The following is Kenneth Starr's prepared statement for the Judiciary Committee. In the first section, he examines the case against the president and outlines what he sees as a pattern of obstruction of justice. In the second section, Judge Starr examines the jurisdiction of his investigation and elaborates on the state of other issues he has investigated. Finally, he concludes by discussing the work and techniques of his staff.
Thank you, Mr. Chairman. I welcome this opportunity to appear before the committee and to provide information relating to the committee's inquiry into possible impeachable offenses by the president of the United States. This is my first opportunity to publicly report on certain issues related to our investigation. I look forward to doing so and assisting the committee.
I appreciate both the seriousness of the committee's work and the gravity of its assignment. I have reviewed the statements made by the 37 committee members in the Oct. 5 hearing. Any citizen who watched that hearing would have been impressed by the depth and breadth of the discussion that day, and proud of the diligence with which members of this committee are approaching this extraordinarily difficult and unwelcome task. I appear before you today, therefore, fully recognizing the solemnity and importance of this process.
As you know, in January of this year, Attorney General Reno petitioned the three-judge panel that oversees independent counsels to authorize our office to investigate whether Monica Lewinsky or others committed federal crimes relating to the sexual harassment lawsuit brought by Paula Jones against President Clinton. Our office conducted a swift yet thorough investigation. We completed the primary factual investigation in under eight months, notwithstanding a number of obstacles in our path.
The law requires an independent counsel to report to the House of Representatives substantial and credible information that may constitute grounds for an impeachment. On Sept. 9, pursuant to our statutory duty, we submitted a referral and backup documentation to the House. I am here today at your invitation in furtherance of our statutory obligation.
I recognize that the House of Representatives – not an independent counsel – has the sole power to impeach. My role here today is to discuss our referral and our investigation.
II. Lewinsky Investigation
Let me begin with an overview. As our referral explains, the evidence suggests that the president made false statements under oath and otherwise thwarted the search for truth in the Jones v. Clinton case. The evidence further suggests that the president made false statements under oath to the grand jury on Aug. 17.
That same night, the president publicly acknowledged an inappropriate relationship, but maintained that his testimony had been legally accurate. The president also declared that all inquiries into the matter should end because, he said, it was private.
Shortly after the president's Aug. 17 speech, Sens. Lieberman, Kerrey, and Moynihan stated that the president's actions were not a private matter. In our view, they were correct. Indeed, the evidence suggests that the president repeatedly tried to thwart the legal process in the Jones case and the grand jury investigation. That is not a private matter. The evidence further suggests that the president, in the course of these efforts, misused his authority and power as president and contravened his duty to faithfully execute the laws. That, too, is not a private matter.
The evidence suggests that the misuse of presidential authority occurred in the following 10 ways:
First. The evidence suggests that the president made a series of premeditated false statements under oath in his civil deposition on Jan. 17, 1998. The president had taken an oath to tell the truth, the whole truth, and nothing but the truth. By making false statements under oath, the president, the chief executive of our nation, failed to adhere to that oath and to his presidential oath to faithfully execute the laws.
Second. The evidence suggests that, apart from making false statements under oath, the president engaged in a pattern of behavior during the Jones litigation to thwart the judicial process. The president reached an agreement with Ms. Lewinsky that each would make false statements under oath. He provided job assistance to Ms. Lewinsky at a time when the Jones case was proceeding and Ms. Lewinsky's truthful testimony would have been harmful. He engaged in an apparent scheme to conceal gifts that had been subpoenaed from Ms. Lewinsky. He coached a potential witness, his own secretary Betty Currie, with a false account of relevant events.
Those acts constitute a pattern of obstruction that is fundamentally inconsistent with the president's duty to faithfully execute the laws.
Third. The evidence suggests that the president participated in a scheme at his deposition in which his attorney, in his presence, deceived a United States district judge in an effort to cut off questioning about Ms. Lewinsky. The president did not correct his attorney's false statement. A false statement to a federal judge in order to prevent relevant questioning is an obstruction of the judicial process.
