WJC: It might have been. . . . So, what I was trying to do was to give them something they could -- that would be true, even if misleading in the context of this deposition, and keep them out of trouble, and let's deal -- and deal with what I thought was the almost ludicrous suggestion that I had urged someone to lie or tried to suborn perjury, in other words.⁽⁴⁶³⁾

C. Summary

The President made the following misleading statements to his aides:

The President told Mr. Podesta that he had not engaged in sex "in any way whatsoever" with Ms. Lewinsky, "including oral sex".

The President told Mr. Podesta, Mr. Bowles, and Mr. Ickes that he did not have a "sexual relationship" with Ms. Lewinsky.

The President told Mr. Podesta that "when [Ms. Lewinsky] came by, she came by to see Betty [Currie]."

The President told Mr. Blumenthal that Ms. Lewinsky "came on to him and that he had told her he couldn't have sexual relations with her and that she threatened him."

The President told Mr. Blumenthal that he couldn't remember making any calls to Ms. Lewinsky other than once when he left a message on her answering machine.

During the President's grand jury testimony, the President admitted that his statements to aides denying a sexual relationship with Ms. Lewinsky "may have been misleading."⁽⁴⁶⁴⁾ The President also knew his aides likely would be called to testify regarding any communications with him about Ms. Lewinsky. And he presumably expected his aides to repeat his statements regarding Ms. Lewinsky to all questioners, including to the grand jury. Finally, he himself refused to testify for many months. The combination of the President's silence and his deception of his aides had the effect of presenting a false view of events to the grand jury.

The President says that at the time he spoke to his aides, he chose his words with great care so that, in his view, his statements would be literally true because he was referring only to intercourse. That explanation is undermined by the President's testimony before the grand jury that his denials "may have been misleading" and by the contradictory testimony by the aides themselves -- particularly John Podesta, who says that the President specifically denied oral sex with Ms. Lewinsky. Moreover, on January 24, 1998, the White House issued talking points for its staff, and those talking points refute the President's literal truth argument: The talking points state as the President's view the belief that a relationship that includes oral sex is "of course" a "sexual relationship."⁽⁴⁶⁵⁾

For all of these reasons, there is substantial and credible information that the President improperly tampered with witnesses during the grand jury investigation.

XI. There is substantial and credible information that President Clinton's actions since January 17, 1998, regarding his relationship with Monica Lewinsky have been inconsistent with the President's constitutional duty to faithfully execute the laws.

Before, during, and after his January 17, 1998, civil deposition, the President attempted to conceal the truth about his relationship with Ms. Lewinsky from the judicial process in the Jones case. Furthermore, the President has since lied under oath to the grand jury and facilitated the provision of false information to the grand jury by others.

The President also misled the American people and the Congress in his public statement of January 26, 1998, in which he denied "sexual relations" with Ms. Lewinsky. The President misled his Cabinet and his senior aides by denying the relationship to them. The Cabinet and senior aides in turn misled the American people and the Congress by conveying the President's denials and professing their belief in the credibility of those denials.

The President promised in January 1998 to cooperate fully with the grand jury investigation and to provide "more rather than less, sooner rather than later." At that time, the OIC was conducting a criminal investigation and was obligated to report to Congress any substantial and credible information that may constitute grounds for an impeachment.

The President's conduct delayed the grand jury investigation (and thereby delayed any potential congressional proceedings). He asserted, appealed, withdrew, and reasserted Executive Privilege (and asserted other governmental privileges never before applied in federal criminal proceedings against the government). The President asserted these privileges concerning the investigation of factual questions about which the President already knew the answers. The President refused six invitations to testify voluntarily before the grand jury. At the same time, the President's aides and surrogates argued publicly that the entire matter was frivolous and that any investigation of it should cease.

After being subpoenaed in July, the President made false statements to the grand jury on August 17, 1998. That night, the President again made false statements to the American people and Congress, contending that his answers in his civil deposition had been "legally accurate." The President then made an implicit plea for Congress to take no action: "Our country has been distracted by this matter for too long."⁽⁴⁶⁶⁾

The President has pursued a strategy of (i) deceiving the American people and Congress in January 1998, (ii) delaying and impeding the criminal investigation for seven months, and (iii) deceiving the American people and Congress again in August 1998.

A. Beginning on January 21, 1998, the President misled the American people and Congress regarding the truth of his relationship with Ms. Lewinsky.

