Following is the text of independent counsel Kenneth Starr's prepared
testimony for delivery Thursday before the House Judiciary
Committee.
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. Introduction
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
A. Overview
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.
III. Jurisdiction
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 attorney
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 condemnation. United 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 are not 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.
A. Overview
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 Branch 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.
Madison Guaranty: President Clinton and Susan McDougal
The center of all of this – the core of our Arkansas-based investigation
– was Madison Guaranty Savings and Loan. Madison was a federally
insured savings and loan in Little Rock, Ark., run by Jim and Susan
McDougal. Like many savings and loans in the 1980s, Madison was
fraudulently operated. Mrs. Clinton and other lawyers at the Rose Law
Firm in Little Rock performed legal work for Madison in the 1980s.
Madison first received national attention in March 1992 when a New
York Times report raised several issues about the relationship
between the Clintons and the McDougals in connection with Madison.
Federal bank regulators examined Madison in 1992 and 1993. The
regulators sent criminal referrals to the Justice Department, and the
Justice Department launched a criminal investigation of Madison in
November 1993. In part because of the relationship of the Clintons to
the McDougals, Attorney General Reno appointed Bob Fiske in
January 1994. I was appointed independent counsel in August 1994
to continue the investigation.
Madison exemplified the troubled practices of savings and loans in
the 1980s. The failure of the institution ultimately cost federal
taxpayers approximately $65 million. Congresswoman Waters put it
this way in a 1995 hearing: "By any standard, Madison Guaranty was
a disaster. ... It gambled with investments, cooked the books and
ultimately bilked the taxpayers of the United States. Madison is a
metaphor for the S&L crisis."
The McDougals' operation of Madison raised serious questions
whether bank funds had been used illegally to assist business and
political figures in Arkansas such as Jim Guy Tucker and then
Governor Clinton. As to the Clintons, the question arose primarily
because they were partners with the McDougals in the Whitewater
Development Company. The Whitewater corporation initially controlled
and developed approximately 230 acres of property on the White River
in Northern Arkansas. Given Jim McDougal's role at the center of both
institutions and given Whitewater's constant financial difficulties, there
were two important questions: Were Madison funds diverted to benefit
Whitewater? If so, were the Clintons either involved in or
knowledgeable of that diversion of funds?
These questions were not idle speculation. In early 1994, a Little
Rock judge and businessman David Hale pled guilty to certain
unrelated federal crimes. As part of his plea, David Hale told Mr.
Fiske's team that he had received money as a result of a loan from
Madison in 1986 and that his company loaned it to others as part of a
scheme to help some members of the Arkansas political
establishment.
One loan of $300,000 went to Susan McDougal's make-believe
company, Master Marketing. Based on our investigation, we now
know that some $50,000 of the proceeds of that loan went to benefit
the Whitewater corporation. David Hale stated that he had discussed
the Susan McDougal loan with Governor Clinton, including at a
meeting in 1986 with Jim McDougal and the governor.
In August 1994, when I first arrived in Little Rock, we devised a plan.
First, based on the testimony of David Hale and others, as well as
documentary evidence, we would take steps, if appropriate, to seek
an indictment of Jim and Susan McDougal and others involved in what
clearly appeared to be criminal transactions. If a Little Rock jury
convicted the McDougals or others, we would then obtain their
testimony and determine whether they had other relevant information
– including, of course, whether the McDougals possessed information
that would either exonerate or incriminate the Clintons as to Madison
and Whitewater matters.
This approach was the time-honored and professional way to conduct
the investigation. We garnered a number of guilty pleas in my first
year, including from Webster Hubbell, who had worked at the Rose
Law Firm and was knowledgeable about its work with Madison,
including that of Mrs. Clinton. In addition, Robert Palmer, a real estate
appraiser, pled guilty to fraudulently doctoring Madison documents to
deceive federal bank examiners. Three other associates of McDougal
pled guilty and agreed to cooperate.
In August 1995, a year after I was appointed, a federal grand jury in
Little Rock indicted Jim and Susan McDougal and the then-sitting
Governor of Arkansas Jim Guy Tucker. The case went to trial in
March 1996 amid charges by all three defendants – and their allies –
that the case was a political witch hunt. Some predicted that an
Arkansas jury would never convict the sitting governor. Those
expectations were heightened when President Clinton was
subpoenaed as a defense witness. The president testified for the
defense from the Map Room of the White House. During his sworn
testimony, the president testified that did not know about the Susan
McDougal loan nor had he ever been in a meeting with Hale and
McDougal about the loan. He also testified that he had never received
a loan from Madison. This was important testimony. Its truth – or
falsity – went to the core issue of our investigation
On May 28, 1996, all three defendants were convicted – Jim
McDougal of 18 felonies, Susan McDougal of four felonies, and
Governor Tucker of two felonies. Governor Tucker announced his
resignation that day.