Fourth. The evidence suggests that on Jan. 23, 1998, after the criminal investigation had become public, the president made false statements to his Cabinet and used his Cabinet as unwitting surrogates to publicly support the president's false story.
Fifth. The evidence suggests that the president, acting in a premeditated and calculated fashion, deceived the American people on Jan. 26 and on other occasions when he denied a relationship with Ms. Lewinsky.
Sixth. The evidence suggests that the president, after the criminal investigation became public, made false statements to his aides and concocted false alibis that these government employees repeated to the grand jury. As a result, the grand jury received inaccurate information.
Seventh. Having promised the American people to cooperate with the investigation, the president refused six invitations to testify to the grand jury. Refusing to cooperate with a duly authorized federal criminal investigation is inconsistent with the general statutory duty imposed on all executive branch employees to cooperate with criminal investigations. It also is inconsistent with the president's duty to faithfully execute the laws.
Eighth. The president and his administration asserted three different governmental privileges to conceal relevant information from the federal grand jury. The privilege assertions were legally baseless in these circumstances. They were inconsistent with the actions of Presidents Carter and Reagan in similar circumstances. And they delayed and impeded the investigation.
Ninth. The president made false statements under oath to the grand jury on Aug. 17, 1998. The president again took an oath to tell the truth, the whole truth, and nothing but the truth. The evidence demonstrates that the president failed to adhere to that oath and thus to his presidential oath to faithfully execute the laws.
Tenth. The evidence suggests that the president deceived the American people in his speech on Aug. 17 by stating that his testimony had been legally accurate.
In addition to those 10 points, it bears mention that well before January 1998, the president used government resources and prerogatives to pursue his relationship with Monica Lewinsky. The evidence suggests that the president used his secretary Betty Currie, a government employee, to facilitate and conceal the relationship with Monica Lewinsky. The president used White House aides and the United States ambassador to the United Nations in his effort to find Ms. Lewinsky a job at a time when it was foreseeable – even likely – that she would be a witness in the Jones case. And the president used a government attorney – Bruce Lindsey – to assist his personal legal defense during the Jones case.
In short, the evidence suggests that the president repeatedly used the machinery of government and the powers of his office to conceal his relationship with Monica Lewinsky from the American people, from the judicial process in the Jones case, and from the grand jury.
B. Sexual Harassment Law
Let me turn, then, to the legal context in which the Lewinsky issues first arose. At the outset, I want to emphasize that our referral never suggests that the relationship between the president and Ms. Lewinsky in and of itself could be a high crime or misdemeanor. Indeed, the referral never passes judgment on the president's relationship with Ms. Lewinsky. The propriety of a relationship is not the concern of our office.
The referral is instead about obstruction of justice, lying under oath, tampering with witnesses, and misuse of power. The referral cannot be understood without appreciating this vital distinction.
This case raises the following initial question: Is a plaintiff in a sexual harassment lawsuit entitled to obtain truthful evidence from the defendant, and from associates of the defendant, in order to support her claim? That should be easy to answer. No citizen who finds himself accused in a sexual harassment case, or in any other kind of case, can lie under oath or otherwise obstruct justice and thereby prevent the plaintiff from discovering evidence and proving her case.
Paula Jones, a former Arkansas state employee, filed a federal sexual harassment suit against President Clinton in 1994. The president denied those allegations. We will never know whether a jury would have credited Ms. Jones' allegations. We also will never know whether the ultimate decision-maker would have found that the alleged facts, if true, constitute sexual harassment. When the president and Ms. Jones settled the case last week, the Eighth Circuit Court of Appeals was still considering the preliminary legal question whether the facts as alleged could constitute sexual harassment.
After the suit was first filed in 1994, the president attempted to delay the trial until his presidency was over. The president claimed a temporary presidential immunity from civil suit. The case proceeded to the Supreme Court. At oral argument, the president's attorney specifically warned our nation's highest court that if Ms. Jones won, her lawyers would be able to investigate the president's relationships with other women, as is common in sexual harassment cases. The Supreme Court rejected the president's constitutional claim – and did so by a nine to zero vote. The court concluded that the Constitution did not provide such a temporary immunity from suit.
