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H.Doc.105-318 THE SECURITY AND SITUATION OF THE U.S. EMBASSY IN MONROVIA, LIBERIA ...


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105th Congress, 2d Session - - - - - - - - - - - House Document 105-317


 
 PRELIMINARY MEMORANDUM OF THE PRESIDENT OF THE UNITED STATES 
   CONCERNING REFERRAL OF THE OFFICE OF THE INDEPENDENT COUNSEL AND 
   INITIAL RESPONSE OF THE PRESIDENT OF THE UNITED STATES TO REFERRAL 
   OF THE OFFICE OF THE INDEPENDENT COUNSEL

                               __________

                             COMMUNICATION

                                  from

                     THE COMMITTEE ON THE JUDICIARY

                              TRANSMITTING

   THE PRELIMINARY MEMORANDUM OF THE PRESIDENT OF THE UNITED STATES 
 CONCERNING THE REFERRAL OF THE OFFICE OF THE INDEPENDENT COUNSEL AND 
   THE INITIAL RESPONSE OF THE PRESIDENT OF THE UNITED STATES TO THE 
           REFERRAL OF THE OFFICE OF THE INDEPENDENT COUNSEL


<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>


     September 28, 1998.--Ordered released by the Committee on the 
                  Judiciary, and ordered to be printed


                         PRELIMINARY MEMORANDUM

                         CONCERNING REFERRAL OF

                     OFFICE OF INDEPENDENT COUNSEL


    David E. Kendall                            Charles F.C. Ruff
    Nicole K. Seligman                          Cheryl Mills
    Emmet T. Flood                              Lanny A. Breuer
    Max Stier                               OFFICE OF THE WHITE
    Glen Donath                               HOUSE COUNSEL
    Alicia L. Marti                         The White House
WILLIAMS & CONNOLLY                         Washington, DC 20005
725 12th Street, N.W.
Washington, DC 20005

September 11, 1998

                           EXECUTIVE SUMMARY

 Summary of Key Points of the President's Case in Anticipation of the 
                              Starr Report

