Volume II: Appendix

REFERRAL

TOTHE

UNITED STATES HOUSE OF REPRESENTATIVES

PURSUANTTO

TITLE 28, UNITED STATES CODE, 5 595( c)

APPENDIX

SUBMIl- TEDBY

THE OFFICE OF THE INDEPENDENT COUNSEL

3 Appendix Table of Contents

Statement of the OIC's Jurisdiction . . . . . . . _ .

Order Permitting Disclosure of Grand Jury Material _

Procedural History and Background of Jones v. Clinta Map of White House, West Wing . . . . . . . . . . . .

Table of Monica Lewinsky White House Visits . . . . .

Table of Contacts between Monica Lewinsky and the President . . . . . . . . . . . . . . . . _

Tables of Phone Conversations ............

Litigation History .................

Evidence Reference .................

Legal Reference . . . . . . - . . . . . . . . . . . . . . . Tab A

. . . Tab B

. . . Tab C

. . . Tab D

. . . Tab E

. - . Tab F

. . . Tab G

. . . Tab H

. . . Tab I

. . . Tab J Monica Lewinsky Immunity Agreement _ . . . . . . . . ‘. . . Tab K

Tab A

Statement of the OIC’s Jurisdiction

UNITED STATES FOR THE DISTRICT

Division for

COURT OF APPEALS

IJnited States Court of Apjj! a~ s

hrthe District of Columbia lmult OF COLUMBIA CIRCUIT

the Purpose of ~11~ 0 JAY 1 6 1998

Appointing Independent Counsels

Special Division

In re: Madison Guaranty Savings Division No. 94- 1 & Loan Association

Before: Sentelle, Presiding, Butzner and Fay, Senior Circuit Judges

ORDER Upon consideration of an oral application for the expansion of jurisdiction of an Independent Counsel provided to this Court on behalf of the Attorney General on January 16, 1998, it is hereby

ORDERED that the investigative and prosecutorial jurisdiction over the following matters be referred to Independent Counsel Kenneth W. Starr and to the Office of the Independent Counsel as an expansion of prosecutorial jurisdiction in lieu of the appointment of another Independent Counsel pursuant to 593( c) (1):

(1) The Independent Counsel shall continue to enjoy the full jurisdiction initially conferred upon him as a result of the August 5, 1994, order of the Special Division of the Court and all subsequent orders concerning jurisdiction. Pursuant to 28 U. S. C. 5 593( c) (11, the Independent Counsel's jurisdiction shall be expanded to include the following:

(2) The Independent Counsel shall have jurisdiction and authority to investigate to the maximum extent authorized by the Independent Counsel- Reauthorization Act of 1994 whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law other than a Class B or C misdemeanor or infraction in dealing with witnesses, potential witnesses,

2 attorneys, or others concerning the civil case Jones v. Clinton.

(3) The Independent Counsel shall have jurisdiction and authority to investigate related violations of federal criminal law, other than a Class B or C misdemeanor or infraction, including any person or entity who has engaged in unlawful conspiracy or who has aided or abetted any federal offense, as necessary to resolve the matter described above.

(4) The Independent Counsel shall have jurisdiction and authority to investigate crimes, such

as any violation of 28 U. S. C. § 1826, any obstruction of the due administration of justice, or any material false testimony or statement in violation of federal criminal law, arising out of his investigation of the matter described above.

(5) The Independent Counsel shall have all the powers and authority provided by the Independent Counsel Reauthorization Act of 1994.

It is further ORDERED that this document and its contents be

and remain UNDER SEAL absent further Order of this Court. This the ,// d+! day of January, 1998,

Per Curiam For the Court:

Maril~ Sargent i

Chief Deputy Clerk

Tab B

Order Permitting Disclosure of Grand Jury Material

UN- ITED STATES COURT OF APPEALS FILED JUL 7 jm

POR THE DISTRICT OF COLUMBIA CIRCUl’L’ Division for the purpose of Appointing Indcpcndent Counsels

Ethics in Govetnment Act of 1978, As Amcndcd

Special Division

In Re: Madison Guaranty Savings & Loan Association

Division No. 94- l

FILEDUNDERSEAL

Before: SENTELLE, Presiding Judge. and BUTZNER and FAY. Senior Circuit Judges.

ORDER

Upon consideration of the TX Par& Motion for Approval of Disclosure of Matters Occurring Before a Grand Jury” filed by Independent Counsel Kenneth W. Starr on July 2.1998. the Court finds that it is appropriate for the Independent Counsel to convey the materials described in that motion to the House of Representatives. Accordhrgly, it is

ORDERED that the motion be granted. The Court hereby author& s the Independent Counsel to deliver to the House of Representatives materials that the Jndcpcn& nt Counsel determines constitute information of, the type described in 28 U. S. C. 0 595( c). This authorization constitutes an order for purposes of Fcdcral Rule of Criminal Procedure 6( e)( 3)( C)( i) permitting disclosure of all grand jury material that the independent counsel deems nuxssary to comply with the requirements off 595( c). This order may be disclosed as requkd in connection with the Independent Counsel’s compliance with his statutory mandate.

Per Curfam For the Court: Mark J. Langer, Clerk

Tab C

Procedural Background and History of Jones v. Clinton

Procedural History and Background of the

Jones v. Clint= Litigation

TABLE OF CONTENTS I. ~onology........................ I II. Backaround . . . . . . _ . . . . . _ . . - . . . . . . . . 8

A. Procedural Hista . . . . . . _ . . . . . . . . . . 8 B. &! ope of Discovery - . . . _ . . . _ . . . . . . . . 9 III. w . . . . .

1994- 1997: Sept.- Oct. 1997: Early Oct. 1997: Mid- Oct. 1997: Oct. 28- 29, 1997:

Oct. 30- Nov. 5, 1997

Nov. 6, 1997: Nov. 7, 1997:

..,.............. _ . 15

Preclu+ to ’ d; Lscoverv: the

Dt to stav the case until after the President's Termed the . . matron to d~ nm~ ns . . . . . . . .

Discovery begins with LnterrooatorieS - . . . . . . . .

ssions served

. . . . . _ . . . . osltions beqm: Dollv Kvle Brownina subpoenaed . . . . . . .

The President's attornevs move . . . to lrmlt dlacoverv of 11 o

women": Dollv Kvle Brou . . testifies: Ms. Jones's attorneys . . . move to tilt dlncoverv of her

sexual hlstmvde Doe #1

tipoenaed _ : . _ . . ._ . . . . Jane Doe #2 suhmenaed: the

t objects to "other. women" interroq, tories. . . m estAu& xxuwA ,aEe Doe #5 . . . . . . . . . . .

The Darties djScu_ F: the . . President's ation . . . . _ Jane Doe #2 fails to ap%- iear . . for a deposltlon . . . . _ _ . .

15 18

20 20

22 24 25 26

Nov. 10- 12, 1997:

Nov. 13- 14, 1997:

Nov. 17, 1997: Nov. 18- 19, 1997: Nov. 20, 1997: Nov. 21, 1997: Nov. 24- 26, 1997:

Dec. l- 3, 1997: Ms. Jones's attornevs OPPQX The Presrdent answers renuests

for admissions and thi rd set of Anterroaatories: troouers

Paula Jones bea& . . . . . . .

DeDosltlon of Paula Jones Doe #7 served # with a sub- a: denosltlcn of

fer Flow- - . . . . . . .

documents and thingy . . . . . . . lectlons of alleaed "other women" Jane Doe #1 and Jane Doe #7: Jane Doe #7 ordered to testlfv . . . . . . .

The President supports Jane Does' motions: Jane Doe #l moves to terute her . . denosltion: Jane Doe #5

Sybpoenaed . . . . . . . . . . . Ms. Jones's lawvers file a response to Jane Doe #l's motion: Jane Doe #2 files a motion ta cuash: Jane Doe #7 testifies . .

Judge Wright orders discoverv of Jane Doe #1 to proceed: Jane Poe #I claims that her name was leaked to the media; the President araues that he has . . itutlonal vrivacv

xEerest In not resDondlna

. . . . . . . . .

a decosition: Judae Wriaht rules t discoverv of, Jane Doe #2 could nroceed: Judae Wria& permits the videot& pina of Jane . . Doe #l's deposltlon: Jane Doe &l

testlfies: Kathleenev’s

neck suraerv delavs her

- . . . . . . . . . .

31 31 32 34 35

37 39

Dec. 4, 1997:

Dec. 5, 1997:

Dec. 6- 7, 1997:

Dec. 8- 10, 1997:

Dec. 11, 1997: Dec. 12- 18, 1997:

Dec. 19- 24, 1997:

Dec. 30- 31, 1997:

Jane Doe #3 moves to gu&& her s& QQeM . . . . . . . . . . . . 41

Ms. I, ewinskv aonears on the mess list: Jane noe #2 &

Jane Doe #3 refuse to answfx . * dewosltlon auestions . . . . . . 41

The President meets with hip ers: the Presrdent verifies wole= tal Int% rrosatorv responses . . . . _ . _ . . . . _ 42

Ms. Jones's attornevs move to GQruPel Jane Does: ROY . . Ferauson testLfles . . . . . . . 43

Judae Wrisht issues an order

The President's lawvers ODDOX #l- 3 to testify: Judse Merhis . . Qrders Kathleen Willev dewosltlon

to proceed: the President tells

Ms. Tlewinskv thate is on the witness list: Judae Wrig&

els Jane Does #l- 3 to testifv . . and clanfles the necessarv factual D- Jane Doe #5 subooenaed . . .*. . . . . . _ . 47

Ms. 1, ewinskv subooenaed. then meets with Vernon Jordan .a. nd

Carter: Mr. Carter informs fhe President's lawers of his Nan tome a motion to aua&

v's subnoena: president answers lnterrosatorles #lo- U . . . . . 52

II _ _io SO, is #I a’ a ame 81 .

Ms. Jones's attorneys ask for Sgnctmns . . . . . . . . . . . . 55

iii

Jan. 2- 7, 1998: Jan. 8, 1998: Jan. 9- 11, 1998: Jan. 12, 1998: Jan. 15, 1997: Jan. 16, 1998: Jan. 17, 1998: Jan. 21- 30, 1998:

Feb.- Apr., 1998: Jane Doe $2 testifies: Jane Doe

#5 sians an affidavit: Ms. J, ewinskv meets with Frank

ter: Jane Doe #5 files a motion to cuash her . s& poena. Ms. Jle -.- sky signs her w-"

2, affidav-_ . . . . . . . . . . . . 58 Judae Wriaht orders the President ,, Q uaht denied Jane Doe #5 8s motion to c- ua. q . . 60

* . Judae Wriaht modlfles the

reaulred factual precbcate for

'lot er women" uuestlons. . ane . . Doe #5 testifies. . Kathleen . * Willev testifies . . . . . . . . 63

na about dlscoverv. I . evidence at trial. deposltlon of the President: Frank Cartey: soeaks with Ms. Jones's attorney: Judae Wriaht uraes the Dart&- s to settle ;o . . . . . . 65

to document reuuests. Jnterroaatories. and. recuests . . for atissiom . . . . . . . . . 70

. I President's lawvers notified of

1 . . Jane Doe #3 s deoosition: s J, e ,nskv mo es to auash

:& Doe:; . . .v. . . . . . . . . 73 The Pres, dent 4 ts . *

DOSltm . . . 74

Nat UDeiahts aDDears OIC . . ae Wriaht

scludes evidence about Ms. Lewin& y. another . 1, other

Oman" testifies. discoverv gnds . . . . . . . . . . . . . . 75

I Ms. Jones s lawyers fail to persuade Judae Wriaht to reconsider the exclusion of f Judae Wriaht arants summarv

ent for the defendants . . . 79 iv

CHRONOLOGY May 1991 Alleged Hotel Incident

(Governor Bill Clinton allegedly summons Paula Jones to his room at the Excelsior Hotel in Little Rock).

May 1994 Paula Jones files suit in federal district court in Arkansas.

December Judge Susan Webber Wright orders discovery to 1994 proceed, but says that she won't let the case go

to trial until Bill Clinton's presidency is over. January 1996

The U. S. Court of Appeals for the Eighth Circuit orders the case to proceed with no stay of the trial.

January The Supreme Court hears oral argument in Clinton 1997 u.

May 1997 The Supreme Court unanimously affirms the Eighth Circuit and remands the case to the district court for discovery and trial.

June 1997 Ms. Jones's lawyers serve their first set of interrogatories to the President, asking about the alleged Hotel Incident.

August 1997 Judge Wright grants President's motion to dismiss two counts of the complaint, denies the motion for the remaining two counts, and orders discovery to proceed

September The President answers the first set of- 22, 1997 interrogatories, denying that he harassed

Ms. Jones. September The President verifies under "penalty of perjury" 30, 1997 that his interrogatory answers are true.

Dctober I, . The new Jones lawyers serve a second set of 1997 interrogatories to the President; #lo- 11 asks

whether he had had, or. had proposed having, sexual relations with any woman (other than Hillary Rodham Clinton) while he was Attorney General of Arkansas, Governor of Arkansas, or President of the United States.

l Ms. Jones's lawyers also serve the President with their first set of requests for documents and things related to other women.

3ctober 8, Ms. Jones's attorneys serve the President with 1997 their first set of requests for admissions; #51- 65

ask about "sexual relations" with other women. 3ctober 13, Ms. Jones's lawyers serve the President with a 1997 third set of interrogatories, asking him to name

any person with discoverable information. Dctober 28, l The President's lawyers seek a protective order 1997 limiting discovery to instances of nonconsensual

conduct in the AIDC (Ms. Jones's state agency) workplace and prohibiting general questions about other women.

l Dolly Kyle Browning testifies at a deposition. 3ctober 29, Ms. Jones's lawyers issue a subpoena to Jane Doe 1997 #1 commanding her to appear for a deposition on

Nov. 18, bringing documents and things related to her meetings with the President.

3ctober 30, l Judge Wright orders that discovery be 1997 confidential.

l Ms. Jones's lawyers serve Jane Doe #2 with a subpoena commanding her to appear for a deposition, and serve a copy of this subpoena to the President's lawyers.

Vovember 3, The President answers part of the second set of 1997 interrogatories under "penalty of perjury," but

the President objects to and does not answer Interrogatories #lo- 11 (about "other womenI').

govember l The President responds to the first set of 10, 1997 requests for admissions; he denies that he asked

Ms. Jones to have sexual relations with him, but objects to and does not answer "other women" questions.

l State troopers begin testifying. govember l The President answers the third set of 12, 1997 interrogatories, but fails to include Ms. Lewinsky

on the list of those with discoverable information; he reserves the right to add more names.

l Ms. Jones's attorneys- ask Judge Wright to order the President to answer Interrogatories #IO- II from the second set of interrogatories.

l MS. Jones testifies at a deposition which continues the next day.

govember Jane Doe #3 receives a subpoena. 13, 1997

November l Gennifer Flowers testifies at a deposition. 14, 1997 l Jane Doe #7 receives a subpoena.

November The President responds to the first request for 17, 1997 documents and things, objecting to the requests

insofar as they seek items related to "other women," but then asserts that he "has no documents responsive to" the request.

November . Jane Doe #l begins her deposition but 18, 1997 immediately asserts a "privacy" privilege; Judge

Wright holds a hearing but decides only that, because Jane Doe #l is ill, the deposition will not continue that day.

l Jane Doe #7 signs an affidavit claiming no pertinent knowledge, and moves to quash her deposition.

November l Judge Wright denies Jane Doe #7's motion to 19, 1997 quash her subpoena.

l Judge Merhige denies Kathleen Willey's motion to quash her subpoena.

November l The President's lawyers file a memorandum in 20, 1997 support of the motions to quash filed by Jane Does

#l- 3.

l Jane Doe #l asks that her deposition (begun on Nov. 18) be terminated.

l Ms. Jones's lawyers issue a subpoena to Jane Doe #5 (who received it Nov. 22).

November l Jane Doe #2 moves to quash her subpoena. 21, 1997 l Ms. Jones's lawyers serve the President's

lawyers with an amended notice about the deposition of Jane Doe #3.

l Jane Doe #7 testifies at a deposition. November Judge Wright conducts a hearing on Jane Doe #l's 24, 1997 privacy objection to a deposition and overrules

the objection. December 2, Judge Wright denies Jane Doe #2's motion to quash. 1997

December 3, l Jane Doe #2's second deposition begins but she 1997 refuses to answer sex- related questions.

l Kathleen Willey suddenly cancels her deposition because of neck surgery.

December 4, Jane Doe #3 moves to quash her subpoena; Judge 1997 Wright denies the motion.

December 5, l Ms. Jones's lawyers serve the President's 1997 lawyers with their witness list for trial; Monica

Lewinsky's name is on the list.

9 Ms. Jones's lawyers file an amended complaint adding the allegation that the President discriminated against Ms. Jones by granting employment benefits only to women who acceded to his requests for sex.

December 6, l The President meets with his lawyers. 1997 l The President verifies under "penalty of

perjury" his supplemental responses to the second set of interrogatories (containing certain medical information about himself); he continues to fail to answer Interrogatories #lo- 11.

December l Ms. Jones's lawyers move to compel Jane Does #l- 10, 1997 3 to answer their deposition questions.

l Jane Doe #2 files an opposition to this motion, arguing that Ms. Jones's lawyers have not established a sufficient predicate for delving into her privacy.

l Danny Ferguson testifies at a deposition about the President's meetings with Jane Doe #l and with Paula Jones.

December l Judge Wright partially grants Ms. Jones's motion 11, 1997 of Nov. 12; using a "meticulous" standard of

materiality, she orders the President to answer Interrogatory #lo- l1 if (i) encounter was later than May 7, 1986; and (ii) either state troopers facilitated encounter, or the woman was a present or prospective government employee.

December The President's lawyers file their opposition to 12, 1997 Ms. Jones's motion (of Dec. 10) to compel the Jane

Does. December l Ms. Jones's lawyers notify the President's 15, 1997 lawyers that they will depose Jane Doe #5 on Jan.

9. 8 Ms. Jones's lawyers depose Onie E. "Betsey" Wright, who had been responsible for responding to "other women" accusations during the 1992 campaign.

December l Ms. Jones's lawyers move to compel the President 16, 1997 to answer the remaining questions in their first

set of requests for admissions (# 51- 65) and their third set of interrogatories (asking for names of those with discoverable information).

l Ms. Jones's lawyers serve their second request that the President produce documents and things, this time asking for those that concerned Ms. Lewinsky.

l At 2: 00 a. m. that night (on U/ 17/ 97), the President calls Ms. Lewinsky and tells her that she is on the witness list.

December Holding the testimony of Jane Does #l- 3 18, 1997 lNdiscoverable," Judge Wright grants Ms. Jones's

motion to compel their testimony but requires that Ms. Jones establish a "factual predicate" and meet certain other conditions.

December l Ms. Lewinsky receives a subpoena then meets with 19, 1997 Vernon Jordan.

December Vernon Jordan introduces Ms. Lewinsky to Frank 22, 1997 Carter.

December l The President serves supplemental responses to 23, 1997 the second set of interrogatories, answering #lO-

11 (asking for names of women with whom he has had or proposed having "sexual relations") with llnone." The President verifies "under penalty of perjury" that this answer is true and correct.

l Mr. Carter meets with the President's lawyers. December Ms. Jones's lawyers move for reconsideration of 24, 1997 Judge Wright's Dec. 18 order establishing the

"factual predicate" requirement. December l The President's lawyer, Robert Bennett, concede 30, 1997 during a hearing before Judge Wright that

questions related to "sex- for- jobs" would be "fair game."

l Ms. Jones's lawyers move to sanction the President's lawyers for making argumentative and suggestive objections to deposition questions.

January 2, l Jane Doe #2 testifies at a deposition. 1998 l Jane Doe #5 signs an affidavit denying any

"sexual activity" with the President. January 5, l Ms. Lewinsky meets with her attorney. 1998 l Ms. Jones's lawyers notify the President's

lawyers that they plan to depose Jane Doe #5; Jane Doe #5 moves to quash, attaching her affidavit.

January 7, l Ms. Lewinsky prepares and signs an affidavit 1998 denying sexual relations with the President.

l The President' s lawyers file an opposition to Ms. Jones's mction for reconsideration of the Dec. 18 order.

January 8, l Judge Wright orders the President to answer the 1998 as- yet- unanswered questions from the third set of

interrogatories and the first set of requests for admission (# 51- 651, holding that such answers werE "relevant to the case."

l Judge Wright denies Jane Doe #5's motion to quash.

January 9, l Judge Wright partly grants Ms. Jones's motion 1998 for reconsideration of her Dec. 18 order, allowin<

more questions than she has before.

l Jane Doe #5 testifies at a deposition. January 11, Kathleen Willey testifies at a deposition. 1998

January 12, l Judge Wright holds a hearing discussing the 1998 President's deposition and what evidence she might

permit at trial, but encourages the parties to settle.

January 15, l The President serves supplemental answers to the 1998 first and second sets of requests for documents

and things, asserting that he has no documents or tangible things related to Ms. Lewinsky or Ms. Willy.

l The President serves supplemental responses to the first set of requests for admissions, objecting to but then denying requests #51- 65 (which ask him to name other women with whom he has had "sexual relations").

l The President serves supplemental responses to the third set of interrogatories, naming two othe: people with discoverable information (but not naming Ms. Lewinsky).

l The President verifies all these supplemental answers "under penalty of perjury."

January 16, . Ms. Jones's lawyers notifies the President's 1998 lawyers that Jane Doe #3 would be deposed on Jan.

28.

l Mr. Carter moves to quash Ms. Lewinsky's subpoena.

January 17, The President testified, in a videotaped 1998 deposition, that he had not had sexual relations

(as defined) with Ms. Lewinsky. 6

January 22, l Judge Wright conducts a hearing on 1998 Ms. Lewinsky's motion to quash, then directs

Ms. Lewinsky's deposition to proceed but grants a motion to reschedule.

January 27, The Office of the Independent Counsel (" OIC") 1998 moves to intervene in the Jones case.

January 29, l The OIC asks Judge Wright to postpone the 1998 deposition of Ms. Lewinsky until the completion of

its criminal investigation.

l After a hearing, Judge Wright decides to exclude the Lewinsky evidence altogether, because (i) waiting would frustrate timely resolution of the Jon- case; and (ii) the Lewinsky evidence, though it "might be relevant to the issues in this case," is "not essential to the core issues in this case.

January 30, l Another "other woman" testifies at a deposition, 1998 denying any "sexual activity" with the President.

. Ms. Jones's lawyers move to compel the President to produce as- yet- unproduced documents, arguing that his claims of privilege are meritless.

February Ms. Jones's lawyers move for reconsideration of IO, 1998 the order excluding the Lewinsky evidence.

February The President's lawyers move for summary judgment. 17, 1998 (Mr. Ferguson's lawyers do likewise on March 4.)

March 9, Judge Wright denies Ms. Jones's motion for 1998 reconsideration of her order excluding the

Lewinsky evidence, stating that although "such evidence might have helped [Jones] establish . . .

intent, absence, of mistake, motive, and habit

. . . . it simply is not essential to the core issues in this case."

April 1998 Judge Wright dismisses the Jones case on the ground that Ms.. Jones has not presented sufficient evidence to put the case before a jury. Ms. Jones appeals.

BACKGROUND A. Introduction

Paula Corbin Jones sued President Clinton (and former Arkansas State Police officer Danny Ferguson) in May 1994, seeking civil damages in relation to an incident that allegedly took place in the Excelsior Hotel in Arkansas in 1991. ' The discovery period, however, did not begin until 1997, when the Supreme Court held unanimously that the case could go forward while President Clinton was still serving as President.

In May 1997, federal district judge Susan Webber Wright began managing the civil discovery process -- a procedure in which both sides exchange relevant information in order to prepare for the next stage of the case. The specifics of the discovery period are described in the next section.

After the close of discovery, the President and Mr. Ferguson both filed motions for summary judgment. Judge Wright granted these motions on April 1, 1998, holding that Ms. Jones had "failed to demonstrate that she has a case worthy of submitting to- a jury."* Ms. Jones has appealed, and the case is currently pending before the United States Court of Appeals for the Eighth Circuit.

1 The case is captioned Jones v. Clinton, LR- C- 94- 290.

2 ones v. Clinton, 990 F. Supp. 657, 679 (E. D. Ark. 1998). 8

B. Scope of Discovery

During the discovery period, the parties exchanged interrogatories, requests for admissions of fact, and requests for documents; they also took 56 depositions. 3 As with all federal civil cases, the scope of discovery was governed by the Federal Rules of Civil Procedure. These general rules were supplemented by several orders of Judge Wright. This section briefly describes these rules and orders.

I. m Tvpes ad Scope of Civil Discovers . Federal Rule of Civil Procedure 26( b) (1) provides the general standard for discoverable material:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subiect matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. The information . . .

souaht need not be admrssible at the trial if ti Anformation souoht apnears reamblv calcuted to . . lead to the discoverv of admuzdde evidence. 4

Such material can be provided in response to interrogatories, requests for documents or tangible things, or testimony in depositions.

Interrogatories -- lists of written questions exchanged the parties and answered in writing -- are governed by Federal

3 A list of the 56 deponents in &. nes can be found at 1292- DC- 00000647 (List of Depositions).

4 Fed. R. Civ. P. 26( b) (I) (emphases added) 9

Rule of Civil Procedure 33, which states that interrogatories "may relate to any matters which can be inquired into under Rule 26( b) (1) .I” In other words, an interrogatory may ask about any information that is "relevant to the subject matter" and "reasonably calculated to lead to the discovery of admissible evidence." Ms. Jones's lawyers served the President with three sets of interrogatories, as described below.

Requests for production of documents and tangible things in the l'possession, custody or control of the party upon whom the request is servedIf are permitted pursuant to Federal Rule of Civil Procedure 34. Rule 34( a) permits discovery of matters within the scope of Rule 26( b), which allows discovery of information "reasonably calculated to lead to the discovery of admissible evidence." '

Requests for admissions may be served upon parties under Rule 36, to the extent they request the verification of the "truth of any matters within the scope of Rule 26( b) (11." ' If a party makes a admission, the matter admitted is considered conclusively established absent a court order. g

Depositions -- statements made under oath -- are governed by Rule 30. Although Rule 30 does not explicitly limit the

5 Fed. R. Civ. P. 33( c).

6 Fed. R. Civ. P. 34( a).

7 Fed. R. Civ. P. 34( a), 26( b) (1).

8 Fed. R. Civ. P. 36( a).

9 Fed. R. Civ. P. 36( b).

permissible scope of deposition questioning, all discovery is limited by Rule 26( b) (1) and must be reasonably calculated to lead to admissible evidence. '"

When a party receives an interrogatory, request for production of documents, or request for admissions, or is asked a question in a deposition, he must either answer truthfully or object. If the judge overrules the objection, the party must answer truthfully or be held in contempt In addition, Rule 26( e) requires every party to supplement or correct a response to an interrogatory, production request, or request for admission if "the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. 11'1

Special rules apply to sexual harassment cases. Principally, Federal Rule of Evidence 412 -- which was amended in

1994 "to expand the protection afforded alleged victims of sexual misconduct" -- is intended to "protect alleged victims against invasions of privacy, potential embarrassment, and unwarranted sexual stereotyping, and . . . to encourage victims to come forward when they have been sexually molested. 1V12 Toward that end, Rule 412( a) restricts the admissibility of "[ elvidence

10 Fed. R. Civ. P. 30, 26( b) (1). 11 Fed. R. Civ. P. 26( e) (2). 12 Fed. R. Evid. 412, advisory committee's notes, I994 amendments.

offered to prove that any alleged victim engaged in other sexual behavior. 11'3 Rule 412( a) also restricts the admissibility of "[ elvidence offered to prove any alleged victim's sexual predisposition." '4 Rule 412( b) (2) defines the exceptions to Rule 412( a) 's prohibitions:

In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it15has been placed in controversy by the alleged victim.

There is no comparable rule for the accused, other than the generally applicable evidence rules.

2. -Scope of Discove& Jones v. Clinton . Within the general framework set out by these rules, discovery in Jones was subject to the oversight of Judge Wright. Throughout the discovery period, the President, through his lawyers, repeatedly attempted to limit the amount of information Ms. Jones and her attorneys could discover about "other women" (women other than Hillary Rodham Clinton with whom the President had allegedly engaged in sexual relations). 16 Some of these "other women" who

13 Fed. R. Evid. 412( a) (1).

14 Fed. R. Evid. 412( a) (2).

15 Fed. R. Evid. 412( b) (2).

:6 Monica Lewinsky was referred to in court papers as "Jane Doe #6." The "other women" at issue during discovery in Jones included Gennifer Flowers, Dolly Kyle Browning, and several women identified in court papers only as "Jane Does #l- 7." It is common for courts to refer to persons as "Jane Doe" or "John Doe" when necessary to protect their anonymity. This memorandum

were identified, as well as Ms. Jones herself, also objected to some of the attempts to discover information about them.

The key events in this discovery dispute occurred between August 22, 1997, and January 30, 1998. In four different orders, Judge Wright decided and emphasized that information related to the President's relationships with Monica Lewinsky and other women was properly discoverable because it was "reasonably likely to lead to admissible evidence."

Out of respect for the office of the Presidency, Judge Wright applied a "meticulous standard" of materiality (higher. than the normal standard) in determining the scope of the questioning she would allow for discovery directed at the President." Applying this standard, the judge limited the questioning on this subject: The Jones lawyers could ask only about encounters the President may have had after May 7, 1986, that involved state or federal employees and those whose liaisons were facilitated by state troopers. Within these restrictions, however, the judge held that Ms. Jones was entitled to information regarding any individuals with whom the President had _

sexual relations or proposed or sought to have sexual relations."

attempts to protect the confidentiality of the Jane Does wherever possible.

17 1414- DC- 00000901 (Order of Dec. 11, 1997, at 5) (quoting 1 I 732 F. Supp. 142, 147 (D. D. C. 1990) 1.

18 1414- DC- 00000899 (Order of Dec. 11, 1997, at 3). 13

In a later order, issued December 18, 1997, in which she directed Jane Does #l- 3 to testify at depositions, the judge made clear that in determining the scope of discovery,

the issue [at hand was1 one of discovery, not admissibility of evidence at trial. Discovery, as all counsel know, by its very nature takes unforeseen twists and turns and goes down numerous paths, and whether those paths lead to the discovery of admissible evidence often simply cannot be predetermined. l'

On December 30, 1997, at a telephone conference regarding the scope of discovery, Judge Wright explained that at trial Ms. Jones's attorneys would have to limit their evidence regarding "other women," but that some such evidence might be admissible: *II will not permit you to spend a lot of court time on this business about of [sic] other women. I do believe it is relevant and I will let you get some evidence in on that, but you're going to have to pick your evidence carefully. 1120 Judge Wright further explained that, although she would "require the President's deposition to be tailored," she would not limit it to "stuff that's not embarrassing. S12' The judge recognized that certain information that was discoverable might be embarrassing and intrusive, but stated, 1'1 can't protect the parties from embarrassment. U22

19 1414- DC- 00001012- 13 (Order of Dec. 18, 1997, at 7- 8).

20 1414- DC- 00001491 (Telephone Conference 12130197 Tr. at 47).

21 1414- DC- 00001493 (Telephone Conference 12/ 30/ 97 Tr. at 49).

22 1414- DC- 00001493 (Telephone Conference 12/ 30/ 97 Tr. at 47) *

Judge Wright returned to this theme at the President's January 17, 1998, deposition, where she rejected the President's counsel's attempt to place new limits on the scope of questioning. In so ruling, Judge Wright again commented: tlUnfortunately, the nature of this case is such that people will be embarrassed. I have never had a sexual harassment case where there was not some embarrassment. 11'3

DISCOVERY 1994 - 1997 Prelude to discovery: the Complaint, the

attempt to stay the case until after the President's Term, and the motion to dismiss

At the time of the alleged Excelsior Hotel incident, Ms. Jones was employed by the Arkansas Industrial Development Commission (ltAIDC"), a state government agency. 24 According to Ms. Jones's allegations, then- Governor Clinton made unwelcome sexual advances toward her, and she rejected the Governor's advances." Ms. Jones further alleged that the advances, and subsequent lack of job advancement, had violated several laws and constitutional provisions. 26

The four counts of the complaint alleged, respectively:

23 849- DC- 00000360 (Clinton l/ 17/ 98 Depo. at 9). 2; ones v. Clinton, 990 F. Supp. 657, 662- 64 (E. D. Ark. 1998).

25 L at 663- 64.

26 & at 665- 66. 15

32 .

(1) (2)

(3) (4)

that then- Governor Clinton, acting under color of state law, deprived [Ms. Jones] of her constitutional rights to equal protection and due process under the Fifth and Fourteenth Amendments to the United States Constitution by sexually harassing and assaulting her;

that Governor Clinton and Ferguson conspired to deprive [Ms. Jones] of her rights to equal protection of the laws and of equal privileges and immunities under the laws;

intentional infliction of emotional distress [by] the President, based primarily on the alleged incident at the hotel but also encompassing subsequent alleged acts; and

that the President, through his press aides and attorney, defamed [Ms. Jones] by denying the allegations that underlie [her] lawsuit and by questioning her motives, and that Ferguson defamed her by making comments to the press suggesting that she willingly participated in a sexual encounter.* '

On August 10, 1994, the President moved to dismiss Ms. Jones's complaint," arguing that he was immune from suit until after he completed his service as President. 2g Judge Wright denied the President's motion and ruled that discovery in the case could proceed, but that any trial would not occur until the President left office. '" Both parties appealed, and in January 1996, a divided panel of the United States Court of Appeals for the Eighth Circuit affirmed Judge Wright's decision

27 ones v. Clinton, 974 F 1997).

a l. L at 715 n. 1.