The idea was simple and powerful: No one is above the law. The Supreme Court sent the case back for trial with words that warrant emphasis: "Like every other citizen who invokes" the District Court's jurisdiction, Ms. Jones "has a right to an orderly disposition of her claims."
After the Supreme Court's decision, the parties started to gather the facts. The parties questioned relevant witnesses in depositions. They submitted written questions. They made requests for documents.
Sexual harassment cases are often "he said-she said" disputes. Evidence reflecting the behavior of both parties can be critical – including the defendant's relationships with other employees in the workplace.
Such questions can be uncomfortable, but they occur every day in courts and law offices around the country. Individuals take an oath to tell the truth, the whole truth, and nothing but the truth. And no one is entitled to lie under oath simply because he or she does not like the questions or because he believes the case is frivolous or financially motivated or politically motivated. The Supreme Court has emphatically and repeatedly rejected the notion that there is ever a privilege to lie. The court has stated that there are ways to object to questions; lying under oath is not one of them.
During the fact-gathering process, Judge Susan Webber Wright followed the standard principles of sexual harassment cases.
Over repeated objection from the president's attorneys, the judge permitted inquiries into the president's relationships with government employees. On Jan. 8, 1998, for example, Judge Wright stated that questions as to the president's relationships with other employees "are within the scope of the issues in this case."
In making these rulings, Judge Wright recognized that the questions might prove embarrassing. She stated that "I have never had a sexual harassment case where there was not some embarrassment." She also stated that she could not protect the parties from embarrassment.
Let me summarize the five points that explain how the president's relationship with Ms. Lewinsky – what was otherwise private conduct – became a matter of concern to the courts. This is critical to fully understand the nature of the committee's inquiry.
One. The president was sued for sexual harassment, and the Supreme Court ruled that the case should go forward.
Two. The law of sexual harassment and the law of evidence allow the plaintiff to inquire into the defendant's relationships with other women in the workplace, which in this case included President Clinton's relationship with Ms. Lewinsky.
Three. Applying those settled legal principles, Judge Susan Webber Wright repeatedly rejected the president's objections to such inquiries. The judge, instead, ordered the president to answer the questions.
Four. It is a federal crime to commit perjury and obstruct justice in civil cases, including sexual harassment cases. Violators are subject to a sentence of up to 10 years imprisonment for obstruction and up to five years for perjury.
Five. The evidence suggests that the president and Ms. Lewinsky made false statements under oath and obstructed the judicial process in the Jones case by preventing the court from obtaining the truth about their relationship.
At his grand jury appearance, the president invoked a Supreme Court justice's confirmation hearings as a comparison to his current situation. The president's use of the analogy did not fit the facts in the Monica Lewinsky matter, however. The president's having raised the analogy, let me make it more fitting to the case here.
Suppose that there is a nominee for a high government position. Assume that there is an allegation of sexual harassment. Suppose that several women other than the accuser who have worked with the nominee testify before the Senate Judiciary Committee. Suppose that the nominee confers with one of those women ahead of time, and that they agree that they will both lie to the Judiciary Committee about their relationship. Assume further that they both do lie under oath about their relationship. And suppose further that a criminal investigation develops and the nominee again lies under oath to the grand jury. If that were proved to have happened, what would the Senate Judiciary Committee do?
Suppose that the lying under oath and obstruction of justice occurs in a sexual harassment suit brought against the nominee. Suppose further that the false statements and obstruction continue into a subsequent criminal investigation. What would this committee do with compelling evidence of perjury and obstruction of justice committed by, for example, a justice of the Supreme Court in a sexual harassment suit in which he was the defendant?
Those hypotheticals – which track the facts of this case – put in relief the issue before the Committee. Let me again stress that the House, not an independent counsel, has the sole power to impeach. I am suggesting that consideration of our referral be focused on the issues actually presented by the referral.
C. The President's Actions: Dec. 5-Jan. 17
I will next turn to some of the essentials of the referral. That will include the specifics of Ms. Lewinsky's involvement in the Jones case and the president's actions in response to that involvement.
