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Correspondence and Agreed Order in the Settlement of Clinton’s Case

This is the text of correspondence exchanged yesterday in which President Clinton reached a settlement with the independent counsel, Robert Ray.

These are the letters exchanged between David E. Kendall, a lawyer for President Clinton, and Robert W. Ray, the independent counsel, in which they agreed to a settlement. Also included is the order that the Circuit Court of Pulaski County, Ark., issued yesterday, suspending for five years the president’s right to practice law in Arkansas.

From Mr. Kendall

Dear Mr. Ray:

We have had many discussions in recent days, both in person and by telephone. As you know, we are taking steps to bring this matter to a timely and appropriate conclusion, which the president believes is in the best interest of the country and his family. We know that you, too, seek to do what you believe is best for the country, and we appreciate the way in which you are discharging your responsibilities under the Independent Counsel Act.

In order to conclude this matter, we have met with the Arkansas Committee on Professional Conduct to settle the lawsuit arising out of the president’s deposition testimony in the Paula Jones case. I am attaching to this letter a copy of the Agreed Order of Discipline which we have been able to negotiate with the committee. The offer stated in this order remains open to us until Friday, Jan. 19, 2001.

The president is prepared to sign this order to settle the committee’s suit. As you can see, this would mean accepting a five-year suspension, paying a $25,000 fine (as legal fees for the committee’s outside counsel), and formally acknowledging a violation of one of the Arkansas Rules of Professional Conduct. The president is willing to sign this order, notwithstanding that a five-year suspension is far harsher than appropriate under the Arkansas precedents for this type of conduct (not having occurred during the practice of law and not involving a criminal conviction). Typically, the committee has issued a reprimand in these circumstances. As you can see from the recent cases decided by the Arkansas Supreme Court, which we provided to your office, five-year suspensions have been imposed on lawyers who had pleaded guilty to several criminal charges and served several months in the federal penitentiary. While we therefore disagree with the terms the committee is seeking, the president has decided he would be willing to accept this harsh settlement to do whatever he can to achieve closure before he leaves office.

In that same vein, the president has decided he will not seek any legal fees to which he might otherwise become entitled under the Independent Counsel Act as a result of the Lewinsky investigation. Thus, we will not file an application with the Special Division for reimbursement of those fees.

As we have discussed, the president described to the grand jury on Aug. 17, 1998, what he had attempted to do in his deposition. He stated that when he was deposed, “I was doing my best to be truthful,” “I wanted to be legal without being particularly helpful,” “my goal in this deposition was to be truthful but I did not wish to do the work of the Jones lawyers,” and “I was determined to walk through the mine field of this deposition without violating the law, and I believe I did.” Reasonable people may conclude he crossed over that line he was trying to walk, and walking that line was plainly a dangerous and risky exercise. But when it comes to stating now what the president’s intent was then in the deposition, all he can in conscience do is say what he told the earlier grand jury: he tried to avoid testifying falsely. When it comes to what his subjective motivation was, what the president actually believed, however successful he ultimately might have been in walking that line, all he can do is to state what that was.

We respect and agree with the goal you have articulated of bringing this matter to closure in the best interests of the country. We have attempted to do all we can to achieve that end. I believe that our mutual communications have been professional, candid and, as appropriate, confidential. I think both sides have discharged our respective duties and responsibilities in a fair and honorable way.

Given the steps the president is prepared to take, we know he might be legally prejudiced, as you have acknowledged in our discussions, if he signed the order prior to having an assurance there would be no prosecution. I am confident that, were you in our shoes, you would show the same prudence. For that reason, we would need to hear from you prior to proceeding to sign the order, which the president is prepared to do immediately.

In the public statement you made on the day you took office 15 months ago, you quoted Justice Sutherland’s words in Berer v. United States, written over 65 years ago, that “the government’s interest in a matter entrusted to a prosecutor is to act fairly and impartially: `not that it should win a case, but that justice shall be done.’ ” I believe that the president has paid an extraordinarily high price for his conduct and that it is now time to bring this matter to a conclusion without further action against him. I hope you will agree that, in the unique circumstances of this highly publicized matter, this would, finally, constitute justice.

From Mr. Ray

Dear Mr. Kendall:

This letter responds to your presentation to me of an agreed order of discipline with respect to a complaint by the Arkansas Supreme Court Committee on Professional Conduct, signed by President Clinton, and a written copy of a prepared public statement that President Clinton intends to issue regarding his agreement to and acceptance of the terms of the order.

Upon entry of that order by the Pulaski County Circuit Court and following the president’s issuance of his public statement, I have decided to exercise my discretion, consistent with the principles of federal prosecution, to decline prosecution, with prejudice, of all matters within the Jan. 16, 1998, jurisdictional mandate of the United States Court of Appeals for the District of Columbia Circuit, Division 94-1, for the purpose of appointing independent counsels. Subject to the foregoing terms, the investigation is now concluded, and Grand Jury 2000-3 (impaneled July 11, 2000) will thereafter be discharged.