29 Jones v, Clinton, 869 F 1994).

3o Id, at 699- 700. Supp. 712, 718 (E. D. Ark.

Supp. 690, 692 (E. D. Ark: 16

to order discovery, but reversed her decision to postpone any trial until after the President left office."

The case then went to the Supreme Court, which heard oral argument in Jones in January 1997.32 During oral argument, the President's attorney, Robert Bennett, warned that permitting a case like Jones to go forward could embarrass the Presidency, in part because the trial court might permit inquiry into contacts between the President and members of the opposite sex. 33 In May 1997 the Supreme Court unanimously affirmed the Eighth Circuit's decision and remanded the case to the district court so that discovery (and any further proceedings such as trial) could proceed."

The President's lawyers then moved, pursuant to Rule 12( c) of the Federal Rules of Civil Procedure, for dismissal of the complaint for failure to state a claim. 35 Granting in part and denying in part, Judge Wright in August 1997 dismissed Ms. Jones's due process claim in Count I and her defamation claim against the President in Count IV. As to the other claims (the

31 s v. Cl-, 72 F. 3d 1354 (8th Cir. 1996).

32 c1* t on v. Jones, 117 S. Ct. 1636, 1636 (1997).

33 1414- DC- 00000690- 91 (OfficiaLTranscript, Proceedings before the Supreme Court of the United States, -ton v. Jon- I No. 95- 1853, at 13- 14 (Jan. 13, 1997)).

34 C- j_ ’ t on v. JoneG, 117 S. Ct. 1636, 1651 (1997).

35 In other words, they argued that even if every factual allegation made by Ms. Jones were true, the law did not authorize the court to grant her a remedy.

intentional infliction of emotional distress, the equal protection claim, and the defamation claim against Trooper Ferguson), Judge Wright held that discovery could proceed. 36

Sept.- Oct. 1997: Discovery begins with interrogatories

Attorneys for Ms. Jones had submitted her first set of interrogatories to the President on June 19, 1997. The six interrogatories asked the President about his alleged encounter with Paula Jones on May 8, 1991.37 On September 22, 1997, the President served his responses to those interrogatories, 3* and on September 30, the President declared "under penalty of perjury" that these responses were "true and correct to the best of my knowledge and belief. 113g

The next day -- Wednesday, October 1, 1997 -- Ms. Jones's new law firm (Rader, Campbell, Fisher & Pyke14' served the President's counsel with a second set of interrogatories. 41 Interrogatory No. 10 stated:

36 J es v. Clint=, 974 F. Supp. 712, 732 (E. D. Ark. 1997).

37 849- DC- 00000002- 10 (Plaintiff's First Set of Interrogatories to Defendant William Jefferson Clinton).

38 849- DC- 00000011- 17 (President Clinton's Responses to Plaintiff's First Set of Interrogatories).

39 849- DC- 00000018 (Verification). 40 921- DC- 00000048 (Plaintiff's Motion for Protective Order (Concerning Plaintiff's Deposition)).

41 921- DC- 00000101- 18 (Second Set of Interrogatories from Plaintiff to Defendant Clinton).

Please state the name, address, and telephone number of each and Clinton) held any

every individual (other than Hiilary Rodham with whom you had sexual relations when you of the following positions: Attorney General of the State of Arkansas; Governor of the State of Arkansas; President of the United States. 42

Interrogatory No. 11 stated: Please state the name, address, and telephone number of each and every individual (other than Hillary Rodham Clinton) with whom you proposed having sexual relations, or with whom you sought to have sexual relations, when you held any of the following positions:

;: Attorney General of the States of Arkansas; Governor of the States of Arkansas;

C. President of the United States. 43 The phrase "sexual relations" was not defined.

Also on October 1, 1997, Ms. Jones's attorneys asked the President to provide certain categories of documents and tangible things -- if they were in the President's "immediate possession" or under his "custody or control" 44 -- that related to Ms. Jones, several other individuals, the President's sexual activities, the President's legal fees, and various other subjects. 45 The request defined "document" to. mean "any tangible thing on which appears, or in which is stored or contained, any words, numbers,

42 921- DC- 00000107 (Second Set of Interrogatories from Plaintiff to Defendant Clinton at 7).

43 921- DC- 00000108 (Second Set of Interrogatories from Plaintiff to Defendant Clinton at 8) :

44 1414- DC- 00001510 (First Set of Requests from Plaintiff to Defendant Clinton for Production of Documents and Things at 3) *

45 1414- DC- 00001508- 33 (First Set of Requests from nlaintiff to Defendant Clinton for Production of Documents and

.ngs). 19

36 syTnbols, or images," as well as "any and all writings, drawings, graphs, charts, photographs, phono records, and other data compilations from which information can be obtained and translated, if necessary, through detection devices, into reasonably usable form. n4" Early Oct. 1997: . . Reauestsforions served on the

President On Wednesday, October 8, 1997, Ms. Jones's lawyers served the President's lawyers with their first set of requests for admissions. 47 These requests asked the President to admit or deny issues related to Ms. Jones and other women. In particular, Requests #51- 65 had with "other relations." Mid- Oct. 1997:

On Monday, the President's interrogatories

asked the President about "sexual relations" he women. ‘I48 The requests did not define "sexual

. . . . Pewsltlons beg-. Dolly Kvle Browninq subPoenaed October 13, 1997, Ms. Jones's attorneys served lawyers with a third set of interrogatories. The asked the President about any person who may have discoverable information; any conversation the President may have

46 1414- DC- 00001509 (First Set of Requests from Plaintiff to Defendant Clinton for Production of Documents and Things at

2) - 47 1414- DC- 00000002- 23 (First Set of Requests from Plaintiff to Defendant Clinton for Admissions).

43 1414- DC- 000000015- 19 (First Set of Requests from Plaintiff to Defendant Clinton for Admissions at 14- 18). -These requests were filed with the District Court on October 14, 1997. 1414- DC- 00000002 (First Set of Requests from Plaintiff to Defendant Clinton for Admissions at 1).

had with Mr. Ferguson; and any conversation the President had had with anyone about the alleged May 8, 1991, Excelsior Hotel incident. 4g

On Tuesday, October 14, the President's lawyers and Mr. Ferguson's lawyers deposed Lydia Cathey (Ms. Jones's sister). They asked Ms. Cathey about Ms. Jones's description of her alleged encounter with the President. 5L

On Monday, October 20, 1997, Ms. Jones's lawyers filed a deposition notice for Dolly Kyle Browning, stating that Ms. Browning's deposition would commence in Dallas, Texas on Tuesday, October 28, 1997.5'

Two days later, on Wednesday, October 22, 1997, two investigators visited an alleged "other woman," Jane Doe #7, and asked her, in her words, "highly embarrassing, suggestive and vile questions concerning my private life. t152

Meanwhile, one of the President's lawyers, Mitchell S. Ettinger, sent a letter dated October 23, 1997, and a draft pleading to Dolly Kyle Browning's lawyer, Dorcy Corbi- n. The letter described- an earlier conversation in which Ms. Corbin told

49 1414- DC- 00000984- 92 (Third Set of Interrogatories from Plaintiff to Defendant Clinton).

50 1414- DC- 00000543- 48 (Cathey 1- O/ 14/ 97 Depo. at 165- 70).

51 921- DC- 00000043- 46 (Plaintiff's Notice Duces Tecum of the Deposition upon Oral Examination of Dolly Kyle Browning).

52 920- DC- 00000895 (Jane Doe #7 11/ 18/ 97 Aff. at 3): (Jane Doe #7 received a subpoena from Ms. Jones's attorneys on November

and testified at a deposition on November 21, 1997. 21

the President's lawyer that Ms. Browning "does not possess any information relevant to the Paula Jones matter and therefore does

not wish to be deposed." 53 The attachments to the letter were a

draft motion to quash the subpoena and an accompanying draft of a supporting memorandum of points and authorities. 54

Oct. 28- 29, 1997: scoverv of "other women Il. , Dollv Kvle

. . Bromi. ziz&! xes. Ms. Jones . '8 attorneva . . . move to llnut d- co verv of her sexuax . ane Doe #l subPoenaed

On Tuesday, October 28, 1997, the President through his attorneys moved for a protective order to limit the scope of discovery regarding "other women. 1155 Specifically, the

President's lawyers requested that discovery be limited to non-

consensual conduct occurring close in time, and in the same work

place as the alleged incident with Ms. Jones. 56

53 DE- DC- 00000081 (Letter from Mitchell S. Ettinger to Dorcy Corbin (Oct. 23, 1997)).

54 DE- DC- 00000082- 82 (Motion for a Protective Order and Motion to Quash Subpoena Duces Tecum and Notice of Deposition); DE- DC- 00000083- 87 (Dolly Kyle Browning's Memorandum of Points and Authorities in Support of Motion for Protective Order and Motion to Quash).

55 1414- DC- 00000627- 30 (President. Clinton's Motion for Protective Order); 1414- DC- 00000631- 51 (Memorandum in Support of President Clinton's Motion for a Protective Order). This motion was file- stamped on November 5. 1414- DC- 00000627 (President Clinton's Motion for Protective Order at 1).

56 1414- DC- 00000628 (President Clinton's Motion for Protective Order at 2).

Also on October 28, 1997, Dolly Kyle Browning testified at a deposition. She was questioned by Ms. Jones's attorneys about an alleged sexual relationship with President Clinton."

Also on October 28, 1997, Ms. Jones's attorneys served an emergency motion asking Judge Wright to limit the President's attempted discovery of alleged "other men" (that is, men who allegedly had sexual relations with Ms. Jones), arguing that the discovery was l'conducted solely to annoy and oppress Plaintiff.""

The next day, Wednesday, October 29, 1997, Ms. Jones's attorneys issued a subpoena to a woman anonymously identified as Jane Doe #l, requiring her to appear for a deposition on November 18, 1997." The subpoena also commanded Jane Doe #l to produce documents and other tangible things that referenced her communications and meetings with the President. 60

57 DE- DC- 00000028 (Browning 10/ 28/ 97 Depo. at 29- 30). - iE 1414- DC- 00000518- 33 (Emergency Motion of Plaintiff under Rule 30( d)( 3) and Rule 26( c) for Protection against Defendants' Bad- Faith Deposition Campaign Orchestrated and Conducted Solely to Annoy and Oppress Plaintiff and Brief Thereon). The motion was file- stamped on November 3, 1997. 1414- DC- 00000518 {Emergency Motion of Plaintiff under Rule 30( d) (3) and Rule 26( c) for Protection against Defendants' Bad- Faith Deposition Campaign Orchestrated and Conducted Solely to Annoy and Oppress Plaintiff and Brief Thereon at 1)

55 921- DC- 00000165- 67 (Subpoena in a Civil Case to [Jane Doe #11).

60 921- DC- 00000167 (Requests for Production). 23

Oct.

that

40 . 30- Nov. 5, 1997: Janeoenaed. the President

. ects to "other women" interroaatories: investiaators visit Jane Doe #5

On Thursday, October 30, 1997, Judge Wright entered an order set forth restrictions and conditions on all discovery in the Jones case. 61 Also on October 30, 1997, a process server gave Jane Doe #2 a subpoena, albeit with some difficulty. 62 Ms. Jones's attorneys on this day served the President's lawyers with a copy of the subpoena given to Jane Doe #2.63

On Monday, November 3, 1997, the President's attorneys served Ms. Jones's attorneys with responses to her second set of interrogatories. 64 The President "declare[ dl under penalty of perjury" that the responses given were "true and correct to the best of my knowledge and belief." 65 The President objected to and refused to answer several of the interrogatories, including Interrogatories #lO & 1166 (which asked the President about his "sexual relations" he had had or proposed having with “other women.")

61 Confidentiality Order on Consent of All Parties, Jones v. Clint-, No. LR- C- 94- 290 (Oct. 31, 1997)).

62 The subpoena scheduled the deposition for November 7, 1997. 920- DC- 00000654 (Subpoena in a Civil Case).

63 920- DC- 00000660- 64 (Plaintiff's Notice Duces Tecum of the Deposition upon Oral Examination of [Jane Doe #2]).

64 849- DC- 00000037- 53 (President Clinton's Responses To Plaintiff's Second Set of Interrogatories).

65 849- DC- 00000052 (Verification). 66 849- DC- 00000041- 42 (President Clinton's Responses To Plaintiff's Second Set of Interrogatories at 5- 6).

In Arkansas, investigators for Ms. Jones continued their work. At some point in November, "two private investigators retained by Paula Corbin Jones approached [Jane Doe #51 at [her] residence. [She1 declined to speak with them, but provided the name of [her] family attorney. [She] subsequently was served with a subpoena seeking the production of documents and purporting to require [her] testimony at a deposition . . . .lt6’

On November 5, 1997, Ms. Jones's lawyers filed a motion asking that Ms. Jones's deposition -- scheduled for November 20, 1997 -- occur at a location other than the Little Rock law firm of Wright, Lindsey & Jennings, so that Ms. Jones and her lawyers could avoid a "media sideshow.~~~~

Nov. 6, 1997: The Parties discuss the President's deDosition

On Thursday, November 6, 1997, Judge Wright conducted a hearing on L. D. Brown's request for a protective order and denied it. Judge Wright also denied Ms. Jones's motion for a protective order for her deposition, and then determined that the deposition of the President would occur on January 17, 1998.6g Counsel for

67 920- DC- 00000962 (Jane Doe #5 l/ 2/ 98 Aff. at 1). The date of Jane Doe #5's first subpoena was November 20, 1997. 920- DC- 00000967 (Subpoena in a Civil Case). She was served with that subpoena on November 22, 1997. 920- DC- 00000969 (Affidavit of Service). Her second subpoena was dated December 11, 1997, and she was served with the second subpoena on December 18, 1997. 920- DC- 00000972 (Affidavit of Service).

68 921- DC- 00000050 (Plaintiff's Motion for Protective Order (Concerning Plaintiff's Deposition) at 4).

69 921- DC- 00000061- 62 (Clerk's Minutes). According to the minutes, one of Ms. Jones's counsel "state[ dl a date is needed

the parties then discussed the President's deposition, at least with respect to witnesses with "knowledge concerning events," and Judge Wright explained that Ms. Jones and her attorneys "will have names of potential witnesses in earlier discovery."" Nov. 7, 1997: . Jane Doe #2 falls t 0 aDDear for a dePosition

On Friday, November 7, 1997, attorneys for Ms. Jones traveled to Little Rock for the scheduled deposition of Jane Doe #2. l---- IY-- "alie: uue ii2 failed to appear. 71 I%&~. (Attorneys for Ms. Jones re- noticed the deposition for November 24, 1997. The attorney for Jane Doe #2 then re- scheduled the deposition for December 5, 1997, and then filed a motion asking Judge Wright for a protective order and to quash the subpoena. )72 Nov. 10- 12, 1997: The President answers reauests for admissions

and third set of interrouatories: trooPera testify: Jane Does #2- 3 SubDoenaed; u uvbaLA. vn 0 raula ijones Deu Ae_-_" '_- _f n--- q- . ins

On Monday, November 10, 1997, the counsel responded to Ms. Jones's first

President through his set of requests for

for [President] Clinton's discovery deposition. Bennett respondred] that they would like it to be Saturday, January

17th. w 921- DC- 00000062 (Clerk's Minutes at 2).

70 921- DC- 00000062 (Clerk's Minutes at 2).

71 921- DC- 00000293 (Plaintiff's Memorandum in Opposition to the Motion of "Jane Doe No. 2" for Protective Order and Motion to Quash Subpoena Dues [sic] Tecum and Notice of Deposition at 1).

72 921- DC- 00000294 (Plaintiff's Memorandum in Opposition to the Motion of "Jane Doe No. 2" for Protective Order and Motion to Quash Subpoena Dues [sic] Tecum and Notice of Deposition at 2).

admissions (served on October 8, 1997). 73 The President answered some of the questions. For example, Ms. Jones to have "sexual relations"

he denied that he had asked with him. 74 The President objected to and refused to answer other questions. For example, Request for Admission #51, and the President's response, stated:

Please admit or deny the following: While he was Governor of the State of Arkansas, Defendant Clinton had sexual relations with at least one woman (other than Hillary Rodham Clinton), and at least one member of the Arkansas State Police arranged at least one meeting between Defendant Clinton and the woman.

RESPONSE: President Clinton objects to this Request for Admission in that it is intended solely to harass, embarrass and humiliate the President and the Office he occupies. President Clinton also objects to this Request for Admission in that it pertains to subject matter beyond the reasonable scope of discovery in this proceeding. 75

Also on November 10, 1997, former Arkansas state trooper L. D. Brown testified at a deposition in Little Rock. 76 The next morning, Arkansas state trooper Larry Patterson testified at a deposition in Little Rock." Both troopers were questioned about

73 921- DC- 00000067- 95 (President Plaintiff's First Set of Requests for

74 921- DC- 00000081- 82 (President- Plaintiff's First Set of Requests for

75 921- DC- 00000083- 84 (President Plaintiff's First Set of Requests for

Clinton's Responses Admissions).

Clinton's Responses Admissions at 15- 16)

Clinton's Responses Admissions at 17- 18)

76 1292- DC- 00000255- 377 (Brown 11/ 10/ 97 Depo.).

77 1292- DC- 00000407- 585 (Perry 11/ 11/ 98 Depo.).

to to to

whether they had arranged private meetings for Governor Clinton and other women. 7"

On Wednesday, November 12, 1997, the President through his attorneys responses served on asked the

served Ms. Jones's attorneys with the President's to Ms. Jones's third set of interrogatories (those October 13) .” In response to an interrogatory that President to state the name, address, and telephone numbers of "each and every person who has, or who is likely to have, discoverable information relevant to one or more disputed facts alleged with particularity in the pleadings in this case," the President provided a list of names that did not include Ms. Lewinsky.* ' The President then stated, aI have read the foregoing responses to Plaintiff's Third Set of Interrogatories and declare under penalty of perjury that they are true and correct to the best of my knowledge and belief."* 1 The President did, however, "reserve[ l the right to supplement this response with additional names. 11e2

Also on November 12, 1997, Ms. Jones through her counsel filed a motion (with accompanying memorandum) seeking to compel

'* See. e- g,, 1292- DC- 00000272 (Brown 11/ 10/ 97 Depo. at 17); 1292- DC- 00000417 (Patterson Depo. at 10).

79 849- DC- 00000090- 102 (President Clinton's Responses to Plaintiff's Third Set of Interrogatories).

80 849- DC- 00000090- 92 (President Clinton's Responses to Plaintiff's Third Set of Interrogatories at l- 3).

81 849- DC- 00000096 (Verification).

82 849- DC- 00000091- 92 (President Clinton's Responses to Plaintiff's Third Set of Interrogatories at 2- 3).

the President to respond to those questions in her second set of interrogatories that he had refused to answer in his answer of November 3, 1997 (Interrogatories #lo, 11). E3 In the motion, counsel for Ms. Jones argued that the President ought to be required to answer these two interrogatories -- the "other women" interrogatories -- and asserted that "discovery . . . is governed by very liberal standards that give Plaintiff a wide berth. lt8' Counsel for Ms. Jones observed that the President "has made it clear in the past, and confirms in the Responses, that he disagrees with the Court's statements that there are at least some situations, in cases such as this, in which evidence of the defendant's extramarital sexual activity, is not only relevant and discoverable, but admissible. t185 Ms. Jones's counsel then argued that it was important for Ms. Jones to obtain this information prior to the President's deposition because Judge

83 921- DC- 00000096- 151 (Plaintiff's Motion to Compel Responses to Plaintiff's Second Set of Interrogatories to Defendant Clinton); 92l- DC- 00000152- 61 (Memorandum in- Support of Plaintiff's Motion to Compel Responses to Plaintiff's Second Set of Interrogatories to Defendant Clinton).

84 921- DC- 00000155 (Memorandum in Support of Plaintiff's Motion to Compel Responses to Plaintiff's Second Set of Interrogatories to Defendant Clinton at 4).

85 921- DC- 00000156 (Memorandum in Support of Plaintiff's Motion to Compel Responses to Plaintiff's Second Set of Interrogatories to Defendant Clinton at 5) (emphasis in original). Admissibility in this context apparently refers to evidence that would be admissible at a trial, a much narrower category of information than is available to parties during discovery in civil cases. For example, a hearsay question. that would be plainly inadmissible at trial would be discoverable, because it would allow a party to learn the identity of a witness.

Wright had indicated that the President's deposition would be of limited duration because of the respect due his office. 86

Also on November 12, 1997, Ms. Jones's counsel notified the President's counsel of a second deposition notice issued to Jane Doe #2" and issued a subpoena to Jane Doe #3, which she received the next day.* '

And, still on November 12, 1997, the President's attorneys deposed Paula Jones. Ms. Jones testified about what she claimed was sexually unwelcome "disgusting" conduct by the President. 8g The President's lawyer, Robert Bennett, asked Ms. Jones about the alleged May 8, 1991, Excelsior Hotel incident. g0 The lawyer for Defendant Ferguson, Mr. Bristow, asked Ms. Jones about Ms. Jones's pre- marital sexual relations with her husband other men. g'

and

@6 921- DC- 00000157 (Memorandum in Support of Plaintiff's Motion to Compel Responses to Plaintiff's Second Set of Interrogatories to Defendant Clinton at 6).

87 920- DC- 00000665- 69 (Plaintiff's Amended Notice Duces Tecum of the Deposition upon Oral Exainination of [Jane Doe# 2]).

86 920- DC- 00000796- 800 (Subpoena in a Civil Case).

a9 1414- DC- 00000130( Jones 11/ 12/ 97 Depo. at 108).

90 1414- DC- 00000102- 20 (Jones 11/ 12/ 97 Depo. at 79- 97).

91 1414- DC- 00000196- 200 (Jones 11/ 12/ 97 Depo. at 174- 78).

Nov. 13- 14, 1997: DeDosition of Paula Jones finishes: Jane Doe #7 served with a subpoena: dePosition of

GeMifer FlOWerS

On Thursday, November 13, 1997, Ms. Jones completed her deposition testimony. g2 The next day, Jane Doe #7 received a subpoena directing her to appear for a deposition on November 19, 1997, and to produce documents. g3 And in Dallas, Texas, Gennifer Flowers was asked about her alleged sexual relationship with President Clinton. g'

Nov. 17, 1997: -ponds to Dlaintiffls first; reuuest for documents and thincra

On November 17, 1997, the President responded to Ms. Jones's first request for documents and things (which he had received on October 1, 1997). The President's lawyers raised numerous objections to the requests. In particular, the President, through his attorneys, objected to the requests but stated that he had no documents or other things that related to other women. g5 For example, one request and the President's response state:

REOUEST FOR PRODUCTION NO. 3Q : Please produce each and every document (including but not limited to letters, memoranda, postcards, and e- mails) sent at any time to

92 1414- DC- 00000290- 510 (Jones 11/ 13/ 97 Depo. at 486- 87).

93 920- DC- 00000895 (Jane Doe #7 11/ 18/ 97 Aff. at 3); 920- DC- 00000898 (Affidavit Of Service).

94 1292- DC- 00000586- 645 (Flowers 11/ 14/ 97 Depo.).

95 V002- DC- 00000056- 92 (President Clinton's Responses to Plaintiff's First Set of Requests for Production of Documents and Things).

Defendant Clinton by any woman (other than Hillary Rodham Clinton) with whom Defendant Clinton had sexual relations when he held any of the following positions:

;: Attorney General of the State of Arkansas;

Governor of the State of Arkansas;

C. President of the United States. RESPONSE: President Clinton objects to this Request for Production as it is intended solely to harass, embarrass, and humiliate the President and the Office he occupies. President Clinton also objects to this Request for Production in that it pertains to subject matter beyond the reasonable scope of discovery in this proceeding, is overbroad, redundant and not likely to lead to the discovery of admissible evidence. Notwithstanding the above objections, and General Objection 4, President Clinton has no documents resnonsive to this Reallest. 96

General Objection 4 states: President Clinton objects to the First Set of Requests for Production of Documents and Things to the extent it is designed to elicit production of materials from President Clinton's campaigns for public office, including the 1996 Presidential Election Campaign, that were created merely for the purpose of responding to the rumors, speculation and innuendo generated by the tabloid press and political opponents of the President. Notwithstanding this objection, President Clinton personally has no such documents. Nonetheless, we are lncuirincr of other pe . . rsons or entrtles who mav have nossesslon. to whether anv such materials are reswonsive."

Nov. 18- 19, 1997: Pbiections of alleued "other women" Jane Doe #l and- e Doe #7: Jane Doe #7 ordered to . testlfv

On Tuesday, November 18, 1997, counsel for Ms. Jones deposed Jane Doe #l, but the deposition ended after less than an hour

96 V002- DC- 00000075 (President Clinton's Responses to Plaintiff's First Set of Requests for Production of Documents and Things at 20) (emphasis added).

97 V002- DC- 00000057 (President Clinton's Responses to Plaintiff's First Set of Requests for Production of Documents and Things at 2) (emphasis added).

-- 49

when Jane Doe #l asserted a "constitutional privilege of privacy. 1'g8 Judge Wright conducted two hearings to address this issue, but decided that the deposition would "not go on today," because Jane Doe #l was ill."

Also on November 18, 1997, Jane Doe #l filed objections to the subpoenas she had received." ' Jane Doe #7 signed an affidavit in which she asserted that she "simply do[ esl not have any knowledge that is pertinent to the lawsuit filed by Paula Jones. 1" 01 Her attorneys also moved to quash her subpoena and sought a protective order. lo2

The next day, Wednesday, November 19, conducted a brief hearing to consider Jane quash her subpoena, ,denied the motion, and

1997, Judge Wright Doe #7's motion to indicated that "it is appropriate for [the] deposition to go forward." lo3 Judge Wright explained that she had to "treat [this case] as a sexual harassment case as other such cases and state[ d] reasons for

98 921- DC- 00000204- 29 (Jane Doe #l 11/ 18/ 97 Depo.). 99 921- DC- 00000265 (Clerk's Minutes).

100 921- DC- 00000162- 67 (Objection of Jane Doe [# lJ to

Subpoena Duces Tecum). 101 920- DC- 00000896 (Jane Doe #7 11/ 18/ 97 Aff. at 4).

102 921- DC- 00000168- 75 (Motion to Quash Protective Order); 921- DC- 00000176- 85 (Brief to Quash Subpoena and for Protective Order).

103 921- DC- 00000266 (Clerk's Minutes at Subpoena and for

in Support of Motion

1) .

cannot protect them from

allowing [the] discovery process and this. Itlo

Also on November 19, 1997, in Richmond, Virginia, Judge Robert R. Merhige of the United States District Court for the Eastern District of Virginia conducted a closed hearing on a motion filed by Kathleen Willey in which she sought to quash the subpoena commanding her to appear for a deposition on December 4, 1997." ' Ms. Jones's attorneys had originally subpoenaed Ms. Willey herein for her deposition and document production on July 29, 1997, but, according to Ms. Jones's attorneys, Ms. Willey "vigorously opposed" the subpoena. lo6 (On December 16, 1997, Judge Merhige then issued an order requiring Ms. Willey to testify at a deposition, which Ms. Willey eventually did on January 11, 1998.) '07 Nov. 20, 1997: The President swoorts Jane Does' motions:

Jane Doe #l moves to terminate her deposition: Jane Doe #5 SubPoenaed

On November 20, 1997, the President through his counsel filed a pleading supporting the Jane Does' motions to- quash. The President's memorandum complained that "plaintiff's discovery in this matter . . . has improperly invaded the rights of privacy of

104 921- DC- 00000266 (Clerk's Minutes at 1). 105 1414- DC- 00001150- 68 (Sealed Hearing 11/ 19/ 97 Tr.). 106 DE- DC- 00000204 (Plaintiff's Motion to Compel Further Deposition Testimony from Kathleen Willey at 1).

107 DE- DC- 00000215- 16 (Order Regarding Kathleen Willey Deposition Date).

innocent third parties whose only connection to this matter is that they may have worked for or been a friend of President Clinton. l’lo* The President's memorandum charged that "plaintiff's entire discovery plan is designed to harass and cause embarrassment to the President and others, not to obtain relevant information or information that is likely to lead to the discovery of admissible evidence."" '

Also on November 20, 1997, Jane Doe #l filed a motion and an accompanying memorandum with Judge Wright." ' Her motion requested that Judge Wright order her deposition "terminate[ d] or

eliminate [d] .‘ I111 And, on November 20, 1997, Ms. Jones's attorneys issued a subpoena for Jane Doe #S, which she received the subpoena on November 22, 1997. 'l* Nov. 21, 1997: MS. Jones's lawvers file a resDonse to Jane

. Doe #l's motzon. * . J . ane Doe #2 files a motion to auash: Jane Doe #7 testifies

On November 21, 1997, Ms. Jones's counsel responded to Jane Doe #l's November 20, 1997, motion seeking to stop her

10.3 921- DC- 00000186 (President Clinton's Memorandum in Support of Third Parties' Motion to Quash at 1).

109 921- DC- 00000187- 88 (President Clinton's Memorandum in Support of Third Parties' Motion to Quash at 2- 3).

110 921- DC- 00000190- 92 (Motion of Jane Doe [# II to Terminate or Limit Examination) ; 921- DC- 00000193- 200 (Brief in Support of Motion of Jane Doe I# 11 to Terminate or Limit Examination).

111 921- DC- 00000191 (Motion of Jane Doe [# l] to Termi. nate Limit Examination at 2).

112 920- DC- 00000967- 68 (Subpoena in a Civil Case) 920- DC- 00000969 (Affidavit of Service).

deposition. '13 In the response, Ms. Jones's counsel explained that the purpose of the deposition was "to discover additional

facts establishing a pattern of improper action under color of state law. It concerns the illegal use of state resources to facilitate, and to conceal, Defendant Clinton's predatory sexual activity while he was Governor of the State of Arkansas and in command of those resources. 11'14 Counsel for Ms. Jones noted that Judge Wright "has already ruled that the discovery of such facts may go forward -- under the strict confidentiality provisions imposed by the Court. VV115

Also on November 21, 1997, Jane Doe #2 filed a motion and accompanying memorandum to quash the subpoena she had received. l16 Ms. Jones's attorneys served another amended deposition notice that day on Jane Doe #2, scheduling her deposition for December 5, 1997. '17

113 921- DC- 00000248- 56 (Plaintiff's Memorandum in Opposition to the Motion of [Jane Doe #II to Terminate or to Limit her Deposition and to Protect Constitutional Privilege).

114 921- DC- 00000248- 49 (Plaintiff's Memorandum in Opposition to the Motion of [Jane Doe #II to Terminate or to Limit her Deposition and to Protect Constitutional Privilege at l- 2).

115 921- DC- 00000249 (Plaintiff's Memorandum in Opposition to the Motion of [Jane Doe #ll to Terminate or to Limit her Deposition and to Protect Constitutional Privilege at 2).

116 921- DC- 00000257- 58 (Motion for a Protective Order and Motion to Quash Subpoena Duces Tecum and Notice of Deposition);

Support of Motion for Protective 921- DC- 00000259- 63 (Brief in Order and Motion to Quash).

117 920- DC- 00000670- 74 Tecum of the Deposition upon (Plaintiff Is Amended Notice Duces

Oral Examination Of [Jane Doe #2]).

Additionally, Ms. Jones's lawyers served the President's lawyers with a notice of their intent to depose Jane Doe #3 on December 5, 1997. 'l* (The depositions of both Jane Doe #2 and Jane Doe #3 occurred on December 5, 1997, but both refused to answer questions, as explained below.) Jane Doe #7 testified at a deposition for one hour, stating that the President had never acted in a "sexual manner" in her presence." '

Nov. 24- 26, 1997: Judge Wright orders . dzsco verv of Jane Doe #l . to Proceed. Jane Doe #1 claims . th at her name

. was leaked to the medial the P . resident aruuea that he hae a constitutional Privacy interest

. . JJI not resDondlna to . interroaatories

In Little Rock on November 24, 1997, Judge Wright considered the objection of Jane Doe #l to her deposition. Judge Wright overruled Jane Doe #l's objection, explaining:

[Plaintiff] is entitled to ask questions that are calculated to lead to admissible evidence; Court states areas that would be discoverable material.

[Robert] Bennett [the President's lawyer] argues that he does not agree with the Court. _ . _

* * * *

In response to Bennett's concerns, Court states that [counsel for Ms. Jones] has to lay predicate for certain questions but she can't claim privacy for address and where she works.

In response to Bennett's concerns that pleadings will become public and do damage to institution of presidency, Court states questions have to be related to this cause of action and believes the Rules of

118 920- DC- 00000806- 10 (Plaintiff's Amended Notice D& es Tecum of the Deposition upon Oral Examination of [Jane Doe #3]).

