The Clinton Rebuttal: Excerpts

The President's lawyers released a rebuttal to Kenneth Starr's report to Congress on Sept. 11, 1998. Here are some key excerpts and links to scans of the actual documents.

Introduction: The 'simple reality' of the case

'Not A High Crime Or Misdemeanor'

About Ms. Lewinsky

A 'One-Sided Effort'

An 'Unfettered Abuse Of Power' By Starr

'A Prelimary Response'
"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.

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:

1) The President did not commit perjury:
2) The President did not obstruct justice;
3) The President did not tamper with witnesses; and
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 staia 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 dangerously overreached 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.

Standards For Impeachment
THE QUESTION CONFRONTING the House of Representatives is whether the President has committed a "high Crime or Misdemeanor?" The House has an obligation to consider the evidence in view of that very high Constitutional threshold. It should pursue the impeachment process only if there is evidence implicating that high standard.

The House must approach the question with solemnity and with care, for history teaches that an "impeachable offense" is no ordinary kind of wrongdoing. The Framers included specific provisions for impeachment in the Constitution itself because they understood that the most severe political remedy was necessary to remedy the most serious forms of public wrongdoing. Impeachment is a basic constitutional safeguard, designed both to correct harms to the system of government itself and to protect the people from ongoing malfeasance. Nothing less than the gravest executive wrongdoing can justify impeachment. The Constitution leaves lesser wrongs to the political process and to public opinion.

Presidential impeachment is thus a matter of incomparable gravity."

...Holders of public office are therefore not to be impeached for private conduct, however wrongful. To the contrary, only serious assaults on the integrity of the processes of government, and "such crimes as would so stain a president as to make his continuance in office dangerous to public order" should constitute impeachable offenses. Conduct which is not an "offense against the government," or malfeasance or abuse of office, and which bears no "functional relationship" to public office, does not constitute grounds for impeachment. Allegations concerning private conduct - private sexual conduct in particular - simply do not implicate high crimes or misdemeanors.

Background
THE MONICA LEWINSKY investigation is the most recent phase of an amorphous, languorous, expensive, and seemingly interminable investigation into the affairs of a small Arkansas real estate firm, Whitewater Development Company, Inc. IJanuary, 1994, Attorney General Reno made an administrative appointment (the Ethics in Government Act of 1978 having expired) of Robert B. Fiske, Jr., to investigate the relationship of the President and Mrs. Clinton to Whitewater, Madison Guaranty Savings & Loan Association, and Capital Management Services. After the reenactment of the Ethics in Government Act, the Special Division for the Purpose of Appointing Independent Counsels of the Court of Appeals appointed Kenneth W. Starr, a former high official in two Republican administrations, to replace Mr. Fiske on August 5, 1994, and gave him a generally similar grant of investigatory jurisdiction.

The President and Ms. Lewinsky
IN HIS GRAND JURY testimony on August 17, 1998, the President acknowledged having had an improperly intimate relationship with Ms. Lewinsky. This is enormously difficult for any person to do even in private, much less in public.

It is important to recognize that the improper relationship with Ms. Lewinsky ended in early 1997, at the President's behest. It therefore had been over for almost a year at the time of the President's deposition in the Jones case. From feelings both of friendship and responsibility, the President remained in touch with Ms. Lewinsky after the improper relationship ended and tried to help her: none of this help was improper or conditioned on her behaving (or testifying) in any particular way.

It is not true that the President had an improper 18-month relationship with Ms. Lewinsky, as several media reports have alleged. In his grand jury deposition, he testified that on certain occasions in early 1996 and once in early 1997, he engaged in improper conduct with Ms. Lewinsky. These encounters did not consist of sexual intercourse, and they did not consist of "sexual relations" as he understood that term to be defined at his Jones deposition on January 17, 1998 (explained infra), but they did involve inappropriate intimate contact. These inappropriate encounters ended, at the President's insistence, in early 1997, not because of the imminence of discovery, not because of the Jones case (which the Supreme Court had not yet decided), but because he knew they were wrong.

The Evidence
INDEED, GIVEN THE LIMITED role of a grand jury in our system and the total absence of procedural protections in the process, the Independent Counsel's insistence that his investigation has been a search for "truth" is deeply misleading. In fact, it has been a one-sided effort to present the worst possible version of a limited set of facts.

