

Juror (r)etell for me the conversation you had with the President about
the gifts.

Witness Okay. It was December 28 and I (Ms. Lewinsky) was there to get my Christmas
gifts from him … And we spent maybe about five minutes or so, not very long, talking about the case. And I said to him, ‘Well, do you think -‘ What I mentioned – I said to him that it had really alarmed me about the hat pin being in the subpoena and I think he said something like, ‘Oh,’ you know, ‘that sort of bothered me, too,’
you know, ‘That bothers me.’ Something like that. And at one point, I said, ‘Well, do you think I should -‘ I don’t think I said ‘get rid of, ‘ I said, ‘But do you think I should put away or maybe give to Betty or give to someone the gifts?’ And he – I don’t remember his response. I think it was something like, ‘I don’t know,’ or ‘Hmm’ or – there really was no response. I know that I didn’t leave the White House with any notion of what I should do with them, that I should do anything different
than that they were sitting in my house. And then later I got the call from Betty.

Juror: Now, did you bring up Betty’s name or did the President bring up Betty’s name?

Witness: I think I brought it up. The President wouldn’t have brought up Betty’s name because he really didn’t – he didn’t discuss it, so either I brought up Betty’s name, which I think is probably what happened, because I remember not being too, too
shocked when Betty called.

* As an omission characterized as ‘very cautious,’ ‘insidious,’ ‘extraordinary,’ and ‘wholly unfair,’ – there’s that word again – the Submission charges that the Referral never attempts to rebut Ms. Currie’s assertion that Ms. Lewinsky wanted to get rid of the gifts because, in Ms. Currie’s words, ‘people were asking questions about the stuff he had gotten.’ In fact, the Referral outlines Ms. Currie’s understanding of these ‘questions’ and points out contradictory evidence.

* The White House alleges that ‘no mention is made in the Referral of the fact that the OIC and the grand jurors regarded it as ‘odd’ that there was a gift-giving on the same day the President allegedly caused the gifts to be recovered.’ In fact, the Referral not only acknowledges this apparent anomaly, but uses the same term: ‘When Ms. Lewinsky was asked whether she thought it odd for the President to give her gifts under the circumstances (with a subpoena requiring the production of all his gifts), she testified that she did not think of it at the time, but she did note some hesitancy on the President’s part.’

* According to the White House, the Referral omits ‘important testimony’ from Ms. Currie to the effect that Ms. Lewinsky asked her to pick up the box of gifts. In fact, the Referral includes Ms. Currie’s recollection three times.

* The White House contends that the Referral inaccurately indicates that Ms. Currie said that the gift transfer occurred on December 28. In fact, the Referral says that ‘Ms. Currie stated, at various times, that the transfer occurred sometime in late December 1997 or early January 1998.’

* The White House alleges that the Referral ignores conflicting evidence regarding the transfer of gifts. In truth, the Referral forthrightly states that ‘[t]he testimony conflicts as to what happened when Ms. Lewinsky raised the subject of gifts with the President and what happened later that day.’ The Referral then outlines various possible scenarios and the possible interpretations of the evidence.

* The White House Submission contends that the gift-concealment allegation is ‘undermine[d]’ by the fact that the President gave Ms. Lewinsky additional gifts on December 28. It quotes Ms. Lewinsky as essentially bolstering this theory, in a footnote which we reprint in the White House’s ellipsis:

Ms. Lewinsky replies, ‘You know, I have come recently to look at that as sort of a strange situation …’ Ms. Lewinsky’s full response tells a far different story: You know, I have come recently to look at that as sort of a strange situation, I think, in the course of the past few weeks, but at the time, I was – you know, I was in love with him, I was elated to get these presents and – at the same time that I was so scared about the Paula Jones thing, I was happy to be with him and – I – I didn’t
think about that. He had – he had hesitated very briefly right before I left that
day in kind of packaging – he packaged all my stuff backup and I just sort of – you know, remember him kind of hesitating and thinking to myself – I don’t think he said anything that indicated this to me, but I thought to myself, ‘I wonder if he’s thinking he shouldn’t give these to me to take out.’ But he did.