On January 21, 1998, the day the Washington Post first reported the Lewinsky matter, the President talked to his long-time advisor Dick Morris. With the President's approval, Mr. Morris commissioned a poll that evening. The results indicated that voters were willing to forgive the President for adultery but not for perjury or obstruction of justice.⁽⁴⁶⁷⁾ When the President telephoned him that evening, Mr. Morris explained that the President thus should not go public with a confession or explanation.⁽⁴⁶⁸⁾ According to Mr. Morris, the President replied, "Well, we just have to win, then."⁽⁴⁶⁹⁾

The next evening, the President dissuaded Mr. Morris from any plan to "blast[] Monica Lewinsky 'out of the water.'" The President indicated that "there's some slight chance that she may not be cooperating with Starr and we don't want to alienate her."⁽⁴⁷⁰⁾

The President himself spoke publicly about the matter several times in the initial days after the story broke. On January 26, the President was definitive: "I want to say one thing to the American people. I want you to listen to me. I'm going to say this again: I did not have sexual relations with that woman, Miss Lewinsky. I never told anybody to lie, not a single time. Never. These allegations are false."⁽⁴⁷¹⁾

The President's emphatic denial to the American people was false. And his statement was not an impromptu comment in the heat of a press conference. To the contrary, it was an intentional and calculated falsehood to deceive the Congress and the American people.⁽⁴⁷²⁾

B. The First Lady, the Cabinet, the President's staff, and the President's associates relied on and publicly emphasized the President's denial.

After the President lied to the American people, the President's associates argued that the allegations against the President were false and even scurrilous.

Mrs. Clinton forcefully denied the allegations on January 27, 1998, one day after the President's public denial. She admitted that the American people "should certainly be concerned" if a President had an affair and lied to cover it up. She acknowledged that it would be a "very serious offense." But she emphasized that the allegations were false -- a "pretty bad" smear. She noted that the President "has denied these allegations on all counts, unequivocally." And Mrs. Clinton shifted the focus away from the President, indicated that "this is a battle" and stated that "some folks are going to have a lot to answer for" when the facts come out.⁽⁴⁷³⁾

The most senior officials in the Executive Branch served as additional (albeit unwitting) agents of the President's deception. The Cabinet and White House aides stated emphatically that the allegations were false. For example, White House spokesperson Michael McCurry was asked whether the President's denial covered all forms of sexual contact, and Mr. McCurry stated that "I think every American that heard him knows exactly what he meant."⁽⁴⁷⁴⁾ So, too, White House Communications Director Ann Lewis said on January 26, 1998: "I can say with absolute assurance the President of the United States did not have a sexual relationship because I have heard the President of the United States say so. He has said it, he could not be more clear. He could not have been more direct."⁽⁴⁷⁵⁾ She added: "Sex is sex, even in Washington. I've been assured."⁽⁴⁷⁶⁾

After a Cabinet meeting on January 23, 1998, in which the President offered denials, several members of the Cabinet appeared outside the White House. Secretary of State Albright stated: "I believe that the allegations are completely untrue."⁽⁴⁷⁷⁾ Coupled with the President's firm denial, the united front of the President's closest advisors helped shape perception of the issue.

C. The President repeatedly and unlawfully invoked the Executive Privilege to conceal evidence of his personal misconduct from the grand jury.

When the allegations about Ms. Lewinsky first arose, the President informed the American people that he would cooperate fully. He told Jim Lehrer that "we are doing our best to cooperate here."⁽⁴⁷⁸⁾ He told National Public Radio that "I have told people that I would cooperate in the investigation, and I expect to cooperate with it. . . . I'm going to do my best to cooperate with the investigation."⁽⁴⁷⁹⁾ He told Roll Call "I'm going to cooperate with this investigation. . . . And I'll cooperate."⁽⁴⁸⁰⁾

Such cooperation did not occur. The White House's approach to the constitutionally based principle of Executive Privilege most clearly exposed the non-cooperation. In 1994, White House Counsel Lloyd Cutler issued an opinion that the Clinton Administration would not invoke Executive Privilege for cases involving personal wrongdoing by any government official.⁽⁴⁸¹⁾ By 1998, however, the President had blended the official and personal dimensions to the degree that the President's private counsel stated in a legal brief filed in the U.S. Court of Appeals for the District of Columbia Circuit: "In a very real and significant way, the objectives of William J. Clinton, the person, and his Administration (the Clinton White House) are one and the same."⁽⁴⁸²⁾

After the Monica Lewinsky investigation began, the President invoked Executive Privilege for the testimony of five witnesses: Bruce Lindsey, Cheryl Mills, Nancy Hernreich, Sidney Blumenthal, and Lanny Breuer. These claims were patently groundless. Even for official communications within the scope of the privilege, the Supreme Court ruled unanimously in 1974 in United States v. Nixon⁽⁴⁸³⁾ that the Executive Privilege gives way in the face of the compelling need for evidence in criminal proceedings.