The key point about the president's conduct is this. On at least six different occasions – from Dec. 17, 1997, through Aug. 17, 1998 – the president had to make a decision. He could choose truth, or he could choose deception. On all six occasions, the president chose deception – a pattern of calculated behavior over a span of months.
On Dec. 5, 1997, Ms. Jones's attorneys identified Ms. Lewinsky as a potential witness. Within a day, the president learned that Ms. Lewinsky's name was on the witness list.
After learning this, the president faced his first critical decision. Would he and Monica Lewinsky tell the truth about their relationship? Or would they provide false information – not just to a spouse or to loved ones – but under oath in a court of law?
Eleven months ago, the president made his decision. At approximately 2 a.m. on Dec. 17, 1997, he called Ms. Lewinsky at her Watergate apartment and told her that she was on the witness list. This was news to Ms. Lewinsky. And it bears noting that the president – not his lawyer – made this call to the witness.
During this 2 a.m. conversation, which lasted approximately half an hour, the president could have told Ms. Lewinsky that they must tell the truth under oath. The president could have explained that they might face embarrassment but that, as a citizen and as president, he could not lie under oath and he could not sit by while Monica did so. The president did not say anything like that.
On the contrary, according to Ms. Lewinsky, the president suggested that she could sign an affidavit and use – under oath – deceptive cover stories that they had devised long ago to explain why Ms. Lewinsky had visited the Oval Office area. The president did not explicitly instruct Ms. Lewinsky to lie. He did not have to. Ms. Lewinsky testified that the president's suggestion that they use the pre-existing cover stories amounted to a continuation of their pattern of concealing their intimate relationship. Starting with this conversation, the president and Ms. Lewinsky understood, according to Ms. Lewinsky, that they were both going to make false statements under oath.
The conversation between the president and Ms. Lewinsky on Dec. 17 was a critical turning point. The evidence suggests that the president chose to engage in a criminal act – to reach an understanding with Ms. Lewinsky that they would both make false statements under oath. At that moment, the president's intimate relationship with a subordinate employee was transformed into an unlawful effort to thwart the judicial process. This was no longer an issue of private conduct.
Recall that the Supreme Court had concluded that Paula Jones was entitled to an "orderly disposition" of her claims. The president's action on Dec. 17 was his first direct effort to thwart the Supreme Court's mandate.
The story continued: The president faced a second choice. On Dec. 23, 1997, the president submitted under oath a written answer to an interrogatory. The request stated in relevant part: "Please state the name ... of (federal employees) with whom you had sexual relations when you (were) ... president of the United States." In his sworn answer, the president stated "None."
On Dec. 28, the president faced a third critical choice. On that day, the president met with Ms. Lewinsky at the White House. They discussed the fact that Ms. Lewinsky had been subpoenaed for gifts she had received from the president. According to Ms. Lewinsky, she raised the question of what she should do with the gifts. Later that day, the president's personal secretary, Betty Currie, drove to Ms. Lewinsky's Watergate home. Ms. Lewinsky gave Ms. Currie a sealed box that contained some of the subpoenaed gifts. Ms. Currie then stored the box under her bed at home.
In her written proffer on Feb. 1, four weeks after the fact, Ms. Lewinsky stated that Ms. Currie had called her to retrieve the gifts. If so, that necessarily meant that the president had asked Ms. Currie to call. It would directly and undeniably implicate him in an obstruction of justice. Ms. Lewinsky later repeated that statement in testimony under oath. Ms. Currie, for her part, recalls Ms. Lewinsky calling her. But even if Ms. Lewinsky called Ms. Currie, common sense and the evidence suggest some presidential knowledge or involvement, as the referral explains.
Let me add another point about the gifts. In his grand jury appearance in August, the president testified that he had no particular concern about the gifts in December 1997 when he had talked to Ms. Lewinsky about them. And he thus suggested that he would have had no reason to take part in December in a plan to conceal the gifts. But there is a serious problem with the president's explanation. If it were true that the president in December was unconcerned about the gifts, he presumably would have told the truth under oath in his January deposition about the large number of gifts that he and Ms. Lewinsky had exchanged. But he did not tell the truth. At that deposition, when asked whether he had ever given gifts to Monica Lewinsky, and he had given her several on Dec. 28, the president stated "I don't recall. Do you know what they were?"