After his conviction, Jim McDougal began cooperating with our
investigation. We spent many hours with him gaining additional
insights and facts. He informed our career investigators and
prosecutors that David Hale was accurate. According to Jim
McDougal, President Clinton had testified falsely at the
McDougal-Tucker trial. Jim McDougal testified he had been at a
meeting with David Hale and Governor Clinton about the Master
Marketing loan. And Jim McDougal testified that Governor Clinton had
received a loan from Madison. Jim McDougal said on one of his first
sessions with our office that the president's trial testimony was, in his
words, "at variance with the truth."
In late 1997, we considered whether this evidence justified a referral to
Congress. We drafted a report. But we concluded that it would be
inconsistent with the statutory standard because of the difficulty of
establishing the truth with a sufficient degree of confidence. We also
weighed a prudential factor in reaching that conclusion. There were
still two outstanding witnesses who might later corroborate – or
contradict – the McDougal and Hale accounts: Jim Guy Tucker and
Susan McDougal.
In 1998, we were finally able to obtain information from Governor
Tucker. It had taken four long years to hear from the governor. He pled
guilty in a tax conspiracy case. When Governor Tucker ultimately
testified before the Little Rock grand jury in March and April of this
year, he had little knowledge of the loan to Susan McDougal's
fictitious company and the president's possible involvement in it. He
did shed light on the overall transactions involving Castle Grande and
Madison. Importantly, as to one subject, Governor Tucker exonerated
the president regarding long-standing questions whether the president
and Governor Tucker had a conversation about the Madison referrals
in the White House in October 1993.
The remaining witness who perhaps could shed light on the issue was
Susan McDougal. And therein lies a story that has caused literally
years of delay and added expense to the investigation.
Because the proceeds from the fraudulent loan Susan McDougal
received had benefited the Clintons – the proceeds were used to pay
obligations of the Whitewater Development Company for which the
Clintons were potentially personally liable – Susan McDougal was
subpoenaed to testify before the grand jury in August 1996 and asked
several questions at the heart of the investigation, including:
"Did you ever discuss your loan from David Hale with William
Jefferson Clinton?"
"To your knowledge, did William Jefferson Clinton testify truthfully
during the course of your trial?"
Susan McDougal refused to answer any of the questions. District
Judge Susan Webber Wright then held her in civil contempt, a
decision later upheld by the United States Court of Appeals.
The month of September 1996 thus was a crucial time for our office in
its attempt to obtain Susan McDougal's truthful testimony. On Sept.
23, 1996, just two weeks after Ms. McDougal had been found in
contempt by Judge Wright, President Clinton was interviewed on
PBS. The president said, "There's a lot of evidence to support" various
charges that Susan McDougal had made against this office. But the
president cited no evidence.
The president's comments can reasonably be described as supportive
of Ms. McDougal's decision to disobey the court order. So far as we
are aware, no sitting president has ever publicly indicated his
agreement with a convicted felon's stated reason for refusing to obey
a federal court order to testify. Essentially, the president of the United
States, the chief executive, sided with a convicted felon against the
United States, as represented by United States District Judge Susan
Webber Wright, the United States Court of Appeals for the Eighth
Circuit, and the Office of Independent Counsel.
The president was also asked in this interview whether he would
consider pardoning Ms. McDougal. The president refused to rule out a
pardon.
The president's answers to these questions were roundly criticized. A
New York Times editorial captured the point well, stating that the
president's remarks "undercut a legal process that is going forward in
an orderly way."
C. Madison Guaranty: Mrs. Clinton and Webster Hubbell
A separate area of our original investigation concerned the Rose Law
Firm's work in 1985 and 1986 for Madison. It appeared that Rose may
have assisted Madison in performing legal work concerning a piece of
property (IDC/Castle Grande), which involved McDougal, Madison,
and fraudulent transactions. The complicated real estate deal known
as Castle Grande was structured to avoid state banking regulatory
requirements and involved violations of federal criminal law.