119 921- DC- 00000837 (Jane Doe #7 11/ 21/ 97 Depo. at 31- 32).

Evidence and rules governing sexual harassment require Court to permit the questions. '* '

Judge Wright also issued an order allowing Ms. Jones's attorneys to amend her complaint, but she indicated that the amendments would not be construed as new causes of action. '* l

The next day, Tuesday, November 25, 1997, Judge conducted a brief hearing to address the President's

Wright efforts to obtain discovery of matters that related to the Paula Jones Legal Fund and the importance of keeping discovery matters under sea1.12* She then ruled that the identity of donors was protected but other legal fund information was not protected, except to the extent that attorney- client privilege applied. 123

That same day, the President's lawyers served Ms. Jones's lawyers with the President's opposition to Ms. Jones's motion to compel the President to finish responding to her second set of interrogatories (those served on October 1, 1997). 124 The President's lawyers complained about the "obnoxious and intrusive interrogatories," and argued that the President had a

120 921- DC- 00000268- 69 (Clerk's Minutes at l- 2).

121 1414- DC- 00001190 (Order of Jan. 9, 1998, at 3) (discussing the Order of Nov. 24, 1997).

122 921- DC- 00000280 (Clerk's Minutes).

123 921- DC- 00000270- 79 (Order of Nov. 25, 1997).

124 1414- DC- 00000753- 80 (President Clinton's Opposition to Plaintiff's Motion to Compel Responses to Plaintiff's Second Set of Interrogatories).

ltconstitutionally- protected privacy interest" that protected his "intimate personal conduct." 12'

One day later, Wednesday, November 26, 1997, Jane Doe #l filed a motion requesting sanctions in which she alleged, among other things, that someone affiliated with Ms. Jones had improperly leaked her name to the media in violation of a confidentiality order issued by Judge Wright. 126

Dec. l- 3, 1997: Ms. Jones'e attoa; gevs owose Jane Doe #2 ns efforts to avoid a deposition: Judcre Wrirxht

. rules that &scoverv of Jane Doe #2 could proceed, Judcre . . . Wriuht Permits the videotan inq

of Sane Doe #l n: Jane Doe #l

. . . testlfxes, Kathleen Wlllev . . . delavs her deDosltzon

On Monday, December 1, 1997, Ms. Jones's attorneys filed a response to Jane Doe #2's November 21, 1997, motion to quash her subpoena. '27 Ms. Jones's attorneys cited the deposition testimony of two Arkansas state troopers, L. D. Brown and Larry Patterson, and argued that this testimony provided evidence in support of Ms. Jones's claim." '

125 1414- DC- 00000754 (President Clinton's Opposition to Plaintiff's Motion to Compel Responses to Plaintiff's Second Set of Interrogatories at 2).

126 921- DC- 00000284- 86 (Jane Doe #l's Motion to Show Cause at 4- 6).

127 921- DC- 00000293- 316 (Plaintiff's Memorandum in Opposition to the Motion of "Jane Doe No. 2" for Protective Order and Motion to Quash Subpoena Duces Tecum and Notice of Deposition).

128 921- DC- 00000294- 95 (Plaintiff's Memorandum in Opposition to the Motion of "Jane Doe No. 2" for Protective Order and Motion to Quash Subpoena Duces Tecum and Notice of Deposition at 2- 3).

The next 'day, Tuesday, December 2, 1997, counsel for the fo Jones parties and counsel r Jane Does #l and #2 participated in a hearing with Judge Wright about Jane Doe #2's motion to quash and Jane Doe #l's motion objecting to a videotape deposition. '2g Judge Wright denied Jane Doe #2's motion to quash because Jane Doe #2 "might have testimony that could lead to admissible evidence. 11130

The next day, Wednesday, December 3, 1997, Judge Wright entered a protective order that allowed Ms. Jones's attorneys to videotape Jane Doe #l's deposition subject to the restrictions set forth in Judge Wright's October 30, 1997, order and additional confidentiality safeguards. '3' That same day, Ms. Jones's attorneys began questioning Jane Doe #l at a deposition. Ms. Jones's attorneys asked Jane Doe #l about her contacts with the President. Jane Doe #l refused to answer sexually- related questions pursuant to instructions she received from her lawyer. 132

Also on December 3, 1997, Ms. Jones's "counsel was en route to Richmond[, Virginia] from Dallas in order to take the deposition of Ms. Willey when [Ms. Willey's attorney] Mr. Gecker suddenly formally notified the Court and Plaintiff that Ms. Willey allegedly required 'neck surgery' that just

129 921- DC- 00000329- 30 (Clerk's Minutes).

130 921- DC- 00000330 (Clerk's Minutes at 2).

131 921- DC- 00000317 (Protective Order, Dec. 3, 1997).

132 1414- DC- Ob000840- 48 (Jane Doe #l 12/ 3/ 97 Depo.).

coincidentally was precipitously scheduled for December 4, 1997 _ II: 33 On Thursday, December 4, 1997, the district court in

Richmond "held an in- chambers hearing regarding the situation, signed Plaintiff's version of the Protective Order Regarding Kathleen Willey Deposition, and, after personally talking with Ms. Willey's attending physician, ordered Ms. Willey to appear for her deposition in early January. V1134

Dec. 4, 1997: Jane Doe #3 moves to uuaRh her subDoena

On Thursday, December 4, 1997, Jane Doe #3 moved to quash the subpoena she had received. 13' That afternoon Judge Wright conducted a brief hearing on this motion and denied it. Judge Wright also directed the parties not to file witness lists but rather to exchange the lists with each other. '36 Dec. 5, 1997: Ms. Lewinskv aDDears on the witness list:

Sane Doe #2 and J- e Doe #3 refuses to answer dePosition cnrestions

On Friday, December President's lawyers with

5, 1997, Ms. Jones's their witness list.

lawyers served the Monica Lewinsky's

133 DE- DC- 00000205 (Plaintiff's Motion to Compel Further Deposition Testimony from Kathleen Willey at 2).

134 DE- DC- 00000205 (Plaintiff's Motion to Compel Further Deposition Testimony from Kathleen WiZley at 2) _

135 921- DC- 00000321- 22 (Motion for Protective order and Motion to Quash Subpoena Duces Tecum and Notice of Deposition); 921- DC- 00000323- 27 (Brief in Support of Motion for Protective order and Motion to Quash Subpoena Duces Tecum and Notice of Deposition).

136 921- DC- 00000331 (Clerk's Minutes).

name was on it. 13' Ms. Jones's attorneys also that day filed and served an amended complaint'38 (pursuant to Judge Wright's permission granted on November 24, 1997). The amended complaint repeated the allegations of Ms. Jones's original complaint and added more accusations against the President and Mr. Ferguson, including that the President had

discriminated against Plaintiff because of her sex by systematically granting, directly and indirectly, governmental and employment benefits . . . to other women who succumbed to Defendant Clinton's . . .

pattern, and practice of using State . . . resources to solicit sexual favors . . . while continually denying

. . . any such . . . benefits . . _ to Plaintiff because she would not accede to Defendant Clinton's repeated solicitations of sex from her. 13'

Also on Friday, December 5, 1998, Ms. Jones's attorneys attempted to depose Jane Doe #2 and Jane Doe #3. Both refused to answer questions asked by Ms. Jones's attorneys. 14' Dec. 6- 7, 1997: . The President meets with his . lawyers. the

. Presxden t verifies Rugglemental interrouatorv resoonses

On Saturday, December 6, 1997, the President met with his personal attorneys and Deputy White House counsel Bruce Lindsey. The subject of the meeting was the Jones case in general and the

137 849- DC- 00000121- 37 (Plaintiff's Witness List).

138 Plaintiff's First Amended Complaint, Jones I

No. LR- C- 94- 290. 13' Id. at 14.

140 921- DC- 00000340 (Plaintiff's Motion to Compel Jane Doe #l, Jane Doe #2, and Jane Doe #3 to Answer Deposition Questions, and Motion to Prevent Further Obstruction of Depositions at 1); 920- DC- 00000551- 626 (Jane Doe #2 12/ 5/ 98 Depo.); 920- DC- 00000740- 95 (Jane Doe #3 12/ 5/ 98 Depo.).

witness list in particular. 141 That same day, the President verified supplemental responses (and continued objections) to Ms. Jones's second set of interrogatories, declaring "under penalty of perjury [that his responses were] . . . true and correct to the best of [his] knowledge and belief. t1142 These supplemental responses (which would be served to Ms. Jones's lawyers the following Wednesday, December 10) still did not provide an answer to Interrogatories #lO & 11.

Dec. 8- 10, 1997: Ms. JOneS’U attornevu move to comPe1 Jane Does: D& w Feruuson testifies

On Monday, December 8, 1997, Ms. Jones's attorneys responded to Jane Doe #l's November 26, 1997, motion for sanctions, asserting that there was "no evidence before the Court that Plaintiff [Ms. Jones] or her counsel violated [Judge Wright's] Confidentiality Order. 11143

On Wednesday, December 10, 1997, Ms. Jones's attorneys filed a motion to compel Jane Does #l- 3 to answer deposition guestions. '44 Ms. Jones's attorneys asserted in their_ motion that the Jane Does and the defendants "are obstructing legitimate

141 Lindsey 3/ 12/ 98 GJ at 64- 66; Lindsey 2/ 19/ 98 GJ at 9- 10. 142 V002- DC- 00000046- 51 (President Clinton's Supplemental Responses and Objections to Plaintiff's Second Set of Interrogatories); V002- DC- 00000050 (Verification).

143 921- DC- 00000332 (Plaintiff's Statement in Opposition to Jane Doe #l's Motion to Show Cause at 1).

144 Doe #l, 921- DC- 00000340- 440 (Plaintiff's Motion to Compel Jane

Jane Doe #2, Questions, and Jane Doe #3 to Answer Deposition

and Motion to Prevent Further Obstruction of Depositions).

discovery when they have tried and failed to obtain an order limiting the scope of the depositions." 145 Citing the Violence Against Women Act, Ms. Jones's attorneys asserted that "a defendant's sexual propensity . . - is not only to be considered discoverable under the new law, but is indeed admissible at trial __ yet Defendants continue to forestall even the discovery of facts relevant to Defendant Clinton's sexual propensities. . . .

It is time for the games and stonewalling to end. 18146 Also on December 10, 1997, Jane Doe #2's attorney filed a response (and supporting memorandum) to Ms. Jones's December 10 motion to compel. 14' The response claimed that Ms. Jones's counsel had not established a sufficient predicate for "delving into Jane Doe #2's private life." 148

Lij 921- DC- 00000341 (( Plaintiff's Motion to Compel Jane Doe #l, Jane Doe #2, and Jane Doe #3 to Answer Deposition Questions, and Motion to Prevent Further Obstruction of Depositions at 2).

146 921- DC- 00000351- 52 (Plaintiff's Motion to Compel Jane Doe #l, Jane Doe #2, and Jane Doe #3 to Answer Deposition Questions, and Motion to Prevent Further Obstruction of Depositions at 12- 13) (emphasis in original).

147 921- DC- 00000441- 49 (Response of Jane Doe #2 to Plaintiff's Motion to Compel Jane Doe #l, Jane Doe #2, and Jane Doe #3 to Answer Deposition Questions and Motion to Prevent Further Obstruction of Depositions); 921- DC- 00000450- 59 (Brief in Support of Response of Jane Doe #2 to Plaintiff's Motion to Compel Jane Doe #l, Jane Deposition Questions and Depositions).

Doe #2, and Jane Doe #3 to Answer Motion to Prevent Further Obstruction of

148 921- DC- 00000442 (Response of Jane Doe #2 to Plaintiff's Motion to Compel Jane Doe #l, Jane Doe #2, and Jane Doe #3 to Answer Deposition Questions and Motion to Prevent Further. Obstruction of Depositions at 2); 921- DC- 00000450 (Brief in Support of Response of Jane Doe #2 to Plaintiff's Motion to Compel Jane Doe #l, Jane Doe #2, and Jane Doe #3 to Answer Deposition Questions and Motion to Prevent Further Obstruction of

In Little Rock, the President's co- defendant, Danny Ferguson, testified at a deposition. '4g Mr. Ferguson was asked about alleged meetings between the Governor and certain Jane Does, as well as about the alleged incident with Paula Jones in Governor Clinton's room at the Excelsior Hotel." ' Dec. 11, 1997: . . Judue Wright issues an order allo winu "other

women" discoverv to Proceed and establishes a . . "meticulous" materialztv stan dard The next day, Thursday, December 11, 1997 -- the same day Ms. Lewinsky met Mr. Jordan for the second timeIs -- Judge Wright issued an order partially granting Ms. Jones's November 12, 1997, motion to compel the President to respond to her second set of interrogatories." ' With regard to Interrogatories #lO & 11, Judge Wright ordered the President to provide answers subject to limitations:

[Tlhe Court will establish a time frame that spans 5 years prior to May 8, 1991 (the date of the alleged incident that is the primary subject of this lawsuit), up to the present. Second, the Court will limit the class of individuals within this time frame to two categories, those who were state or federal employees, and those whose liaisons with Governor Clinton were

Depositions at 1). 149 1292- DC- 00000937- 1075 (Ferguson 12/ 10/ 97 Depo.).

150 1292- DC- 00000937- 1075 (Ferguson 12/ 10/ 97 Depo. at 16- 42, 45- 69, 73- 76, 92- 99, 102- 03).

151 V004- DC- 00000171 (Akin, Gump production; visitor records).

152 921- DC- 00000459- 66 (Order of Dec. 11, 1997). The motion sought to compel responses to Ms. Jones's second set of interrogatories.

procured,. protected, concealed, and/ or facilitated by State Troopers assigned to the Governor.

. . The Court finds, therefore, that the plalntlff 1 S

whom the President had sexual relations or nroposed or sousht to have sexual relatrons and who were durina the relevant time frame state or federal emplovees. Plaintiff is also entitled to information regarding every person whom the President asked, during the relevant time frame, to arrange a private meeting between himself and any female state or federal employee which was attended by no one else and was held at any location other than his office. The Court cannot say that such information is not reasonably calculated to lead to the discovery of admissible evidence.

The Court further finds that plaintiff is entitled to information regarding any individuals, whether or not state or federal employees, whose liaisons with Governor Clinton were procured, protected, concealed, and/ or facilitated by State Troopers assigned to the Governor. Such information may bear on plaintiff's efforts at establishing a pattern or practice of conduct. 153

Judge Wright added: [Alny alleged relationships and/ or arranged meetings with a federal employee that occurred when the President was not in a position to directly affect that individual's employment, i. e., when he was still Governor and was not President- elect, would fall outside of the guidelines the Court today establishes. Likewise, any alleged relationships and/ or arranged meetings with a state employee that occurred when the President was no longer in a position to directly affect that individual's state emplovment would also fall outside of the

As to materiality of the explained:

Court's guideiin&. '54 President's testimony, Judge Wright

153 921- DC- 00000461 added).

(Order of Dec. 11, 1997, at 3) (emphasis

154 921- DC- 00000461 n. 2 (Order of Dec. 11, 1997, at 3 n. 2).

The standard that this Court will utilize in addressing any questions regarding the necessity and scope of the President's testimony at any deposition or trial will be "if the Court is satisfied that his testimony would be materid as tested by a meticulousstandard, as well as being necessary in the sense of being a more logical and more persuasive source of evidence than alternatives that might be suggested." '55

Judge Wright added that II [tl his was the standard utilized by this Court in determining the necessity of the President's videotaped testimony in United States v. Branscum, No. 96- CR- 49 (E. D. Ark. June 7, 1996)." 156 Dec. 12- 15, 1997: The President's layers ODDose efforts to

On Friday, December 12, 1997, the President's attorneys filed a brief opposing Ms. Jones's motion to compel the testimony of Jane Does #l- 3." ' In that brief, the President's attorneys

conroe1 Jane Does #l- 3 to testifv: Judge . Merh= e orders Kathle en mlev deDosition to

proceed: the President tells M S. Lewinslcv . that she is on the wetness lzst. Judae wrw. bk * . .

comnels Jane Does #l- 3 to testifv and clarifies the necessarv factual Predicate: Jane Doe #5 subwenaed

asserted that "[ pllaintiff has failed to establish the appropriate predicate with each deponent before prying into her private affairs, as the Court has required. Each of these women

155 921- DC- 00000463 (Order of Dec. 11, 1997, at 5) (quoting United States v. Poindexter, 732 F. Supp. 142, 147 (D. D. C. 1990)) (emphases added).

156 921- DC- 00000463 (Order of Dec. 11, 1997, at 5). This Office prosecuted the Branscum case.

157 920- DC- 00000405- 26 (President Clinton's Opposition to Plaintiff's Motion to Compel Jane Doe #l, Jane Doe #2, and Jane Doe #3 to Answer Deposition Questions).

has testified on the record, under oath, that she was never sexually harassed or subjected to unwelcomed sexual advances by Governor Clinton.""* Therefore, the President's attorneys argued, Ms. Jones's motion to compel testimony should be denied. That same day, December 12, 1997, Judge Wright issued an order permitting Ms. Jones's attorneys to videotape the deposition of Jane Doe #2." '

On December 15, 1997, Ms. Jones's attorneys notified the President's attorneys that they would depose Jane Doe #5 on January 9, 1998.16' And, in New York City, Ms. Jones's attorneys deposed Onie E. "Betsey" Wright. l" Ms. Jones's attorneys asked Ms. Wright several questions about her "other women" discussions with the President. 16*

On Tuesday, December 16, 1997, Judge Robert R. Merhige, Jr., of the United States District Court for the Eastern District of Virginia, issued an order -- the result of his November 19 hearing -- requiring Kathleen Willey to "present herself for her

158 920- DC- 00000405 (President Clinton's Opposition to Plaintiff's Motion to Compel Jane Doe #l, Jane Doe #2, and Jane Doe #3 to Answer Deposition Questions at 1).

159 920- DC- 00000721- 22 (Agreed Protection Order of Dec. 12, 1997).

16C 920- DC- 00000978- 82 (Plaintiff's Notice Duces Tecum of the Deposition upon Oral Examination of [Jane Doe #51).

161 Ms. Wright was the political supporter of President Clinton who was responsible for responding to "other women" allegations during the 1992 campaign. & Lois Romano, On the Warpath for Clinton, Wash. Post, Sept. 21, 1992, at D3.

162 1414- DC- 00001099- 102, 104- 08, 112- 13 (Wright 12/ 15/ 97 Depo. at 91- 101, 112- 26, 143- 46).

previously ordered deposition." 163 In the order, Judge Merhige ordered the deposition to proceed on January 2, 1998. (As

explained below, however, Ms. Willey's occurred on January 11, 1998.)

That same day, December 16, 1997,

deposition actually Ms. Jones's attorneys served the President's lawyers with a motion to compel the President to answer Ms. Jones's first set of requests for admissions and her third set of interrogatories, and another motion to compel him to respond to her first set of requests for the production of documents. 164 (The first set of requests for admissions had been served on the President on October 8, 1997; he had answered in part on November 10, 1997, but had objected to Requests #51- 65 (having to do with "other women"). The third set of interrogatories had been served on the President on October 13, 1997, and partially answered by him on November 12, 1997. The first set of requests for the production of documents was served on the President on October 1, 1997, and partially answered by him on November

Meanwhile, in New York two book publishers who had Ms. Jones: Judith T. Regan,

17, 1997.) City, the President's lawyers deposed contacts with affiliates of the president and publisher of Regan Books, 165 and Adrian 2. Zackheim, an employee of publisher

16' DE- DC- 00000215- 16 (Order of Dec. 16, 1997, at 1).

164 1414- DC- 00001237- 43 (Plaintiff's Motion to Compel Production of Documents or, in the Alternative, Motion for LR Camera Inspection).

165 1414- DC- 00001224- 35 (Regan 12/ l/ 6/ 97 Depo.).

HarperCollins. ' (The next day, December 17, 1998, they deposed literary agent Scott Waxman, asking him about his contacts with affiliates of Ms. Jones and about his involvement in a possible book about Ms. Jones. '67)

Also on December 16, Mitchell S. Ettinger, one of the President's lawyers, received Ms. Jones's second request for documents and items. '6s The Requests commanded the President to produce documents that concerned "Monica Lewisky [sic]" and others. 16'

According to Monica Lewinsky, that night at about 2: 00 a. m., (now Wednesday, December 17, 19971, the President called and suggested the possibility that she could avoid a deposition by filing an affidavit." ' Ms. Lewinsky testified that the President advised her that she could always say that she was delivering papers or visiting Betty Currie when she came to the White House. '71

On Thursday, December 18, 1997, Judge Wright granted Ms. Jones's motion to compel Jane Does #l- 3 to testify at

i66 1414- DC- 00001214- 23 (Zackheim 12/ 16/ 97 Depo.).

167 1414- DC- 00001131- 49 (Waxman 12/ 17/ 97 Depo.).

168 1414- DC- 00001534- 46 (Second Set of Requests from Plaintiff to Defendant Clinton for Production of Documents and Things).

169 1414- DC- 00001539 (Second Set of Requests from Plaintiff to Defendant Clinton for Production of Documents and Things at 6).

“’ Lewinsky 8/ 6/ 98 GJ at 123. I" L at 124.

depositions. '72 The order l'clarif[ iedl the factual predicate

[Ms. Jones] must . . . establishi with each deponent prior inquiring into alleged sexual activity. n'73 This predicate could be established by a showing that had an existing or potential employment nexus to

factual the deponents the President The order stated, however, that in the absence of any state employment connection, Ms. Jones's attorneys' ability to establish a nexus to state troopers did not itself permit

that to

174

Ms. Jones's attorneys to ask questions about any sexual activity between the President and the Jane Does." ' Rather, Ms. Jones's attorneys could ask the Jane Does

whether they have ever discussed with Governor or President Clinton the possibility of employment with either state or federal government or whether they have ever applied for such employment or whether he ever offered such employment. If the answer to any of these questions is in the affirmative, then counsel may continue the deposition by asking the personal and potentially embarrassing questions concerning their alleged sexual relationship with President Clinton. '76

172 920- DC- 00000517- 25 (Order of Dec. 18, 1997).

173 920- DC- 00000518 (Order of Dec. 18, 1997, at 2).

174 920- DC- 00000520 (Order of Dec. 18, 1997, at 4). Judge Wright's December 18, 1997, Order referred only to state employment, because it considered only discovery of women the President allegedly had sexual relations with before he became President. Judge Wright's December 11, 1997, Order, however, had established that information about alleged "other women" who were federal employees since Mr. Clinton became President would also be discoverable.

175 920- DC- 00000521 (Order of Dec. 18, 1997, at 5).

176 920- DC- 00000522 (Order of Dec. 18, 1997, at 6).

In this same order, Judge Wright indicated that not all discoverable evidence was necessarily admissible, and that if the case went to trial, Judge Wright "anticipateldl limiting the amount of time and number of witnesses that will be spent on

issues of alleged sexual activity of both the President plaintiff (should such matters otherwise be deemed admissible) .qr177 Judge Wright made clear, however, that issue [at hand was1 one of discovery, not admissibility

and the "the of evidence at trial. Discovery, as all counsel know, by its very nature takes unforseen twists and turns and goes down numerous paths, and whether those paths lead to the discovery of admissible evidence often simply cannot be predetermined."" '

On this same date, December 18, 1997, Jane Doe #5 received a subpoena." '

Dec. 19- .24, 1997: Doenaed, then meets with 1 .

. znforms the Preszdent's lawers of his flu . otron to gugg& Ms. Lew+ askv's

mbooena. . . the President answezz mterroaatories NO- lb

Ms. Lewinsky was served with a subpoena duces tecum in the a case on Friday, December 19, 1997, '* ' which required her to

920- DC- 00000523 (Order of Dec. 18, 1997, at 7). 920- DC- 00000523- 24 (Order of Dec. 18, 1997, at 7- 8).

117 178

179 subpoena

(Subpoena in a Civil Case) 920- DC- 00000970- 72. (Subpoena in a Civil Case). The

was issued on December 11, 1997. 920- DC- 00000970 180 Lewinsky 8/ 6/ 98 GJ at 128; Harte 4/ 17/ 98 Int. at 1. The subpoena was signed and dated on Wednesday, December 17, 1997.

69 appear, and be deposed, on January 23, 1998. The subpoena also required Ms. Lewinsky to produce a number of items, including all gifts she had received from the President. After she received the subpoena, Ms. Lewinsky met with Vernon Jordan. 'a1

On Monday, December 22, 1997, Ms. Lewinsky met Mr. Jordan at his office, and together they went to Frank Carter's office. '** Ms. Lewinsky retained Frank Carter as her attorney to represent her in the Jona matter. 183

The following day, Tuesday, December 23, 1997, Mr. Carter met with the President's personal attorneys. The President's attorneys informed Mr. Carter that other witnesses had filed motions to quash and offered to provide him with assistance. '84

That same day, December 23, 1997, in obedience to Judge Wright's order of December 11, 1997, the President through his lawyers served a second set of supplemental responses to Ms. Jones's second set of interrogatories (those originally served on him on October 1, 1997) and the President verified that he had "read the . . . supplemental responses to Plaintiff's Second Set of Interrogatories and declareId under penalty of

921- DC- 00000792- 95 (Subpoena in a Civil Case).

181 Lewinsky 8/ 6/ 98 GJ at 129; V004- DC- 00000172 (Akin, Gump visitor logs) _

‘** Lewinsky GJ at 8/ 6/ 98 138- 39.

183 Carter GJ at 6/ 18/ 98 12, 14.

184 Carter GJ at 6/ 18/ 98 39- 42. 53

perjury that they are true and correct to the best of my knowledge and belief." '* 5

The President's responses were limited in scope to the information required by Judge Wright in that order, in that they related only to events since May 8, 1986, and individuals who were state or federal employees, or whose liaisons with then- Governor Clinton were facilitated by State Troopers assigned to his security detai1.1E6

Within these limits, however, the President answered Interrogatories #10 & 11, which asked about his actual, and proposed, sexual relations with other women. The President answered l'None'l to both- Is7 With regard to Interrogatory #17,

which asked the President to name each and every person whom he asked to arrange a private meeting with another woman at a location other than his office at any time, the President stated that he "has attended literally hundred of meetings _ . . and cannot recall which, if any, meetings were attended only by himself and a federal or state female employee at a location other than his office." '**

185 849- DC- 00000066- 70tPresident Clinton's Supplemental Responses to Plaintiff's 00000069 (Verification).

Second Set of 1nterrogator: es); 849- DC- 186 849- DC- 00000066 (President Clinton's Supplemental Responses to Plaintiff's Second Set of Interrogatories at I).

187 849- DC- 00000067 (President Clinton's Supplemental_ Responses to Plaintiff's Second Set of Interrogatories at 2).

188 849- DC- 00000067 (President Clinton's Supplemental Responses to Plaintiff's Second Set of Interrogatories at 2).

The next day, Wednesday, December 24, 1997, Ms. Jones's attorneys filed a motion asking Judge Wright to reconsider her December 18, 1997, ruling ordering the Jane Does to testify but placing certain limits upon the scope of the questioning by requiring the Jones attorneys to establish a "factual predicate" for their questions and placing certain other restrictions on discovery. '8g The motion also complained of "dilatory, obstructionist tactics" used by lawyers for the President and Mr. Ferguson, including coaching of witnesses as to what other witnesses have said and making inappropriate "speaking objections" during depositions." '

Dec. 30- 31, 1997: ett concedes that "sex- fer- iobs" is I. Jones's attornevu for . B- ctloga .

On Tuesday, December 30, 1997, Judge Wright held a hearing with counsel for all parties." l During the hearing, Judge Wright discussed Ms. Jones's motion December 24, 1997, motion for reconsideration of her ruling limiting the scope of the depositions of Jane Doe #l- 3, -but indicated that she 'was not yet ready to rule on the motion. Judge Wright also warned Mr. Bennett and Mr. Ferguson's lawyer (Bill Bristow) about their interrupting and disrupting depositions, and threatened to lift

189 1414- DC- 00001015- 62 (Plaintiff's Motion to Reconsider Court's December 18, 1997 Order).

190 1414- DC- 00001024 (Plaintiff's Motion to Reconsider Court's December 18, 1997 Order at 10).

191 921- DC- 00000711 (Clerk's Minutes); 1414- DC- 00001445- 1505 (Telephone Conference 12/ 30/ 97 Tr.).

the restrictions on "other women" discovery if their behavior did not improve."*

Mr. Bennett in turn warned that he was ready for a "free- for- all" consisting of 30140 rebuttal witnesses if Ms. Jones's attorneys opposed "a ruling from the Court that the probative value of the sex life of Mr. Clinton and the sex life of Ms. Jones is far out weighed by other considerations. n1g3

Mr. Bennett asserted that he would "really oppose" the efforts of Ms. Jones's attorneys attempts to "show that Bill Clinton is not a faithful husband. And I think we have to have a conference devoted to how far you're going to let them go on some of this stuff. 1V'g4 Mr. Bennett did concede, however, that questions related to sex- for- jobs would be "fair game." lg5 Mr. Bennett also commented about Ms. Jones's sexual history compared to the President's sexual history: "Frankly, _ . . if you unleash every deposition that's been taken to date, Paula Jones makes Bill Clinton look like a choir boy. 111g6

192 l414- DC- 00001450, 66 (Telephone Conference U/ 30/ 97 Tr. at 6, 22 1.

193 1414- DC- 00001473 (Telephone Conference Tr. 12/ 30/ 97 at 29).

194 1414- DC- 00001480 (Telephone Conference 12/ 30/ 97 Tr. at 36).

195 1414- DC- 00001494 (Telephone Conference 12/ 30/ 97 Tr. at 50).

196 1414- DC- 00001496 (Telephone Conference 12/ 30/ 97 Tr. at 52).

Judge Wright explained that Ms. Jones's attorneys would at trial have to limit their evidence regarding "other women," but that some such evidence might be admissible: aI will not permit you to spend a lot of court time on this business about of [sic]

. . other women. 2 do believe it is relevantad I will let vou set Pome e vidence in on th& I but you're going to have to pick your evidence carefully. 81'g' Judge Wright also explained that although she had "permitted in the answers to interrogatories some pretty embarrassing questions," she would "require the President's deposition to be tailored"; nonetheless, she made clear that she would not limit it to "stuff that's not embarrassing." 'g8

Also on December 30, 1997, Ms. Jones's attorneys moved to sanction the President's attorneys for leaks and for violating Rule 30( d) (11, which provides that "[ alny objection to evidence during a deposition shall be stated concisely and in a non- argumentative and non- suggestive answer. U1gg The attorneys argued that "[ clounsel for Defendant Clinton has, during the depositions, frequently used their prerogative to object as an excuse to make arguments, 'coaching' non- party deponents and

197 1414- DC- 00001491 (Telephone Conference 12/ 30/ 97 Tr. at 47) (emphasis added).

198 1414- DC- 00001493 (Telephone Conference 12/ 30/ 97 Tr. at 49).

199 Fed. R. Civ. P. 30( d) (1); 1414- DC- 00001063- 1168 (Plaintiff's Motion for a Protective Order and Sanctions Based on Violations of the Confidentiality Order and Rule 30( d) (1)).

their counsel 'to answer evasively and suggesting grounds for refusing to answer."*"

Jan. 2- 7, 1998: Jane Doe #2 testifies, Jane Doe #5 signs an ’ .

. . sffzdavlt. Ms. Lewmkv meets with Fran . k . . ne Doe #5 files a motion to auash . . her s* Poeaa. her . it.

On Friday, January 2, 1998, Jane Doe #2 testified at a deposition. Jane Doe #2 denied that she ever engaged in any "sexual activity" with the President.* 'l

On the same day, Jane Doe #5 signed an affidavit in which she denied that the President made "unwelcome sexual advances toward me in the late seventies."" '* (On April 8, 1998', however, Jane Doe #5 stated to OIC investigators that this affidavit was false.* 03)

On Monday, January 5, 1998, Ms. Lewinsky met with her attorney, Francis Carter, to discuss her subpoena in the Jones case.* 04 That same day, Ms. Jones's attorneys served the

President's attorneys with notice that the deposition of Jane. Doe

200 1414- DC- 00001069 (Plaintiff's Motion for a Protective Order and Sanctions Based on Violations of the Confidentiality Order and Rule 30( d) (1) at 7).

201 920- DC- 00000629- 53 (Jane Doe #2 l/ 2/ 98 Dept. at 59). .

202 920- DC- 00000962- 63 (Jane Doe #S l/ 2/ 98 Aff.).

203 Jane Doe #S 4/ 8/ 98 Int. at 6.

204 902- DC- 00000232 (Mr. Carter's diary); 902- DC- 00000037 (Mr. Carter's bill).