Then there are the misrepresentation regarding litigation issues:

* The White House alleges that the OIC waited ‘two full months to question Nancy Hernreich after the withdrawal of executive privilege, thus showing that meritless assertions of executive privilege did not delay the OIC investigation. In fact, Ms. Hernreich testified nine days after the White House withdrew the privilege claim.

And misrepresentation regarding Ms. Lewinsky’s job search:

* The White House Submission argues that the Grounds Section of the Referral does not include all of the minutiae related to the job search. But the Referral specifically states in the Grounds Section that ‘[t]he entire saga of Ms. Lewinsky’s job search and the President’s assistance in that search is discussed in detail in the Narrative Section of the Referral. We summarize and analyze the key events and dates here.’ And in fact, the Narrative of the Referral includes all pertinent facts discussed in the White House Submission.

Misrepresentations regarding law and history

* The White House Submission heavily stresses the two-witness rule in perjury cases, but Congress and the courts have limited the applicability of the rule. The rule does not apply to false statements about one’s memory, such as an ‘I don’t recall’ response when the witness in fact does recall. In addition, the two-witness rule does not apply to prosecutions under Section 1623(c) of Title 18.

* The Submission cites Raoul Berger’s authoritative history Impeachment: The Constitutional Problems (1973), but fails to note Professor Berger’s analysis of the precise question at issue here – whether private misconduct, including perjury, may lead to impeachment:

To conclude that the Founders would have impeached a judge who accepted a bribe of $100, but would shield one who forged a note for $10,000 or who filed a perjured affidavit in a private transaction, would attribute to them a thralldom to concepts from which they were far removed.

Does it ever stop? Didn’t they think that we would read their Submission before addressing it. This again proves the arrogance of the White House and its disdain for the intellect of the American people.

Some of the experts that have testified have questioned whether the President’s deportment affects his office, the government of the United States or the dignity and honor of the country. We should take a few moments to examine those questions.

Our founders decided in the Constitutional Convention that one of the duties imposed upon the President is to ‘take care that the laws be faithfully executed.’ Furthermore, he is required to take an oath to ‘Preserve, protect and defend the Constitution of the United States.’ Twice this President stood on the steps of the Capitol, raised his right hand to God and repeated that oath.

The Fifth Amendment to the Constitution of the United States provides that no persona shall ‘be deprived of life, liberty or property without due process of law.’

The Seventh Amendment insures that in civil suits ‘the right of trial by jury shall be preserved.’

Finally, the Fourteenth Amendment guarantees due process of law and the equal protection of the laws.

Shall we examine the concepts of due process, equal protection and the right to trial by jury as practiced by the President to determine whether he has kept his oath to preserve, protect and defend?

Paula Jones is an American citizen, just a single citizen who felt that she had suffered a legal wrong.

More important, that legal wrong was based upon the Constitution of the United States. She claimed essentially that she was subjected to sexual harassment, which, in turn, constitutes discrimination on the basis of gender. The case was not brought against just any citizen, but against the President of the United States, who was under a legal and moral obligation to preserve and protect Ms. Jones’ rights. It is relatively simple to mouth high minded platitudes and to prosecute vigorously rights violations by someone else. It is, however, a test of courage, honor and integrity to enforce those rights against yourself. The President failed that test. As a citizen, Ms. Jones enjoyed an absolute constitutional right to petition the Judicial Branch of government to redress that wrong by filing a lawsuit in the United States District Court, which she did. At this point she became entitled to a trial by jury if she chose, due process of law and the equal protection of the laws no matter who the defendant was in her suit. Due process contemplates the right to a full and fair trail, which, in turn, means the right to call and question witnesses, to cross examine adverse witnesses and to have her case decided by an unbiased and fully informed jury. What did she actually get? None of the above.