Grand jury subpoenas were issued in 1994 and 1995 to the Rose Law
Firm and to the president and Mrs. Clinton seeking all documents
relating to Madison and Castle Grande. We ultimately learned that
Mrs. Clinton had performed some work related to Madison's
IDC/Castle Grande transactions, but the whole issue remained
partially enshrouded in mystery as our office and the Senate
Whitewater Committee investigated the issue in 1995.
The problem was that some of the best evidence regarding Mrs.
Clinton's work – her Rose Law Firm billing records and her time
sheets for 1985 and 1986 – could not be found. The missing records
raised suspicions by late 1995 and became a public issue. Webster
Hubbell and Vincent Foster had been responsible during the 1992
campaign for gathering information about Mrs. Clinton's work for
Madison. Yet the billing records could not be found. The Rose firm's
work for Madison could not be fully pieced together. The Rose firm no
longer had the records.
On Jan. 5, 1996, the records of Mrs. Clinton's activities at Madison
were finally produced under unusual circumstances. The records
detailed Mrs. Clinton's work on a variety of Madison issues, including
the preparation of an option agreement that Madison used to deceive
federal bank examiners as part of the Castle Grande deal. After a
thorough investigation, we have found no explanation how the billing
records got where they were or why they were not discovered and
produced earlier. It remains a mystery to this day. Then, in the
summer of 1997, a second set of these billing records was found in
the attic of the late Vincent Foster's house in Little Rock. The time
sheets for Rose's 1985-86 Madison work have never been found.
We should note that Webster Hubbell may have additional information
pertaining to Castle Grande – whether exculpatory or inculpatory –
that we have been unable to obtain. Mr. Hubbell was at the Rose law
firm at the relevant time in 1985 and 1986, he gathered information
about the Madison issue in the 1992 campaign, and his father-in-law
Seth Ward was involved in the Castle Grande deal.
Two other important facts suggest that Mr. Hubbell may have
additional information. First, on March 13, 1994, after a meeting at the
White House where it had been discussed that Mr. Hubbell would
resign from the Justice Department, then-Chief of Staff Mack McLarty
told Mrs. Clinton that "We're going to be supportive of Webb."
As this criminal investigation was beginning in 1994 under Bob Fiske
and later my office, Mr. Hubbell received payments totaling nearly
$550,000 from several companies and individuals. Many were
campaign contributors. These individuals had been contacted through
the White House chief of staff, Mr. McLarty. In June 1994, during a
week in which he made several visits to the White House, Indonesian
businessman James Riady met with Webster Hubbell and then wired
him $100,000. One of the individuals who arranged for Mr. Hubbell to
receive a consulting contract was Vernon Jordan. The company that
he convinced to hire Hubbell was MacAndrews & Forbes, parent
company of Revlon – the same company that later hired Monica
Lewinsky upon Mr. Jordan's recommendation. As he was destined
later to do with Monica Lewinsky, Mr. Jordan personally informed the
president about his assistance to Mr. Hubbell.
Most of the $550,000 was given to Mr. Hubbell for little or no work.
This rush of generosity obviously gives rise to an inference that the
money was essentially a gift. And if it was a gift, why was it given?
This money was given despite the fact that Mr. Hubbell was under
criminal investigation for fraudulent billing and was a key witness in
the Madison Guaranty investigation.
Second, as is known to the public, on certain prison tapes while Mr.
Hubbell was in prison, he said to his wife: "I won't raise those
allegations that might open it up to Hillary." On another tape, Mr.
Hubbell said to White House employee Marsha Scott that he might
"have to roll over one more time."
Mr. Hubbell's statements – when combined with the amount of money
he received and the information he was in a position to know – raise
some very troubling questions. Mr. Hubbell is currently under federal
indictment, and it would be inappropriate to say more about that at
this time.
D. Travel Office.
Let me add a few brief words about the Travel Office matter. This
phase of work arose out of investigations by others of the 1993 firings
of Billy Dale and six career co-workers. We do not anticipate that any
evidence gathered in that investigation will be relevant to the
committee's current task. The president was not involved in our Travel
Office investigation.
As to the status of that investigation, it was on hold for quite a while,
in part because of litigation. The investigation is not terminated, but
we expect to announce any decisions and actions soon.
E. FBI Files
As to the FBI files matter, there are outstanding issues that we are
attempting to resolve with respect to one individual. But I can address
two issues of relevance to the committee's work. First, our
investigation, which has been thorough, found no evidence that
anyone higher than Mr. Livingstone or Mr. Marceca was in any way
involved in ordering the files from the FBI. Second, we have found no
evidence that information contained in the files of former officials was
used for an improper purpose.