In short, the critical facts to emphasize about the transfer of gifts are these: First, the president and Ms. Lewinsky met and discussed what should be done with the gifts subpoenaed from Ms. Lewinsky. Second, the president's personal secretary Ms. Currie drove later that day to Ms. Lewinsky's home to pick up the gifts. Third, Ms. Currie stored the box under her bed.
Meanwhile, the legal process continued to unfold, and the president took other actions that had the foreseeable effect of keeping Ms. Lewinsky "on the team." The president helped Ms. Lewinsky obtain a job in New York. His efforts began after the Supreme Court's decision in May 1997 – at a time when it had become foreseeable that she could be an adverse witness against the president. These job-related efforts intensified in December 1997 after Ms. Lewinsky's name appeared on the witness list.
Vernon Jordan, who had been enlisted in the job search for Ms. Lewinsky, testified that he kept the president informed of the status of Ms. Lewinsky's job search and her affidavit. On Jan. 7, 1998, Mr. Jordan told the president that Ms. Lewinsky had signed the affidavit. Mr. Jordan stated to the president that he was still working on getting her a job. The president replied, "Good." In other words, the president, knowing that a witness had just signed a false affidavit, encouraged his friend to continue trying to find her a job. After Ms. Lewinsky received a job offer from Revlon on Jan. 12, Vernon Jordan called the president and said: "Mission accomplished."
As is often the situation in cases involving this kind of financial assistance, no direct evidence reveals the president's intent in assisting Ms. Lewinsky. Ms. Lewinsky testified that no one promised her a job for silence; of course, crimes ordinarily do not take place with such explicit discussion. But federal courts instruct juries that circumstantial evidence is just as probative as direct evidence. And the circumstantial evidence here is strong. At a bare minimum, the evidence suggests that the president's job assistance efforts stemmed from his desire to placate Ms. Lewinsky so that she would not be tempted – under the burden of an oath – to tell the truth about the relationship. Monica Lewinsky herself recognized that at the time, saying to a friend, "Somebody could construe or say, 'Well, they gave her a job to shut her up. They made her happy."'
And given that the president's plan to testify falsely could succeed only if Ms. Lewinsky went along, the president naturally had to be concerned that Ms. Lewinsky at any time might turn around and decide to tell the truth. Indeed, some wanted her to tell the truth. For example, one friend talked to Ms. Lewinsky about the Dec. 28 meeting with the president. The friend stated that she was concerned because she "didn't want to see (Monica) being like Susan McDougal" and did not want Monica to lie to protect the president. Needless to say, any sudden decision by Ms. Lewinsky to tell the truth, whether out of anger at the president or simple desire to be law-abiding, would have been very harmful to the president. That helps to explain his motive in providing job assistance.
In mid-January, Ms. Lewinsky finalized her false affidavit with her attorney, who sent it to Judge Wright's Court. The affidavit falsely denied a sexual relationship with the president and essentially recounted the cover stories they had discussed in their middle-of-the-night conversation on Dec. 17.
Let me turn to the president's Jan. 17 deposition. Some have suggested that the president might have been surprised or ambushed at his deposition. Those suggestions are wrong. The president had clear warning that there would be questions about Monica Lewinsky. She had been named on the Dec. 5 witness list. On Jan. 12, only five days before the deposition, Ms. Jones' attorneys identified Ms. Lewinsky as a trial witness. In response, Judge Wright approved her as a witness. Two days later, on Jan. 14, the president's private attorney asked Ms. Lewinsky's attorney to fax Ms. Lewinsky's affidavit. During the deposition itself, the president's attorney stated that the president was "fully familiar" with Ms. Lewinsky's affidavit.
At the outset of his Jan. 17 deposition, therefore, the president faced a fourth critical decision. Fully aware that he would likely receive questions about Ms. Lewinsky, would the president continue to make false statements under oath – this time in the presence of a United States District judge?
