In asserting protective function and government attorney-client privileges, the administration was asking the federal courts to make up one new privilege out of whole cloth and to apply another privilege in a context in which no federal court had ever applied it before. And thus it again came as little surprise that the federal courts rejected the administration's claims. Indeed, as to the government attorney-client claim, the D.C. Circuit and the District Court, like the Eighth Circuit a year ago, stated that the president's position not only was wrong but would authorize a "gross misuse of public assets." The Supreme Court refused to grant review of the cases notwithstanding the administration's two strongly worded petitions.
This point bears emphasis: The administration justified its many privilege claims by claiming an interest in protecting the presidency, not the president personally. But that justification is dubious for two reasons. First, Presidents Carter and Reagan waived all government privileges at the outset of criminal investigations in which they were involved. The examples set by those two presidents demonstrate that such privilege claims in criminal investigations are manifestly unnecessary to protect the presidency. Second, these novel privilege claims were quite weak as a matter of law.
And that raises a question: What was it about the Monica Lewinsky matter that generated the administration's particularly aggressive approach to privileges? The circumstantial evidence suggests an answer: delay. Indeed, when this office sought to have the Supreme Court decide all three privilege claims at once this past June, the Administration opposed expedited consideration.
Not only did the administration invoke these three losing privileges, but the president publicly suggested that he had not invoked executive privilege when in fact he had. On March 24, 1998, while traveling in Africa, the president was asked about executive privilege. He stated in response: "You should ask someone who knows. I haven't discussed that with the lawyers. I don't know." But White House Counsel Charles Ruff had filed an affidavit in federal court only seven days earlier in which he swore that he had discussed the assertion of executive privilege with the president and the president had approved its invocation.
After Chief Judge Johnson ruled against the president, the president dropped the executive privilege claim in the Supreme Court. In August, the president explained to the grand jury why he dropped it. The president stated: "I didn't really want to advance an executive privilege claim in this case beyond having it litigated."
But this statement to the grand jury was inaccurate. In truth, the president had again asserted executive privilege only a few days earlier. And a few days after his grand jury testimony, the president again asserted executive privilege to prevent the testimony of Bruce Lidsey. These executive privilege cases continue to this day; indeed, one case is now pending in the D.C. Circuit.
When the president and the administration assert privileges in a context involving the president's personal issues; when the president pretends publicly that he knows nothing about the executive privilege assertion; when the president and the administration rebuff our office's efforts to expedite the cases to the Supreme Court; when the president contends in the grand jury that he never really wanted to assert executive privilege beyond having it litigated despite the fact that he had asserted it six days earlier and will do so again four days afterwards, there is substantial and credible evidence that the president has misused the privileges available to his office. And the misuse delayed and impeded the federal grand jury's investigation.
The fifth tactic was diversion and deflection. The president made false statements to his aides and associates about the nature of the relationship with knowledge that they could testify to that effect to the grand jury sitting here in Washington. The president did not simply say to his associates that the allegations were false or that the issue was a private matter that he did not want to discuss. Instead, the president concocted alternative scenarios that were then repeated to the grand jury.
The final two tactics were related: (i) to attack the grand jury investigation, including the Justice Department prosecutors in my office to declare war, in the words of one presidential ally and (ii) to shape public opinion about the proper resolution of the entire matter. It is best that I leave it to someone outside our office to elaborate on the war against our office. But no one really disputes that those tactics were employed and continue to be employed to this day.
F. The President's Actions: Aug. 17
This strategy proceeded for nearly seven months. It changed course in August after Monica Lewinsky reached an immunity agreement with our office, and the grand jury, after deliberation, issued a subpoena to the president.
The president testified to the grand jury on Aug. 17. Beforehand, many in Congress and the public advised that the president should tell the whole truth. They cautioned that the president could not lie to the grand jury. Senator Hatch, for example, stated that "So help me, if he lies before the grand jury, that will be grounds for impeachment." Senator Moynihan stated simply that perjury before the grand jury was, in his view, an impeachable offense.
The evidence suggests that the president did not heed this senatorial advice. Although admitting to an ambiguously defined inappropriate relationship, the president denied that he had lied under oath at his civil deposition. He also denied any conduct that would establish that he had lied under oath at his civil deposition. The president thus denied certain conduct with MsLewinsky and devised a variety of tortured and false definitions.