VI. Office of Independent Counsel
A. Staff
Let me now mention a few words about our personnel, about our
process, and about our reflections on this investigation. The character
and conduct of the men and women of our office – career
professionals who take their jobs and their oaths very seriously – have
been badly distorted. Perhaps that is inevitable given the nature of the
issues involved in this case and the fact that the president of the
United States is the subject of a criminal investigation. But it is
regrettable. And so let me offer some truth about the office.
I will start with our personnel. During the Lewinsky investigation, my
staff has included skilled and experienced prosecutors from around
the country. They have brought an enormous amount of experience
and expertise to the office. My colleagues during the past year have
included a former United States attorney; the chief of the public
corruption unit of the United States attorney's office in Los Angeles;
the chief of the public corruption unit of the United States attorney's
office in Miami; the chief of the bank fraud unit of the United States
attorney's office in San Antonio; prosecutors with lengthy experience
in the public integrity section of the Department of Justice; seasoned
federal prosecutors from 10 different states and the District of
Columbia; and veteran state prosecutors from Maryland and Oregon.
The office also has benefited from the assistance of Sam Dash, chief
counsel to the Senate Watergate Committee, who has offered great
wisdom throughout my tenure as independent counsel. Professor
Ronald Rotunda, constitutional law scholar from the University of
Illinois, similarly has provided important advice on a variety of issues.
The office also has received assistance from professors at the
University of Michigan, the University of Illinois, Notre Dame, and
George Washington. Moreover, former law clerks for six different
Supreme Court justices have served on my staff during the past year.
During the Lewinsky investigation, the office also relied on many
talented investigators with extensive service in the FBI and other law
enforcement agencies. And the FBI laboratory yet again provided
superb assistance, as it has throughout the Madison/Whitewater
investigation.
In addition, let me express my great appreciation for the grand jurors
who devoted much time and energy to examining the witnesses and
considering the evidence. Those 23 citizens of the District of
Columbia have performed invaluable service, and I publicly thank
them. This is the rare case where grand jury transcripts become
publicly scrutinized, and as you now know, these grand jurors were
active, knowledgeable, fair, and completely dedicated to uncovering
and understanding the truth.
B. The Process
In all of our investigations, difficult decisions have been taken through
our office's deliberative process. The process calls upon each
attorney – drawing upon his or her background and experience – to
offer views on issues in question. This deliberative process is
laborious, sometimes tedious. But it is an attempt to ensure that our
office makes the best decisions it can. I have drawn upon a vast array
of experienced prosecutors and investigators because I was sensitive
to – and am sensitive to – the fact that an independent counsel exists
outside the Justice Department and is an unusual entity within our
constitutional system.
Throughout this investigation, we have made every effort to follow
Department of Justice practice and policy and to utilize time-honored
law enforcement techniques. Of course, with their vast experience in
the department and FBI, my prosecutors and investigators embody
such policy and practice. Nonetheless, it was often the case during
an all-attorneys meeting that we would repair to the United States
Attorney's Manual to be sure we had it right. It is true that some
traditional law enforcement procedures may not be entirely
comfortable for some witnesses. But the procedures have been
refined over decades of practice in which society's right to detect and
prosecute crime has been balanced against individual liberty. It was
not our place to reinvent the investigative wheel. Nor was it our place
to discard law enforcement practices that are used every day by
prosecutors and police throughout the country.
C. Decisions During the Investigation
With that, let me be the first to say that the Lewinsky investigation, in
particular, presented some of the most challenging issues any lawyer
could face. We had to make numerous difficult decisions – and often
had to do so quickly. Those included factual judgments (is witness X
or witness Y telling us the whole truth?), strategic choices (do we
provide immunity to Ms. Lewinsky in order to obtain her testimony? Is
it appropriate to subpoena the president?), legal decisions (do we
accept the assertion of executive privilege for Bruce Lindsey or do we
go to court to challenge it? What about the asserted Secret Service
privilege?) and historic constitutional judgments (what is the meaning
of Section 595(c) of the independent counsel statute and how do we
write a referral that satisfies its requirements?).
Major decisions during the Lewinsky investigation have not been
easy. And given the hurricane-force political winds swirling about us,
we were well aware that, no matter what decision we made, criticism
would come from somewhere. As Attorney General Reno has said, in
high-profile cases like these, you are damned if you do and damned if
you don't, so you'd better just do what you think is the right and fair
thing.