The President's assertion of Executive Privilege for Ms. Hernreich, an assistant who manages the secretarial work for the Oval Office,⁽⁴⁸⁴⁾ was frivolous. At the time that the President was asserting Executive Privilege for one assistant, the President's other assistant (Betty Currie) had already testified extensively.

Based on Nixon, the OIC filed a motion to compel the testimony of Hernreich, Lindsey, and Blumenthal. The United States District Court held a hearing on March 20. Just before the hearing, the White House -- without explanation -- dropped its Executive Privilege claim as to Ms. Hernreich.⁽⁴⁸⁵⁾

On May 4, 1998, Chief Judge Norma Holloway Johnson ruled against the President on the Executive Privilege issue.⁽⁴⁸⁶⁾ After the White House filed a notice of appeal, the OIC filed an expedited petition for certiorari before judgment in the Supreme Court. The President thereupon dropped his claim of Executive Privilege.

The tactics employed by the White House have not been confined to the judicial process. On March 24, while the President was traveling in Africa, he was asked about the assertion of Executive Privilege. He responded, "You should ask someone who knows." He also stated "I haven't discussed that with the lawyers. I don't know."⁽⁴⁸⁷⁾

This was untrue. Unbeknownst to the public, in a declaration filed in District Court on March 17 (seven days before the President's public expression of ignorance), White House Counsel Charles F.C. Ruff informed Chief Judge Johnson that he "ha[d] discussed" the matter with the President, who had directed the assertion of Executive Privilege.⁽⁴⁸⁸⁾

The deception has continued. Because the President withdrew his Executive Privilege claim while the case was pending in the Supreme Court of the United States, it was assumed that the President would no longer assert Executive Privilege. But that assumption proved incorrect. White House attorney Lanny Breuer appeared before the grand jury on August 4, 1998, and invoked Executive Privilege. He would not answer, for example, whether the President had told him about his relationship with Monica Lewinsky and whether they had discussed the gifts he had given to Monica Lewinsky.⁽⁴⁸⁹⁾ On August 11, 1998, Chief Judge Johnson denied the Executive Privilege claim as a basis for refusing to testify, and ordered Mr. Breuer to testify.⁽⁴⁹⁰⁾

On August 11, 1998, Deputy White House Counsel Cheryl Mills testified and repeatedly asserted Executive Privilege at the President's direction.⁽⁴⁹¹⁾ The breadth of the claim was striking: The privilege was asserted not only for Ms. Mills's communications with the President, senior staff, and staff members of the White House Counsel's Office -- but also for Ms. Mills's communications with private lawyers for the President, private lawyers for grand jury witnesses, and Betty Currie.⁽⁴⁹²⁾

On August 17, the President testified before the grand jury. At the request of a grand juror, the OIC asked the President about his assertions of Executive Privilege and why he had withdrawn the claim before the Supreme Court. The President replied that "I didn't really want to advance an executive privilege claim in this case beyond having it litigated, so that we, we had not given up on principal [sic] this matter, without having some judge rule on it. . . . I strongly felt we should not appeal your victory on the executive privilege issue."⁽⁴⁹³⁾

Four days after this sworn statement, on August 21, 1998, the President filed a notice of appeal with respect to the Executive Privilege claim for Lanny Breuer that Chief Judge Johnson had denied ten days earlier (and six days before the President's testimony). In addition, Bruce Lindsey appeared again before the grand jury on August 28, 1998, and the President again asserted Executive Privilege with respect to his testimony -- even though the President had dropped the claim of Executive Privilege for Mr. Lindsey while the case was pending before the Supreme Court of the United States in June.⁽⁴⁹⁴⁾

The Executive Privilege was not the only claim of privilege interposed to prevent the grand jury from gathering relevant information. The President also acquiesced in the Secret Service's attempt to have the Judiciary craft a new protective function privilege (rejecting requests by this Office that the President order the Secret Service officers to testify). The District Court and the U.S. Court of Appeals for the District of Columbia Circuit rejected the privilege claim. The litigation was disruptive to the Secret Service and to the grand jury. The frivolity of the claim is evidenced by the Chief Justice's decision to reject the Secret Service's request for a stay without even referring the matter to the full Court. All of that litigation would have been unnecessary had the President testified in February instead of August, or had he taken the position that relevant facts should be fully available to the grand jury.