At the start of the deposition, Judge Susan Webber Wright administered the oath. The president swore to tell the truth, the whole truth, and nothing but the truth. As his testimony began, the president, in response to a question from Ms. Jones' attorneys, stated that he understood he was providing his testimony under the penalty of perjury.
The president was asked a series of questions about Ms. Lewinsky. After a few questions, the president's attorney – Mr. Bennett – objected to the questioning about Ms. Lewinsky, referring to it as "innuendo." Mr. Bennett produced Ms. Lewinsky's false affidavit. Mr. Bennett stated to Judge Wright that Ms. Lewinsky's affidavit indicated that "there is absolutely no sex of any kind in any manner, shape, or form." Mr. Bennett stated that the president was "fully aware of Ms. Lewinsky's affidavit." During Mr. Bennett's statements, the president sat back and let his attorney mislead Judge Wright. The president said not a word – to the judge or, so far as we are aware, to his attorney.
Judge Wright overruled Mr. Bennett's objection. The questioning continued. In response, the president made false statements not only about his intimate relationship with Ms. Lewinsky, but about a whole host of matters. The president testified that he did not know that Vernon Jordan had met with Ms. Lewinsky and talked about the Jones case. That was untrue. He testified that he could not recall being alone with Ms Lewinsky. That was untrue. He testified that he could not recall ever being in the Oval Office hallway with Ms. Lewinsky except perhaps when she was delivering pizza. That was untrue. He testified that he could not recall gifts exchanged between Ms. Lewinsky and him. That was untrue. He testified – after a 14-second pause – that he was "not sure" whether he had ever talked to Ms. Lewinsky about the possibility that she might be asked to testify in the lawsuit. That was untrue. The president testified that he did not know whether Ms. Lewinsky had been served a subpoena at the time he last saw her in December 1997. That was untrue. When his attorney read Ms. Lewinsky's affidavit denying a sexual relationship, the president stated that the affidavit was "absolutely true." That was untrue.
The evidence thus suggests that the president – long aware that Ms. Lewinsky was a likely topic of questioning at his deposition – made not one, or two, but a series of false statements under oath. The president further allowed his attorney to use Ms. Lewinsky's affidavit, which the president knew to be false, to deceive the court. This evidence suggests that the president directly contravened the oath he had taken – as well as the Supreme Court's mandate, in which the court had stated that Ms. Jones was entitled, like every other citizen, to a lawful disposition of her case.
D. The President's Actions: Jan. 17-21
As our referral outlines, the president's deposition did not mark the end of the scheme to conceal. During his deposition testimony, the president referred to his secretary Betty Currie. The president testified, for example, that Ms. Lewinsky had come to the White House to see Ms. Currie, not him; that Ms. Currie had been involved in assisting Ms. Lewinsky in her job search; and that Ms. Currie had communicated with Vernon Jordan about Mr. Jordan's assistance to Ms. Lewinsky. In response to one question at the deposition, the president said he did not know the answer and "you'd have to ask Betty."
Given the president's repeated references to Ms. Currie and his suggestion to Ms. Jones' attorneys that they contact her, the president had to know that Ms. Jones' attorneys might want to question Ms. Currie. Shortly after 7 p.m. on Saturday, Jan. 17 – just two and a half hours after the deposition – the president attempted to contact Ms. Currie at her home. The president asked Ms. Currie to come to the White House the next day, which she did, although it was unusual for her to come in on a Sunday. According to Ms. Currie, the president appeared concerned and made a number of statements abut Ms. Lewinsky to Ms. Currie.The statements included:
"You were always there when she was there, right? We were never really alone."
"You could see and hear everything."
Ms. Currie concluded that the president wanted her to agree with him when he made these statements. Ms. Currie stated that she did in fact indicate her agreement – although she knew that the president and Ms. Lewinsky had been alone and that she could not hear or see them when they were alone.
Ms. Currie further testified that the president ran through the same basic statements with her again on January 20 or 21.