#3 was scheduled for Tuesday, January 20, 1998.* 05 Jane Doe #5, by her attorneys, moved for a protective order and to quash the subpoena. 206 Jane Doe #5's counsel attached to the motion an affidavit in which Jane Doe #5 attested that she did not "possess any information that could possibly be relevant to the allegations advanced by Paula Corbin Jones or which could lead to admissible evidence in her case." 207

Ms. Lewinsky signed her affidavit the next day, Wednesday, January 7, 1998.2o8 That same day, January 7, 1998, the President's attorneys served and filed an opposition to Ms. Jones's attorneys' December 24, 1997, motion to reconsider Judge Wright's December 18, 1997, order requiring a "factual predicate" in order to question the Jane Does.*" The President's lawyers also asked Judge Wright not to limit discovery of Ms. Jones's sexual history. 210

205 920- DC- 00000818- 822 (Plaintiff's Second Amended Notice Duces Tecum of the Deposition upon Oral Examination of [Jane Doe

#31) -

206 920- DC- 00000983- 93 (Motion for a Protective Order and to Quash Subpoena Duces Tecum and Deposition Subpoena).

207 920- DC- 00000992 (Motion for a Protective Order and to Quash Subpoena Duces Tecum and Deposition Subpoena at exhibit B).

*O* 849- DC- 00000314- 16 (Lewinsky- l/ 7/ 98 Aff.).

209 1414- DC- 00001169- 87 (President Clinton's Opposition to Plaintiff's Motion to Reconsider the Court's December 18, 1997 Order).

210 1414- DC- 00001183- 84 (President Clinton's Opposition to Plaintiff's Motion to Reconsider the Court's December 18, 1997 Order at 15- 16) _

Jan. 8, 1998: es Jane Doe #5’~ motion to uuti On Thursday, January 8, 1998 Judge Wright issued an order addressing outstanding discovery motions in the case, including the President's motion to compel Ms. Jones to answer certain interrogatories and document requests, and Ms. Jones's motion211 to compel the President to finish answering her third set of interrogatories, and first set of requests for admissions, and to produce certain documents and things. 2'2 (Ms. Jones's motion of December 17 had, among other things, complained that the President had not yet answered her requests for admission -- numbered 51- 65213 -- as to whether, as Governor, he ever "had sexual relations with certain women (other than his wife) in meetings that were arranged, facilitated, concealed, and/ or assisted by at least one member of the Arkansas State Police and that some of these women were or became employees of the State of Arkansas (or an agency thereof) _“ 214)

Judge Wright's order partially granted Ms. Jones's motion to compel, explaining:

211 1414- DC- 0000926- 32 (Plaintiff's Motion to Compel Answers to Plaintiff's First Set of Requests -for Admissions and Third Set of Interrogatories to Defendant Clinton).

212 921- DC- 00000736- 44 (Order of Jan. 8, 1998).

213 1414- DC- 0000927 (Plaintiff's Motion to Compel Answers to Plaintiff's First Set of Requests for Admissions and Third Set of Interrogatories to Defendant Clinton at 2).

214 921- DC- 00000738 (Order of Jan. 8, 1998, at 3).

The Court has already ruled that questions regarding whether the President, as Governor of Arkansas, had sexual relations with certain women (other than his wife) in meetings that were arranged, facilitated, concealed, and/ or assisted by at least one member of the Arkansas State Police and whether some of these women were or became employees of the State of Arkansas (or an agency thereof) are within the scope of the issues in this case. To the extent the President denies these allegations, he can so state without any undue burden. To

t to -previousanswers the President & miay be relevant to the =suesIns case andy lead to the disco . . verv of admlsslble evidence. Accordingly,

the Court finds that plaintiff's motion to compel on this point should be granted. 215

Judge Wright also held that "the President should answer interrogatories requesting full identifying information (names, addresses, and telephone numbers) concerning every person who has discoverable information relevant to this case and of every person to whom the President has made statements concerning plaintiff's allegations." 216 Judge Wright therefore directed the President "to answer plaintiff's first set of requests for admissions and third set of interrogatories on or before January -15, 1998." 217

215 921- DC- 00000739 (Order of Jan. 8, 1998, at 4) (emphasis added).

216 921- DC- 00000739- 40 (Order of Jan. 8, 1998, at 4- 5). 217 921- DC- 00000740 (Order of Jan. 8, 1998, at 5). The court also ordered the President to respond to Ms. Jones's first set of requests for production of documents to the extent of revealing the total amount of legal fees he had so far incurred. 921- DC- 00000741 (Order of Jan. 8, 1998, at 6).

This same order of January 8, 1998, also required Ms. Jones to respond to interrogatories and to produce documents to the President by January 15, 1997.* l'

Later this same day, January 8, 1998, Judge Wright conducted a hearing at which counsel from all parties participated by phone. During the hearing, Judge Wright informed all about the order described in first paragraph of this subsection." ' Judge Wright also denied Jane Doe #5's quash her subpoena for a deposition.** '

counsel motion to During this same hearing, Judge Wright also expressed general concern about how the depositions had proceeded. As the Clerk put it, Judge Wright "again discusse[ dl with counsel [her] concern of excess objections and advantage taken by [defendants'] counsel on Court's ruling on limitations of scope of deposition; [the Court] believes it should enforce Rule 30( d) (1). U221

21e 921- DC- 00000736- 38 (Order of Jan. 8, 1998, at l- 3). 219 921- DC- 00000751- 52 (Clerk's Minutes) _ The clerk of the court then mailed a copy of the order to all parties.- 921- DC- 00000743 (Mailing Certificate of Clerk)

220 921- DC- 00000751 (Clerk's Minutes at 1). 221 921- DC- 00000752 (Clerk's Minutes at 2). Federal Rule of Civil Procedure 30( d) (1) states:

Any objection to evidence during a deposition shall be stated concisely and in a non- argumentative and non- suggestive manner. A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under paragraph (31.

Fed. R. Civ. P. 30( d) (3) governs depositions "conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party" and directs parties or deponents

79 Jan. 9- 12, 1998: * . Judcre Wright modifies the recuired factual

predicate for "other wonten" auestions: Jane Poe #5 testifies. Kathleen Willev testxfxes. '* . . .

On Friday, January 9, 1998, Judge Wright issued an order granting in part and denying in part Ms. Jones's motion to reconsider the December 18, 1997 Order. 222 Judge Wright granted the part of Ms. Jones's motion regarding questioning Jane Does #l- 3 about potential state employment, holding that if the Jane Does admitted whether they had ever applied for a state job, ever discussed employment with President Clinton, or had reason to believe that President Clinton knew of their interest in such employment, then Ms. Jones could ask about sexual activities with the President. 223

Judge Wright denied the portion of Ms. Jones's attorneys' motion with regard to the "trooper nexus." (Ms. Jones's attorneys had sought reconsideration of Judge Wright's ruling that "the state trooper nexus is insufficient alone to permit the sexual activities question because the depositions, as they now read, do not support plaintiff's allegations of a pattern or practice of sexual harassment. "224) Ms. Jones's attorneys claimed that the trooper ruling would preclude her from establishing her claim for sex discrimination. Judge Wright disagreed, and found

to file a motion with the district court if an improper deposition.

222 1414- DC- 00001188- 92 (Order of Jan.

223 1414- DC- 00001189 (Order of Jan. 9,

224 1414- DC- 00001189 (Order of Jan. 9, a part conducts such

9, 1998).

1998 at 2).

that Ms. Jones. did not have a viable sex discrimination claim, only a sexual harassment claim. Judge Wright ruled that the of troopers did not establish an adequate nexus absent an unwelcome sexual contact. 225

use Finally, Judge Wright warned the parties about improper deposition objections and witness coaching: "any objection to evidence during a deposition 'shall be stated concisely and in a non- argumentative and non- suggestive manner, ' and without any coaching of the witness as to what previous discovery may or may not have disclosed." 226

On January 9, 1998, Jane Doe #5 testified at a deposition. 227 She testified that if she previously had said that the President had sexually assaulted her, "it was untrue."" ' Jane Doe #5 also testified that an affidavit she had signed was true and correct. 22g The affidavit denied that "Mr. Clinton had made unwelcome sexual advances toward me in the late seventies." 230 On Sunday, January 11, 1998, Kathleen Willey testified at a

225 1414- DC- 00001191 (Order of Jan. 9, 1998, at 4).

226 1414- DC- 00001192 (Order of Jan. 9, 1998, at 5) (quoting Fed. R. Civ. P. 30( d) (1)).

227 920- DC- 00000922- 29 (Jane Doe #5 l/ 9/ 98 Depo.).

228 920- DC- 00000926 (Jane Doe #5 l/ 9/ 98 Depo. at 15- 16).

229 920- DC- 00000928 (Jane Doe #5 l/ 9/ 98 Depo. at 22- 23).

230 920- DC- 00000962 (Jane Doe #5 l/ 2/ 98 Aff. at 1).

deposition in the United States District Court in Richmond, Virginia. 231 Jan. 12, 1998: . . Bear& m about dlscovervn e . vidence at trial.

. . . deposltzon of the Presl& nt. Frank Ca . rter . ks with Ms. Jones . dae . t urges the ggL; tles to settle.

Mr.

him On Monday, January 12, 1998 -- as Frank Carter spoke to

Fyke, one of Ms. Jones's attorneys, and attempted to persuade not to depose Ms. Lewinsky -- Judge Wright held a lengthy hearing to discuss witness issues, the President's upcoming January 17, 1998, deposition, and the evidence that the parties planned to put on at trial. 232 During the hearing, which lasted almost the entire day, Judge Wright asked the parties to discuss the proof they each planned to introduce at trial. 233

Ms. Jones's counsel went first, and explained that there were several different categories of witnesses that they intended to call at trial. Ms. Jones's counsel told Judge Wright that some of these witnesses "relate to the pattern and practice issue, the habit evidence. And that, obviously, is focused on his harassment of other women. And there are witnesses that relate to the issue that I will generally describe as the cover- up, the suppression of evidence, the intimidation of witnesses in

231 DE- DC- 00000217- 27 (Willey l/ 11/ 98 Depo. excerpts).

232 921- DC- 00000770- 72 (Clerk's Minutes); 1414- DC- 00001291- 1444 (Hearing l/ 12/ 98 Tr.).

233 The hearing began at lo: 25 a. m. and ended at 4: 05 p. m. (with breaks throughout the day). l/ 12/ 98 Tr.). .

1414- DC- 00001291- 1444 (Hearing 65

a concerted, systematic effort to prevent our client and others like her from developing cases that they might bring. t1234

Ms. Jones's counsel then named the "other women" he planned to call at trial:

MR FISHER: THE COURT: MR. FISHER: THE COURT: MR. FISHER:

* * l *

THE COURT:

* * * *

THE COURT:

* * * *

They would include . . . [Jane Doe #2l, Monica Lewinsky . . . .

Can you tell me who she is? Yes, your Honor. I never heard of her. She's the young woman House for a period of

who worked in the White time and was later transferred to a job in the Pentagon. . . .

[And the other women are Jane Doe #7, Jane Doe #5] . . . Gennifer Flowers . . . [and there] are three other women who are possibilities in our thinking at this point . . . i

Well, I'm going to have something to say about all of this stuff. But I'm going -- I'm letting you put on -- tell me what evidence you want to put on. Go ahead . . . .

. . . . I'm literally asking the plaintiff and you to put out what evidence you've got. In other words, this is a civil case. I don't want to be -- I'm not -- I'm not going -- counting surprise, and I don't want the President's precious time to be occupied in a discovery deposition with a lot of stuff'that either is a dead end street or I'm not going to let it in. . . .

234 1414- DC- 00001326 (Hearing l/ 12/ 98 Tr. at 36). 66

Now, I have repeatedly said that the plaintiff will not be able to put on all the evidence that she has about what -- about Mr. Clinton's sexual proclivities. I've also said that she can put on some. . . .

* * * *

[Addressing the plaintiff] It would make me very happy if you just stuck to . . . the direct kn‘ owledge witnesses. And I know that the Rules of Evidence don't require you to do that, and in fact, the Rules of Evidence in harassment cases -- and I'm not citing any authority right now for it, but I know in harassment cases, frequently, court's [sic] permit other bad acts, other volatile acts, that kind of thing. And I'm also aware that in sexual assault cases, the Rules of Evidence promulgated by the Violence Against Women Act has certainly opened it up. so I can't say that you can't call any of the witnesses in group B [the P attern and practice issue witnesses]. 35

Judge Wright then explained why she was concerned about certain witnesses Ms. Jones's attorneys planned to call, such as a trooper with a memory of only assisting the President with visits with "nameless" women, 236 "other womenl' who did not have an

employment nexus to the President, 237 and Jane Doe #5.23* Judge

Wright indicated that Ms. Jon& s's attorneys proposed to use "just too many witnesses," and told Ms. Jones's attorneys that she was planning on limiting the number of witnesses at trial. 23g For

235 1414- DC- 00001327- 33 (Hearing- l/ 12/ 98 Tr. at 37- 43).

236 1414- DC- 00001334 (Hearing l/ 12/ 98 Tr. at 44).

237 1414- DC- 00001335 (Hearing l/ 12/ 98 Tr. at 45).

238 1414- DC- 00001339 (Hearing l/ 12/ 98 Tr. at 49).

239 1414- DC- 00001335 (Hearing l/ 12/ 98 Tr. at 45). 67

purposes of Ms. Jones's

discovery, however, Judge Wright permitted attorneys to ask the President "about people you know, whose names have been given you or people whom have, you know, a reasonable basis for asking about." 240

whose -- You Judge Wright also expressed concern about leaks to "Mr. Drudge" and the "Drudge report. N241

During the hearing, Judge Wright encouraged the parties to settle the case, and she offered to speak directly with Ms. Jones about this prospect. Judge Wright made several comments to Ms. Jones's counsel about the strength of Ms. Jones's case. Judge Wright warned Ms. Jones's lawyers that she thought "it's unlikely that a jury will find for [Ms. Jones] if this matter goes to trial. 1@ 242

Judge Wright also cautioned that settlement might be in the President's best interests, in part because "if this thing does go to trial, some of the Jane Does will be mentioned not as Jane Doe but as someone else, and some of the people who have been his friends will be very embarrassed and tainted for life as a result of embarrassing testimony about them. 1@ 243 Judge Wright reminded the parties that "1 have repeatedly said that the plaintiff will not be able to put on all the evidence that she has about what --

240 1414- DC- 00001336 (Hearing l/ 12/ 98 Tr. at 46).

241 1414- DC- 00001299- 300 (Hearing l/ 12/ 98 Tr. at g- 10.).

242 1414- DC- 00001314 (Hearing l/ 12/ 98 Tr. at 24).

243 1414- DC- 00001315 (Hearing l/ 12/ 98 Tr. at 25). 68

about Mr. Clinton's sexual proclivities. I've also said that she can put on some. n244

Judge Wright discussed the President's deposition. She informed defense counsel that she was "not limiting the President's deposition" in the way that she limited the deposition of Jane Does #1- 3.245 Judge Wright also cautioned counsel about the matter and method of objections during the deposition:

I do not want the President's deposition to read like Jane Doe l's first deposition or Jane Doe 3's deposition or the Betsey Wright deposition.

**** If you have an objection, you are to state your objection. And you're not going to be misleading in any way or coach the witness in any way following your objection . . . . And I don't want you, you know, holding up the Jane Doe 1, 2 and 3 depositions and pointing to some sentence in there and reading it out of context, because that's -- I've been burned on that, Mr. Ettinger. And I'm not going to have it from you anymore.

* * * *

I'm talking about from your side, from the defense side and the witnesses' lawyers. 246

The hearing also involved- discussion about the potential use of the President's deposition. Judge Wright asked defense

244 1414- DC- 00001332 (Hearing l/ 12/ 98 Tr. at 42).

245 1414- DC- 00001407 (Hearing l/ 12/ 98 Tr. at 117).

246 1414- DC- 00001407- 08 (Hearing l/ 12/ 98 Tr. at 117- 18). When Mr. Ettinger, one of the President's lawyers, objecte'd to this characterization, Judge Wright stated that counsel for the witnesses were as culpable as other counsel for the defense, "if not more so." 1414- DC- 00001408 (Hearing l/ 12/ 98 Tr. at 118).

counsel whether the deposition would be a discovery deposition, rather than an evidence deposition:

THE COURT: MR. BENNETT: THE COURT:

MR. BENNETT: THE COURT:

MR. BENNETT: MR. FISHER:

And the President's deposition, I assume is a discovery one and will not be used as an evidentiary deposition; is that correct?

Well, I don't know. I mean, that remains to be seen. I mean, what if on the date of the trial there's a world war? I mean, he --

Let me suggest this. I want you to conduct this deposition with one thing in mind. I don't want anyone to make any strategic moves and later tell me that this is in reliance on what I'm about --

No. -- to say. But keep in mind that because it is possible that -- because he is the President, he might not be here.

And the Supreme Court said he didn't have to be.

That's right. And I would never require him to be here -- that you might have to use his deposition as evidence.

That's correct. Exactly, Your Honor. We -- we intend t0.247

247 1414- DC- 00001425- 26 (Hearing l/ 12/ 98 Tr. at 135- 36); m also Fed. R. Civ. P. 32( a) (3) (use of a deposition at a trial as substantive evidence).

-- 1 87

Jan. 15, 1998: On January 15,

. The President uerves responses to document , . yeauests. znterroffatorxes, and reauests for 1998, the President's attorneys served

Ms. Jones's attorneys with the President's response to Ms. Jones's second set of document requests. 2'8 Requests #S- 7 had asked the President to produce all documents and tangible things that related to "Monica Lewisky [sic]," and others. 24g In his response, the President objected to those requests, but stated that, notwithstanding his objections, he had "no documents" that would be responsive to the requests. 250

The President's lawyers also served Ms. Jones's lawyers with the President's supplemental responses to Ms. Jones's first set of requests for admissions. 251 (Among these requests were Requests for Admissions 51- 65, which had asked the President to admit or deny sexual relations with women other than Hillary Rodham Clinton and to admit or deny the use of state troopers for Governor Clinton's sexually- related encounters with "other

248 VOO2- DC- 00000093- 116 (President Clinton's Responses to Plaintiff's Second Set of Document Requests).

249 V002- DC- 00000102- 05 (President Clinton's Responses to Plaintiff's Second Set of Document Requests at 10- 13)

250 V002- DC- 00000103- 05 (President Clinton's Responses to Plaintiff's Second Set of Document Requests at U- 13).

251 849- DC- 00000283- 86 (President Clinton's Supplemental Responses to Plaintiff's First Set of Requests for Admissions).

women. 1* 252) The President objected to these requests, but then denied the suggested sexual activity. 253

Finally, also on January 15, 1998, the President's lawyers served President Clinton's supplemental responses to Ms. Jones's third set of interrogatories and her first request for documents. 254 That same day, January 15, 1998, the President verified "under penalty of perjuryll that these supplemental interrogatory responses were 'Itrue and correct to the best of my knowledge and belief. n255 The supplemental responses identified: (1) two individuals not previously identified who had discoverable information (Diane Evans of the AIDC and Linus Raines of the Excelsior Hotel); and (2) persons to whom the President had denied the May 1991 Excelsior Hotel- related allegations, including Vernon Jordan, Bruce Lindsey, George Stephanopoulos, Dee Dee Myers, and James Carville. 256 With respect to the documents sought -- namely, those concerning legal

252 849- DC- 00000283- 86 (President Clinton's Supplemental Responses to Plaintiff's First Set of Requests for Admissions); 849- DC- 00000158- 162 (First Set of Requests from Plaintiff to _

Defendant Clinton at 14- 18).

253 849- DC- 00000284 (President Clinton's Response to Plaintiff's First Set of Requests 2).

Supplemental for Admissions at

254 849- DC- 00000103- 10 (President Clinton's Supplemental Responses to Plaintiff's Third Set of- Interrogatories and Plaintiff's First Request for the Production Of Documents).

255 849- DC- 00000109 (Verification).

256 849- DC- 00000103- 06 (President Clinton's Supplemental Responses to Plaintiff's Third Set of Interrogatories and Plaintiff's First Request for the Production Of Documents at 3- 4) -

fees -- the President objected to the request, but pursuant to court order revealed that his counsel had billed over $2.3 million as of January 15.257 San. 16, 1998: .

Presubza~ vwers notified of Jane Doe #3 I . . f8 . . deDosltiona Ms. Le . winskv moves to auash

BubDoena

On Friday, January 16, 1998, Ms. Jones's attorneys served the President's lawyers with a notice scheduling Jane Doe #3's deposition for January 28, 1998.25*

Also on Friday, January 16, 1998, Frank Carter, counsel for Ms. Lewinsky, filed a motion for a protective order and sought to quash her subpoena. 25g Mr. Carter indicated that he had spoken with Ms. Jones's counsel on January 12, 1998, and again on January 15, 1998, in an unsuccessful attempt to persuade Ms. Jones's counsel not to proceed with the Lewinsky deposition. Mr. Carter explained: "I sent [Ms. Jones's counsel] a letter emphasizing my former arguments for not going forward with the deposition and enclosing an Affidavit from Jane Doe #6 [Monica Lewinskyl about her lack of knowledge of relevant evidence for

257 849- DC- 00000107 (President Clinton's Supplemental Responses to Plaintiff's Third Set of Interrogatories and Plaintiff's First Request for the Production Of Documents at 5).

258 920- DC- 00000823- 27 (Plaintiff's Third Amended Notice Duces Tecum Of The Deposition Upon Oral Examination Of [Jane Doe #31).

259 1292- DC- 00000657- 60 (Motion of Jane Doe #6 for Protective Order and Motion to Quash); 1292- DC- 00000661- 86 (Memorandum in Support of Motion of Jane Doe #6 for Protective Order and Motion to Quash). The motion is file- stamped Tuesday, January 20, 1998. 850- DC- 0000082 (Docket Sheet).

this case." 260 Because Ms. Jones's counsel had not acceded to this request, the motion asked Judge Wright to quash the subpoena and cancel Ms. Lewinsky's deposition because "[ tlhe deposition will not produce any relevant information and will be unreasonable and oppressive for Jane Doe #6." 261

Jan. 17, 1998: . e Presi& nt's demouitlog On Saturday, January 17, 1998, the President testified at a sworn deposition attended by Judge Wright. 262 As the deposition started, Judge Wright addressed the President's counsel's concerns regarding the scope of the President's deposition testimony. Judge Wright rejected the President's counsel's attempt to place new limits on the scope of deposition questioning. In so ruling, Judge Wright commented about the nature of the questions that the President would be asked: "Unfortunately, the nature of this case is such that people will be embarrassed. 11263

260 1292- DC- 00000658- 59 (Motion of Jane Doe #6 for Protective Order and Motion to Quash at 2- 3).

261 1292- DC- 00000657- 58 (Motion of Jane Doe #6 for Protective Order and Motion to Quash at l- 2).

262 849- DC- 00000351- 585 (Clinton l/ 17/ 98 Depo.).

263 849- DC- 00000360 (Clinton l/ 17/ 98 Depo. at 9). 74

Jan. 21- 30, 1998: er aother w- II

. testifies. . ’ dlscoverv cads On Wednesday, January 21, 1998, Nate Speights entered his appearance as counsel for Monica Lewinsky, and requested that Mr. Carter withdraw as counsel. 264

The next day, Thursday, January 22, 1998, Ms. Jones's attorneys served an opposition to Ms. Lewinsky's motion for a protective order. 265 Ms. Jones's counsel argued that "[ t] he parties and the various Jane Does have briefed extensively the law governing discovery of 'other women' in this case and Plaintiff will not burden the record by repeating that briefing." 266 Ms. Jones's counsel asserted that "Plaintiff believes that many statements in [Monica Lewinsky] Is affidavit are not true and that Mr. Clinton or those acting on his behalf encouraged her to lie. Plaintiff is entitled to discovery to pursue these theories, including the deposition of [Monica Lewinskyl .11267

264 921- DC- 00000805 (Notice of Appearance for Nathaniel H.

Speights) . 265 921- DC- 00000807- 26 (Plaintiff's Statement in Opposition to Motion of Jane Doe #6 for Protective Order and Motion to Quash).

266 921- DC- 00000807 (Plaintiff's Statement in Opposition to Motion of Jane Doe #6 for Protective Order and Motion to Quash at 1) -

267 921- DC- 00000807 (Plaintiff's Statement in Opposition to Motion of Jane Doe #6 for Protective Order and Motion to Quash at 1).

Later that day, Judge Wright conducted a hearing with counsel from all parties, and during part of the hearing, counsel for Monica Lewinsky. The Clerk's minutes reveal that during the hearing, Judge Wright denied Ms. Lewinsky's motion to quash. With regard to whether Ms. Lewinsky's deposition would proceed, the Clerk's minutes state:

Court states same rule will apply as to other Jane Does with respect to deposition and questions to be asked of her. . . . Court takes up supplemental motion of whether Court should continue deposition pending resolution of criminal investigation and advises counsel it would deny and Jane Doe would have to attend deposition and tell truth and could invoke 5th if about to incriminate herself.

* * * *

After additional discussions, Court directs that deposition should 9 o reschedule . . . _ ”

forth but grants motion to In connection with the permission to reschedule, on Thursday, January 22, 1998, Judge Wright issued an order that "indefinitely continued" Ms. Lewinsky's deposition. 26g

On Monday, January 26, 1998, the President's attorneys issued a subpoena to the Office of the Independent Counsel (IIOIC1l) that requested that the OIC to produce all documents it had that related to Monica Lewinsky, Linda Tripp, and Lucianne S. Goldberg. 270

268 269 270

attached 921- DC- 00000982 (Clerk's Minutes).

921- DC- 00000827 (Order of Jan. 23, 1998). Letter from Robert S. Bennett to Kenneth W. Starr and subpoena, dated January 26, 1998.

The next day, Tuesday, January 27, 1998, the OIC filed a motion requesting a limited intervention in the Jones case so that the OIC could conduct its criminal investigation without interference.* 'l Two days later, on Thursday, January 29, 1998, the OIC filed a motion to stay discovery in the Jones case, requesting Judge Wright to stay discovery pending resolution of the related criminal investigation. 272

That same day, Thursday, January 29, 1998, Judge Wright held a hearing at which counsel for the parties and the OIC were present. Judge Wright issued an order later that day in which she observed that "OIC's motion comes with less than 48 hours left in the period for conducting discovery, the cutoff date being January 30, 1998." For this reason, Judge Wright stated that she was required to rule on the admissibility of the Monica Lewinsky evidence at that time. Citing Federal Rule of Evidence 403, which requires a judge to weigh the probative value of evidence against the prejudice it may cause, Judge Wright concluded:

[Rule 403'1s weighing process compels the conclusion _

that evidence concerning Monica Lewinsky should be excluded from the trial of this matter.

The Court acknowledges that evidence concerning Monica Lewinsky might be relevant to the issues in this case. This Court would await resolution of the criminal investigation currently underway if the Lewinsky evidence were essential to the plaintiff's

*'I & Motion of the United States for Limited Intervention and for Modification of October 30, 1997 Protective Order:

*'* & Motion of the United States for Limited Intervention and a Stay of Discovery.

case. The Court determines, however, that it is not essential to the core issues in this case. In fact, some of this evidence might even be inadmissable as extrinsic evidence under Rule 608( b) of the Federal Rules of Evidence. Admitting w evidence of the Lewinsky matter would frustrate the timely resolution of this case and would undoubtedly cause undue expense and delay. 273

Judge Wright held, however, that her "ruling today does not preclude admission of any other evidence of alleged improper conduct occurring in the White House. n274

As discovery closed, Ms. Jones's attorneys deposed another "other woman" on Friday, January 30, 1998.275 She denied that she ever engaged in "sexual activity" with the President. 276

Finally, Ms. Jones's attorneys filed another motion to compel discovery from the President on January 30, 1998. This last motion to compel argued that the President was withholding documents by using privilege claims.*" The documents in question related to the 1992 Clinton presidential campaign, James Lyons, Betsey Wright, Gennifer Flowers, Jane Doe #4, “J. Palladino," and others .*‘* Ms. Jones's lawyers alleged that Mr. Palladinols

273 Order of Jan. 29, 1998, at 2 JODPS v~ C~&& QQ, No. LR- C- 94- 290 (emphasis in original).

274 &L 275 920- DC- 00001001- 26 (" Other Woman" l/ 30/ 98 Depo.).

276 920- DC- 00001014 (" Other Woman" l/ 30/ 98 Depo. at 76- 77)

277 1414- DC- 00001237- 61 (Plaintiff's Motion to Compel Production of Documents or, in the Alternative, Motion for aera Inspection).

270 1414- DC- 00001237- 55 (Plaintiff's Motion to Compel Production of Documents or, in the Alternative, Motion for

"assignment'was to 'dig up dirt' on various women and to induce them not to disclose their sexual relationships with Defendant Clinton." 27g Feb.- Apr. 1998: de Judge

. . t to reconsider the exclusion of

. . ce about MS. Lewe. Judge Wrlg.& .

nt for the defendants On Tuesday, February 10, 1998, attorneys for Ms. Jones moved for reconsideration of Judge Wright's January 29, 1998, Order excluding testimony about Monica Lewinsky. Counsel for Ms. Jones argued that Judge Wright had erred in excluding the Monica Lewinsky testimony at this stage of the proceedings because, among other reasons, Rule 403 determinations should not be made before trial, Ms. Lewinsky's testimony was relevant to show a pattern and practice of behavior, and Ms. Lewinsky's was relevant to demonstrate a pattern of suppressing the Jones case. 2* 0

testimony evidence in

A week later, on Tuesday, February 17, 1998, the President's attorneys filed a motion for summary judgment, with supporting

Inspection). Camera

279 1414- DC- 00001239 (Plaintiff's Motion to Compel Production of Documents or, in the Alternative, Motion for m Camera Inspection at 3).

280 Plaintiff's Motion for Reconsideration or, in the Alternative, for Section 1292( b) Certification of Order Excluding Evidence Concerning Monica Lewinsky, Jones v. . Cl_ lnton , No. LR- C- 94- 290 (Feb. 10, 1998); Memorandum in Support of Plaintiff's Motion for Reconsideration or, in the Alternative, for Section 1292( b) Certification of Order Excluding Evidence Concerning Monica Lewinsky at 7- 11, &nes v. Clinton, No. LR- C- 94- 290 (Feb. 10, 1998).

material.** l The President's lawyers argued that purported 'other acts' evidence concerning other irrelevant to resolution of this Motion, because establish that she herself suffered a cognizable to a claim for sexual harassment or outrage. n2* 2

"PlaintiffUs women . . . is plaintiff cannot injury pursuant The President's lawyers added that II[ tlhus, even if plaintiff had evidence with respect to other women that could be said to establish a 'pattern and practice' of sexual harassment -- which we vigorously contend she does not -- such evidence is llpT material to this summary judgment motion . . . .w283 On Wednesday, March 4, 1998, Mr. Ferguson filed his motion for summary judgment. 284

On Monday, March 9, 1998, Judge Wright issued an order denying Ms. Jones's motion for reconsideration of the decision to

exclude the Monica Lewinsky evidence. The order provided in relevant part:

The Court does not take the denial of plaintiff's motion for reconsideration lightly. The Court readily acknowledges that evidence of the Lewinsky matter might have been relevant to plaintiff's case and, as she argues, that such evidence might possibly have helped her establish, among other things, intent, absence of

281 President Clinton's Motion for Summary Judgment, Jones v. CllntOn NO. LR- C- 94- 290 (Feb. 17, 1998); Memorandum in Support of'president Clinton's Motion for Summary Judgment, Jones v. Clinton, No. LR- C- 94- 290 (Feb. 17, 1998).

282 Memorandum in Support of President Clinton's Motion for Summary Judgment at 3, Jones . v- Cl~ ton #

17, 1998). NO. LR- C- 94- 290 (Feb.

284 ones v. w I 990 F. Supp. 657, 666 (E- D. Ark. 1998).

mistake, motive, and habit on the part of the President. . . . Nevertheless, whatever relevance such evidence may otherwise have . . . it simpl Y is not essential to the ure issues in this case. *5

On Friday, March 13, 1998, Ms. Jones's attorneys filed their opposition to the President's summary judgment motion. In the motion, Ms. Jones's attorneys argued that evidence of the President's treatment of other women, and his use of state troopers to facilitate relationships with other women, rendered summary judgment inappropriate and required the case to proceed to trial. 2* 6

On Wednesday, April 1, 1998, Judge Wright issued an order granting the defendants' motions for summary judgment and dismissed the case. 2e7 Judge Wright found that the Ms. Jones "failed to demonstrate that she has a case worthy of submitting to a jury. 1128* The order concluded: "One final matter concerns alleged suppression of pattern and practice evidence. Whatever relevance such evidence may have to prove other elements of plaintiff's case, it does not have anything to do with the issues

285 ones v. Clinton 993 F. Supp. 1998) (emphases added). ’

1217, 1222 (E. D. Ark.

286 Plaintiff's Opposition to Defendant Clinton's Motion for Summary Judgment, Jones v. . Cl- , No. LR- C- 94- 290 (Mar. 13, 1998).

207 ones v. Clinton I 990 F. Supp. 657 (E. D. Ark. 1998).

288 ones v. Cl-, 990 F. Supp. 657, 679 (E- D. Ark. 1998).

presented by the President's and Ferguson's motions for summary judgment. '~~ 2ey

Ms. Jones appealed. The case is currently pending before the United States Court of Appeals for the Eighth Circuit.

289 es v. Cl- I 990 F. Supp. 657, 678 (E. D. Ark. 1998).