    1. The President has acknowledged a serious mistake--an 
inappropriate relationship with Monica Lewinsky. He has taken 
responsibility for his actions, and he has apologized to the 
country, to his friends, leaders of his party, the cabinet and 
most importantly, his family.
    2. This private mistake does not amount to an impeachable 
action. A relationship outside one's marriage is wrong--and the 
President admits that. It is not a high crime or misdemeanor. 
The Constitution specifically states that Congress shall 
impeach only for ``treason, bribery or other high crimes and 
misdemeanors.'' These words in the Constitution were chosen 
with great care, and after extensive deliberations.
    3. ``High crimes and misdemeanors'' had a fixed meaning to 
the Framers of our Constitution--it meant wrongs committed 
against our system of government. The impeachment clause was 
designed to protect our country against a President who was 
using his official powers against the nation, against the 
American people, against our society. It was never designed to 
allow a political body to force a President from office for a 
very personal mistake.
    4. Remember--this report is based entirely on allegations 
obtained by a grand jury--reams and reams of allegations and 
purported ``evidence'' that would never be admitted in court, 
that has never been seen by the President or his lawyers, and 
that was not subject to cross-examination or any other 
traditional safeguards to ensure its credibility.
    5. Grand juries are not designed to search for truth. They 
do not and are not intended to ensure credibility, reliability, 
or simple fairness. They only exist to accuse. Yet this is the 
process that the Independent Counsel has chosen to provide the 
``evidence'' to write his report.
    6. The law defines perjury very clearly. Perjury requires 
proof that an individual knowingly made a false statement while 
under oath. Answers to questions that are literally true are 
not perjury. Even if an answer doesn't directly answer the 
question asked, it is not perjury if it is true--no accused has 
an obligation to help his accuser. Answers to fundamentally 
ambiguous questions also can never be perjury. And nobody can 
be convicted of perjury based on only one other person's 
testimony.
    7. The President did not commit perjury. Most of the 
illegal leaks suggesting his testimony was perjurious falsely 
describe his testimony. First of all, the President never 
testified in the Jones deposition that he was not alone with 
Ms. Lewinsky. The President never testified that his 
relationship with Ms. Lewinsky was the same as with any other 
intern. To the contrary, he admitted exchanging gifts with her, 
knowing about her job search, receiving cards and notes from 
her, and knowing other details of her personal life that made 
it plain he had a special relationship with her.
    8. The President has admitted he had an improper sexual 
relationship with Ms. Lewinsky. In a civil deposition, he gave 
narrow answers to ambiguous questions. As a matter of law, 
those answers could not give rise to a criminal charge of 
perjury. In the face of the President's admission of his 
relationship, the disclosure of lurid and salacious allegations 
can only be intended to humiliate the President and force him 
from office.
    9. There was no obstruction of justice. We believe Betty 
Currie testified that Ms. Lewinsky asked her to hold the gifts 
and that the President never talked to her about the gifts. The 
President admitted giving and receiving gifts from Ms. Lewinsky 
when he was asked about it. The President never asked Ms. 
Lewinsky to get rid of the gifts and he never asked Ms. Currie 
to get them. We believe that Ms. Currie's testimony supports 
the President's.
    10. The President never tried to get Ms. Lewinsky a job 
after she left the White House in order to influence her 
testimony in the Paula Jones case. The President knew Ms. 
Lewinsky was unhappy in her Pentagon job after she left the 
White House and did ask the White House personnel office to 
treat her fairly in her job search. He never instructed anyone 
to hire her, or even indicated that he very much wanted it to 
happen. Ms. Lewinsky was never offered a job at the White House 
after she left--and it's pretty apparent that if the President 
had ordered it, she would have been.
    11. The President did not facilitate Ms. Lewinsky's 
interview with Bill Richardson, or her discussions with Vernon 
Jordan. Betty Currie asked John Podesta if he could help her 
with her New York job search which led to an interview with 
Bill Richardson, and Ms. Currie also put her in touch with her 
longtime friend, Mr. Jordan. Mr. Jordan has made it clear that 
this is the case, and, as a private individual, he is free to 
offer job advice wherever he sees fit.
    12. There was no witness tampering. Betty Currie was not 
supposed to be a witness in the Paula Jones case. If she was 
not called or going to be called, it was impossible for any 
conversations the President had with her to be witness 
tampering. The President testified that he did not in any way 
attempt to influence her recollection.
    13. There is no ``talking points'' smoking gun. Numerous 
illegal leaks painted the mysterious talking points as the 
proof that the President or his staff attempted to suborn the 
perjury of Monica Lewinsky or Linda Tripp. The OIC's spokesman 
said that the ``talking points'' were the ``key'' to Starr even 
being granted authority to investigate the President's private 
life. Yet in the end, Ms. Lewinsky has apparently admitted the 
talking points were written by her alone [or with Ms. Tripp's 
assistance], and the President was not asked one single 
question about them in his grand jury appearance.
    14. Invocation of privileges was not an abuse of power. The 
President's lawful assertion of privileges in a court of law 
was only made on the advice of his Counsel, and was in 
significant measure validated by the courts. The legal claims 
were advanced sparingly and as a last resort after all attempts 
at compromise by the White House Counsel's office were rejected 
to protect the core constitutional and institutional interests 
of this and future presidencies.
    15. Neither the President nor the White House played a role 
in the Secret Service's lawful efforts to prevent agents from 
testifying to preserve its protective function. The President 
never asked, directed or participated in any decision regarding 
the protective function privilege. Neither did any White House 
official. The Treasury and Justice Departments independently 
decided to respond to the historically unprecedented subpoenas 
of Secret Service personnel and to pursue the privilege to 
ensure the protection of this and future presidents.
    16. The President did not abuse his power by permitting 
White House staff to comment on the investigation. The 
President has acknowledged misleading his family, staff and the 
country about the nature of his relationship with Ms. Lewinsky, 
and he has apologized and asked for forgiveness. However, this 
personal failing does not constitute a criminal abuse of power. 
If allowing aides to repeat misleading statements is a crime, 
then any number of public officials are guilty of misusing 
their office for as long as they fail to admit wrong doing in 
response to any allegation about their activities.
    17. The actions of White House attorneys were completely 
lawful. The White House Counsel attorneys provided the 
President and White House officials with informed, candid 
advice on issues raised during this investigation that affected 
the President's official duties. This was especially necessary 
given the fact that impeachment proceedings against the 
President were a possible result of the OIC's investigation 
from Day One. In fact, throughout the investigation, the OIC 
relied on the White House Counsel's office for assistance in 
gathering information and arranging interviews and grand jury 
appearances. The Counsel's office's actions were well known to 
the OIC throughout the investigation and no objection was ever 
voiced.
    This means that the OIC report is left with nothing but the 
details of a private sexual relationship, told in graphic 
details with the intent to embarrass. Given the flimsy and 
unsubstantiated basis for the accusations, there is a complete 
lack of any credible evidence to initiate an impeachment 
inquiry concerning the President. And the principal purpose of 
this investigation, and the OIC's report, is to embarrass the 
President and titillate the public by producing a document that 
is little more than an unreliable, one-sided account of sexual 
behavior.
    Where's Whitewater? The OIC's allegations reportedly 
include no suggestion of wrongdoing by the President in any of 
the areas which Mr. Starr spent four years investigating: 
Whitewater, the FBI files and the White House travel office. 
What began as an inquiry into a 24 year old land deal in 
Arkansas has ended as an inquest into brief, improper personal 
encounters between the President and Monica Lewinsky. Despite 
the exhaustive nature of the OIC's investigation into the 
Whitewater, FBI files and travel office matters, and a constant 
stream of suggestions of misconduct in the media over a period 
of years, to this day the OIC has never exonerated the 
President or the First Lady of wrongdoing.
  PRELIMINARY MEMORANDUM CONCERNING REFERRAL OF OFFICE OF INDEPENDENT 
                                COUNSEL

    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.
    We commend the House of Representatives for the 
extraordinary steps it has taken to safeguard the secrecy of 
the OIC's allegations. Unfortunately, its efforts were thwarted 
by unnamed sources familiar with the details of the OIC's 
allegations--sources that could only come from the OIC itself--
who saw fit to leak elements of the allegations to the news 
media.
    Based on these illegal leaks, as well as our knowledge of 
the President's testimony, we offer this document as a summary 
outline of his side of the case. We will provide you with a 
specific rebuttal as soon as we have had a chance to review the 
materials that the OIC has already transmitted to you.
    The simple reality of this situation is that the House is 
being confronted with evidence of a man's efforts to keep an 
inappropriate relationship private. A personal failure that the 
President has acknowledged was wrong, for which he apologized, 
and for which he accepts complete responsibility. A personal 
failure for which the President has sought forgiveness from 
members of his family, members of the Cabinet, Members of 
Congress, and the American people. Such a personal failing does 
not, however, constitute ``treason, bribery and high crimes and 
misdemeanors'' that would justify the impeachment of the 
President of the United States.
    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 stain a 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.

                      I. Standards for Impeachment

    The Constitution provides that the President shall be 
removed from office only upon ``Impeachment for, and Conviction 
of, Treason, Bribery, or other high Crimes and Misdemeanors.'' 
U.S. Const. Art. II, Sec. 4. Of course, there is no suggestion 
of treason or bribery present here. Therefore, 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.

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