D. The President refused six invitations to testify to the grand jury, thereby delaying expeditious resolution of this matter, and then refused to answer relevant questions before the grand jury when he testified in August 1998.

>This Office extended six separate invitations to the President to testify before the grand jury. The first invitation was issued on January 28, 1998. The OIC repeated the invitations on behalf of the grand jury on February 4, February 9, February 21, March 2, and March 13. The President declined each invitation. His refusals substantially delayed this Office's investigation.

Finally, in the face of the President's actions, this Office asked the grand jury to consider issuing a subpoena to the President. The grand jury deliberated and approved the issuance of a subpoena. On July 17, 1998, the OIC served the subpoena, in accordance with the grand jury's action, on the President's private counsel. The subpoena required the President to appear on July 28.

The President sought to delay his testimony.⁽⁴⁹⁵⁾ Shortly after a hearing before the District Court on the President's motion for a continuance, the President and the OIC reached an agreement by which the President would testify on August 17 via live video feed to the grand jury. In a Rose Garden ceremony on July 31, 1998, the President stated to the country: "I'm looking forward to the opportunity . . . of testifying. I will do so completely and truthfully."⁽⁴⁹⁶⁾

At the outset of his grand jury appearance, the President similarly stated: "I will answer each question as accurately and fully as I can."⁽⁴⁹⁷⁾ The President then read a prepared statement in which he admitted "inappropriate intimate contact" with Ms. Lewinsky.⁽⁴⁹⁸⁾ Despite his statement that he would answer each question, the President refused to answer specific questions about that contact (other than to indicate that it was not intercourse and did not involve the direct touching of Ms. Lewinsky's breasts or genitals).⁽⁴⁹⁹⁾

E. The President misled the American people and the Congress in his public statement on August 17, 1998, when he stated that his answers at his civil deposition in January had been "legally accurate."

The President addressed the Nation on the evening of August 17, 1998, after his grand jury appearance. The President did not tell the truth. He stated: "As you know, in a deposition in January, I was asked questions about my relationship with Monica Lewinsky. While my answers were legally accurate, I did not volunteer information."⁽⁵⁰⁰⁾ As this Referral has demonstrated, the President's statements in his civil deposition were not "legally accurate," and he could not reasonably have thought they were. They were deliberate falsehoods designed to conceal the truth of the President's sexual relationship with Monica Lewinsky.

The President's claim that his testimony during the civil deposition was legally accurate -- which he made to the grand jury and to the American people on August 17 -- perpetuates the deception and concealment that has accompanied his relationship with Monica Lewinsky since his first sexual encounter with her on November 15, 1995.

F. Summary

In this case, the President made and caused to be made false statements to the American people about his relationship with Ms. Lewinsky. He also made false statements about whether he had lied under oath or otherwise obstructed justice in his civil case. By publicly and emphatically stating in January 1998 that "I did not have sexual relations with that woman" and these "allegations are false," the President also effectively delayed a possible congressional inquiry, and then he further delayed it by asserting Executive Privilege and refusing to testify for six months during the Independent Counsel investigation. This represents substantial and credible information that may constitute grounds for an impeachment.

463. Clinton 8/17/98 GJ at 105-109 (emphasis added).

464. Id. at 107.

465. 1512-DC-00000037.

466. Text of President's Address to Nation, reprinted in Washington Post, August 18, 1998, at A5.

467. Morris 8/18/98 GJ at 28.

468. Id. at 30.

469. Id. (emphasis added).

470. Id. at 35.

471. Televised Remarks by President Clinton at the White House Education News Conference, Monday, January 26, 1998, 10:17 a.m.

472. Other than Ms. Lewinsky's status and age, several aspects of the relationship could have raised public concerns.

First, Ms. Lewinsky lost her job at the White House in April 1996 and was transferred to the Pentagon. Under oath, Ms. Lewinsky was asked: "Do you believe that if you hadn't had a sexual relationship with the President that you would have kept your job at the White House?" She answered: "Yes." Lewinsky 8/26/98 Depo. at 60.