Tab D

Map of the White House, West Wing

NORTH

WHITEHOUSE- WESTWING

KEY TO THE WHITE HOUSE MAP

B President's bathroom BC Betty Currie DCOS Deputy Chief of Staff

F Fireplace GS George Stephanopoulos H Hallway #l

HI Harold Ickes JP John Podesta NH Nancy Hernreich

VPOTUS *

l: oo

3: oo ll: oo 108 111 113

115 Vice- President Al Gore

Erskine Bowles then Evelyn Lieberman then Sylvia Mathews Oval Office door at 1: 00 (to Reception Area# l) Oval Office door at 3: 00 (to Colonnade)

Oval Office door at 11: 00 (to Walkway #3) Deputy Chief of Staff (Harold Ickes then John Podesta) Chief of Staff Vice- President's E assistants/ secretaries National Security Advisor and P Pantry PO Press Office RAl Reception Area

the President!_ RA2 Reception: Area

Chief of Staff of Staff) RA3 Reception Area

RA4 George Stephanopoulos) Reception Area #4 (assistants to

Nancy Hernreich and others) staff

116 National Security Advisor and #l (assistants to staff

117 National Security Advisor and #2 (assistants to staff and Deputy Chief 118 National Security Advisor and

staff #3 (assistants to

103

Tab E

Table of Monica Lewinsky White House Visits

No. DATE

06/ 07/ 96

(Fri.) 06/ 14/ 96 (Fri.)

06/ l 8196 (Tues.)

ENTRY TIME

1251

1651 1759

RECORDED’ LEWINSKY VISITS TO THE WHITE HOUSE

617196 - 12/ 20/ 97 Summary: . 44 visits.

l 12 visits in which record shows only the President, and no others, was present.

EXIT TIME

l3: 03 REQUESTOR

Wozniak VISITEE PRESIDENT’S

LOCATION Johnson Oval Oflice

(arrived at l3: 05) No exit time logged

No exit time logged

Hernreich ,

Widdess President

Clinton President Clinton

Oval Office Oval Office Cabinet Room (arrived at 18: 27) Oval Office (arrived at 19: 29) Residence (arrived at 195 11

PURPOSE OF VISIT

Deliver papers from Bacon to Johnson

Attend radio V006- DC- 00000007 (WAVES record) address with V006- DC- 00002 109 (Presidential Movement Log)

Lewinsky family V006- DC- 00000534 (Radio Address Guest List) Attend press picnic

REFERENCES V006- DC- 00000007 (WAVES record) 827- DC- 000000 I6 (Epass Entry Log) 827- DC- 00000017 (Epass Exit Log) 968- DC- 00000037 (President Notepad Log) Wozniak 315198 Int. at 2

V006- DC- 00000007 (WAVES record) V006- DC- 00002 I I3 (Presidential Movement I. og)

V006- DC- 00000473 (Press Picnic Guest List) Widdess Int. 2/ l 9/ 98 at 2

’ There is at least some record of each visit by Ms. Lewinsky to the White House during this time, but in many cases only incomplete information is available from White House personnel and the official White House logs. The information in this chart is derived solely from these logs and personnel. For a comprehensive list of all encounters between Ms. Lewinsky and President Clinton, see Tab F.

KEY: Requestor The person at whose behest the visitor was cleared into the White House through the WAVES system. Visitee The person whom the requestor listed as the person to be visited when requesting clearance for the Ms. Lewinsky. Purpose The purpose recalled by the requestor or visitee during an interview with the OIC. References The otlicial White House logs that contain the information upon which this chart is based. Shaded Areas Visits during which Ms. Lewinsky and the President were in the Oval Oftice area, and no one else was known to be present. (See “Understanding the Evidence” section, Tab G, for details.)

4 08129196 I!!: 06 IS: 47 Bobowick Bobowick Chicago White House tour or V006- DC- 00000007 (WAVES record) (Thurs.) radio address with 827. DC- OOOOOOI 7 (Epass Entry & Exit Logs)

Lewinsky family’ 968- DC- 00000045 (Presidential Movement Logs) Bobowick 2/ l II98 Int. at 3

5 08129196 17: I5 No exit time Bobowick Bobowick Chicago White House tour or V006- DC- 00000007 (WAVES record) (Thurs.) (scheduled) logged radio address with 9680DC- 00000045 (Presidential Movement Logs)

Lewinsky farnil+ Bobowick 2/ l l/ 98 Int. at 3

6 08129196 l8: 22 l9: 03 Raines Raines Chicago No purpose V006- DC- 00000007 (WAVES record) (Thurs.) recalled/ known 8271DC- 00000017 (Epass Entry & Exit Logs)

g 9680DC- 00000045 (Presidential Movement Logs) 7 IO/ l l/ 96 l2: 49 13: 49 Raincs Johnson Oval Office No purpose V006- DC- 00000007 (WAVES record)

(Fri.) (arrived at 12: 40) recalled/ known 827- DC- 00000017 (Epass Entry & Exit Logs) South Grounds 9680DC- 00000048 (Presidential Movement Log)

(arrived at 13: 03) 8 10/ 24/ 96 07: 42 IO: 1 I Shaddix Shaddix Oval Office Visit Photo Office VOOd- DC- 00000007 (WAVES record)

(Thurs.) (arrived at 08: 43) 827- DC- 00000017 (Epass Entry & Exit Logs) South Grounds 1234- DC- 000000 IO (hcsidcntid Mwcmcnt I ~8)

(arrived at 09: OO) Shaddix 2124198 Int. at 2 Departed White 8 . House (at 09: 05)

* Ms. Bobowick remembered clearing Ms. Lewinsky into the White House for a tour with her family and for a radio address with her family. She did

not remember specific dates.

KEY: ’ Requestor The person at whose behest the visitor was cleared into the White House through the WAVES system. Visitee The person whom the requestor listed as the person to be visited when requesting clearance for the Ms. Lewinsky. Purpose ’ The purpose recalled by the requestor or visitee during an interview with the OK. References The official White House logs that contain the information upon which this chart is based. Shaded Areas Visits during which Ms. Lewinsky and the President were in the Oval Office area, and no one else was known to be present. (See “Understanding the Evidence” section, Tab G, for details.) . 2 m B

. . .

9 12/ 17/ 96 16: 15 No exit time Widdess President Oval Office Attend Christmas V006- DC- 00000007 (WAVES record) (Tues.) logged Clinton Second Floor Party 968- DC- 00000059 (Presidential Movement Log)

(arrived at 1856) l222- DC- 0000023 I (Presidential Activity Report) V006- DC- 00000505 (Christmas Party Guest List) Widdess 2/ 19/ 98 Int. at 2

IO 12/ 17/ 96 l9: 34 20: I I Raines Raines Second Floor No purpose V006- DC- 00000007 (WAVES record) (Tues.) recalled/ known 827- DC- 000000 I7 (Epass Entry & Exit Logs)

968- DC- 00000060 (Presidential Movement Log) l222- DC- 0000023 I (Presidential Activity Report)

II 12/ 30/ 96 l3: Ol 13: 43 Currie Currie Hilton Head, No purpose V006- DC- 00000007 (WAVES record) (Mon.) South Carolina recalled/ known 827- DC- 00000017 (Epass Entry & Exit Logs)

968- DC- 00000063 (Presidential Movement Log) I2 02124197 09~ 38 IO: 32 Kessinger Kessinger Oval Offrce Return borrowed V006- DC- 00000008 (WAVES record)

(Mon.) photo 827- DC- 00000018 (Epass Entry & Exit Logs) 968- DC- 00000066 (Presidential Movement Log) Kessinger 2124198 Int. at l- 2

.;,::.,: ::: ::::::, ,,. :..; .:: :>,‘:,::...:.‘ I :> :: jfgg i:~~~~~ lli: Il~~~ if: ii ‘. l.:‘: l: i’: : ~f$ qj: j:; J.& EiiiqiiBii::, ~:;~~~~ l: j;: i. i,,~: I’: i.;: l: $, g j 2,. ;):;,+ ;;. . . . ; ‘. .: . : . :: ,: ‘.. ,..,: .:.: :I.:./:, .: ,.:,;. .: :..,. ., y:;, .: .,.,.,:,:, ., : .: .,.,) .,. .,?, .:,.:.,.: .,. . ; ,;;:;,:; i’i; i’ ::.. (, fT& Ji:~ gg; i:: il; ;! .Il.‘ i~. iliili~~~ :: yc; 2 $3 ;: ‘li:, ililliiiil: ii~~.~~:~~~,~:~~~~~~:~~~ .‘ i,~~ 1”‘: i~,~~ ji .j :I:<; :ij$ jjiji Ij 1,;. . . . . .../.. : ::‘~‘:. A:..: ::..,/:/:.!:: j::: y.: .,‘.~:::.::::::::.‘:::~ .: ,:...:‘.‘.:,.> .I,.:: .,.. :..: L.‘:::..: .,.,. :>>,::,,. : :::.: ::,:,:, ~ ,:,.::,:,,,.:): ,,, >:, ,: . . . . . :,.. .I.:.:(,,.: :I.:.. . .., .,, .,. . . . . ‘..::“::“,‘:: j:.:..::.:.~ ..,:,...,.,),: ...... ......... .*.. . ,....., . . . .:“:‘+:‘:‘::,.:“‘:“: . . . . . . . . . . . :,:,:,: .,>: ,.,,.. : ?> ,).... : . . . . . . :: :: :. .‘. ..: : . :,.:>: I .>,:.: :, I::.::.::.:.,.:,> ,.,. (...,. >>, ..,. .:.:‘::,:.~~~ i:,~,.:..-: ,,.., :..>,: ,.:. .: ,.,: .,,,,: :: + .:, :?::.>.. A>. .+>,>: .,.,. p:,,.>>: ,,.,.,, >,.: ,,.,; : : . . ,: ij ,,::,:,: ~~,,. ., ,,, ,,, / . . . . . . ., ::: .I. .:.>::.: . ,.: y. y,. : .,:, i y: .Y.. y::.:; . . . . ..:. i:‘:: .:.:::..::..::.::,::::: j: j::::: I. ,., .,. ,:, _ ‘_~,~,~,~~~,~~..,~::,: j.:~: .:.: .~.:.:::‘:.~:..:..:.....:. . ,c.: : : :, .: : : :(,, : .,. :, :;:.::::;::.:::>:::: :: >::::..::: .:,:::,: ,..:,:, y.: . ..;:. ‘:‘:::‘:::.~.“::.‘:‘.::.,.: :::‘:::: y::‘:: .:.. . . .-..:( .*: .I . . . .. .: :\.. c:: .‘: 5::::::::.:::.. :...:, .:.,: :,: :.: :,,,: :,:,.,...,.,. > . ,. .,, .,.. ,.+.., ., .>,:,: .. I. ::.,.:.:.:.,:.,.:,.. . .:>.. P:(:‘.:: ., .:.. >:“. c.:.” ,::,.,::: :‘ j:‘: ,.,.: . . . . .. p ..: A ., . . . . .,. . ,‘. ’ :y’ ‘. ’ .’ Y ,.. :,,:::,,. ,:,.,: I:, .,. . .,.,.,. .,.,. .,., ., ,. .(. . . . . ,.,.,.,.,.(.,.,.,. ., .,.;.:.: .,.,.,.: .,.,.,.,.,.,.,.,., . . ., : : : : : . . . . . . . .

I4 03/ 13/ 97 IO: 01 IO: 15 Currie Currie North Carolina & No purpose V006- DC- 00000008 (WAVES record) (Thurs.) Florida recalled/ known 827- DC- 000000 I8 (Epass Entry & Exit Logs)

I222- DC- 00000235 (Presidential Activity Report) I5 03/ 13/ 97 21: 2l 21: 49 Raines Raines North Carolina & No purpose V006- DC- 00000008 (WAVES record)

(Thurs.) Florida recalled/ known 827- DC- 00000018 (Epass Entry & Exit Logs) 1222- DC- 00000235 (Presidential Activity Report)

KEY: Requestor The person at whose behest the visitor was cleared into the White House through the WAVES system. Visitee The person whom the requestor listed as the person to be visited when requesting clearance for the Ms. Lewinsky. Purpose The purpose recalled by the requestor or visitee during an interview with the OIC. References The offtcial White House logs that contain the information upon which this chart is based. Shaded Areas Visits during which Ms. Lewinsky and the President were in the Oval Offtce area, and no one else was known to be present. (See “Understanding the Evidence” section, Tab 0, for details.)

-3-

04/ 16/ 97 (Wed.)

0510 1197 (Thurs.)

14: oo (schedule)

No exit time logged

Naplan Naplan I I

New York No purpose recalled/ known

Currie Currie Residence No purpose recalled/ known

stott Oval Office Press Office job Residence interview (arrived at I8: 40)

Raines Raines Residence No purpose recalled/ known

V006- DC- 00000008 (WAVES record) 968- DC- 000023 I8 (Press Schedule) Naplan 3/ 3/ 98 Int. at 2

V006- DC- 00000008 (WAVES record) 827- DC- 00000018 (Epass Entry & Exit Logs) 968- DC- 00000096 (Presidential Movement Log)

V006- DC- 00000008 (WAVES record) 827- DC- 00000018 (Epass Entry Log) 1234~ DC- 00000029 (Presidential Movement Log)

Stott 2/ 27/ 98 Int. at I V006- DC- 00000008 (WAVES record) 827- DC- 00000018 (Epass Entry & Exit Logs) 968- DC- 000001 I2 (Presidential Movement Log)

KEY: Requestor The person at whose behest the visitor was cleared into the White House through the WAVES system. Visitee The person whom the requestor listed as the person to be visited when requesting clearance for the Ms. Lewinsky. Purpose The purpose recalled by the requestor or visitee during an interview with the OK. References The official White House logs that contain the information upon which this chart is based. Shaded Areas Visits during which Ms. Lewinsky and the President were in the Oval Offtce area, and no one else was known to be present. (See “Understanding the Evidence” section, Tab G, for details.)

-4-

22 23

24 05/ 30/ 97 15: 32 __ I

(rri/ 061 I I197 IO: 58 (Wed.)

t 06/ l 6197 14: 47

(Mon.) 06/ 24/ 97 I859 (Tues.)

16: Ol Dime1 Dime1 Oval Office Initial NSC job interview

V006- DC- 00000008 (WAVES record) 827- DC- 000000 I8 (Epass Entry & Exit Logs) 968- DC- 00000120 (Presidential Movement Log) Dime1 2/ l 8198 Int. at I

12: 04 Dime1 Dime1 Oval Oftice Follow- up NSC job V006- DC- 00000008 (WAVES record) interview 827- DC- 00000018 (Epass Entry & Exit Logs)

968- DC- 00000 I2 I (Presidential Movement Log) Dime1 2/ l 8/ 98 at I

l6: l I Croft Croft Oval Office Marsha Scott interview

V006- DC- 00000008 (WAVES record) 827- DC- 00000018 (Epass Entry & Exit Logs) 968- DC- 00000 I32 (Presidential Movement Log) Scott 3/ 19/ 98 GJ at 28- 29

Currie Currie Army Navy Country Club

No purpose recalled/ known

V006- DC- 00000008 (WAVES record) 827~ DC- 000000 I8 (Epass Entry & Exit Log) l234- DC- 00000033 (Presidential Movement Log)

KEY: Requestor The person at whose behest the visitor was cleared into the White House through the WAVES system. Visitee The person whom the requestor listed as the person to be visited when requesting clearance for the Ms. Lewinsky. Purpose The purpose recalled by the requestor or visitee during an interview with the OIC. References The official White House logs that contain the information upon which this chart is based. Shaded Areas Visits during which Ms. Lewinsky and the President were in the Oval Office area, and no one else was known to be present. (See “Understanding the Evidence” section, Tab G, for details.)

-5-

28 07/ 16/ 91 IO: 46

(Wed.)

I I: 42 Scott Oval Office Job interview V006- DC- 00000008 (WAVES record) 827- DC- 000000 I8 (Epass Entry & Exit Logs) I222- DC- 00000253 (PrcsidenM Activity Report) Scott 3119198 Int. at 64- 68

30 OSlOI/ IO: 46 (Fri.)

1 I: 40 Unknown Unknown Oval Office No purpose 827- DC- 00000002 (Epass Entry & Exit Logs) Rose Garden recalled/ known 1222- DC- 00000255 (Presidential Aclivity Report)

(arrived at I I : IO) Oval Office (arrived at I I : 17)

31 08/ 01/ 97 12: 19 No exit time Unknown Unknown Oval Office No purpose 827- DC- 00000002 (Epass Entry Log) 1 222- (Fri.) logged Cabinet Room recalled/ known I222- DC- 00000255 (Presidential Aclivily Report)

(arrived at 12: 28) Oval Office (arrived at 12: 45) Residence (arrived at 13: 16)

33 09/ l l/ 97 18: 59 (Thurs.)

l9: 06 Raines Raines Oval Office No purpose recalled/ known

V006- DC- 00000008 (WAVES record) 827- DC- 00000018 (Epass Entry & Exit Logs)

KEY: Requestor The person at whose behest the visitor was cleared into the White House through the WAVES system. Visitee The person whom the requestor listed as the person to be visited when requesting clearance for the Ms. Lewinsky. Purpose The purpose recalled by the requestor or visitee during an interview with the OIC. References The official White House logs that contain the information upon which this chart is based. Shaded Areas Visits during which Ms. Lewinsky and the President were in the Oval Office area, and no one else was known to be present. (See “Understanding the Evidence” section, Tab G, for details.)

p;~/ l:/ 9’ / 19: 41 I20: 22 j Currie / Currie 09/ 22/ 97 19: I I 1 19: 25 1 Raines 1 Rainee

Residence

New York recalled/ known

V006- DC- 00000008 (WAVES record) 827- DC- 00000018 (Epass Entry & Exit Logs) 96% DC- 00000172 (Presidential Movement Log)

V006- DC- 00000008 (WAVES record) 827- DC- 00000018 (Epass Entry & Exit Logs) 96% DC- 00000 I79 (Presidential Movement Log)

V006- DC- 00000008 (WAVES record) l234- DC- 00000048 (Presidential Movcmcnl Lee)

V006- DC- 00000008 (WAVES record) V006- DC- 00002 I56 (PrcsidcnUsl Movcmcnt Lag)

KEY: Requestor The person at whose behest the visitor was cleared into the White House through the WAVES system. Visitee The person whom the requestor listed as the person to be visited when requesting clearance for the Ms. Lewinsky. Purpose The purpose recalled by the requestor or visitee during an interview with the OIC. References The offnzial White House logs that contain the information upon which this chart is based. Shaded Areas Visits during which Ms. Lewinsky and the President were in the Oval Office area, and no one else was known to be present (See “Understanding the Evidence” section, Tab G, for derails.)

42 12/ 15/ 97 1 I: 31 12: 39 Luizdt0 (Mon.)

V006- DC- 00000009 (WAVES record) 827~ DC- 00000018 (Epass Entry & Exit Logs) 968- DC- 00000198 (Presidential Movement Log)

V006- DC- 00000009 (WAVES record)

KEY: Requestor The person at whose behest the visitor was cleared into the White House through the WAVES system. Visitee The person whom the requestor listed as the person to be visited when requesting clearance for the Ms. Lewinsky. Purpose The purpose recalled by the requestor or visitee during an interview with the OIC. References The official White House logs that contain the information upon which this chart is based. Shaded Areas Visits during which Ms. Lewinsky and the President were in the Oval Office area, and no one else was known to be present. (See “Understanding the Evidence” section, Tab 0, for details

113

Tab F

Table of Contacts between Monica Lewinsky and the President

114

INTRODUCTION TO THEt CHART

OF CONTACTS BETWEEN THE PRESIDENT AND MONICA LEWINSKY

The Office of the Independent Counsel (" OIC") prepared the following Chart with Monica Lewinsky's assistance. In her words, "it's a chronology that marks some of the highlights of my relationship with the President. It definitely includes the visits that I had with him and most of the gifts we exchanged. It reflects most of the phone calls that I remember." l Dates on which sexual contact occurred are designated in bold.

The most important source of information for this Chart was Ms. Lewinsky's recollections, which were refreshed in small part by the near- contemporaneous compiled record in her Filofax calendar.* To an even smaller degree, the OIC used some evidence gathered in its investigation to assist Ms. Lewinsky in refreshing her memory of events. Ms. Lewinsky reviewed several predecessor versions of the Chart over three or four days and made minor modifications before confirming its accuracy. 3

This Chart was used as Grand Jury Exhibit ML- 7 when Ms. Lewinsky testified before the grand jury on August 6, 1998.4 When she testified, Ms. Lewinsky noted that one change should be made to the chart: The October 23, 1996, contact on page five should also reflect the fact that MS_._ Lewinsky attended a

1 Lewinsky 8/ 6/ 98 GJ at 27- 28. ' ;LB, at 28- 29. 3 Lewinsky 8/ 5/ 98 Int. at 1.

’ LL at 27- 28.

115

Democratic fundraiser on that date. 5 Ms. Lewinsky testified that she believed that the Chart was otherwise accurate, with that correction. 6 On August 26, 1998, Ms. Lewinsky again verified the accuracy of the Chart in a sworn deposition. '

Since Ms. Lewinsky last verified the Chart, Ms. Lewinsky has examined a substantial amount of evidence, including the transcripts and audio tapes of several of her conversations with Linda Tripp. In reviewing that evidence, Ms. Lewinsky realized that there were two minor discrepancies between the Chart and the actual sequence of events regarding when she and the President exchanged two gifts. She now recalls that the President gave her the Annie Lenox compact disc on October 11, 1997, rather than on December 6, 1997, as listed on the Chart. Similarly, she now believes she may have sent the package to the President containing sunglasses, an erotic postcard, and a note about education reform on October 16, 1997, rather than on October or 22, 1997, as listed on the Chart.* Ms. Lewinsky has made other revisions to the Chart.

This Chart is a counterpart to the Chart of Recorded 21

no Lewinsky Visits to the White House, at Tab E. That chart details Ms. Lewinsky's presence at the White House with documentary evidence.

’ Xat28.

7 Lewinsky 8/ 26/ 98 Depo. at 6.

8 Lewinsky g/ 6/ 98 Int. at 2- 3. 2

DATE Approx. 8/ 9/ 95 Wednesday

Approx. 81 I O/ 95 Thursday

Approx. 8/ 13 or s/ 14/ 95 Sun. - Mon.

Mid to late 9/ 95

Approx. 10195

1 l/ 15/ 95 Wednesday

.1115/ 95

‘. -- ‘ednaday

1 VLSI95 Wednesday

1 l/ I 7/% Friday

1 l/ 17/ 95

Friday

11 ROM

Mondav

1 u5l95

Tucsdav

lu31/ 95 Sunday

116

CONTACTS BETWEEN THE PRESIDENT AND MONICA LEWNSKY

IN - PERSON CONTACTS PHONE CALLS G IFTSI NOTES GIFT! 9NOTES

ML TO WJC WJC TO ML

Departure ceremony - nonverbal connection - eye contact -green suit

Public function - Pres. 49th B- day parry - flirtation - eye contact - green suit

Departure ceremony - intro. to Photo opportunity - WW basement - Ungvari - Pres. said he knew who ML I I was I I I

Chance meeting - West Exec. Ave. - waved at Pres.

Pres. made several visits to Panetta’s office where ML was workiig

Private encounter - approx. 8 p. m. - hallway by study -kissing

Second private encounter - sometime b/ t 8 and 10 p. m_ - study and hallway by study - physical intimacy including oral sex

Private encounter - approx. 8 p. m. - study area - pizza night - kissing

Second private meeting of night - bathroom by study - phone call - pizza night - physical intimacy including oral sex

I Zegna tie - ML gave to I

Currie to give to Pres I I

Brief private encounter - oval office and back study - no sexual contact

Private encounter - sometime b/ t 12 and 1 p. m. - approx. 20 or25 min. - hallway by study - physical intimacy including oral sex

autographed phota

wearing tie “Davidoff’ cigffs

117

in/ 96

Sunday Im96

Sunday l/ 15 or (early am.) l/ 16/ 96 Mon. or Iiles.

1/ 21lP6 Sunday

Approx. I/ 28/%

L mday 100196 Tuesday

l/ 30/ 96 Tuesday

2I4# 6 Sunday

2l4t96 Sunday

2/ U% Sun& y

2ll or 2J8l96 Wed. or

ThUrS.

IN - PERSON CONTACTS Private encounter - late afternoon - mtg. lasted approx. 45 min. - bathroom by study - physical intimacy includine oral sex

Chance encounter then private encounter - sometime b/ t 3 and 5 p. m. approx. 30 to 40 min. - hallway by study - physical intimacy htch~ ling oral sex - kissing in N. Hemreich’s office

Public function - Griffm’s going away Party

private encounter- study and hallway - approx. 1 % hr. - physical intimacy including oral sex

PHONE CALLS wnvenation - ML’S home

GIFIWNOTES

W. lC TO ML

conversation. including phonesex- appmr. 1230 a. m. - ML at home

caller ID on ML’s office phone indicated POIUS call

conversation - during

middle of workday at ML’s offia

jigned Yjtate of Jnion” address

118

1 IN - PERSON CONTACI’S 2lg or 2l9l96 Thurs. or Fri.

2f19t96 Monday

U19l96

Monday

Approx. 2128 or 3f5f96

3/ 10/ 96 SUnday

3125/ 96 Monday

3126i96 Tuesday

3f29l96 - riday

3l31l96 Sundav

3i31196 Sunday

4fll96 Easter Sunday

417/ 96-

Easter Sunday

4nl96 Easter Sun& y

Private encounfcT - approx. 25 min. sometime b/ t 12 and 2 p. m. - oval ofia - no sexual contact

Accidental meeting - outside restroom in WH - Ungvari present

Accidental meeting - pass each other in hallway - ML looked away

Accidental meeting - after jog - ML

hurt hand

private encounter - approx. 45 min. - hallway by study - physically intimate contact

Private encounter - sometime b/ t 5 and 6 p. m.- approx. 30 min. - hallway by study and study - intervening phone call - physical intimacy includine oral sex

PHONE CALLS conversation, including phone sex - ML at home

CIFl’S’ NOTES

conversation - ML at home conversation - approx. 20 min. - after chance meeting

inhalhvay- ML& home conversation - approx. llam.- MLatoffice

conversation - ML at office - approx. 8 p. m. - invitation to movie

conversation - ML at offke - approx. 1 p. m. - Pres. ill I

I Hugo Boss tie - _& ed to I cigars

mtg.

conversation - ML at home

II DATE L-. -

IN - PERSON CONTACI’S

Public function - AIPAC meeting 429 or 4f3Oi96 Mon. or Tues.

5Rl96 Thursday

S/ 6/ 96 Monday

-- pprox. S/ 8/ 96 Wednesday

5116196 Thursday

S/ 21/ 96 Tuesday

512 1196 Tuesday

S/ 31/ 96 Friday

6/ S/ 96 Wednesday

Approx. 6/ 13/ 96 Thursday

6l1496 Friday

Public function - Saxophone Club event

Public function - Adm. Boorda memorial service

Public function - arrival of Irish President

Public function - radio address - family

PHONE CALLS I GIFTS/ NOTES

I ML TO WJC I

conversation - ML at home -daytime I

conversation - ML at home - after midnight

;ztion- jobtalk- ML /

message - afta 6: 30 a. m. conversation, possibly including phone sex - ML at home

possible phone call conversation - ML at home conversation, including phone sex - ML at home

message

conversation - ML at home - early evening

120

Before 8/ 16/%

Public function - Res. 50th B- day - limited intimate contact

umvasation, possibly including phone sex - ML athoute

convasation, includiig phone sex - ML at home

ccmvasatio~ includillg phone sex - 630 am. - ML athome

convasation - ML at home convasatio~ includiig phone sex - ML at home

Zegna tie - also t- shirt . .

from Bosnia - ML sent to Betty to give to the Resident

conversation, includin PI5196 Th=++ Y

conversation, possibly includiag phone sex - Pres. inFla- MLathome

PllOl96 message Tuesday

9nor% Monday

10/ 22/ 96 Tuesday

1003 or (earty a. m. 1

lOI24iP6 wed. or

ThUlS.

camvasation, possibly including phone sex

conversation, including phone sex - ML at home

conversation - ML at home

GIFI’WNOTES

WJC TO ML thankyounote- bend signed addendum - “tie is really balutifilr

121

1116196 Wednesday

12Rl96 Monday

12l2f96 Monday

12/ 17/ 96 Tuesday

12/ 18/ 96 Wednesday

After Christmas

1996 12/ 30/ 96 Monday

‘12197 Sunday

Sometime between 2197 and 5197

2/ a/ 97 Saturday

2i8197 Saturday

204197 Friday

2/ 28/ 97 Friday

IN - PERSON CONTACTS I PHONE CALLS Public fimction - South Lawn Rally

conversation - approx. 10 - I5 min. - ML at home

conversation, including phaK sex - later that evening- MLathome- approx. IO: 30 p. m. - Res. fell asleep

public function - Christmas patty ~~ ~I

conversation - approx. 5 min_- lo: 30 p. m. - ML at home

message conversation, including job talk and possibly phone sex -MLathome

convasati& - ML at home - midday - 11: 30 or 1290

conversation, including job talk and phone sex - 130 or 290 p. m. - ML at home

GIFIW NO

MLTOW Sherlock Holmes game - glowindarkfrog- ML dropped off gifts with Currie

twobooks, OvVev anda golf book - card or letter

Happy Valentine’s Day Golf ball and tees from Harrods - plastic pocket frog

GIFI’SINOTES WJC TO ML

hatpin - the book, Leaves of Ga

122

DATE .L -

Between 3/ 3 and 3/ 9/ 97

3/ w97 wedncsday

3R9l97

Saturday

4R6197

5/ l 7197 Saturday

5/ 18/ 97 Sunday

S/ 24/ 97 Saturday

6R9/ 97

Sun& y 7/ 3/ 97 Thu= daY

7/ 4r97 Friday Indep. Day

7/ 8/ 97 Tuesday

IN - PERSON CONTACTS Private encounter - approx. 1: 30 or 2 p. m. - study - Pres. on crutches - physical intimacy including oral sex to completion and brief dii genital contact

Private encounter - W- Day” - mid- &y - hugging - dining room, study and hallway

Private encounter - approx. 9: lS - mtg. ended b/ t 10 and 11 a. m. - study and hallway - argument - kiss on neck

Public function - Madrid - flirtation PHONE CALLS

conversation - three minutes -MLatwork

conversation - late afternoon- 20min.- MLat home

conversations - multiple calls

GIFTS/ NOTES

ML TO WJC

Thank you note - Hugo Boss tie - ML sent package bv Federal Express

GIFWNOTES

WJC TO ML

care package after Pres.

injured his kg - ‘Hi ya, handsome!” CBcd, metal magnet with Prcs_ seal for hi crutches, license plate with “BILL” for his wheelchair, knee pads with Presseal- MLsalt

penny medallion with the heartcutout- herpersonal copy of J& r - ftumed Valentine’s Day ad [ML also replaced the cut Hugo Boss tie]

Banana Republic long sleeve casual shirt - puzzle on golf mysteries

ietter letter-& urationrr: jobs

123

vate encounter - - late evening - Res. had co& rence

PHONE CALLS GIFIS NOTE! 5

WoodenBwithafroginit from Budapest - card with a watermelon on it

Private encounter - oval office -

approx. 10 min. - early eveniag - no wooden box and

Week of S/ 10/ 97 but before 8/ 16/ 97

abook, IIM%& kAand acard

‘46/ 97 Private encounter - physical intimacy

.aturdey including birthday kiss - study b- day gifts: antique book

on Peter the Grc& apple square- MLalsogave F% es. card game “Royalty” andabook, N

Early 9/ 97 Black Dog items:

t- smts, baseball cap, mug and cottondxe! s- givcntoMLby CtiC

9/ 30/ 97

Tuesday memorandum - to

“HANDSO~ te: Vie New Deal”

g/ 30/ 97 Tuesday

lOI Tuesday

conversation, possibly including phone sex

couriered package - ktter. -jobtalk

124

I O/ 9 or

(early a. m.) 10/ 10/ 97 Thurs. or Fri.

10/ 16/ 97 ThdY

IO/ 21 or lOR2l97 Tues. or Wed.

lOR3l97 Thursday

lOR8/ 97

Tuesday

‘O/ 30/ 97

hursday Approx. week before

to/ 3 l/ 97

1 l/ 3/ 97 Monday

IN - PERSON CONTACTS Private encounter - approx.