We also attempted to be thorough. But we did not invent that
approach just for the Lewinsky case. To take just one previous
example, in investigating matters relating to the death of Vincent
Foster, we were painstaking in examining evidence, questioning
witnesses, and calling upon experts in homicide and suicide. We
were criticized during that investigation for being too thorough, taking
too long. But time has proved the correctness of our approach. After
an extensive investigation, the office produced a report that addressed
the many questions, confronted the difficult issues, laid out new
evidence, and reached a definitive conclusion. Over time, the
controversy over the Foster tragedy has dissipated because we
insisted on being uncompromisingly thorough both in the investigation
and in our report.
After the attorney general and the Court of Appeals assigned us the
Lewinsky investigation, the office again received criticism for being too
thorough. But the Lewinsky investigation could not be properly
conducted in a slapdash manner. It was our duty to be meticulous, to
be careful. We were. And in the process, we uncovered substantial
and credible evidence of serious legal wrongdoing by the president.
Some then suggested that the report we submitted to Congress was
too thorough. But bear in mind that we submitted the referral, as we
were required by statute, to the House of Representatives, not to the
public. And we must dispute the suggestion that a report to the
House suggesting possible impeachable offenses committed by the
president of the United States should tell something less than the full
story. The facts, the story, are critical – they affect credibility, they
are necessary to avoid a distorted picture, they ultimately are the
basis for a just conclusion. As a result, just as the jurors found the
details of specific land deals critical in our trial of Governor Jim Guy
Tucker and the McDougals, just as the Supreme Court includes the
details of grisly murders in its death penalty cases, so too the details
of the president's relationship with Ms. Lewinsky became relevant –
indeed, critical – in determining whether and the extent to which the
president made false statements under oath and otherwise obstructed
justice in both the Jones v. Clinton case and then again in his grand
jury testimony.
As you know, by an overwhelming bipartisan vote, the House
immediately disclosed our referral to the public. But I want to be clear
that the public disclosure or nondisclosure of the referral and the
backup materials was a decision our office did not make – and
lawfully could not make. We had no way of knowing in advance of
submitting the referral, and we did not know, whether the House
would publicly release both the report and the backup materials;
would release portions of one or both; would release redacted
versions of the report and backup documents; would prepare and
release a summary akin to Mr. Schippers' oral presentation; or would
simply keep the referral and backup materials under seal just as
Special Prosecutor Jaworski's submission in 1974 remained under
seal. As a result, we respectfully but firmly reject the notion that our
office was trying to inflame the public. We are professionals, and we
were trying to get the relevant facts, the full story, to the House of
Representatives. That was our task. And that is what we did.
In fact, the referral has served a purpose. There has been virtually no
dispute about a good many of the factual conclusions in the report. In
the wake of the referral, for example, few have ventured that the
president told the truth, the whole truth, and nothing but the truth in
his civil case and before the grand jury. A key reason, we submit, is
that we insisted – as we have in our other investigations – that we be
exhaustive in the investigation and that we document the facts and
conclusions in our report.
D. Reflections
I want to be absolutely clear on one point, however. Any suggestion
that the men and women of our office enjoyed or relished this
investigation is wrong. It is nonsense. In at least three ways, the
Lewinsky investigation caused all of us considerable dismay – and
continues to do so.
First, none of us has any interest whatsoever in investigating the
factual details underlying the allegations of perjury and obstruction of
justice in this case. My staff and I agree with the sentiments
expressed by Chairman Hyde in the Nov. 9 hearing when he said "I'd
like to forget all of this. I mean, who needs it?" But the Constitution
and the criminal law do not have exceptions for unseemly or
unpleasant or difficult cases. The attorney general and the Court of
Appeals assigned us a duty to pursue the facts. And we did so.
Second, this investigation has proved difficult for us because it
centered on legal wrongdoing by the president of the United States.
The presidency is an office that we – like all Americans – revere and
respect. No prosecutor is comfortable when he or she reports
wrongdoing by the president. All of us want to believe that our
president has at all times acted with integrity – and certainly that he
has not violated the criminal law.
Everyone in my office therefore envies the position years ago of Paul
Curran, the distinguished counsel appointed by Attorney General
Griffin Bell to investigate certain financial transactions involving
President Carter. Mr. Curran received complete cooperation from
President Carter, found no wrongdoing, and promptly returned to
private life. I would like to do the same.