...Because it is inherently so one-sided and untested by cross-examination, it normally is not permissible to use grand jury testimony as a basis for anything other than permitting a grand jury to indict or decline to indict. It may constitute nothing more than hearsay, Costello v. United States, 350 U.S. 39, 364 (1956), or even multiple hearsay -- evidence which would likely be excluded from a trial. Indeed, the information a grand jury gathers is not circumscribed by the Federal Rules of Evidence at all.... nor delimited by the other safeguards of reliability which would be enforced at trial. The testimony a grand jury elicits is not subject to impeachment by interested parties, and such testimony may come from immunized witnesses, from witnesses who fear prosecution, from witnesses prepared by the prosecution, from witnesses with a history of untruthfulness -- or from disinterested witnesses. On the record of the grand jury there need be no distinction among these sources, despite the fact that their reliability varies greatly.

In short, the most basic techniques our adversary system of justice employs for testing and assuring the reliability of evidence are completely missing in the grand jury context. As a consequence, "reliability" simply is not the touchstone of a grand-jury inquiry.

...It must therefore be recognized that it is not the grand jury's function to provide information about anything that can be taken as true on its face. Its function is not to get at the ultimate truth. The grand jury's inquisitorial powers serve but one end: to empower a body of citizens to make a threshold decision whether to initiate the search for truth that is the purpose of adversarial proceedings or to decline to indict and thereby forego that search altogether.

On The Likely ChargesCOLOR>
BASED UPON ILLEGAL OIC leaks and press reports, we believe that the OIC's principal claims of obstruction, intimidation and subornation -- the three prongs of the January 1998 expansion of jurisdiction -- appear to arise out of:

(1) "Talking Points"
THE SO-CALLED "talking points" have been widely hailed as the linchpin of any charge of subornation of perjury or obstruction of justice. Not only were they touted as the "smoking gun" of the investigation, they were instrumental in the OIC efforts to secure an expansion of its jurisdictional authority.
...President Clinton was not asked one single question relating to the talking points during his August 17 deposition. Ms. Lewinsky is reported to have testified that she wrote the document without any assistance other than conversations she had with Linda Tripp. In the venerable tradition of Whitewater allegations, the "talking points" were surfaced as important and damning evidence of wrongdoing, but in the fullness of time and after investigation, have apparently vanished entirely. Only the stigma remains.

The Gifts And Betty CurrieCOLOR>
THE PRESIDENT frequently gives gifts to and receives gifts from friends and supporters; he gave Ms. Lewinsky the same kind of gifts he has shared with others. He was not concerned about the Jones lawyers' knowledge of the gifts. In the Jones deposition, he acknowledged knowing Ms Lewinsky, acknowledged seeing her, acknowledged she had given him gifts, and acknowledged he had given her gifts. Moreover, in his grand jury testimony, he acknowledged giving Ms. Lewinsky good-bye gifts on December 28, 1997, shortly before she moved to New York, a date which we believe to be after Ms. Currie picked up the box of gifts from Ms. Lewinsky. The gifts simply were not a concern to him.

Job Assistance to Ms. Lewinsky
THE PRESIDENT made certain efforts to try to assure that Ms. Lewinsky had a fair shot at a job other than her Pentagon position, where she was not happy, and he generally was aware of other efforts by his secretary Ms. Currie and his friend Mr. Jordan. These actions were totally appropriate. At no time did the President ask that Ms. Lewinsky be accorded specially favorable or unfavorable treatment because of his relationship with her or for any other reason. These actions began well before Ms. Lewinsky was ever named a witness in the Jones litigation, and they were in no way intended to influence Ms. Lewinsky to keep secret what was at that time an already terminated relationship. There is no evidence of any link whatsoever between the President's actions and possible testimony by Ms. Lewinsky in the Jones case.

On 'Abuses Of Power'
FROM THE VERY beginning, the Lewinsky investigation has been about potential impeachment -- a direct attack by the OIC on the constitutional status of the President. It is in that context that the OIC's allegations of abuse of power must be judged.
Any charge the OIC might make that the President has abused the powers of his office through the assertion of privileges -- privileges that were asserted at the initiation and recommendation of the Counsel's Office, not by the President himself -- is utterly baseless. Indeed, those charges are more a reflection of the OIC's unfettered abuse of his authority and his wholesale abandonment of any prosecutorial judgment in his campaign to prevent the President from consulting with his most senior advisors in confidence.

...Implicit in the allegation is the notion that any official, in any branch of the government, who makes a statement about his own conduct, or indeed any other matter, that is not absolutely true is liable for misusing his office for so long as he fails to admit wrongdoing, for the official's staff will inevitable repeat his explanation in any number of forums. It would follow, therefore, according to what appears to be the OIC's reasoning, that no official could mount a defense to impeachment, or to ethics charges, or to a criminal investigation while remaining in office, for anything other than an admission of guilt will be treated as an abuse of his official powers.