9: 30a. m.- study- jobtalk- no sexual contact

PHONE CALLS conversation - long, from 2 or 2: 30 a. m. until 3: 30 or 4: 00 a. m. -job talk - argument - ML 8t home

conversation - ML at b -endb/ cHRC

conversation - ML at home - intelviewplzp

conversation. possibly including phone sex - discussre: MLvisit

GIFTS/ NOTES

ML TO WJC letter -job- related - “whole fat packet” of job stuff -via Federal Express

Calvin Klein tie - a pair of sunglasses - a card, a postcard (erotic painting) - note re: education reform

unidentified couriered package

Halloween gifts: card - pumpkin lapel pin - wooden letter opener with a frog on the handle - plastic pumpkin filled with candy

unidentified couriered package.

unidentified couriered Package

Ginko biloba and zinc lozenge5 - ML gave to Currie to give to Pres. per- FVes. request

GIFTS/ NOTES

WJC TO ML

125

I DATE IN - PERSON CONTACTS PHONE CALLS GIFWNOTES

WJC TO ML GIFI? U NOTES

ML TO WJC

antique -eight depicting the WH Private encounter in study - approx. 5

min. - evening - Z& ill0 visit courier record - cassette

kttcr - ML give to Cunie togivetoPrcs.- Not delivered until 12/ s

Public function - Christmas party W6l97 titllrday

conversation - approx. 30 min. - ML at home

Chdmasgifkantique Annie Lcnox compact disc

12/ 6197 %Ull& y

Private encounter - after NW Gate incident -job talk standing cigar holder - -

Other gifts: Starbucks Santa Monica mug - tie fromLondon- book,& . . . B- Hugs

and Kisses box

courierrccord- card- peach candies

convmation - b/ t 2: 00 am. and 3: 00 am. - ML at home - witness list WI7 or

Iearly a. m.) Q/ 18/ 97 Wed. or

IlUllS.

12/ 28/ 97

Sunday Private encounter - Christmas kiss -

doorway by study and bathroom by study - b/ t 9 and 10 a. m.

HandpaintedEastcrEgg- “gummyboobsn from urbanoutfittus

large Rockcttcs blanket fromNew York - pin of the

New York skyline - a “marble- like” bear’s head from Vancouver - a pait of joke sunglasses -asmallboxof cherry chocolates - BhXkDogf% tlvaS bag- BlackDog stuffed animal

126

IN - PERSON CONTACKS PHONE CALLS

conversation

CIFIS/ NOTES

ML TO WJC + Tiiic note - book -

of the Untied sras -droppedoff

WKhlTk

GIFTS/ NOTES

WJC TO ML

Tab G

Tables of Phone Conversations

128

Telephone Calls TABLE 1 November 15,1995 ~~-::-.~~~~~.:; I:::: :_:‘:~~:: I: l_ i~~: i_,:..

.:.: I 1,; :. y. :.:.:: ::::__: .. I. .::::- I,:_.._. ._ ._. .- . . ._ . . . . . . . . . . . _. :,_ _.:.. .._. .: ..::. .:

1 9: 25 PM President Clinton 2 9: 31 PM President Clinton Rep. John Tanner,- 4: 00

Sou= Documents

Call 1: 1472- DC- OOOOOOO6 (Presidential call log) Call 2: 1472- DC- OOOOOOO8 (Presidential call log)

129

Telephone Calls TABLE 2 November 17,1995

1 953 PM President Clinton Rep. H- L. Callahan 21: oo

Source Documents Call 1: 1472- DC- OOOOOO 15 (Presidential call log)

130

Telephone Calls TABLE 3 December 31,19! J5 -: li7-.:__--: .: -:_.~~~~~.~~~ if’ g“

:.::::- 5: ., .: :‘::::.;::::_-‘-_ .: :-‘_‘.~:~:::::~_~ / ----:.: y:::::__: :: z::

.:.. ~~~~~~::~~ .: .. :.: . . :...:.::.: _._ :.:.: i.: : :. . ..‘... .:...:

;;,-; .:. j;:: :::.. :- .,.. :_ 2.. ..-. ::: _:: __:_: j_ :___:_. .,:,:,.: :. ,: .,:: :.:.....: _ . . . .: . . .I. _: :_:_, . . .

1 1253 PM Secretary William Perry, White President Clinton 5: oo House signal 7- 3 107

Source Documents Call 1: 1X%- DC- 00000029 (Presidential call log)

131

Telephone Calls TABLE 4 January 7,1996

1 4139 PM President Clinton Gene Sperling, White House Admin., 1o: Oo

Source Documents

Call 1: 150~ JX- OOOOOO31 (Presidential call log)

132

Telephone Calls TABLE 5 January 21,1996

‘;:- ..: I .; i :. I y~:.;.:.‘ G; i: i-::-: : j:. .s... j;: . . . . . . ;. I.:::. i:;.: .y:.: :..:...: .,. ., ,. . . . . . . .:::. ::. ii:.-..: . . . . .,.. Z./... . . . . . . . . . ..:.::; ::.. : ..:.:. . . .:: . ...: .::;. y ._....: 1: . . . . . . I 3147 PM Nancy Mitchell, White House President Clinton l: oo

Adllkl.~

Source Documents

Call 1: 1506DC4OOtXKl50 (Presidential call log)

133

Telephone Calls TABLE 6 February 4,1996

.:,,: y; -:::. i.; i’.:~:\;; .T.; -.;:...._::..::. .._ .., .:, .::.+:;.:.: 1.. --::. ..: ‘, .. .. j :..: I: .:. j:: .. .._, .fg ;::, .. y y:_ y.. :::;: iy i.:;::.;.:::. .x-.: .::. . . :. .I. i .,. -..: ‘. . . . . . . . . . :: ;:;:.: :..,.. :. . . :. ‘.: _‘. :. .j:.:: :... :-?:‘ i’:?. :-:.. : .:. ....

I Rain Emanuel . President Clinton

urce Documents

Call 1: 1506- DC- ooooOO68 (Presidential call log)

134

Telephne Calls TABLE 7 February 19,1996

Resident Clinton 2200

Source Documents

Call 1: 1472~ DC- OOOOOOI 7 @residential call log)

135

Telephone Calls TABLE 8 March 31,1996

: . . . . . . ..:_ : _ :: .,.. . ,, ~~~~...:.:: ij’ili.::::; i. ,,.: ;i ;. y :/ -.-.- -.. ---.. . . . ,:::;__ .- _.. .;:.. y.::.:: : : :..... :_:.-::.: .::;.. . . . . . . . .. y

1 3: 06 PM President Clinton Sen. Barbara Mikuiski- 1 :o()

Source Documents

Call 1: 1506- DC- 00000139 (Presidential call log)

136

TABLE 9 April 7,1994 : ::. ~~~~~~:: i-:.:,::, : ._:_:_: a:_:::..~:.. :fB.: i’:.... ’ :.., ;:; i::: I; : _: y-: ... . . ,: ‘. ..: . . . . . . . . . . . . . . . : .:. -.:.

1 5: 11 PM Richard Morris, Paris, France, President Clinton 9: 00 2 5: 30 PM President Clinton Evelyn Lieberman, ext- 2: 00

Source Documents

Calls 1 and 2: 1506- DC40000 144 (Presidential call log)

137

Telephone Calls TABLE 10 April 9,1996

Monica Lewinsky’s residence, Walter Kaye,-

19: 00 Monica Lehnsky’s residence, Monica Lewinsky’s residence, ~r- i

Walter Kaye- 2: 00 Walter KayeD 7: 00

Source Documents

Call 1: 1 Ooo- DC- OOOOO768 (MCI toll records) Calls 2 and 3: 1 OOO- DC- 00000769 (MCI toll records)

138

Telephon& Mls TABLE 11 April lo, 1996

’ I 4: 56PM I- Monica Lewinsky’s residence, Waiter Kayem

1o: oo

!jource Documents Call 1: 1 CK~ hDC- ooooO769 (MCI toll records)

139 Telephone Calls

TABLE 12 April 12,1996 .:&#&& y... :..: ;: q;.. :. .:.::::. . . . . i :: :. #tTe ;1 : : I .. i t* agtrt&

; .CaU

I 1238 PM Monica Lewinsky’s residence, Walter Kaye- I: 00 6

Source Documen& call 1: looo- Dc- 00000770 (MCI toU records)

140

‘Tekplmne Calls TABLE 13 April l& l996

1 5: 18 PM Monica Lewinsky’s residence, Walter Kay- ll: oo

&MWX Document&

Call 1: lOOO- DC- OOOOO771 (MCI toll records)

141

Telephone Calls TABLE 14 July 19,1996

1 12: 11 AM President Clinton White House Operator 1: oo 2 6: 40 AM President Clinton White House Operator 1: oO

Calls 1 and 2:

cuments

1506- DC- OOOOO275 (Presidential call log); 1506- DC- OOOOO638 (Presidential diarists not@

142

Telephone Calls TABLE 15 March 29,1997

1 837 AM Ms. Lewinsky’s cellular phone, Ms. Curie’s office ,- 1: oo

call 1: 1014- Dc-

Source Documents (Cellular One toll records)

143

Telephone Calls TABLE 16 July 4,1997 . _ . . . . . . . . . . . .~.~.-.-.-.~.~_~ ~.‘.~.~.~.~_~.~_~_~_‘_ _ _ _ _‘_ :: :I_ cl; tr~~~~~~~~~~~~~~~~~~~~~~~~~~~ ._ :.. :. _ :. . .‘.‘_‘.~_-.‘.‘.~_-.-.~.~.~.~_..~...-...~_~_..~.~.-~-~-.~.~.~. .-. ~_‘.‘_‘_~_‘_-_‘_-_-.‘_‘.-_‘_~.‘. ’. ’. ’.~.‘.~.-.~.~.‘.‘.-.‘. ’_ ’_‘.~_-.-.‘.‘.‘.‘.....~.‘.‘.-_~. ’...‘.‘.‘.~.~. ._... _....__...............-...~.......____..____._..; -_-_~.~_~_-_~_~_~_._-_~.._..-.~.~.~.~.~.-.~.~.~.~.~.~.~.~_-.~_~.~~~.~.-... . . . ..-_-_-.._-.._~_~_~_-.._._._._-_ - -_‘.‘_-_‘_‘_-_-.-_~_~.~.~_-.~.~.~.~.~.~.~.~.~.~.~.~.~.~.~.-.-.-.-.~.-.~.~_- _._.. ‘_‘_‘.._-.‘.-.-_._‘.‘~..-.-~~. ..-~---~.~...........-...--.....-..........._.......~. . _ ‘.-.‘_-.‘.-.‘.~.~.‘.‘.~~~.-.~.-.~.~.~.~.~.~.-.~.~.~.-.~.~.~~~.~.~.~.~.~...-.....-.-.-~*...-_..~.-.-.~.~.~.-.~.~ ___ A_ ._-_ -_*_ ._-,-.... _-_ . ..*.* - *.*. _.*._ ._._._.. -:.-_‘.-.-.-.-...‘..=. . . . . . . . . _ ._._ ._._. _-_ . . : . . _ _. _ _. _ _. . . . . . . . . . . -. . -. - - . -. .~.~_~_~.~.~_~.~_~_~.~.‘. . . . . . ‘_-_~_~_~_~.~_‘_-_‘_-_“_~.~_~.‘_~.~.~.~.~~.~.~.~~~.~.~.‘.~_~_~_~.~_‘.‘_‘.‘.‘.‘.-_‘_‘.=‘--_ : . . . .-.-._._......_

1 IO: 22 AM President Clinton Bmce Lindsey’s cellular phone 3: 00

2 IO: 25 AM President Clinton Nancy Hemreich 11: oo b . .

Callsland2: %& DC40003546 (Presidential call log)

144

Telephone Calls

TABLE 17 July 14,1997

1 lo: 03 PM President Clinton Conference ~~ 11 with Robert &~ ett 5l: oO

and Charles Ruff 2 1 1055 PM 1 President Clinton

ce Documents

Calls 1 and 2: 9680DC- 00003550 (Presidential call log)

145

Telephone Calls TABLE 18 August 16,1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .._ . . ._ -.~_~_~.-.~.~.~.-.~.~_~_~_~.~_-_~_~_~.~. I, j: r_ ii. lii~~~~~~~~~~~~~~~~~~.~:~~~~~~~~~~~~~~~~~~~~~~:::~:~ :. ::_ : ‘.‘.‘.‘.‘.-.-.‘.~.‘.~.‘.~.‘. :::_-. :. _,_...._........._..... : .: -.‘.‘.-.‘.‘.-.‘.-.‘.‘.‘.~.-_~.-.~.-. ’. ’~ :.:-.-.-.-.-.~.-.~.-.~.~.-.~.~.~.~.~.~.-.~.~.~.-.~. -: -:_-.._-_-_- .._.. -_- _._.. -_-_-_._-_- _._., -_._-_ .-_-_. ..-.._._- _....... _-_ ._._. _ ._._.* ._._. ,.;. ._._ .-: I- -: -_ ::: -_~_~.-+-_-_-.-.~.~_-.-.~.~.~.~.~.~_-_-_-.~_-;_ _-.‘.-.‘.‘.‘.-.-.~.~_-.~.~.~.~.-.~.~.~.~.~.~.~_‘_ _-_ ’ ~_;_~_‘_~_~_~_~_~_~_~_~.~.~.~.~.~_~_:_~.~.~~~.~_~.~._.~_~_:_~.~_~_~_~_~_~.~.~.~~.~~.~.~.~~.~.~.~.~.~.~. _-:. _ ::_ .‘.-.~.-.-.‘.‘.~.‘.-.‘.‘.‘.‘.‘.‘.-. ’.-=.=--.-.‘.‘.-.~.‘.~. ’. ’.: ’.‘.~.‘.‘.‘.~.~.~.~.~.~.~~~.~.~.~.~.~ -. :. ._ _. __ ~_~.:_~.~_~.~.~_~.~.~.~.~.~.~_~_~.~_~_~.~.~_ I-:_ l ~_~_‘_~.~_~_~_~_~_~.~~~.~~.~_~~.~.~.~.~.~_~_:- -___- __ . .._.._____...____.. ..,._..._....~.............. -- ‘.-::_- ~.~.~.~_~.~.~.~.~...~.~.~.~.- ---. .___. ._...,_ _.,._ .,__.,.__,.. X. .,. . .

1 9: lS AM President Clinton Ms. Cmie’s office, ext_ w 1: OO Call 1: 9680DC- 00003558 (Residential call log)

Documents

146

Telephone Calls TABLE 19 September 3,1997

1 2~ 24 PM Ms. Lewinsky’s office, B Marsha Scott’s office,- 225

Source Documents

Calls 1 and 2: 833- DC- 00017857 (Pentagon phone records)

Telephone Calls TABLE 20 October 6,1997

2 4: 16 PM Ms. I_ ewinsky’s office, _ Ms. Currie’s office,_ 7: 00

Source Documents

Callsland2: 833~ DC- 00017867 (Pentagon phone records)

148

Telephone Calls TABLE 21 October 11,1997

.>>:.:.. :...:_,::~:~:~:~:~~~:~.:; .i: il~~~~~~.:.‘.::.:.:.:.: :.:..: :. .:~.;~~~::,~:;::-:~ -.. s:.:.. .: . . :::. :: ,.,.. .:: .:.::.:: .::.: ::_::, .-. . . . . . . . . . . . . __;:_: li,: .., :-- I_..:_: f :--:;:.::.:. .::..: :.~ i: i~::.~ lii~: g;;:.;::: .-:. I 1057 AM Vernon Jordan- Resident Clinton

Source Documm

Call 1: 968~ DC- 00003569 (Presidential call log)

149

Telephone Calls TABLE 22 October 21,1997

1 399 PM Ms. Curie, fax numbem Fax to United Nations N/ A 2 7: Ol PM Ambassador William Ms. Lewinsys residence,~ 5142

Richardson’s office- m

urce Docamena

Call 1: 828- DC- 000000 12 (faxed copy of Ms. Lewinsky’s resume, produced by United Nations) Call 2: 828- DC- 00000004 (State Department phone records)

150

Telephone Calls TABLE 24

I ) 3: 52PM )M& ktn’sofice, LI

November 4,1997

,13- 54 PM Ih4& winsky’s office,_ 3 [4: 0! 9PM IMr. lordsn’soffice_ 4 I4: 38PM )W& in’sofke~

Ms. Curie’s oflic~ 054 Mr. Jordan’s offke, m 3: 32

Ms. Currie’s office, _ I 0: 42

Ms. Curie’s office, c_ I: 06

Source Documents

Calls 1,3, and 4: VOO4- DC- OOOOO134 (Akin, Gump, Strauss, Hauer & Feld phone records) Call 2: 833- DC- 000 17875 (Pentagon phone records)

151

Telephone Calls TABLE 25 November 5,1997 ., .::::. .::.. .:..:-::::: i.. ~oiii; iii: iiii.. i~ i: iii: iiii; c: 5. i; :: I . . . :&&:;;:

-i . . . . . ..__. _;:. ..::: I : ; : . . . . . . . .:..:: . . . .._. qp& j;; ;;:: 1.;:;: _:-:.: :...:.::.:.: .::.:: :.: ::.:: :_: i_:_:_:.:‘:_:~:_ :: .:.: :..::. :: ..:., ,,.:. ’ :c,: ../ .: 1 8: 50 AM Mr. Jordan’s office, _ President Clinton 5: OO

2 8156 AU Mr. Jordan’s of& e,- Ms. Hemreich’s officeA_\ 6: 30 3 11: 05 AM Mr. Jordan’s office,_ Ms. Hemreich’s office,- 0: 48 4 ll: 44 AM Mr. Jordan’s office- Ms. Hemreich’s ofice, _ 1% 5 2~ 34 PM Mr. Jordan’s office’ Ms. Hemreich’s office, - 1: 24 6 2: 36 PM Mr. Jordan’s office- Ms. Cunie’s office, ’ I: 30

Source Documents

Call 1: 1178~ DC- 000000 11 (Presidential call log) Calls 2,3,4,5, and 6: VOO4- DC- 00000135 (Akin, Gump, Strauss, Hauer & Feld phone records)

152

Tekphone Calls TABLE 26 November 241997

1 10: 14 AM Ms. Lewinskyk offices Mona Sutphen’s offke, United Nations, 6: 44 Sours Documents Call 1: 833~ DC- 000 17908 (Pentagon phone records)

153

Telephone Calls TABLE 27 November 26,1997

1 1032 AM Ms. Lewinsky at Bernard Ms. Currie’s offke,~ 1 :OO

Lewinskyb residences 2 2: 53 PM Vernon Jordan’s office- Ms. Currie’s office, 0: 30 3 3: 07 PM Ms. Currie Ms. Lewinsky’s pager, message reads: N/ A

“PLEASE CALL VERNON JORDAN, BETTY CURRY. ’

Source Docum

Call 1: 1205- DC- OOOOOOl6 (MCI toll records; times adjusted from Pacific to Eastern Standard time) Call 2: VOO4- DC- 00000143 (Akin, Gump, Strauss, Hauer & Feld phone records) Call 3: 83 I- DC- 0000001 1 (Pagemart; times adjusted from Pacific to Eastern Standard time)

154

Telephone Calls TABLE 28 December 5- 1997

1 1: ll PM Ms. Lewinsky’s residence- Ms. Currie’s office_ 0: lO 2 1~ 24 PM Ms. Lewimky’s residence,- Ms. Cunie’s oflice, - 0: 15 3 3315 PM Ms. Lewinsky’s residence- Ms. Currie’s office,- 2: 3 1 4 3~ 43 PM Ms. Lewinsky’s residence- Ms. Cunie’s of& e, ’ 0: 43 5 4103 PM Ms. Lewinsky’s residence- Ms. Ctmie’s offtce,- 094 6 4: 21 PM Ms. Lewinsky’s residence,_ Ms. Currie’s of& e,- 0: 03 7 4~ 34 PM Ms. Lewinsky’s residence,- Ms. Currie’s office,_ 0: 3 1 8 5: 41 PM Rader, Campbell, Fisher & Pyke Fax to Robert Bennett N/ A

Calls 1,2,3,4,5,6, and 7: Call 8:

Source Documea

12 16DC- CrOOOOO22 (Bell Atlantic toll records) 1408- DGOOOOOOO5 (Fax confvmation sheet; produced by Rader, Campbell,

Fisher & Pyke; times adjusted from Central to Eastern Standard time)

155

Telephone Calls TABLE 29 December 6.1997 I

Ms. Curie’s offices I 0: OO 8: 41 AM Ms. Lewinsky’s residence,- 8: 51 AM Ms. Lewinsky’s residence, _ 3 9: 21 AM Ms. Lewinsky’s residence,- 4 Ms. Ctie’s office,~

029 lo: 48 AM Ms. Lewinsky’s residence-

Ms. Cunie’s office. 0 I 651 5 1057 AM Ms. Lewinsky’s residence-

Ms. Curie’s office, _ I 56: 23 6 11: 37 AM Ms. Lewinsky’s residence- Betty Currie Bruce Lindsey’s pager; message reads:

N/ A “Call Betty ASAP- 7 12: 05 PM

Source Documegts 12 16- DC- OC@ OOO22 (Bell Atlantic toll records) 964- DC- 00000862 (White House pager records) Calls 1,2,3,4,5, and 6:

Call 7:

156

Telephone Calls TABLE 30 December 11,1997

NajF _:::.. . . -:: .i:: : .. :::::: s

1 Young & Rubicam,,

0: 36 9145 AM Mr. Jordan’s office, - IO: 18 AM Mr. Jordan’sofFtce~ 2 Ms. Hemreich’s office, _ 1: 12 3 IO: 39 AM Mr. Jordan’s office,_ Barbara Neysmith, American Express, 054 4 1059 AM Mr. Jordan’s office,_ Barbara Neysmith, American Express, 3136

1-- Howard Gittis, McAndrews & Forbes, 4~ 24

Barbara Neysmith, American Express, 0: 48 Young & Rubicam, m 1: OO Howard Gittis, McAndrews & Forbes, I: 06

5 11: 12 AM Mr. Jordan’s office,~ 12: 47 PM Mr. Jordan’s office,- 6 7 12: 49 PM

(L Mr. Jordan’s office-

8 1251 PM Mr. Jordan’s office, ’ 1: 06 PM Mr. Jordan’s office, B 0: 30 Barbara Neysmith, American Express, 9 10 11

1: 07 PM Mr. Jordan’s office,_ I: 06 Richard Halperin, McAndrews & Forbes, -

Marcia Lewis, Strauss Cotntnunications, 4

F’eter Strauss residence, \_ I: 36 PM Mr. Jordan’s office, - 0: 36

12 1: 38 PM Mr. Jordan’s office, _ 0: 30 Calls I, 2,3,4,5,6,7,8,9, 10, 11, and 12: VOWDC- OOOOOl48 (Akin, Gump, Strauss, Hauer & Feldphone

records)

157

Telephone Calls TABLE 31 December 19,1997

1 1: 47 PM Ms. Lewinsky’s office, B Mr. Jordan’s office 2 351 PM Mr. Jordan’s office,- President Clinton; talked with Debra 1 :CMj

Schiff 3 4: 17 PM Mr. Jordan’s office, cII, White House Social OfTice,_ 2142

4 5: Ol PM President Clinton Mr. Jordan’s office,, 4130 l

5 5% PM Mr. Jordan’s offtcev Francis Carter’s office, _ I: 54

Source Documem

call 1: 833- DC- 000 17890 (Pentagon phone records) Call 2: 1178- DC- OOOOOO 13 (Presidential call log); VOO4- LIC- OOOOO15 1 (Akin, Gump, Suauss,

Hauer & Feld phone record) Calls 3 and 5: VOO4- DCOOOOO15 1 (Akin, Gump, Strauss, Hauer & Feld phone record) Call 4: 1178- DC- OOOOOO14 (Presidential call log); VOO4- LXXOOOO 15 1 (Akin, Gump, Strauss, Hauer &

Feld phone record)

l Presidential call logs indicate that President Clinton placed a call to Mr. Jordan at 4: 57 PM and that they talked from 5: Ol PM to 5: 08 PM. The best interpretation of the evidence suggests that the call did not end at 5: OS PM. The Presidential call logs are maintained by hand, whereas the automated Akin, Gump, Strauss, Hauer & Feld phone records reflect that the conversation actually ended at 5: 05 PM.

158

Telephone Calls TABLE 32 December 22,1997

I WtkIlOWll Francis Carter Message for Robert Bennett N/ A 2 9~ 02 AM Ms. Lewinsky’s office, B Mr. Jordan’s office,_ O- 23

3 2: 15 PM Ms. Lewinsky’s offke, - Mr. Jordan’s office,~ 0% 4 5: 03 PM Mr. Jordan’s office.~ Ms. Lew* s office, m 0: 18

Source Documen$

Call 1: 902- DC- 00000038 (Carter & Varrone billing statement) Calls 2 and 3: 833- DC- 000 1789 1 (Pentagon phone records) Call 4: VOWDC- 00000 15 1 (Akin, Gump, Strauss, Hauer & Feld phone records)

159

Telephone Calls

TABLE 33

2 3 4

December 30,19! 97

9: 27 AM 1 President Clinton I Mr. Jordan’s residence,. I 24: OO I: 54 PM

I- Mr. Jordan’s office, 0

I White House Operator-

3: 12 Ms. Lewinsky at Strauss residence,- I

Mr. Jordan’s office, _ 7: 00

2: Ol PM Mr. Jordan’s office,. I

Mr. Cmef s office,_

0: 36 6: 09 PM Mr. Jordan’s office,_ White House Counsel’s ofIke,- 1: 42

Source

Call I: 1178- DC- OOOOOO 15 (Presidential call log) Calls 2,4, and 5: VOO4- DC- O0000154 (Akin, Gump, Strauss, Hauer & Feld phone records) Call 3: 2004- DC- OOOOOOS3 (Bell Atlantic toll records)

160

Telephone Calls TABLE 34 January 5,1998

I 11: 32 AM h4s. Lewinsky at Ms. Fineman’s Mona Sutphen’s office, United Nations, 1 :OO residence,- _

Documm call 1: 1013- Dc- oooooo9 5 (MCI toll llxords)

161

Telephone Calls TABLE 35 January 6,1998

.; . . . . . . . . . . ..- . ../ -: . . . . . . . _.

1 11: 32 Mr. Carter Ms. Lewinskyk pager, message reads: N/ A AM “PLEASE CALL FRANK CARTER @

-- 2 2: 08 PM Mr. Jordan’s off&,_ Ms. Lewinsky’s residence_ 1: 48

3 3: 14 PM Mr. carter Ms. kwinskfs pager message reads: N/ A “FRANK CARTER AT- I WILL SEE YOU TOMORROW MORNING AT lo: 00 IN MY OFFICE.”

4 3: 26 PM Mr. Jordan’s offke,_ Mr. Carter,- 6~ 42 5 3: 38 PM Mr. Jordan’s office- Ms. Hemreich, white House, - 2: 12 6 3: 48 PM Mr. Jordan’s oflice,_ Ms. Lewinsky’s residence, _ O- 24 7 3: 49 PM Mr. Jordan’s offke~ Ms. Lewinsky at Ms. Finerman’s 5154

residence,_ 8 4: 19 PM President Clinton Mr. Jordan’s offke,_ 13: oo 9 4132 PM Mr. Jordan’s office,‘_ Mr. Carter, 0 - I: 06

10 4134 PM Mr. Jordan’s offk,~ Mr. Carter,- 2: 30 11 5: 15 PM Mr. Jordan’s office,_ White House,_ 4: 06

Source Documents

Calls 1 and 3: 83 1 -DC- OOXXMllO (Pagemart; all times have been adjusted from Pacific to Eastern Standard Time)

Calls 2,4,5,6,7,9, 10, and 11: VOO4- DC- O0000158 (Akin, Gump, Straus, Hauer & Feld call log) Call 8: 1178- DC- OOOOOOl6 (Presidential call log)

1158 AM 5146 PM

162

Telephone Calls TABLE 36

Mr. Jordan’s offlice- White House,_ 11: 30 Mr. Jordan’s of& e,_ Ms. Hemreich, White House, IO: 48 Mr. Jordan’s limousine, White House,, 4: OO

Source Docmentg

call I: VOO4- DC- OOOOO 158 (Akin, Gump, Strauss, Hauer & Feld call logs) Call 2 and 3: call 4:

VWDC- 00000 159 (Akin, Gump, Strauss, Hauer & Feld call logs) 1033- DC- O00001 I5 (Be11 Atlantic Mobile toil records)

163

Telephone Calls TABLE 37 January t& l998

.: ..:... I ~_:::_‘::.::___ ’ .:. :: .::: ~~~:~::‘ ti- i’iiii.~~-:- ii_ ii--_: :i.: . . . . . . . . . . . . . . . . . . . . . . .._ ..:. ..:. . . . . . -.. .... i..... C.......

1 9: 2 1 Mr. Jordan’s office, 0 White House Counsel’s office, 0142 2 921 Mr. Jordan’s office, L White House, - 0: 48

AM 3 1150 Ms. Lewinsky at Strauss residence’ Mr. Jordan’s office,- 1: OO

AM - 4 3: 09 Ms. Lewinsky at Strauss tideme,_ Mr. Jordan’s office,_ 1: OO .

PM - 5 4: 48 MS_ Lewinsky at Strauss residences Mr. Jordan’s office, m 5: 00

PM - 6 4% Mr. Jordan’s office,_ Mr. Perehnan, Revlon,_ I :42

PM 7 4: 56 Mr. Jordan’s office,_ Ms. Lewinsky at suauss

PM residence,_ ‘I54 8 6: 39 Mr. Jordan’s limousine,~ White House Counsel’s office, 2: OO

PM 9 9: 02 Ms. Lewinsky at Strauss residence,_ Mr. Jordan’s office,- 1: 00

PM - Calls 1,2: Call 3: Calls 4 and 5: Calls 6 and 7: Call 8: Call 9:

urce Documents

VOO4- DC- 00000159 (Akin, Gump, Strauss, Hauer & Feld call logs) 2004- DC- 00000085 (Bell Atlantic toll records) 2004~ DC- 00000086 (Bell Atlantic toll records) VOO4- DC- 00000 160 (Akin, Gump, Strauss, Hauer & Feld call logs) 1033- DC- 00000116 (Bell Atlantic Mobile toll records) 2004~ DC- 00000087 (Bell Atlantic toll records)

164

Telephone Calls TABLE 38 January 9,1998

1 IO: 19 Mr. Jordan’s office,- Mr. Perelman, Revlon, _ 0: 54 AM

2 I: 29 Ms. Lewinsky at Strauss residence,_ Mr. Jordan’s office,_‘ 1 :oo PM n

3 I: 29 Ms. Lcwinsky at Sbauss residence_ Akii Gump, _ 1: 00 PM -

4 4: 14 PM sky at Strauss residence’ rs office,_ 7: 00 5 4: 37 Ms. Lewinsky at Strauss residence- Mr. Carter,- 1: OO

PM - 6 5: 04 Ms. Lewinsky at Strauss residence_ Mr. Jordan’s of& e,_ 1 :OO

PM -

7 5105 Ms. Lewinsky at Strauss residence,‘ Ms. Cmie’s office,~ 1 :OO PM -

8 5: OS President Clinton Ms. Currie, White House Signal 1: OO PM

9 5: 09 Ms. Lewinsky at Strauss residence,- Mr. Jordan’s off~ cc,_ 2: oo PM -

10 5: 12 PM

Ms. Currie, White House Signal _ Resident Clinton 1: 00 11 5: 18 Mr. Jordan’s office, _ Ms. Lewinsky at Strauss 2~ 48

PM residence- 12 5: 21 Ms. Lewinsky at Strauss residence,_ Ms. Currie’s office,~ 5: 00

PM ‘-

Source Documents

Call 1: VOO4- DC- OOOOO 160 (Akin, Gump, Sbauss, Hauer & Feld call logs) Calls 2,3, and 4: 2004- DC- OOOOOO87 (Bell Atlantic toll records) Calls 5,6,7,9 and 12: 2004- DC- OOOOOOS8 (Bell Atlantic toll records) Calls 8 and 10: VOO6- DC- 00002064 (Presidential call log)

call 11:

165

TAB1. E 38 continued

VWDC- 00000161 (Akin, Gump, Strauss, Haucr & Feld call logs)

166

Telephone Calls TABLE 39 January lo, 1998

1 3: 02 Mr. Jordan’s offke, B White House Counsel’s oflice- 024 PM L

2 3: 02 Mr. Jordan’s ‘office,‘ L White House,- 1: 18 PM D

ce Documents Call 1: VOO4- DC- OOOCKl16 1 (Akin, Gump, Strauss, Haua & Feld call logs) Call 2: VOO4- DC- OOOOOl62 (Akin, Gump, Strauss, Hauer & Feld call logs)

167

Telephone Calls TABLE 40 January 11,1998

1 12: 18

I I

Mr. Jordan’s office, m

Cheryl Mills, White House Counsel’s PM office,_ I O:‘* I

Source Docm

Call 1: VOWDC- O0000 162 (Akin, Gump, Strauss, Hauer & Feld call logs)

168

Telephone Calls TABLE 41 January 12,1998

1 11: 18 Mr. Carter, Attorney Ms. Lewinsl@ s pager; message reads: N/ A “PLEASE CALL FRANK CARTER AT- 2 11: 26

I I

Ms. Lewinsky at Strauss residence,

I Mr.-,_

AM _

3 1 I: 50 I I Ms. Lewinsky at Strauss residence, AM -- I Mr. Jordan’s offi=,- llIW I

4 3: 33 Mr. Jordan’s office, - White House Counsel’s of- lice, m 1% PM

5 4: 09 Ms. Lewinsky at Strauss residence, Mr. Jordan’s office,_ 4: 00 PM -

6 4: 17

I I

Mr. Jordan’s office, - Ms. Lewinsky at Strauss residence, PM

7 4: 35 Mr. Jordan’s office,_ White House, _ 5% PM

8 5: OO Ms. Lewinsky at Strauss residence, Ms. Currie’s office, - 3: Oo PM -

9 6145 I I- Ms. Lewinsky at Strauss residence, I Ms. Currie’s office,_ PM

10 7: 48 I I Ms. Lewinsky at Strauss residence, I Ms. Currie’s office, _ PM -

II: 00 / Source Documents

Call 1: 831~ DC- OOOOOOIO (Pagemart) Calls 2 and 3: 2OC4- DUKWOWO (Bell Atlantic toll -records) Calls 4,6, and 7: VOO4- DC- OOOOOl62 (Akin, Gump, Strauss, Hauer & Feld call logs) Calls 5,8,9, and 10: 2004- DC- OOCMXWl @Bell Atlantic toll records)

169

Telephone Calls TABLE 42 Januaw 13.1998

3 5: lO I I

Mr. Jordan at Renaissance Vinoy, St PM Petenburg, FL

Ms. Lewinsky’s pager; message reads: “WILL KNOW SOMETHING THIS AFIERNOON. KAY .”