What is important with respect to these two episodes is that at the time the president made these statements, he knew that they were false. He knew he had been alone with Ms. Lewinsky. He knew Ms. Currie could not see or hear everything. The president thus could not have been trying to refresh his recollection, as he subsequently suggested. That raises the question: Is there a legitimate explanation for the president to have said those things in that manner to Ms. Currie? The circumstances suggest not. The facts suggest that the president was attempting to improperly coach Ms. Currie, at a time when he could foresee that she was not a potential witness in Jones v. Clinton.
E. The President's Actions: Jan. 21-Aug. 17
The president's next major decision came in the days immediately after Jan. 21. On the 21st, The Washington Post publicly reported the story of Ms. Lewinsky's relationship with the president. After the public disclosure of his relationship with Ms. Lewinsky and the ongoing criminal investigation, the president faced a decision. Would he admit the relationship publicly, correct his testimony in Ms. Jones' case, and ask for the indulgence of the American people? Or would he continue to deny the truth?
For this question, the president consulted others. According to Dick Morris, the president and he talked on Jan. 21. Mr. Morris suggested that the president publicly confess. The president replied "But what about the legal thing? You know, the legal thing? You know. Starr and perjury and all." Mr. Morris suggested they take a poll. The president agreed. Mr. Morris called with the results. He stated that the American people were willing to forgive adultery but not perjury or obstruction of justice. The president replied, "Well, we just have to win, then."
Over the next several months, it became apparent that the strategy to win had many prongs. First, the president denied the truth publicly and emphatically. Second, he publicly promised to cooperate with the investigation. Third, the president deflected and diverted the investigation by telling aides false stories that were then relayed to the grand jury. Fourth, he refused invitations to testify to the grand jury for over six months. Fifth, his administration delayed the investigation through multiple privilege claims, each of which has been rejected by the federal courts. Sixth, surrogates of the president attacked the credibility and legitimacy of the grand jury investigation. Seventh, surrogates of the president attempted to convince the Congress and the American people that the matter was unimportant.
The first step was for the president to deny the truth publicly. For this, political polling led to Hollywood staging. The president's California friend and producer Harry Thomason flew to Washington and advised that the president needed to be very forceful in denying the relationship. On Monday, Jan. 26, in the Roosevelt Room, before members of Congress and other citizens, the president provided a clear and emphatic public statement denying the relationship.
The president also made false statements to his Cabinet and aides. They then spoke publicly and professed their belief in the president.
The second step was to promise cooperation. The president told the American people on several television and radio shows on Jan. 21 and 22 that "I'm going to do my best to cooperate with the investigation."
The third step was the president's refusal to provide testimony to the grand jury despite six invitations to do so and despite his public promise to cooperate. Refusing invitations to provide information to a grand jury in a federal criminal investigation authorized by the attorney general of the United States – and one in which there is a high national interest in prompt completion – was inconsistent with the president's initial January promise to cooperate and with the general statutory duty of all government officials to cooperate with federal criminal investigations.
As a fourth step, the president not only refused to testify himself, but he authorized the use of various governmental privileges to delay the testimony of many of his taxpayer-paid assistants. The extensive use of governmental privileges against grand jury and criminal investigations has, of course, been a pattern throughout the administration. Most notably, the White House cited privilege in 1993 to prevent Justice Department and Park Police officials from reviewing documents in Vincent Foster's office in the days after his death.
In the Lewinsky investigation, the president asserted two privileges, executive privilege and a government attorney-client privilege. A subordinate administration official, without objection from the president, claimed a previously unheard-of privilege that was called the protective function privilege. The privileges were asserted to prevent the full testimony of several White House aides and the full testimony of the sworn law enforcement officers of the Secret Service.
In asserting executive privilege, the president was plowing headlong into the Supreme Court's unanimous decision 24 years ago in United States v. Nixon. There, the Supreme Court ruled that executive privilege was overcome by the need for relevant evidence in criminal proceedings. And thus, it came as no surprise that Chief Judge Norma Holloway Johnson rejected President Clinton's effort to use executive privilege to prevent disclosure of relevant evidence.
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 Lindsey. 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 Ms. Lewinsky 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.