The president's answers have not been well received. Congressman Schumer, for one, stated that "it is clear that the president lied when he testified before the grand jury." Congressman Meehan stated that the president engaged in a "dangerous game of verbal Twister." Indeed, the president made false statements to the grand jury and then that same evening spoke to the nation and criticized all attempts to show that he had done so as invasive and irrelevant. The president's approach appeared to contravene the oath he took at the start of the grand jury proceedings. It also disregarded the admonitions of those members of Congress who warned that lying to the grand jury would not be tolerated. It also discounted Judge Wright's many orders in which she had ruled that this kind of evidence was relevant in the Jones case.
And thus ended the over-eight-month journey that had begun on Dec. 5, 1997, when Monica Lewinsky's name appeared on the witness list. The evidence suggests that the eight months included false statements under oath, false statements to the American people, false statements to the president's Cabinet and aides, witness tampering, obstruction of justice, and the use of presidential authority and power in an effort to conceal the truth of the relationship and to delay the investigation.
Given the serious nature of perjury and obstruction of justice, regardless of its setting, it is obvious that the actions of the president and Ms. Lewinsky to conceal the truth warranted criminal investigation. Let me explain how the investigation came to be handled by our office rather than by the Department of Justice or some new independent counsel. The explanation is straightforward.
On January 8, an attorney in my office was informed that Linda Tripp, who had been a witness in prior investigations, had information she wanted to provide. A message was conveyed back that she should provide her information directly. Ms. Tripp called our office on Jan. 12. In that conversation and later, she provided us a substantial amount of information.
Let me pause here and emphasize that our office, like most law enforcement agencies, has received innumerable tips about a wide variety of matters over the past four years from Swiss bank accounts to drug smuggling. You name it. We have heard it. In each case, we must make an initial assessment whether it is a serious tip or a crank call, as well as an assessment of jurisdictional issues.
We handled the information from Ms. Tripp in this same manner. When we confirmed that the information appeared credible, we reached out to the Department of Justice, as we have done regularly during my tenure as independent counsel. We contacted Deputy Attorney General Eric Holder within 48 hours after Ms. Tripp provided us information. The next day, we fully informed the deputy attrney general about Ms. Tripp's information. About Ms. Tripp's tapes and the questions concerning their legality under state law. About the consensual FBI recording of Ms. Tripp and Ms. Lewinsky. About the indications that Vernon Jordan was providing employment assistance to a witness who had the potential to harm the president
a fact pattern that we had seen in the Webster Hubbell investigation, as I shall describe presently.
We discussed jurisdiction. We noted that it is in everyone's interest to avoid time-consuming jurisdictional challenges. We stated that the Lewinsky investigation could be considered outside our jurisdiction as then constituted. We stressed that someone needed to work the case: the Justice Department or an independent counsel.
Later that evening, the deputy attorney general telephoned and reported that the attorney general had tentatively decided to assign the matter to us. Before her decision was final, we reviewed the evidence in detail with two experienced career prosecutors in the department. One senior Justice Department prosecutor listened to portions of the FBI tape. The attorney general made her final decision on Friday, Jan. 16. That day, through a senior career prosecutor, the attorney general asked the three-judge special division to expand our jurisdiction. The special division granted the request that day.
In short, our entry into this investigation was standard, albeit expedited, procedure.
IV. Referral Standards
Seven months later, after conducting the factual investigation and after the president's grand jury testimony, the question we faced was what to do with the evidence. Section 595(c) of Title 28 in the independent counsel statute requires an independent counsel investigating possible crimes to provide to the House of Representatives in the words of the statute "substantial and credible information that may constitute grounds for an impeachment."
This reporting provision suggests a statutory preference that possible criminal wrongdoing by the president be addressed in the first instance by the House of Representatives. It also requires an analysis of the law of impeachment.
As we understood the text of the Constitution, its history, and relevant precedents, it was clear that obstruction of justice in its various forms, including perjury, "may constitute grounds for an impeachment." Even apart from any abuses of presidential authority and power, the evidence of perjury and obstruction of justice required us to refer this information to the House.
Perjury and obstruction of justice are, of course, serious crimes. In 1790, the first Congress passed a criminal law that banned perjury. A violation was subject to three years' imprisonment. Today, federal criminal law makes perjury a felony punishable by five years' imprisonment.
In cases involving public officials, courts treat false statements with special condemnationUnited States District Judge Royce Lamberth recently sentenced Ronald Blackley, former chief of staff to the former secretary of agriculture, to 37 months' imprisonment for false statements. The court stated that it "has a duty to send a message to other high-level government officials that there is a severe penalty to be paid for providing false information under oath."