Ms. Lewinsys pager; message reads: “PLEASE CALL ME. KAY”

N/ A

Source ~umepts

Calls 1 and 2: 83 l- DC- OOOOOOlO (Pagemart) Calls 3 and 4: 1064- DC- ooooooOS (Renaissance Vinoy Resort phone records)

170

Telephone Calls TABLE 43 January 14,1998

1 6: 56 AM Mr. Jordan at Renaissance Vinoy, St. Petersburg, FL

2 9: 55 AM President Clinton 3 unknown Mr. Jordan at St. Regis Hotel, New

York, NY I Ullk. llOWll 4 unknown Mr. Jordan at St. Regis Hotel, New

York, NY

Source Docylgents

Call 1: 1064- DC- OoooooOS (Renaissance Vinoy Resort phone records) Call 2: VOO6- DC- 00002065 (Presidential call log) Calls 3 and 4: 106~ DC- 00000006 (St. Regis Hotel receipt)

I IKlkIlOWll

Telephone Calls TABLE 44

2 3 10: 22

AM 4 12: 31

PM 5 1: 08 PM

6 3~ 02 PM Mr. Jordan’s office, _ 7 3: 04 PM 8 5: 16 PM

522 PM 6: 45 PM

Source Dowentq

Call 1: 1065~ DC- ooooooo6 (St. Regis Hotel receipt) Call 2: VOO5- DC- OOOOOO58 (Vernon Jordan’s message log) Calls 3,4,5 and 9: 83 1 -DC- ooooooOS (Pagemart)

January 15,199s

_._ a; :gg;; w;::‘. y:: iiiij; :: ._= .$ . . . . . . . . . . . : -.: . . . . . . ::. ::::,: Y:::;:;:;: y :...: ::..: .: ....- .:- .--.-- .:..:..:::.:::. . . .j. -::_- p:-:- ..:. jj :.. :::. ., .. :::.:_:::::::.:__:.: . . . . _-. ..:. ‘::::_:__:_....._ _. -.. : .i” .- .::: j.: .:::: . . . ..~. -. . .._.......... .::....... -.-..: . . .../.. -- . . . . :- . . . . . . -. . . . . . . . . . . . ,............,....... .: I

Mr. Jordan at St Regis Hotel,

White House,& Bl New York, NY

Ms. Cunie’s office, _ Vernon Jordan’s office; message reads:“ EWty- POTUS;~ KIND OF IMPORTANT”

Mr. Carter Ms. Lewinsky’s pager, message reads: “PLEASE CALL FRANCIS CARTER @

Ms. Currie I Ms. Lewinsky’s pager, message reads: “PLEASE CALL KAY.”

Mr. Carter Ms. Lewinsky’s pager, message reads: “PLEASE CALL FRANK CARTER AT

Ms. Hemreich, White House, _ Mr. Jordan’s office, _

White House, _ Mr. Jordan’s office, _ Ms. Currie Mr. Jordan’s office, -

White House, D Ms. Lewinsky’s pager, message reads:“ PLEASE CALL KAY ASAP.”

Ms. Cun- ie’s residence, _ N/ A

N/ A N/ A

1: 30 1: 54 2: 48 N/ A 0: 12

Calls 6,7,8 and 10: VOO4- DC- OOOOO164 (Akin, Gurnp, Strauss, Hauer & Feld call logs)

172

Telephone Calls TABLE 45 January 16,1998

i; i’i: ’ ;; j‘ l;:.:; ;;;: ,: $& gth df -: ii’i-_:~;&:‘~ :..&& 2 c:;::

1 1 I: 17 Mr. Jordan3 office, Ms. Cunie, White House,- 1: 24 AM

2 9: 41 Mr. Jordan’s residence, _ President Clinton 530 PM ---- L

Source Documents

Call 1: VOO4- DC- O0000164 (Akin, Gump, Strauss, Hauer & Feld call logs) Call 2: 1178- DC- oOOOOO 18 (Presidential call log)

1 s: 19 PM

2 5: 38 PM

173

Telephone Calls TABLE 46 January 17,199s

_. .:. . . _/. . . . . . . :. ::..:... . . . . . . . . . ,..:. ~&;$= A~;~& : : ._ i: i_:‘ Bii: : ::;.‘ i- jzg ; ” ‘j&* & ; I $: : ::.: :..: : ! :. : ..::;; i, il: i:.:.: il:,: i- i~.~~~::~~: ~;;:.;: f& ;:;;; .::: . . . . . . ._..._. .-. .. i:..-. ::. ,._ ,. .A. . ..-.. ‘:~:::_:_:> :.... .:. : _:: -: : .:.:. ::. . . :. . . . : .. 3: :.:.:.: : : :.: :i . . ::._:_:_):_: _. ::. :: : :.: ‘). : . . :.. : _._.._ .),. :_. _/ . . . .._ . . . . . . :.: . . . . . . : : .:.;.:...:.:.:::.:._ . . . . . . . . . . . . . ., ,:., :. A -.. :.:.::.: :.:.._; ~_~.:.~~:_~-~.:-~~_.~: jl.~:.~.~ :-;-;:. :: _..: .__: . . _.._: : ‘.: i?::,::..::.~:~: i, x::: ..:._ .::. :::::: _:.:-. ,.:: :):_,,:,:_‘_;,:.: :: :... jj: l.::::::.:.::::‘_:. .:. :::. .:~:.:::;: j:;:._. : :::::::::::.. ..: . . ... I :..: . . :.. ._:..:.::.::. . . . . ..: . . . . . . . . . . .

Mr. Jordan’s mobile phone, _

I White House, m

I ‘: 0° I

President Clinton

I Mr. Jordan’s residence, 0

I 2: oo I

President Clinton

I Mr. Jordan’s office, _ 12: Oo I

President Clinton I Ms. Curie’s residence, _ llzM) I

Some Documents

Call 1: 1033- DC- OOOOOO33 (Bell Atlantic Mobile toll records) Call 2: 1178- DC- OOOOOO 19 (Presidential call log) Call 3: 117~ DC- OOOOOO20 (Presidential call log) Call 4: VOO6- DC- 00002066 (Presidential call log)

Telephone Calls TABLE 47

11: 49 AM

12: 50 PM

1: ll PM 2: 15 PM

2~ 55 PM 5: 12 PM 622 PM 7: 06 PM 7: 19 PM 10 I I 8: 28 PM

Calls 1 and 9: Call 2: Call 3: Call 4: Call 5: Calls 6,7,8, and 10:

January l& l998

Mr. Jordan’s office,-

I White House,,

I: 12 President Clinton

I Mr. Jordan’s residence, _

2: OO President Clinton I Ms. Currie’s residence, _ 3: 00 I

Mr. Jordan’s mobile phone,

I White House, _

4: 00 Mr. Jordan’s residence, -

President Clinton “hold per PRESUS, 9: 20 N/ A PM” I

Ms. Currie I

Ms. Lewinsky? pager, message reads:

N/ A ‘“ PLEASE CALL KAY AT HOME.”

Ms. Curie MS_ L- ewinsky? pager, message reads: “PLEASE CALL KAY AT HOME.”

N/ A Ms. Currie Mr Lewinsky’s pager; meSSage reads:

“PLEASE CALL KAY AT HOME.” N/ A

Mr. Jordan’s office m Cheryl Mills, White House Counsel’s Office, _

1% Ms. Currie Ms. Lewinsky’s pager, message- reads:

“CALL KAY” N/ A

President Clinton Ms. Currie’s residence, _ 1: OO

Source Documm

VOO4- BCOOOOO 165 (Akin, Gump, Strauss, Hauer & Feld call logs) 1178- DC- OOOOOO2 1 (Presidential call log) VOO6- DC- 80002067 (Presidential call log) 1033- DC- 00000034 (Bell Atlantic Mobile toll records) 1248~ DC- OOOOO3 12 (Presidential call log) 83 1 -DC- OOOOOOO8 (Pagematt)

175

TABLE 47 continued

Call 1 I: Voo6- DC- oooO2068 (Presidential call log)

176

Telephone Calls TABLE 48 Janual

.., .-. lagtkaf.: (-& j :y;: I: i..‘ i’.

N/ A Ms. Currie Ms. Lewinsky’s pager; message reads: “PLEASE CALL KAY AT HOME AT 8: 00 THIS MORNING.”

Ms. Currie Ms. Lewinsky’s pager; message reads: “PLEASE CALL RAY .”

N/ A 8: 08 AM 8~ 33 AM Ms. Currie Ms. Lewinsky’s pager, message reads~

“PLEASE CALL RAY AT HOME.”

‘N/ A

8137 AM Ms. Cunie Ms. Lewinsky’s pager; message reads: “PLEASE CALL KAY AT HOME. IT’S A SOCIAL CALL. THANK YOU”

N/ A

8: 41 AM Ms. Cut- tie Ms. Lewinslq’s pager, message reads: “KAY IS AT HOME. PLEASE CALL”

N/ A

8143 AM President Clinton i. 30 Ms. Cut- tie’s residence, m Ms. Cut- tie Ms. Lewinsky’s pager, message reads:

“PLEASE CALL RATE RE: FAMILY EMERGENCY.”

N/ A 8144 AM 850 AM Ms. Cunie’s residence, - l: oo President Clinton

Ms. Cm- tie 8

9 851 AM Ms. Lewinsky’s pager; message reads: “MSG. FROM RAY. PLEASE CALL, HAVE GOOD NEWS.”

N/ A 8~ 56 AM President Clinton Mr. Jordan’s residence,- 9: oo lo: 29 AM White House,- 3142 Mr. Jordan’s oflice, B

N/ A Mr. Jordan’s office, 1. Ms. Lewinsky’s pager; message reads: “PLEASE CALL MR. JORDAN AT IO: 36 AM

lo: 35 AM I: 12 Mr. Jordan’s office,- Nancy Hemreich, White House- 1044 AM Erskine Bowles, White House,- 1IOO Mr. Jordan’s office, _

TABLE 48 continued

15 IO: 53 AM Mr. Jordan’s office,- Frank Carter’s office,_ 0: 36 16 IO: 58 AM President Clinton Mr. Jordan’s office,- I: 00

17 11: 04 AM Mr. Jordan’s office,_ Bruce Lindsey, White House,- 0: 24 18 11: 16 AM Mr. Jordan Ms. Lewinsky’s pager, message reads: 0: 36

“PLEASE CALL MR. JORDAN AT I_”

19 11: 17 AM Mr. Jordan’s office, m Bruce Lindsey, White House,- I: 36 20 12: 3 1 PM Mr. Jordan’s mobile phone,_ White House, _ 3: 00 21 1: 45 PM President Clinton Ms. Currie’s residence,_ ’ 2: 00 22 2~ 29 PM Mr. Jordan’s mobile phone,- White House,_ 2: 00

23 2: 46 PM Frank Carter Ms. Lewinsky’s pager, message reads: N/ A “PLEASE CALL FRANK CARTER AT

24 4: 51 PM Mr. Jordan’s office - Ms. Currie’s residence,- I: 42

(ICI 25 4: 53 PM Mr. Jordan’s office - Frank Carter’s residence,. 0: 24

26 4~ 54 PM Mr. Jordan’s oflice, ’ Frank Cater’s office, _ 4: 00 27 4~ 58 PM Mr. Jordan’s office,- Bruce Lindsey, White House,_ 0: 12 28 4: 59 PM Mr. Jordan’s office, _ CherylMills, White House Counsel’s 0: 42

office, _ 29 5: 00 PM Mr. Jordan’s office, m Bruce Lindsey, White House, - 0: 18

30 5: 00 PM Mr. Jordan’s office,- Charles Ruff, White House Counsel, 6~ 24 31 5~ 05 PM Mr. Jordan’s office,_ Bruce Lindsey, White House,- 0: 06

TABLE 48 continued

33 34 35 36 37 38 39 40

::: .. i;...:.:;:. g:‘:-:: .: ... : .:. ..::::. . . :_.-:... :.-:- :. :. ,.,

5: 05 PM Mr. Jordan’s office,- Bruce Lindsey, White House,- 0: 18 5: OS PM Mr. Jordan’s office,- white House, _ 2: 12 5: 09 PM Mr. Jordan’s office, m Cheryl Mills, White House Counsel’s I: 06

office, ’ 5: 14 PM Mr. Jordan’s office, _ Frank Carter’s ofEce, llllll) 8~ 24

5- 22 PM Mr. Jordan’s office,_ Bmce Lindsey, White House,_ 0% 522 PM Mr. Jordan’s office,, Cheryl Mills, White House Counsel’s 0: 18

oflice, _ 5: 55 PM Mr. Jordan’s office, D Ms. Cunie’s residence, _L 0: 24

5156 PM President Clinton Mr. Jordan’s office, _ 7: Oo 6: 04 PM Mr. Jordan’s office, m Ms. Curie’s residence, - 3: Oo

6: 26 PM Mr. Jordan’s offia, B Stephen Goodin, White House, 0 0: 42

Source DocumeaQ

Calls 1,2,3,4,5,7, 9, 12, 18, and 23: 83 l- DC- ooooooo9 (Pagemart)

Calls 6 and 8: VOO6- DC- 00002069 (Presidential call log) Call 10: I 178- DC- OOOOOO23 (Presidential call log) Calls 11, 12, 13, 14, 15, 17,

19,24,25,26,27,28, 29,30,3 1,32,33,34,

35,36, and 37: VOO4- DC- OOOOO165 (Akin, Gump, Strauss, Hauer & Feld call log)‘ Call 16,39: 1248- DC- o00003 19 (Presidential call log) Calls 20 and 22: 1033- DC- 00000035 (Bell Atlantic Mobile toll records)

Call 21: Calls 38,4O, and 4 I :

179

TABLE 48 continued

VOO6- DC- 00002070 (Residential call log) VOO4- JX- 00000166 (Akin, Gump, Strauss, Hauer & Feld call log)

180

Telephone Calls TABLE 49 January 20,1998

1 1 h$ ordan( asperMr. Jordan’smersage 2 unknown Robert Benneu, no phone number Mr. Jordan (as per Mr. Jordan’s message

indicated log) 3 10: 41 Mr. Jordan’s office, _ Robert Bennett,_

AM 4 12: Ol Mr. Jordan’s office, m Frank Carter’s office, 0

P. M. 5 12: 04 Mr. Jordan’s ofice, _ Frank Carter’s offke, _

P. M. Mr. Jordan at St Regis Hotel -Bruce Lindsey, White House, -

Mr. Jordan at St. Regis Hotel I Robert Bennet% w Mr. Jordan at St. Regis Hotel 1 White House, _

Source Documents

Calls 1 and 2: Calls 3,4, and 5: Calls 6,7, and 8:

VOO5- DC- OOOOOO60- 6 1 (Mr. Jordan’s message log) VOO4- DC& IOOO 166 (Akin, Gump, Strauss, Hauer & Feld call log) 1065- DC- OOOOOOO6 (St_ Regis Hotel receipt)

N/ A N/ A

3148 2: 48

unknown

181

Telephone Calls TABLE 50 January 21,1998

1 1 12: 09 AM 1 president Clinton ( 3O: OO I 2 1 12: 41 AM 1 president Clinton ( ~indscy’s residence,- ( 29: 00 1 3 1 I: 16 AM 1 president Clinton I Ms. Curie’s residence, 0 20: O0 I

I 4 ( 1: 36AM 1 zy’rresidence, W ( president Clinton

Bruce Lindsey’s twidence~

president Clinton I 6 17: 14AM 1 PresidentClinton I 7 1 726 AM 1 president Clinton

I~ Lindsey’srcsidence,~ I MCI

I- David Kendall’s residence, _ I 28: 00 I 8 I 8: 02 AM I president Clinton I Robert Bennett’s office, _ I 14: OO

I 9 18: llAM lzanatRevlon,_ 1 ~, 1;~~ 8rFeld / 0: 30 ( 10 1 8: 19AM 1 zan at Revlon, ’ 1 fkE, lwuseCounsel_‘ s I lo: 06

I 11 18: 32AM Ih( r. JardanafRevlon,_ 1 AkinGump,_ 1 12 (9: 12AM l~ anatllcrloa~ ( WJor& in'sofice,&~

I 13 I 2148 PM I ztis office,_ ( ;g~, l~ CHouwunse~ s I 5:~

I 14 1 359 PM I zm* sofftce, m 1 Frank Carter’s office,. 1 0: 24 16 4: 01 PM Mr. Jordan’s office- Nancy Hemreich, White House, D 1154

182

17 7: 02 PM Mr. Jordan’s office,_ Frank Carter’s office, Calls 1,2,3,4, and5: call 6,7, and 8: Calls9, 10, and 11: call 12: Calls 13, 14, 15,16, and 17:

Source Documex&

1248- DC- OOOOO327 (Presidential call log) 1248- DC- OOOOO328 (Presidential call log) 832- DCXMKXKW4 (McAndrews and Forbes Holding toll records) 832- DCXWOOOO5 (McAndrews and Forbes Holding toll records) VOO4- DC- OOOOO 167 (Akin, Gump, Sb- auss, Hauer & Feld)

183

Tab H

Litigation History

184

LITIGATION HISTORY I. Introduction

This investigation has centered around the actions of the President of the United States.

behavior and As a consequence, it has been necessary to seek information from the White House, a variety of government officials, and the President himself. The President and the Department of Justice have vigorously sought to prevent this Office from obtaining this information, usually through litigation.

This memorandum is a brief chronology of the history of this Office's litigation against the President and government officials in the pursuit of evidence in the Lewinsky matter. This information should allow Congress to understand some of the gaps in the evidence we are providing. For example, we have not been able to report to Congress what the President told White House lawyers about his relationship with Monica Lewinsky. This memorandum explains the reason for this omission. -

More importantly, Congress may wish to conduct its own investigation of the events related in this referral. In such an event, Congress may well face the same sort of litigation obstacles that this Office has. We hope that this memorandum will assist Congress in any efforts it finds necessary to obtain information relevant to its inquiry.

We have not included any description of litigation that did not involve our Office seeking investigative materials. Similarly, we have not included any litigation against persons or

185

institutions other than President Clinton and his agents, the White House, or the Department of Justice. Specifically, we have not included our lengthy litigation with Monica S. Lewinsky and her agents.

The following is a brief description of the relevant events in this Office's litigation. Because we have provided Congress with the actual filings, we have not attempted to describe the filings in greater detail than necessary to understand the chronology of events. We encourage interested persons to consult the particular filings when an issue is significant.

II. Executive Privilege

Date Event

Feb. 18, 0 Bruce Lindsey refuses to answer many questions 1998 before the grand jury because the answers are

"potentially covered" by the following privileges:

l Executive Privilege (presidential communications and deliberative process);

l Governmental Attorney- Client Privilege and Work- Product Doctrine;

l Personal Attorney- Client Privilege and Work Product Doctrine. Mr. Lindsey refuses either to invoke any such privilege or to contact President Clinton to determine whether to do so. 0 Chief Judge Johnson instructs Lindsey to decide whether he will invoke privileges or not. (The next day, she mentions that " [ilf he had come in here today still not claiming- any privileges and simply telling me he wasn't going to answer the questions, he would be in D. C. Jail by now." Tr. 53)

186

Feb. 19, ' l Neil Eggleston, a private lawyer hired by White 1998 House Counsel Charles Ruff, pursuant to Attorney

General Janet Rena's authorization, to represent the White House with respect to executive privilege and governmental attorney- client privilege, informs Chief Judge Johnson that the President "has informed and directed Mr. Lindsey" to invoke privileges in response to various questions (Tr. 32). The OIC orally moves to compel him to testify. Chief Judge Johnson determines that she cannot decide the issue without a more developed record and orders that questioning continue.

l Before the grand jury, Mr. Lindsey invokes all the privileges listed above. Among other things, he invokes executive privilege over a lunch conversation with Vernon Jordan.

Feb. 24, 0 The OIC issues a subpoena for Sidney Blumenthal 1998 to testify, seeking to discover what substantive

information he has about the Lewinsky matter and to determine whether anyone in the White House is obstructing justice by spreading disinformation about the OIC. Mr. Blumenthal moves to quash, citing:

l Executive Privilege;

l the First Amendment; and

l Overbreadth. Chief Judge Johnson holds a hearing and denies motion. 0 Before the grand jury, Mr. Blumenthal invokes executive privilege and refuses to answer several questions, including questions about his conversations with the First Lady.

Feb. 25, Nancy Hernreich, the administrator of the 1998 President's secretarial staff, testifies before the

grand jury and invokes executive privilege and attorney client- privilege in refusing to answer several questions.

Mar. 4, Mr. Eggleston sends a proposal to the OIC suggesting 1998 an agreement whereby White House attorneys would be

absolutely protected while White House non- attorneys would provide "factual inf, ormation" but not "strategic deliberations and communications." Chief Judge Johnson later holds that the proposal was so vague that it was not worth considering: "Not only was the White House offer ambiguous, but there is also some question as to whether it was a firm offer. Given the ambiguity of the offer, the Court declines to factor it into its decision." Mem. Op. at 13 n. 6 (May 4, 1998).

Mar. 6, The OIC moves to. compel Bruce Lindsey (98- 0951, 1998 Sidney Blumenthal (98- 0961, and Nancy Hernreich (98-

097) to testify over their assertions of executive privilege, governmental attorney- client privilege, and personal attorney- client privilege. The OIC argues that because the questions were about the President's personal conduct, executive privilege does not apply at all.

Mar. 10, The OIC files three motions (one for each case 1998 number) to expedite the executive privilege

litigation. The OIC suggests a hearing for the week of March 23.

Mar. 12, The White House, responding to the motions to 1998 expedite, states that no hearing would be possible

between March 22 and April 5 because the President, Mr. Lindsey, and Cheryl Mills would be traveling to Africa. The White House states that March 19 or 20 would be acceptable.

Mar. 13, The OIC files reply memoranda in support of its 1998 motions to expedite the executive privilege

litigation. The OIC asserts that the week of March 23 still would be best, but that March 20 is better than a two- week delay.

Mar. 16, Chief Judge Johnson sets the executive privilege 1998 hearing for March 20.

Mar. 17, The White House files an opposition to the OIC's 1998 motions to compel testimony. President Clinton, in

his personal capacity, intervenes to argue that intermediary privilege and various other personal attorney- client privilege theories prevent any testimony by Mr. Lindsey other than Ucocktail talk" (as David Kendall, private attorney for President Clinton, said in oral argument before the D. C. Circuit). The White House drops the assertions of privilege by Ms. Hernreich.

Mar. 18, The OIC files three motions (one for each case 1998 number) to unseal the executive privilege

litigation. Mar. 19, The OIC files reply memoranda in support of its 1998 motions to compel. The White House moves to

authorize release of papers to the Department of Justice (ttDOJ1l), and also responds to the earlier unsealing motion filed by the OIC. The White House requests that the March 20 hearing be held in secret but that the transcript later be released to the press.

188

Mar. 20, Oral argument before Chief Judge Johnson in the 1998 executive privilege litigation.

Mar. 24, Oral argument before Chief Judge Johnson on 1998 President Clinton's personal attorney- client

privilege. The OIC discovers that President Clinton has denied knowledge of specific privilege assertions to the press. The OIC sends a letter to Mr. Eggleston seeking an explanation; Mr. Eggleston replies that President Clinton had authorized the invocation of privilege generally and had delegated to White House Counsel Charles Ruff the task of determining exactly what should be privileged.

Mar. 25, Chief Judge Johnson orders OIC to provide (by 1998 April 1) a need submission sufficient to overcome

the White House's assertion of executive privilege. Mar. 27, l The DOJ moves for access to pleadings, asks for 10 1998 days to file amicus brief, and requests access to

grand jury transcripts. The DOJ mistakenly represents that the OIC supports its motion. (Two days later, the DOJ withdraws this claim). This request comes one day after Mr. Lindsey moves for access to his grand jury transcript.

l President Clinton files a supplemental memorandum in support of his personal attorney- client privilege invocation.

Mar. 31, l The OIC opposes the DOJ's motion for grand jury 1998 transcripts.

l Chief Judge Johnson grants the DOJ access to sealed pleadings, but denies the DOJ's motion for grand jury transcripts. Chief Judge Johnson orders that any amicus brief be filed by April 8 (later extended to April 12 because of a delay in serving the court's order).

l The White House files a supplemental memorandum regarding the Lindsey privilege assertions.

Apr. 1, The OIC files an j. n ca need submission, showing 1998 its need for materials covered by executive

privilege. Apr. 7, The White House files a document styled "Reply to 1998 the OICls In C- Submission." The White House

argues, mter au that the OIC could not have shown need because'it had not brought Mr. Blumenthal back before grand jury after the White House stated that he would testify as to "factual matters."

189

1pr. 12, The DOJ files an amicus brief criticizing the OIC's L998 public- private distinction and arguing (contrary to

the White House's position) that non- strategic factual information is covered by executive privilege. The DOJ also asserts that a balancing test is required to assess claims of governmental attorney- client privilege.

9pr. 15, Chief Judge Johnson orders the OIC to make a need 1998 submission for information covered by governmental

attorney- client privilege by April 24. Rpr. 24, The OIC submits an in need submission 1998 detailing its need for information covered by

governmental attorney- client privilege. Apr. 30, The White House files a document styled as a reply 1998 to the OICls Inca need submission. Uter al= ,

the White House argues that the OIC could not have shown need unless it had questioned "all other available witnesses."

May 4, Chief Judge Johnson issues an order compelling 1998 Messrs. Lindsey and Blumenthal to answer all

questions. May 11, The White House moves to reconsider the district 1998 court's opinion of May 4, 1998. Znter ala, the

White House argues that Chief Judge Johnson erred in determining need by reference to categories of questions and in finding no common interest between the Office of the President and President Clinton in his personal capacity. The White House also argues for additional briefing of specific questions and b camera review of all answers.

May 13, The White House files notices of appeal from the 1998 executive privilege decision, despite the pending

reconsideration motion. President Clinton in his personal capacity also appeals. The White House requests a slightly expedited 29/ 22/ 7 briefing schedule.

May 14, The OIC moves to dismiss- the appeals of the White 1998 House and President Clinton from the executive

privilege decision, arguing that the D. C. Circuit has no jurisdiction because the motion for reconsideration is still pending.

May 18, The White House responds to the OIC's motion to 1998 dismiss its appeal, largely agreeing with the motion

and labeling its notice of appeal a "protective notice of appeal."

190

May 19, l The OIC files an opposition to the motion to 1998 reconsider the executive privilege decision.

l The OIC files a reply in support of its motion to dismiss the appeals of the White House and President Clinton for want of jurisdiction.

May 21, The D. C. Circuit holds the executive privilege 1998 appeals in abeyance pending Chief Judge Johnson's

decision on the motion for reconsideration. May 22, The White House files a reply memorandum in support 1998 of its reconsideration motion.

May 26, Chief Judge Johnson substantially denies the White 1998 House's reconsideration motion. (She modifies one

footnote that contains only dicta). May 20, The OIC files in Supreme Court a petition for a writ 1998 of certiorari before judgment in the executive

privilege case. June 1, The White House files an opposition to the OIC's 1998 petition for a writ of certiorari before judgment.

The White House drops its executive privilege appeal, asserting that it had decided not to appeal the executive privilege issue before the petition for a writ of certiorari before judgment was filed. President Clinton in his personal capacity also files a brief in opposition.

June 2, The OIC files a reply brief in support of its 1998 petition for a writ of certiorari before judgment in

the (now) governmental attorney- client privilege appeal.

June 4, The Supreme Court denies the OIC's petition for a 1998 writ of certiorari before judgment in the

governmental attorney- client privilege case. June 5, The D. C. Circuit sets an expedited 10/ 7/ 3 briefing 1998 schedule in the governmental attorney- client

privilege appeal. June 15, The White House files a brief appealing the 1998 governmental attorney- client privilege ruling.

President Clinton also files a brief on personal attorney- client privilege issues.

191

June 17, The DOJ files an amicus brief in the governmental 1998 attorney- client appeal, arguing that governmental

attorney- client privilege should be more protected than executive privilege and that the need standard should be higher, and urging the D. C. Circuit to remand the issue whether there is an absolute governmental attorney- client privilege in the impeachment context.

June 22, The OIC files its appellee brief in the governmental 1998 attorney- client privilege appeal.

June 25, The White House and President Clinton file reply 1998 briefs in the governmental attorney- client privilege

appeal. June 26, The OIC files a supplemental filing in the 1998 governmental attorney- client privilege appeal.

June 29, Oral argument before the D. C. Circuit in the 1998 governmental attorney- client privilege appeal.

July 27, The D. C. Circuit rules that the governmental 1998 attorney- client privilege cannot be maintained in

face of a federal grand jury subpoena. July 31, The OIC issues a grand jury subpoena to Lanny 1998 Breuer, requiring his testimony on August 4.

Aug. 3, l The White House moves to stay any testimony by 1998 Bruce Lindsey pending disposition of a (as yet

unfiled) petition for a writ of certiorari, and asks for a protective order preventing testimony of Mr. Breuer. The same day, the OIC files its opposition, and the D. C. Circuit denies the motion as unripe.

l The White House asks the Supreme Court to stay any testimony by Messrs. Lindsey or Breuer pending the disposition of a (as yet unfiled) petition for a writ of certiorari. The OIC files an opposition to this motion.

l Mr. Breuer moves to stay his testimony pending disposition of the White House's (as yet unfiled) petition for a writ of certiorari.

192

Yug. 4, l The Chief Justice denies the White House's motion 1998 to stay the testimony of Messrs. Lindsey and Breuer

pending disposition of the White House's (as yet unfiled) petition for a writ of certiorari.

l The OIC files an opposition to Mr. Breuer's motion to stay his grand jury testimony. Chief Judge Johnson allows questioning to go forward. While testifying before grand jury, Mr. Breuer invokes executive privilege and governmental attorney- client privilege. The OIC orally moves to compel Mr. Breuer's testimony.

Aug. 5, Chief Judge Johnson orders the parties to brief the 1998 executive privilege and governmental attorney- client

privilege issues in an expedited fashion. Aug. 6, The White House submits memoranda in support of 1998 Mr. Breuer's governmental attorney- client privilege

claim and in support of a stay pending disposition of a (as yet unfiled) petition for a writ of certiorari. The White House also files a pleading . arguing that Ina- sub sllentlo ’ overruled m

ye Sealed Cm, raising the need standard required to overcome a claim of executive privilege. The OIC files an in cam need submission and a memorandum opposing a stay.

Aug. 7, Chief Judge Johnson compels Mr. Breuer to testify 1998 over his claims of governmental attorney- client

privilege, but grants a stay pending appeal. Aug. 11; Chief Judge Johnson compels Mr. Breuer to testify 1998 over his claims of executive privilege

Aug. 17, The White House and Mr. Breuer appeal from the 1998 district court's order compelling Mr. Breuer to

testify over his claims of governmental attorney- client privilege. Mr. Breuer's appeal is dismissed by the D. C. Circuit, on the OIC's motion, three days later. (In grand jury testimony, President Clinton testifies that he strongly supported dropping executive privilege in May, that he never was afraid of the information the White House attorneys have, and that his only concern was to win judicial reaffirmation of existence of executive privilege.)

193

Aug. 21, 1998

Aug. 25, 1998

l The White House and Mr. Breuer appeal from the order compelling Mr. Breuer to testify over his claims of executive privilege. Mr. Breuer's appeal is dismissed by the D. C. Circuit, on the OIC's motion, 10 days later.

l The White House files a petition for a writ of certiorari in the governmental attorney- client privilege case.

The White House moves to hold its Breuer appeal in abeyance pending disposition of petition for a writ of certiorari. The OIC supports that motion two days later, and the D. C. Circuit grants it four days after that.

98- 095 District Court 98- 096 District Court 98- 097 District Court 98- 278 District Court 98- 3060 D. C. Circuit 98- 3061 D. C. Circuit 98- 3062 D. C. Circuit 98- 3072 D. C. Circuit -98- 3092 D. C. Circuit 98- 3093 D. C. Circuit 98- 3098 D. C. Circuit 98- 3099 D. C. Circuit 97- 1924 Supreme Court

98- 316 Supreme Court Bruce Lindsey testimony

Sidney Blumenthal testimony Nancy Hernreich testimony Lanny Breuer testimony White House appeal re: Lindsey White House appeal re: Blumenthal Pres. Clinton appeal re: Lindsey White House appeal re: Lindsey Breuer appeal re: Breuer White House appeal re: Breuer Breuer appeal re: Breuer White House appeal re: Breuer OIC Petition for a Writ of

Certiorari before Judgment White House Petition for a Writ of

Certiorari

III. Secret Service "Protective Function Privilege" Date

late Jan.- early Feb.