Why It's 'Not Watergate'
THE INDEPENDENT COUNSEL apparently attempts to evoke images of Watergate by charging thathe President has abused the powers of his office. This allegation is simply meritless. In the Federalist Papers, Alexander Hamilton described abuse of power as the "corrupt use of the office for personal gain or some other improper purpose." Former President Nixon's use of the Central Intelligence Agency (CIA) to thwart a major criminal investigation by the Federal Bureau of Investigation (FBI) of a crime in which he was involved, to take but one example, fits squarely within that definition. President Clinton's lawful assertion of privileges in a court of law and the Counsel?s Office conduct of its official duties plainly does not.

There is no comparison between the claimed abuses of power by President Nixon and the public and lawful assertion of privileges during the OIC investigation. Indeed, comparing this White House with President Nixon's diminishes the historical significance of the unprecedented claims of abuse of power by the Nixon administration and attempts to criminalize the proper exercise of presidential prerogatives. The specious nature of the OIC?s allegations reveal the OIC's true motive: to create an offense where none exists.

Attorney-Client Privilegecolor>
MEMBERS OF THE Congress asserted that the investigation, which drew explosive media, public and congressional attention, burdened the President's ability to perform his constitutional and statutory duties. Accordingly, the White House Counsel's Office lawyers, among others, were responsible for providing the President and White House officials with informed, candid advice on the issues raised by the investigation that affected the President?s official duties.

Allegations of Perjurycolor>
THE OIC CANNOT make out even a colorable claim of perjury. If answers are truthful or literally truthful but misleading, there is no perjury as a matter of law, no matter how misleading the testimony is or is intended to be. The law simply does not require the witness to aid his interrogator. The Referral seeks to punish the President for being unhelpful to those trying to destroy him politically.

Allegation: The President falsely testified in his Jones deposition that he never had any improper physical contact of any kind with Ms. Lewinsky.

Not so. The President was asked whether he had "an extramarital sexual affair" with Ms. Lewinsky (p. 78) and responded that he did not. That term was undefined and ambiguous. The President understood the term "sexual affair" to involve a relationship involving sexual intercourse. He had no such relationship with Ms. Lewinsky.

The President also was asked whether he had "sexual relations" with Ms. Lewinsky, "as that term is defined in Deposition Exhibit 1, as modified by the Court." (p. 59). The Court explicitly directed the President's attention to Definition Number 1 on Exhibit 1, which the President had circled.

The President denied he ha"sexual relations" with Ms. Lewinsky under this definition. Although the President's counsel, Mr. Bennett, had invited the Jones lawyers to ask specific questions about the President's conduct--"Why don't they ask the President what he did, what he didn't do, and then we can argue in Court later about what it means?" (p. 21)--the Jones lawyers declined to do so, relying instead on the definition. The President was not asked any specific questions at all about his physical contact with Ms. Lewinsky, and in particular he was not pointedly asked whether he had engaged in any of the conduct outside the definition provided. The President's testimony in response to these questions was accurate. He did not have sexual intercourse with Ms. Lewinsky or otherwise engage in sexual conduct covered by the definition, as provided by plaintiff and narrowed by the Court.

...The term "sexual relationship" was not defined in the affidavit or in the deposition. The definition of the different term "sexual relations" utilized by the Jones lawyers did not apply to that question. The term "sexual relationship," like sexual affair, has no definitive meaning. To the President, that term reasonably requires sexual intercourse as a necessary component of the relationship. Since his relationship with Ms. Lewinsky did not involve intercourse, he truthfully answered that the affidavit was accurate.

'The Lewinsky Expansion'color>
THE EXPANSION of the Independent Counsel's jurisdiction to encompass the Jones case and Ms. Lewinsky did not occur by accident or easily. The OIC deliberately and purposefully sought this expansion on an emergency basis. Media accounts that the Attorney General herself requested this expansion are highly misleading.

...Under the Independent Counsel statute, if the "independent counsel discovers or receives information about possible violations of criminal law by [covered persons], which are not covered by the prosecutorial jurisdiction of the independent counsel, the independent counsel may submit such information to the Attorney General." 28 U.S.C. ? 593 (c)(2)(A). The Attorney General is then to conduct a preliminary investigation. The statute did not give the OIC authority to conduct its own preliminary investigation in order to gather or create evidence to present to the Attorney General to support a request for an expansion of jurisdiction.

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