Third, this investigation was unpleasant because our office knew that
some Americans, for a variety of reasons, would be opposed to our
work. But we would not, could not, allow ourselves to be deterred from
doing our work. As I have said, our office was assigned a specific
duty to gather the facts and then, if appropriate, to make decisions
and report the facts as quickly as we possibly could. In the end, we
tried to adhere to the principle Congressman Graham discussed on
Oct. 5: Thirty years from now, not 30 days from now, we want to be
able to say that we did the right thing.
E. The Independent Counsel
At the end of the day, I – and no one else – was responsible for our
key decisions. And my background thus warrants brief note.
I came to this job as a product of the judicial process, of the courts. I
began my legal career in 1973 as a law clerk, first for Judge David
Dyer on the Fifth Circuit Court of Appeals and then for two years for
Chief Justice Warren Burger. Following my clerkships, I was in private
law practice in Los Angeles and Washington, during which time I
worked on all manner of litigation matters – civil, administrative, and
criminal.
After William French Smith took office as attorney general in January
1981, I served as counselor to the attorney general from 1981 to
1983. In that capacity, I experienced firsthand the varied and difficult
judgment calls that faced the attorney general every day – whether it
was dealing with the aftermath of the attempted assassination of
President Reagan or selecting a Supreme Court nominee, in that
case Justice Sandra Day O'Connor. I took away from the experience
an admiration that has continued to this day for the career Justice
Department lawyers, prosecutors, and law enforcement officials who
toil without fanfare, and for whom the guiding principles are fairness
and respect for the law.
In 1983, President Reagan nominated and the Senate confirmed me
to be a judge on the United States Court of Appeals for the District of
Columbia Circuit. I became a colleague on a court with truly great
judges – from J. Skelley Wright to Antonin Scalia, from Ruth
Ginsburg to Robert Bork – and tackled the important and intricate
issues that came before the D.C. Circuit. The cases included issues
as diverse as the constitutional right of a military serviceman to wear
a yarmulke (a right I supported in vain) and the right of a newspaper,
in that case The Washington Post, to be free under the First
Amendment from the crushing threat of liability under the libel laws.
In 1989, I accepted appointment as solicitor general of the United
States. The solicitor general is, as you know, the lawyer who
represents the United States in arguments before the Supreme Court.
A distinguished predecessor, Thurgood Marshall, often stated that
being solicitor general was the greatest job a lawyer could have, bar
none. Justice Marshall had it right. As solicitor general, I argued 25
cases before the Supreme Court. The arguments covered the
spectrum of our law including whether flag burning is a protected right
under the Constitution, whether there is a constitutional right to refuse
unwanted medical treatment near the end of one's life, and whether
the Senate's decision to convict and remove an impeached judge is
subject to judicial review. While I was solicitor general, my
overarching goal was to run an office faithful to the law, not to political
or ideological opinion – and I think the record shows that I did just
that.
In 1993, I left my second tour of duty in the Justice Department and
returned to private practice and teaching constitutional law. In the
period before I was named independent counsel in August 1994, I was
not completely absent from public service, however. In late 1993, I
was asked by the Senate Ethics Committee, chaired by Nevada's
Democratic Sen. Richard Bryan, to review Senator Packwood's
diaries as part of the Ethics Committee's investigation.
Every person is, of course, deeply affected by his or her experiences.
For my part, my experience is in the law and the courts. I am not a
man of polls, public relations, or politics – which I suppose is obvious
at this point. I am not experienced in political campaigns.
As a product of the law and the courts, I have come to an unyielding
faith in our court system – our system of judicial review, the
independence of our judges, our jury system, the integrity of the oath,
the sanctity of the judicial process. The phrase on the facade of the
Supreme Court "Equal Justice Under Law," the inscription inside the
Justice Department building, "the United States wins its point when
justice is done its citizens in the courts," are more than slogans.
They are principles that the courts in this country apply every day.
Our office saw that firsthand in the trial of Governor Jim Guy Tucker,
Jim McDougal, and Susan McDougal. A juror said afterwards that
they fought for the defendants' liberty, but were overwhelmed by the
evidence. It is our judicial process that helps make this country
distinct. And my background, my instincts, my beliefs have instilled
in me a deep respect for the legal process that is at the foundation of
our republic.
President Lincoln asked that "reverence for the laws be proclaimed in
legislative halls and enforced in courts of justice." Mr. Chairman, my
office and I revere the law. I am proud of what we have accomplished.
We were assigned a difficult job. We have done it to the very best of
our abilities. We have tried to be both fair and thorough.
I thank the committee and the American people for their attention.