On May 27, 1997, the United States Supreme Court ruled in a nine to zero decision that, ‘like every other citizen,’ Paula Jones ‘has a right to an orderly disposition of her claims.’ In accordance with the Supreme Court’s decision, United States District Judge Susan Webber Wright ruled on December 11, 1997, that Ms. Jones was entitled to information regarding state or federal employees with whom the President had sexual relations from May, 1986 to the present. Judge Wright had determined that the information was reasonably calculated to lead to the discovery of admissible evidence. Six days after this ruling, the President filed an answer to Ms. Jones’ Amended Complaint. The President’s Answer stated: ‘President Clinton denies that he engaged in any improper conduct with respect to plaintiff or any other woman.’

Ms. Jones’ right to call and depose witnesses was thwarted by perjurious and misleading affidavits and motions; her right to elicit testimony from adverse witnesses was compromised by perjury and false and misleading statements under oath, and, as a result, had a jury tried the case, it would have been deprived of critical information.

That result is bad enough in itself, but it reaches constitutional proportions when denial of the civil rights is directed by the President of the United States who twice took an oath to preserve, protect and defend those rights. But we now know what the ‘sanctity of an oath’ means to the President.

Moreover, the President is the spokesman for the government and the people of the United States concerning both domestic and foreign matters. His honesty and integrity, therefore, directly influence the credibility of this country. When, as here, that spokesman is guilty of a continuing pattern of lies, misleading statements and deceits over a long period of time, the believability of any of his pronouncements is seriously called into question. Indeed, how can anyone in or out of our country any longer believe anything he says? And what does that do to confidence in the honor and integrity of the United States?

Just a few brief quotations:

‘The President must be permitted to respond to allegations . . . not only to defend his own personal integrity, but the integrity of the Office of the Presidency itself.’

That is because:

‘The President, for all practical purposes . . . affords the only means through which we can act as a Nation.’

Finally,

‘A President needs to maintain prestige as an element of Presidential influence in order to carry out his duties effectively. In particular, a President must inspire confidence in his integrity, compassion, competency and capacity to take charge in any conceivable situation. Indeed, it is scarcely possible to govern well in the absence of such confidence.’

I am not quoting from some law book or from an esoteric treatise on government. Those quotations are taken directly from pleadings and briefs filed in the Jones case on behalf of William Jefferson Clinton.

Make no mistake, the conduct of the President is inextricably bound to the welfare of the people of the United States. Not only does it affect economic and national defense, but even more directly, it affects the moral and law abiding fibre of the commonwealth, without which no nation can survive. When, as here, that conduct involves a pattern of abuses of power, of perjury, of deceit, of obstruction of justice and of the Congress and of other illegal activities; the resulting damage to the honor and respect due to the United States is, of necessity, devastating.

Again: there is no such thing as non-serious lying under oath. Every time a witness lies, that witness chips a stone from the foundation of our entire legal system. Likewise, every act of obstruction of justice, of witness tampering or of perjury adversely affects the judicial branch of government like a pebble tossed into a lake. You may not notice the effect at once, but you can be certain that the tranquility of that lake has been disturbed. And if enough pebbles are thrown into the water, the lake itself may disappear. So too with the truth seeking process of the courts. Every unanswered and unpunished assault upon it has its lasting effect and given enough of them, the system itself will implode.

That is why those two women who testified before you had been indicted, convicted and punished severely for false statements under oath in civil cases. And that is why only a few days ago a federal grand jury in Chicago indicted four former college football players because they gave false testimony under oath to a grand jury. Nobody suggested that they should not be charged because their motives may have been to protect their careers and family. And nobody has suggested that the perjury was non-serious because it involved only lies about sports; betting on college football games.

Apart from all else, the President’s illegal actions constitute an attack upon and utter disregard for the truth, and for the rule of law. Much worse, they manifest an arrogant disdain not only for the rights of his fellow citizens, but also for the functions and the integrity of the other two co-equal branches of our constitutional system. One of the witnesses that appeared earlier likened the government of the United States to a three legged stool. The analysis is apt; because the entire structure of our country rests upon three equal supports; the Legislative, the Judicial and the Executive. Remove one of those supports, and the State will totter. Remove two and the structure will either collapse altogether or will rest upon a single branch of government. Another name for that is tyranny.