Agreed Order of Discipline

Come now the parties hereto and agree to the following order of this court in settlement of the pending action:

The formal charges of misconduct upon which this order is based arose out of information referred to the Committee on Professional Conduct by the Honorable Susan Webber Wright, chief United States district judge for the Eastern District of Arkansas. The information pertained to William Jefferson Clinton’s deposition testimony in a civil case brought by Ms. Paula Jones in which he was a defendant, Jones v. Clinton.

Mr. Clinton was admitted to the Arkansas bar on Sept. 7, 1973. On June 30, 1990, he requested that his Arkansas license be placed on inactive status for continuing legal education purposes, and this request was granted. The conduct at issue here does not arise out of Mr. Clinton’s practice of law. At all times material to this case, Mr. Clinton resided in Washington, D.C., but he remained subject to the Model Rules of Professional Conduct for the State of Arkansas.

On April 1, 1998, Judge Wright granted summary judgment to Mr. Clinton, but she subsequently found him in civil contempt in a 32-page memorandum opinion and order issued on April 12, 1999, ruling that he had “deliberately violated this court’s discovery orders and thereby undermined the integrity of the judicial system.”

Judge Wright found that Mr. Clinton had “responded to plaintiff’s questions by giving false, misleading and evasive answers that were designed to obstruct the judicial process [concerning] whether he and Ms. Lewinsky had ever been alone together and whether he had ever engaged in sexual relations with Ms. Lewinsky.”

Judge Wright offered Mr. Clinton a hearing, which he declined by a letter from his counsel, dated May 7, 1999. Mr. Clinton was subsequently ordered to pay, and did pay, over $90,000, pursuant to the court’s contempt findings. Judge Wright also referred the matter to the committee “for review and any action it deems appropriate.” Mr. Clinton’s actions, which are the subject of this agreed order, have subjected him to a great deal of public criticism. Twice elected president of the United States, he became only the second president ever impeached and tried by the Senate, where he was acquitted. After Ms. Jones took an appeal of the dismissal of her case, Mr. Clinton settled with her for $850,000, a sum greater than her initial ad damnum in her complaint. As already indicated, Mr. Clinton was held in civil contempt and fined over $90,000.

Prior to Judge Wright’s referral, Mr. Clinton had no prior disciplinary record with the committee, including any private warnings. He had been a member in good standing of the Arkansas bar for over 25 years. He has cooperated fully with the committee in its investigation of this matter and has furnished information to the committee in a timely fashion.

Mr. Clinton’s conduct, as described in the order, caused the court and counsel for the parties to expend unnecessary time, effort, and resources. It set a poor example for other litigants, and this damaging effect was magnified by the fact that at the time of his deposition testimony, Mr. Clinton was serving as president of the United States.

Judge Wright ruled that the testimony concerning Ms. Lewinsky “was not essential to the core issues in this case and, in fact, that some of this evidence might even be inadmissible.”

Judge Wright dismissed the case on the merits by granting Mr. Clinton summary judgment, declaring that the case was “lacking in merit, a decision that would not have changed even had the president been truthful with respect to his relationship with Ms. Lewinsky.” As Judge Wright also observed, as a result of Mr. Clinton’s paying $850,000 in settlement, “plaintiff was made whole, having agreed to a settlement in excess of that prayed for in the complaint.” Mr. Clinton also paid to plaintiff $89,484 as the “reasonable expenses, including attorneys fees, caused by his willful failure to obey the court’s discovery orders.”

On May 22, 2000, after receiving complaints from Judge Wright and the Southeastern Legal Foundation, the committee voted to initiate disbarment proceedings against Mr. Clinton. On June 30, 2000, counsel for the committee filed a complaint seeking disbarment in Pulaski County Circuit Court, Neal v. Clinton, Civ. No.2000-5677. Mr. Clinton filed an answer on Aug. 29, 2000, and the case is in the early stages of discovery. In this agreed order, Mr. Clinton admits and acknowledges, and the court, therefore, finds that:

A. That he knowingly gave evasive and misleading answers, in violation of Judge Wright’s discovery orders, concerning his relationship with Ms. Lewinsky, in an attempt to conceal from plaintiff Jones’s lawyers the true facts about his improper relationship with Ms. Lewinsky, which had ended almost a year earlier.

B. That by knowingly giving evasive and misleading answers, in violation of Judge Wright’s discovery orders, he engaged in conduct that is prejudicial to the administration of justice in that his discovery responses interfered with the conduct of the Jones case by causing the court and counsel for the parties to expend unnecessary time, effort, and resources, setting a poor example for other litigants, and causing the court to issue a 32-page order civilly sanctioning Mr. Clinton. Upon consideration of the proposed agreed order, the entire record before the court, the advice of counsel, and the Arkansas Model Rules of Professional Conduct, the court finds:

1. That Mr. Clinton’s conduct, heretofore set forth, in the Jones case violated Model Rule 8.4(d), when he gave knowingly evasive and misleading discovery responses concerning his relationship with Ms. Lewinsky, in violation of Judge Wright’s discovery orders.

Model Rule 8.4(d), states that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice.”

WHEREFORE, it is the decision and order of this court that William Jefferson Clinton be, and hereby is, suspended for five years for his conduct in this matter, and the payment of fine in the amount of $25,000. The suspension shall become effective as of the date of Jan. 19, 2001.

It is so ordered.

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Malcolm Farnsworth
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