Although perjury and obstruction of justice are serious federal crimes, some have suggested that they are not high crimes or misdemeanors when the underlying events concern the president's private actions. Under this theory, a president's obstruction and perjury must involve concealment of official actions. This interpretation does not appear in the Constitution itself. Moreover, the Constitution lists bribery as a high crime or misdemeanor. And if a president involved in a civil suit bribed the judge to rule in his favor or bribed a witness to provide favorable testimony, there could be no textual question that he had committed a high crime or misdemeanor under the plain language of Article II even though the underlying events would not have involved his official duties. In addition, virtually everyone agrees that serious crimes such as murder and rape would be impeachable even though they do not involve official duties.
Justice Story stated in his famous Commentaries that there is not a syllable in the Constitution which confines impeachment to official acts. With respect, an absolute and inflexible requirement of a connection to official duties appears, fairly viewed, to be an incorrect interpretation of the Constitution.
History and practice support the conclusion that perjury, in particular, is a high crime or misdemeanor. Perjury has been the basis for the removal of several judges. As far as we know, no one questioned whether perjury was a high crime or misdemeanor in those cases. In addition, as several of the scholars who appeared before you testified, perjury seems to have been recognized as a high crime or misdemeanor at the time of the founding. And the House manager's report in the impeachment of Judge Walter Nixon for perjury stated, "It is difficult to imagine an act more subversive to the legal process than lying from the witness stand." And finally, I note that the federal sentencing guidelines include bribery and perjury in the same guideline (2Jl.3), reflecting the common-sense conclusion that bribery and perjury are equivalent means of interfering with the governmental process.
For these reasons, we concluded that perjury and obstruction of justice, like bribery, "may constitute grounds for an impeachment." Having said that, let me again emphasize my role here. Whether the president's actions are, in fact, grounds for an impeachment or some other congressional sanction is a decision in the sole discretion of the Congress.
A final point warrants mention in this respect. Criminal prosecution and punishment arnot the same as or a substitute for congressionally imposed sanctions. As the Supreme Court stated in a 1993 case, "The framers recognized that most likely there would be two sets of proceedings for individuals who commit impeachable offenses the impeachment trial and a separate criminal trial. In fact, the Constitution explicitly provides for two separate proceedings. The framers deliberately separated the two forums to avoid raising the specter of bias and to ensure independent judgment."
V. The Office of Independent Counsel: 1994-1998
Our job over the past several years has involved far more than simply the Monica Lewinsky matter. The pattern of obstruction of justice, false statements, and misuse of executive authority in the Lewinsky investigation did not occur in a vacuum.
In August 1994, 1 took over the Madison Guaranty investigation from Bob Fiske. Over the ensuing years, I have essentially become independent counsel for five distinct investigations; for Madison and Whitewater, for Foster-related matters, for the Travel Office, for the FBI files matter, and for the Monica Lewinsky investigation
as well as for a variety of obstruction and related matters arising from those five major investigations. A brief overview of those investigations may assist the committee in its assessment of the president's conduct.
First, some statistics. Our investigation has resulted in conviction of fourteen individuals, including the former Associate Attorney General of the United States Webster Hubbell, the then-sitting Governor of Arkansas Jim Guy Tucker, and the Clintons' two business partners Jim and Susan McDougal.
We are proud not only of the cases we have won, but also of our decisions not to indict. To take one well-known example, the Senate Whitewater Committee sent our office public criminal referrals on several individuals. The committee stated in its June 21, 1996, public letter that the testimony of Susan Thomases was "particularly troubling and suggests a possible violation of law." But this office did not seek charges against her.
Apart from our indictments and convictions, this office also has faced an extraordinary number of legal disputes on issues of privilege, jurisdiction, substantive criminal law and the like. By my count, at least 17 of our cases have been decided by the federal courts of appeals, and we have won all 17. One privilege case arising in our Travel Office investigation went to the D.C. Circuit where we prevailed 2-1 and then to the Supreme Court where we lost 6-3.
We had to litigate in the courts as our investigation ran into roadblocks and hurdles that slowed us down. It is true that the administration produced a great amount of information. But unlike the prosecutors in the investigations involving presidents Reagan and Carter, we have been forced to go to court time and again to seek information from the Executive Branh and to fight a multitude of privilege claims asserted by the administration, every single one of which we have won.
In sum, this office has achieved a superb record in courts of law of significant and hard-fought convictions, of fair and wise decisions not to charge, of thorough and accurate reports on the Vincent Foster and Monica Lewinsky matters, of legal victories in various courts. We go to court and not on the talk show circuit. And our record shows that there is a bright line between law and politics, between courts and polls. It leaves the polls to the politicians and spin doctors. We are officers of the court who live in the world of the law. We have presented our cases in court, and with very rare exception, we have won.