The President mounted a direct assault upon the truth seeking process which is the very essence and foundation of the Judicial Branch. Not content with that, though, Mr. Clinton renewed his lies, half truths and obstruction to this Congress when he filed his answers to simple requests to admit or deny. In so doing, he also demonstrated his lack of respect for the constitutional functions of the Legislative Branch.

Actions do not lose their public character merely because they may not directly affect the domestic and foreign functioning of the Executive Branch. Their significance must be examined for their effect on the functioning of the entire system of government. Viewed in that manner, the President’s actions were both public and extremely destructive.

The apples and oranges method employed to defend the President is well illustrated in the matter of President Nixon’s tax returns. Thus, they argue from the fact that Mr. Nixon was not impeached for lying on a tax return, that perjury is not an impeachable offense. But President Nixon avoided that charge only because there was not enough evidence to prove deliberate lying. That is like arguing that because Lizzie Borden was acquitted of killing her mother with an ax, it is not a crime to kill one’s mother with an ax.

Today, our country is at a crossroad from which two paths branch off. One leads to the principles – at once familiar and immortal – contained in the Declaration of Independence and the Constitution. These are principles that for over Two Hundred Years have so affected our actions as to earn the admiration of the world and to gain for the United States the MORAL leadership among nations. There was a time not so very long ago when a policy decision by the President of the United States was saluted as ‘the most unsordid act in the history of mankind.’

The other path leads to expediency, temerity, self interest, cynicism and a disdain for the welfare of others and the common good. That road will inevitably end in iniquity, dishonor and abandonment of the high principles that we, as a people, rely upon for our safety and happiness. There is no third road.

This is a defining moment both for the Presidency and especially for the Members of this Committee.

For the Presidency as an institution because if you don’t impeach as a consequence of the conduct that I have just portrayed, then no House of Representatives will ever be able to impeach again. The bar will be so high that only a convicted felon or a traitor will need to be concerned.

Remember experts came up before you and pointed to the fact that the House refused to impeach President Nixon for lying on an income tax return. Can you imagine a future President, faced with possible impeachment, pointing to the perjuries, lies, obstructions, tamperings, and abuses of power by the current occupant of the office as not rising to the level of high crimes and misdemeanors? If this isn’t enough, what is? How far can the standard be lowered without completely compromising the credibility of the office for all time?

It is likewise a defining moment for you, the Members of the Judiciary Committee.

The roster of this Committee over the years has contained the names of several great Americans:

Peter Rodino, Emmanuel Celler, Tom Railsbach, Bill McCulloch and Barbara Jordan.

These very walls are infused with the honor and integrity that has always prevailed in this Chamber. Now it is your turn to add to or subtract from that Honor and Integrity.

You have heard the evidence, you have read the law, you have listened to the experts, and you have heard all the arguments.

What I say here will be forgotten in a few days; but what you do here will be incised in the history of the United States for all time to come. Unborn generations – assuming those generations are still free and are still permitted to read true history – will learn of these proceedings and will most certainly judge this Committee’s actions. What will be their verdict? Will it be that you rose above party and faction, and reestablished Justice, Decency, Honor and Truth as the standard by which even the highest office in the land must be evaluated? Or will it be that you announced that there is no abiding standard and that public officials are answerable only to politics, polls and propaganda. God forbid that that will be your legacy.

The choice, though, is yours.

On Tuesday one of the witnesses referred to our country as the Ship of State. The allusion is to the poem ‘The Building of the Ship’ by Longfellow. Permit me to quote the stanza:

Sail on, O Ship of State!
Sail on, Oh Union, strong and great!
Humanity with all its fears,
With all the hopes of future years,
Is hanging breathless on thy fate!

How sublime, poignant and uplifting; yet how profound and sobering are those words at this moment in history. You now are confronted with the monumental responsibility of deciding whether William Jefferson Clinton is it to remain at the helm of that Ship.

Thank you, Mr. Chairman.

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