Second, Ms. Lewinsky was asked, "Do you believe that your difficulty or inability to return to employment at the White House was because of your sexual relationship with him?" She answered: "Yes. Or the issues that, or that the problems that people perceived that really were based in truth because I had a relationship with the President." Lewinsky 8/26/98 Depo. at 60.

Third, in late 1997, the President saw to it that Ms. Lewinsky received extraordinary job assistance. Such assistance might have been tied to her involvement in the Jones case, as discussed earlier, as well as a benefit to an ex-paramour. If the latter was a factor, then the President's actions discriminated against all of those interns and employees who did not receive the same benefit.

473. NBC News, "Today" Show, interview with Mrs. Clinton by Matt Lauer, Jan. 27, 1998, 1998 WL 5261146.

474. Associated Press, Jan. 27, 1998, 1998 WL 7380187.

475. Nightline, Jan. 26, 1998, 1998 WL 5372969.

476. Associated Press, Jan. 26, 1998.

477. Schmidt and Baker, Ex-Intern Rejected Immunity Offer in Probe, Washington Post, Jan. 24, 1998, at A1.

478. "The NewsHour with Jim Lehrer," PBS, Jan. 21, 1998, 1998 WL 8056086. The President stated later in the interview: "I'll do my best to help them get to the bottom of it."

479. All Things Considered, National Public Radio, Jan. 21, 1998, 1998 WL 3643482.

480. Roll Call Interview, Jan. 21, 1998, 1998 WL 5682372.

481. Lloyd N. Cutler, Legal Opinion of September 28, 1994.

482. Brief for President Clinton, filed June 15, 1998, at 30, In re Lindsey, 148 F.3d 1100 (D.C. Cir. 1998).

483. 418 U.S. 683 (1974).

484. Hernreich 2/25/98 GJ at 5-7.

485. Even though the White House later withdrew the claim, the mere assertion of Executive Privilege as to Ms. Hernreich is important. Such an invocation causes a needless, but substantial, expenditure of litigation resources and delays and impedes the grand jury process. The overuse of Executive Privilege against the United States in the criminal process thus ultimately hinders the faithful execution of the laws -- as the Supreme Court unanimously recognized twenty-four years ago in United States v. Nixon.

486. In re Grand Jury Proceeding, 5 F. Supp. 2d 21 (D.D.C. 1998).

487. John F. Harris, Clinton Finds There's No Escape; In Africa, President Sidesteps Executive Privilege Questions, Wash. Post, Mar. 25, 1998, at A2.

488. Declaration of Charles F.C. Ruff at ¶ 56 (Mar. 17, 1998).

489. Breuer 8/4/98 GJ at 96-97, 108-09.

490. In re Grand Jury Proceedings, Unpublished Order (under seal), August 11, 1998.

491. Mills 8/11/98 GJ at 53-54.

492. Id. at 53, 54, 64-66, 71-74, 77-78.

493. Clinton 8/17/98 GJ at 167 (emphasis added).

494. Lindsey 8/28/98 GJ at 58. The President's use and withdrawal of Executive Privilege was not new to this Office. In August 1996, the White House invoked Executive Privilege to prevent White House attorneys from producing documents regarding their communications with Hillary Rodham Clinton. After the OIC filed a motion to compel in the United States District Court for the Eastern District of Arkansas, the claim was withdrawn, and the White House relied solely on a claim of government attorney-client privilege, which the United States Court of Appeals for the Eighth Circuit rejected. The public never knew at that time of the President's assertion of Executive Privilege in that case.

In 1997, the President again asserted Executive Privilege -- this time to prevent Thomas "Mack" McLarty from testifying fully. The conversations in question related in part to Mr. McLarty's efforts to find employment for Webster Hubbell as Mr. Hubbell was resigning his position as Associate Attorney General. The President withdrew the assertion before the OIC filed a motion to compel.

495. President Clinton's Motion for Continuance, filed July 28, 1998.

496. DeFrank, Prez Vows Cooperation Pledges Complete, Truthful Testimony, N.Y. Daily News, Aug. 1, 1998, at 3.

497. Clinton 8/17/98 GJ at 7.

498. Clinton 8/17/98 GJ at 10.

499. E.g., Clinton 8/17/98 GJ at 12, 102, 109, 110.

500. Text of President's Address to Nation, reprinted in Washington Post, August 18, 1998, at A5 (emphasis added).