Feb. 17, 1998

Feb. 24, 1998

Event

Secret Service Director Lewis Merletti speaks informally to the OIC about why the OIC should not question Secret Service personnel.

Former Secret Service officer Lewis Fox testifies before the grand jury.

Deputy Assistant Attorney General Gary Grindler sends a letter to Independent Counsel Starr outlining the proposed "protective function" privilege.

194

gar. 13, l Mr. Grindler sends another letter to the OIC 1998 outlining the proposed privilege.

l The OIC deposes Secret Service officers Gary Byrne and Brian Henderson, who assert "protective function" privilege.

Mar. 23, The OIC deposes Secret Service General Counsel I998 John Kelleher, who asserts the "protection

function" privilege and the governmental attorney- client privilege.

Mar. 29, Attorney General Reno and Independent Counsel 1998 Starr meet to discuss the proposed "protective

function" privilege. Apr. a, Deputy Independent Counsel Robert Bittman sends a 1998 letter to Mr. Grindler asking whether the

President is invoking the "protective function" privilege. The next day, Mr. Grindler states that President Clinton has not directed assertion of a "protective function" privilege.

Apr. 10, The OIC moves to compel the testimony of Secret I998 Service personnel over claims of "protective

function" privilege and governmental attorney- client privilege.

Apr. 20, The DOJ and the OIC agree that the DOJ will I998 proffer non- privileged information to the OIC and

then allow interviews. Apr. 21, The DOJ files an opposition to the OIC's motion I998 to compel the testimony of Secret Service

personnel. Apr. 28, The OIC files a reply memorandum in support of 1998 compelling the testimony of Secret Service

personnel. May 11, White House Counsel Charles Ruff sends a letter I998 to the OIC stating that President Clinton does

not believe it is appropriate for him to instruct the Secret Service to testify.

May 14, Hearing before Chief Judge Johnson on the I998 "protective functionll privilege.

195

May 22, Chief Judge Johnson rules there is no "protective I998 function" privilege for Secret Service personnel,

and orders the OIC to provide a need showing to overcome governmental attorney- client privilege as to John Kelleher. Five days later, the OIC withdraws its request that the Secret Service lawyer testify.

May 25, Four former Attorney Generals send a letter to 1998 Attorney GeneralReno urging her not to appeal

the Secret Service decision. May 27, Independent Counsel Starr meets with Solicitor I998 General Seth Waxman, urging the DOJ not to appeal

the Secret Service decision. May 29, Independent Counsel Starr meets with Attorney 1998 General Reno, urging the DOJ not to appeal the

Secret Service decision. Later, DOJ attorney .

Jonathan Schwartz suggests a compromise, and the OIC expresses interest.

May 31, In a meeting between the OIC and DOJ attorneys, 1998 the DOJ proposes a settlement that the OIC

believes is far less favorable to the OIC than that suggested by Mr. Schwartz two days earlier. The OIC rejects the proposal.

June 1, The DOJ files a notice of appeal in the Secret 1998 Service case and proposes an expedited 14/ 14/ 7

briefing schedule. June 2, The OIC files a petition for a writ of certiorari I998 before judgment in the Secret Service appeal.

June 3, The DOJ files a brief in response to the_ OICls I998 petition for a writ of certiorari before judgment

in Secret Service appeal, criticizing the petition but not urging its denial.

June 4, The Supreme Court denies the OIC's petition for a I998 writ of certiorari before judgment in the Secret

Service appeal. June 5, The D. C. Circuit sets an- expedited 7/ 7/ 3 briefing I998 schedule in the Secret Service appeal.

June 9, Mr. Grindler asserts in a letter to Mr. Bittman I998 that the l'protective function" privilege applies

to former Secret Service personnel.

196

June 11, Mr. Bittman sends a letter to Neil Eggleston 1998 asking him whether the White House would assert

executive privilege over a particular conversation overheard by a Secret Service officer.

June 12, The DOJ files a brief appealing the Secret 1998 Service decision. Former Secret Service agents

file an amicus brief in support of the DOJ's position.

June 15, In a letter to Mr. Bittman, Mr. Eggleston informs 1998 the OIC that the White House is not asserting

executive privilege over the conversation overheard by a Secret. Service officer.

June 19, The OIC files its appellee brief in the Secret 1998 Service appeal. Four former Attorney Generals

file an amicus brief in support of the OIC's position.

June 22, The DOJ files a reply brief in the Secret Service 1998 appeal.

July 7, The D. C. Circuit holds that there is no 1998 "protective function" privilege.

July 13, The OIC subpoenas six Secret Service officers, 1998 one agent, and one former agent.

July 14, l The DOJ petitions for rehearing and suggests 1998 rehearing en bane in the Secret Service appeal.

l The DOJ moves for stay pending appeal (and protective order) of the Secret Service decision.

July 15, l The OIC files an opposition to the DOJis motion 1998 for a stay pending appeal of the Secret Service

decision. Chief Judge Johnson holds an oral hearing on the motion.

l The DOJ moves for a stay pending appeal of the Secret Service decision (and a protective order) in the D. C. Circuit. The OIC files an opposition to that motion.

l The DOJ moves in the Supreme Court for a stay and a protective order preventing Secret Service testimony. The OIC files an opposition.

197

July 16, l Chief Judge Johnson declines to grant a stay 1998 pending appeal of the Secret Service decision.

l After approximately one minute of testimony by a Secret Service officer, the D. C. Circuit grants an administrative stay of Secret Service testimony, to consider the stay motion.

l Later that day, the D. C. Circuit denies the petition for rehearing and suggestion for rehearing en bane and vacates the stay. The D. C. Circuit issues a temporary stay until Noon the next day, to allow Supreme Court to decide whether to grant a stay.

l The DOJ files a petition for a writ of certiorari in the Secret Service case.

July 17, l The OIC files a brief in opposition to the 1998 DOJ's petition for a writ of certiorari in the

Secret Service case.

l The DOJ files a reply brief in support of its stay motion. The Chief Justice denies the stay.

l Secret Service officers testify. Case Numbers 98- 148 District Court 98- 3069 D. C. Circuit 98- 3085 D. C. Circuit 97- 1942 Supreme Court

98- 93 Supreme Court Secret Service Testimony

Secret Service Testimony Protective Order OIC Petition for a Writ of

Certiorari before Judgment DOJ Petition for a Writ of

Certiorari

IV. White House Documents Date I Event

May 27, The OIC files a motion to compel the White House to 1998 comply with grand jury subpoenas for President

Clinton's meeting records and phone logs. The White House had been redacting such documents on relevancy grounds and refusing to provide phone logs unless the OIC gave them a list of all persons in which the grand jury was interested.

June 12, The White House files an opposition to the OIC's 1998 motion to compel production of meeting records and

phone logs, and tries to "reserve[] the right to assert executive privilege over the material."

198

June 19, 1998

June 26, 1998

The OIC files a reply memorandum in support of its motion to compel the White House to produce meeting records and phone logs.

Chief Judge Johnson orders the White House to produce meeting records and phone logs to the grand jury-

e Na

98- 202 District Court White House documents V. Presidential Testimony

Date

July 17, The OIC issues a grand jury subpoena for President 1998 Clinton's testimony on July 28.

July 22, 1998

July 23, 1998

July 24, 1998

July 27, 1998

Event David Kendall, President Clinton's private attorney, calls Deputy Independent Counsel Robert Bittman and asks to have until August 4 to respond to the grand jury subpoena to President Clinton.

Mr. Bittman offers Mr. Kendall an extension until July 31, conditioned on Mr. Kendall agreeing not to seek additional time.

Mr. Kendall sends a letter to Mr. Bittman stating that the President is willing to "provide testimony" to grand jury. He insists that the grand jury subpoena be withdrawn, asserting that'he would explain why on July 28. Mr. Bittman responds by letter, refusing to withdraw the subpoena until, at very least, President Clinton agrees upon a firm date.

Mr. Kendall sends another letter to Mr. Bittman, stating that President would testify but only if (i) the grand jury subpoena were withdrawn; (ii) the testimony were given in the White House, with a time limit and with a description of the general subject areas of questioning; (iii) there were protection against leaks; and (iv) the testimony were. no earlier than September 13. Mr. Kendall states that President Clinton cannot testify during his vacation because he would be preparing for a foreign trip. Mr.. Bittman responds that any date later than August 7 would be unacceptable.

199

July 28, 1998

July 30, 1998

Aug. 17, 1998

President Clinton moves to postpone any response to the grand jury subpoena until August 11. He wants until this date even to decide whether he will testify or oppose the subpoena. That afternoon, Chief Judge Johnson holds a hearing.

Having agreed to testify on August 17, President withdraws his motion for continuance. (Chief Judge Johnson had been prepared to rule earlier, but withheld her ruling to encourage a settlement.)

President Clinton testifies to grand jury.

e Ng& g. z

98- 267 District Court Presidential subpoena VI. Terry Lenzner Subpoena

Date Event

Feb. 24, 1998

Mar. 9, 1998

Mar. 16,

1998 Williams & Connolly and Skadden Arps file a motion

to quash the grand jury subpoena issued to Terry F. Lenzner and Investigative Group International, Inc. (After hearing reports that Mr. Lenzner and IGI were researching the private lives of career prosecutors, the OIC had issued this subpoena to try to determine whether this was true and, if so, whether this was part of scheme to obstruct the OIC's investigation.) After the President's law firms claim attorney- client privilege and work product protection, Mr. Lenzner appears, provides a privilege log of documents, and refuses to reveal the general subject matter of his retention.

The OIC files an opposition to the motion to quash the grand jury subpoena, arguing that the attorney- client privilege does not protect the general subject matter of retention, amount of fees, or identity of fee payer. .

Williams & Connolly and Skadden Arps file a reply memorandum in support of their motion to quash Lenzner subpoena.

July 29, 1998

200

Chief Judge Johnson issues an order on the grand jury subpoena to Terry Lenzner, ruling that Mr. Lenzner must provide all fee information to the grand jury, but that the general subject matter of his retention is protected by the attorney- client privilege.

201

Tab I

Evidence Reference

202 EVIDENCE REFERENCE

I. II.

ADMISSIBILITY. . . . . . . . . . . . . . . . . . . . . . . 3 UNDERSTANDING THE EVIDENCE ................ 7 A. Direct Testimony ................... 7

1. Grand Jury Testimony ............... 7 2. DepositionTestimony. .............. . 3. Interviews with FBI Agents ............ 8 B. Subpoenaed Documentary and Physical Evidence ..... 9

1. White House Records. ..............

a. White House Access Logs ..........

b. Presidential Telephone Logs ........

2. United States Secret Service Records ......

a. Uniform Division Itineraries .......

b. POTUS Movement Logs/ First Family Locator Command Post Log ............ C. Protective Operations Activity and Personnel

Reports .................

d. Fl Movement Logs ............. C. Other Documentary and Physical Evidence ......

1. Searches. ...................

2. The Dress. ................ ; ..

III. CONVERSATIONS TAPED BY LINDA TRIPP ..........

A. Background .....................

B. Dating the Tape Recorded Conversations .......

1. Reference Charts Summarizing The Dates of the Tapes .................

2. How the OIC Determined the Chronology of these Undated Tapes .................

10 10 14 17 18

18 18 19 20 20 20

22 22 27

28 32

Although the Office of the Independent Counsel has gathered and verified the information presented in this Referral from a wide variety of sources, the information falls into two broad categories. First, there is the direct testimony of numerous witnesses, who were called before grand juries, deposed under oath, or questioned by agents of the Federal Bureau of Investigation. Second, information was obtained from the many documents, tapes, and physical objects which the Office has subpoenaed and collected -- including some of the many gifts

203

exchanged by the President and Monica Lewinsky, the logs kept by the White House and the Secret Service (which record entries and exits of staff and visitors, the movements of the President, and telephone calls involving the President), and private records (such as appointment diaries, business telephone logs, and financial records).

This section discusses some of the issues and questions related to the evidence that might arise when reviewing the Referral. Part I provides an overview of the potential rules for the admissibility of evidence, drawing a comparison between the rules that would apply in a courtroom and those that may apply in Congress. Part II briefly describes the particular evidence sources upon which we rely -- focusing upon those that may be unfamiliar -- and provides the footnote citation forms for each type of source. Part III discusses the tape recorded conversations made by Linda Tripp. The first section in Part III addresses potential problems raised by the possibility that some of the tapes that were made by Linda Tripp and turned over to the OIC are duplicate, rather than original, tapes. The second section then dates to the

explains in detail how the Office was able to assign particular conversations on the tapes.

204

I. ADMISSIBILITY

Much of the OIC's investigative time and effort was devoted to verifying information provided by the main witnesses: it pursued corroborating witnesses, telephone records, gift receipts, correspondence, movement logs, and other evidence that would support or refute the critical facts. In making the reliability of the 'evidence the touchstone of the investigation, the OIC nevertheless recognized that some of the information gathered and cited in the Referral might not be admissible in a judicial trial. For example, a court might not permit a jury to consider testimony by one Secret Service officer about what he heard another Secret Service officer say. If that testimony were used to prove that what the first officer said was true, then the testimony would be "hearsay," which is inadmissible at a trial under the Federal Rules of Evidence (unless an exception applies) .I

In compiling this Referral, the OIC has thought carefully about the role of federal evidentiary rules. Whenever feasible, the OIC has sought direct and circumstantial evidence that federal courts would admit, and indeed, this Office believes that the vast majority of the salient facts are supported by this type of information. Ultimately, however, ' limit itself to judicially admissible reasons.

the Office chose not to evidence for several

1 m Fed. R. Did. 801- 804 (discussing hearsay rules and exceptions).

205

First, the Rules of Evidence sometimes exclude reliable evidence for reasons that the OIC considers inapplicable in the context of this Referral. For instance, some rules of evidence address special concerns of the jury system. The hearsay rule is one example: If the jury hears only a report of what a declarant has said, it ordinarily cannot assess the declarant's perception, memory, narration, or sincerity. This Office believes that the inclusion of hearsay information is appropriate in the context of this Referral, however, both because 28 U. S. C. § 595( c) contemplates a written referral that necessarily prevents the assessment of live witnesses, and because members of the House of Representatives may conduct their own investigation and call witnesses directly.

Second, the Congress need not adhere to the Federal Rules of Evidence when deciding whether to impeach federal officers. The House of Representatives historically has delegated the task of gathering information to a committee (usually, the Judiciary Committee), which traditionally has collected and considered evidence that would be inadmissible in federal court. 2 Similarly, although the Senate customarily has followed some

2 l5. e. e Houseent No- 104- 272’

§S 603- 606 (1998) (describing House procedures for investigating prior to voting whether to impeach); Charles L. Black, Jr.,

. Jmneachment. A Hz& boa 7 (1974) (describing the impeachment process in the House). The committee, however, does take' evidentiary concerns into account when assessing the strength of the case for impeachment. m Warren S. Grimes, med- Ton- Gu Control: PreserviIq Imnt as the Exclusive Removal . MecMism For Federal Juda , 38 UCLA L. Rev. 1209, 1226 (1991).

206

evidentiary rules in impeachment proceedings, ' it has no fixed set of evidentiary rules. 4 The Constitution requires the Senate merely to I1try" impeachments. 5 It does not specify the requirements for trial, and the federal courts will not review the procedures that the Senate decides to use. 6 In an impeachment proceeding, therefore, the Senate also is not obligated to follow the Federal Rules of Evidence, ' and may choose to disregard or relax some rules that would apply in a trial conducted by the judiciary branch. '

3 w Stephen B. Burbank, Alternative Career Resolution. . 1 76 Ky. L. J. 643, 693 (1988) (noting that the Senate has always'applied some rules of evidence); 3 Asher C. Hinds, Hinds' Precedents of the House of

resentatives 537- 643 (1907) (describing evidentiary rules used by the Senate in 19 th- century impeachment trials).

4 The Senate has adopted a set of "Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials." Senate Manual 104- l) 177- 185 (1998). These rules do not include rules of evidence, however. *+; e & Michael J. Gerhardt, R.& iscoverjna Nonjusticiabilitv. .

. . J_ udlclalents titer Nixon, 44 Duke L. J. 231, 267 (1994) (discussing the possibility of adopting rules of evidence for impeachments).

5 See U. S. Const. art. I, 5 3, cl. 6. 6 w Nixon v. I&& ed States 506 U. S. 224, 230 (1993) (holding that "the word 'try' in

’ m Black, su~ ra note 2, at 18; w Hastincrs 1 Co- tee, 716 F. Supp. 38 (D. D. C.), &f'd sub nom. Nixon v. United States Senate 887 F. 2d 332 (D- C. Cir. 1989) (" It is clear that the federal &es of evidence do not apply in impeachment trials . ... ').

' e Michael J. Broyde, mditba Imneacbnt. Removigq .

title . . . . III Federal Jude Convictiqn , 17 Harv. J. L. & Pub. Pol'y 157, 180 n- 97 (1994) (noting that the Senate

207

Third, many of the Rules of Evidence would serve little purpose in an impeachment context. As Professor Charles L. Black, Jr., explained:

[The] technical rules of evidence were elaborated primarily to hold juries within narrow limits. They have no place in the impeachment process. Both the House and the Senate ought to hear and consider all

evidence which seems relevant, without regard to technical rules. Senators are in any case continually exposed to "hearsay" evidence; they cannot be sequestered and kept away from newspapers, like a jury. If they cannot be trusted to weigh evidence, appropriately discounting for all the factors of unreliability that have led to our keeping evidence away from juries, then they are not in any way up to the job, and "rules of evidence" will not help. g

The Congress therefore may decide in a particular impeachment trial to adopt only a few broad rules that exclude irrelevant evidence, but that generally admit any other reliable evidence."

often relaxes the rules of evidence).

9 Black, w note 2, at 18. Other scholars have echoed this analysis. m Michael J. Gerhardt, The Constitutiond

, 68 Tex. L. Rev. 1, 93 (1991) (" The concerns leading to the use of special rules of evidence in state and federal courts do not apply to impeachment proceedings. I’); Broyde, w note 9, at 180 n- 97 (arguing that the rules of evidence "are designed to prevent confusion or manipulation of a lay jury and are not really necessary in the Senate, which includes many lawyers").

10 Professor Stephen B. Burbank has recommended that the Senate exclude irrelevant evidence but admit relevant hearsay. a Burbank, a note 4, at 693. He explains:

Relevance remains the cornerstone of modern evidence law, and it is an imperative for impeachment trials as much as for any other trial. Hearsay, if by that word we intend the elaborate and largely irrational system accreted over two centuries of distrust for juries, is not a cornerstone of anything except the incomes of law professors. Trustworthiness and necessity should be the dominant considerations in the Senate's decision

208

II. UNDERSTANDING TRE EVIDENCE For the reader's convenience, this part briefly describe the sources of evidence upon which the Office has relied. Each description includes rest of the Referral A. Direct Testimony

the abbreviated footnote form used in the to refer to the particular source.

Testimony before the grand jury and testimony given in a deposition is given under oath, while testimony provided in interviews with the OIC is not.

1. Grand Jury Testimony. The Grand Jury has heard the sworn testimony of many witnesses during the course of this investigation. Questions posed to witnesses before the grand jury may be asked either by members of the Independent Counsel's Office, or by members of the grand jury. Every question and answer spoken in the grand jury is recorded and then transcribed by a professional transcriber who is not affiliated with the OIC. Information gained from grand jury testimony is referred to in the footnotes with [name]

[date] GJ at [# I. "GJ," of course, refers to "grand jury." The rest of the details identify the name of the witness, the date of that particular testimony, and the pages of the transcript upon which the information appears.

whether to admit relevant evidence that is hearsay according to whatever test is accepted.

% at 693- 94 (footnotes omitted).

‘4 209

2. Deposition Testimony. A deposition is a sworn statement in which a person responds to questions from the opposing side in a civil case. Depositions are recorded and then transcribed word- for- word by an independent transcriber. Depositions are cited in the footnotes as “[ name] [date] Depo. at [# I. This format provides the last name of the person who testified at the deposition, the date of the deposition, and the page number( s) of the transcript pages relied upon. Thus, for example, President Clinton's deposition of January 17, 1998, which is frequently cited in the Referral, is referred to in the footnotes as "Clinton l/ 17/ 98 Depo. at n --

3. Interviews with FBI Agents. During the course of the investigation, FBI agents have interviewed many witnesses and taken detailed notes of those interviews. Although interviewees do not take an oath to answer truthfully, a knowing misstatement of a material fact to an FBI agent during the course of an investigation is subject to criminal punishment. 'l An FBI interview is referred to in the footnotes as '[ name] [date] Int. at [# I." This citation format provides the last name of the person interviewed, the date of the particular interview, and the page of the interview notes upon which the information in the text appears.

l1 18 U. S. C. § 1001. 8

210

B. Subpoenaed Documentary and Physical Evidence A subpoena is a legal command issued to a person or entity by the authority of a court. A subpoena may direct a person to appear and give testimony at a trial or deposition, or, as discussed in this section, may also direct that the recipient turn over documents or things to the investigating authority -- in this case, the GIG. The recipient of a subpoena must either truthfully and fully produce the material described in the subpoena, or challenge the subpoena in court. Generally, a person producing materials in response to a subpoena will then “verify" under penalty of perjury that the materials produced are truly those called for by the subpoena, and that the person does not have other responsive documents that he has not produced. Subpoenas may seek government, financial, or personal records; they may also seek tangible physical things such as clothing or tapes. The OIC has served and received responses to a large number of subpoenas during the course of this investigation. Some of the specific types of documents are described in greater detail in the next part of this section.

Information derived from subpoenas is referred to in the footnotes in the following way: ###- DC-########. The first three (or four)- digit sequence of all investigation.

number refers to the -subpoena's place in the subpoenas served during the course of this “DC" indicates that the subpoena was issued from

211

the D. C. office- l2 The eight- digit number indicates the particular page or pages of the document( s) produced in response to the subpoena that are being relied upon. Because the response to one subpoena may include many different documents, all of which would share the same initial number, the OIC has at times provided a parenthetical reference after the numbered reference (which gives the type of document -- or the name of the particular document -- being referenced).

1, White House Recordm.

. . 3 -- .

a. White House Access Loge 12 A few subpoena references begin with the letter v." ’

This indicates that they were issued from a Virginia grand jury. 1.

13 B. Smith, Moffit, Dougherty, and Dates 3/ 16/ 98 Int. at 10

(i) Bpaas records

14 Dougherty 2/ 11/ 98 Int. at 2. l5 XL lC LSL

213

(ii) WAVXS records

1: Dougherty 2/ 11/ 98 Int. at 2.

le &

19 B. et Smith al. 3/ 16/ 98 Int. at 4. 2o a.

214

22 B. Smith et al. 3/ 16/ 98 Int. at 2. 23 &j.

25 Dougherty 2/ U/ 98 Int. at l- 2. 13

I-‘”

b. Presidential Telephone Logs 26 B. Smith 3/ 16/ 98 Int. at 3. 2g Nagy 2/ 19/ 98 Int. at 1. 3o Nagy 2/ 19/ 98 Int. at 2; S. Smith 7/ 20/ 98 Depo. at 18, 24.

" Nagy 2/ 19/ 98 Int. at 1; S. Smith 7/ 20/ 98 Depo. at 36- 37. 14

216

32 Nagy 5/ 18/ 98 Depo. at 9- 10. 33 Id. " Nagy 5/ 18/ 98 Depo.. at 44. " Nagy 2/ 19/ 98 Int. at 2. 36 Nagy 2/ 19/ 98 Int. at 4.

” Nagy 5/ 18/ 98 Depo. at 69- 71. 15

217 I 38 Nagy S/ 18/ 98 Depo at 69.

39 Nagy S/ 18/ 98 Depo. at 69- 70. 'I ;Id. at 20- 21. .

42 u. at 36- 41. 16

I 217 .

218 -~

2. United States Secret Service Records. " s. at 38- 41. " a. at 37. '5 Id. at 47- 50. 46 a.

a. Uniform Division Itineraries b. POTUS Xovament Logs/ First Family Locator C onnnand Post

Log c. Protective Operations Activity and Personnel Reports

" Wilson 7/ 23/ 90 GJ at 14- 15.

SOL

d. FlXovement Loge

51 Wilson 7/ 23/ 98 GJ at 19- 20. 52 &iA 53 M. at62. " U. at 29- 31, 40- 43.

" Wilson 7/ 23/ 98 GJ at 54- 55. 19

221

C. Other Documentary and Physical Evidence 1. Searches.

The OIC has also obtained documentary and physical evidence through voluntary production of that evidence and through searches of certain locations, such as Ms. Lewinsky's apartment and Ms. Tripp's house. The search of Ms. Lewinsky's apartment is referred to in the footnotes as 'MSL- 55- DC-####. f1 The transcript of to

Ms. Lewinsky's telephone answering machine tapes is referred as "Search. 001 at #.

The search of Ms. Tripp's house was directed solely toward finding the tapes she made of conversations with Ms. Lewinsky. The tapes are cited as T# at #. .T#" refers to the number of the tape on which the conversation is recorded, and "at #" refers to the transcript page on which the transcribed conversation appears. (Details III, below.)

2. The Dress.

of how the tapes were dated are given in Part In accordance with her cooperation agreement, on July 29, 1998, Ms. Lewinsky produced to the OIC a navy blue dress that she said might contain stains corroborating the sexual nature of her relationship with the President. 57 The OIC subsequently submitted the dress to the FBI lab for examination July 31, 1998, the FBI lab orally informed the OIC

57 a2. e FBI form FD- 597, Receipt for Property, 7/ 29/ 98.

5e iitie! z Memorandum, FBI File No. 29D- OIC- LR- 35063, Lab No.

980730002 S BO, Aug. 3, 1998.

58 On Friday, that the

222

stains on the dress tested positive for human semen, and recommended that the OIC obtain a blood sample from any known subject." On August 3, 1998, in the presence of FBI and OIC personnel, the President provided a blood sample, which was turned over to the FBI for

The first examination test. 61 On August 6, 1998,

the FBI conducted was a PCR- based DNA the FBI notified the OIC that all the PCR markers from the test matched the DNA of President Clinton. 62 The FBI lab was able to extract enough quality DNA from the dress for additional analysis, so it began an RFLP- based DNA test. 63 During the week of August 10, the FBI lab orally informed the OIC that, based on its continuing comparison using RFLP, the lab believed its tests would show a more discriminating match between the DNA from the semen stain and the President's DNA. On the morning of August 17, 1998, the FBI formally concluded that the

5g ti Report of Examination, FBI File No. 29D- OIC- LR- 35063, Lab No. 980730002 S BO, Aug. 3, 1998.

6o e FBI Memorandum of SSA Jenifer A. L. Smith, Aug. 3, 1998.

61 PCR is the acronym for polymerase chain reaction, a less definitive DNA test that can be completed relatively quickly and requires only a small specimen of genetic material.

62 The FBI concluded that the "probability of selecting an unrelated individual [from President Clinton's population] at .

random" was 1 in 43,000. Report of Examination, FBI File No. 29D- OIC- LR- 35063, Lab Nos. .980730002 S BO and 980803100 S BO, Aug. 6, 1998.

63 RFLP is the acronym for restriction fragment length polymorphism, an extremely definitive DNA test that requires a generous, high quality DNA specimen and usually takes additional time.

223

President "is the source of the DNA obtained from [Ms. Lewinsky's dress], to a reasonable degree of scientific certainty." 64

III. CONVERSATIONS TAPED BY LINDA TRIPP. A. Background

After receiving court- ordered immunity under 18 U. S. C. 56002, Linda Tripp produced several cassette tapes and testified before the grand jury. 65 Among other subjects, she discussed notes and tape recordings she made of several conversations between herself and Monica Lewinsky.

Ms. Lewinsky began confiding in Ms. Tripp soon after Ms. Lewinsky began working at the Pentagon. Ms. Tripp took two sets of notes during their conversations. The first notes are in a Skilcraft Steno Notebook. 66 Ms. Tripp testified she took these between May 23, 1997, and July 1997.67 The second notes are on a series of papers. Ms. Tripp testified she took these during

64 Report of Examination, FBI File No. 29D- OIC- LR- 35063, Lab Nos. 980730002 S BO and 980803100 S BO, Aug. 17, 1998. The FBI concluded that the "probability of selecting an unrelated individual [from President Clinton's population] at random" was I in 7.87 trillion.

65 & Tripp GJ, 6/ 30/ 98, pg. 8- 14 (The Office of the Independent Counsel also promised Ms. Tripp that it would do what it could to persuade the State of Maryland from prosecuting Ms. Tripp for any violations of the state wiretapping law.).

66 845- DC- 00000001- 25.

67 May 23, 1997, is the last date recorded in the notebook. Linda Tripp testified she wrote the book in July, m Tripp 7/ 7/ 98 GJ at 111, but did so before she knew about the contact between Ms. Lewinsky and Bruce Lindsey on July 14, 1997. u. at 135.

224

several conversations, starting in September 1997.68 Ms. Tripp indicated that Ms. Lewinsky was aware of the first note- taking but not the second. 6g Ms. Lewinsky said, though, that she never knew Ms. Tripp was taking notes."

From approximately October 3, 1997, to January 15, 1998, Linda Tripp tape recorded many of her telephone conversations with Monica Lewinsky. According to Ms. Tripp, on October 3, 1997, she purchased a voice activated tape recorder with a manual pause capability from Radio Shack (model CTR107), and connected it to a telephone in the study of her home. Ms. Tripp testified that she set the system to record all conversations from the study telephone so long as there. was a tape in the machine and the machine remained on. Ms. Tripp added that because of the length of the conversations and the tapes, most of the tapes contain several conversations. As Ms. Tripp further told the grand jury, because the recorder was always working unless she turned it off, she captured conversations with people other than Ms. Lewinsky.

On October 6, 1997, after making two tapes, Ms. Tripp met in

68 Tripp GJ 7/ 16/ 98 at 112- 13. 6g Tripp 7/ 7/ 98 GJ at 108- 109, 160; Tripp 7/ 16/ 98 GJ at 113.

" The dates in the notebook sometimes appear to be a. day or two off. One note, for instance, refers to Sunday, March 30, 1996; Sunday actually fell on March 31. & 845- DC- 00000011 (notes); Tripp GJ 7/ 9/ 98 at 17. Ms. Tripp surmised that Ms. Lewinsky was consulting a 1997 calendar for dates without realizing the discrepancy. Tripp GJ 7/ 9/ 98 at 18.

225

Washington, D. C. with her friend Lucianne Goldberg, Jonah Goldberg (Ms. Goldberg's son), and Michael Isikoff. After this meeting, Ms. Goldberg kept the two tapes and brought them to New York. Ms. Goldberg made copies of these tapes, and she presented the two originals and copies of them to the Office of the Independent Counsel in January 1998.

Ms. Tripp told the grand jury she continued to make recordings and keep them in a bowl on a piece of furniture. She testified that around the beginning of 1998, she gave most of the tapes to her lawyer, Kirby Behre. According to Ms. Tripp, she changed attorneys and retained Jim Moody. She stated that Mr. Moody obtained the tapes from Mr. Behre and provided them to the OIC in early January 1998.

Later, the OIC received four additional Tripp. On March 3, 1998, Ms. Tripp searched

tapes from Ms. her home with the help of her new attorney, Anthony Zaccagnini, and several FBI Special Agents assigned to the OIC. During this search, Ms. Tripp and the others found three additional tapes. After previewing these tapes on the cassette player in his car, Mr. Zaccagnini presented them to 'the Special Agents. Ms. Tripp told the grand jury that just before March 17, 1998, she found another tape in her home and gave it to Mr. Zaccagnini. He brought it to the Office of the Independent Counsel on March 17, 1998.

The OIC provided to the FBI Audio Signal Analysis Unit in Quantico, Virginia, all This unit is engaged in

of the tapes obtained from Ms. Tripp. the elaborate and time- consuming process

226

of authenticating the tapes, but it has provided some results. * Examination has preliminarily determined that 8 of the tapes submitted do not exhibit signs of duplication.

* Examination has preliminarily determined that 9 of the tapes submitted exhibit characteristics that are not consistent with being recorded on the Radio Shack CTR107 tape recorder Ms. Tripp says she used to record the original tapes.

* Examination has preliminarily determined that the 9 tapes inconsistent with the tape recorder Ms. Tripp says she used exhibit signs of duplication.

* Examination has preliminarily determined that 7 of the tapes that exhibit signs of duplication are consistent with the use of one tape recorder to duplicate.

* The examination has preliminarily determined that one of the tapes that exhibits signs of duplication was produced by a recorder that was stopped during the recording process.

These results raise three important issues. First, the Office of the Independent Counsel does not possess original recordings for nine of the tapes Ms. Tripp made. Two of these tapes contain inaudible recordings. Second, the OIC is not aware who made the "likely to be duplicatel' tapes. Third, if Ms. Tripp duplicated any tapes herself or knew of their duplication, then she has lied under oath before the grand jury and in a deposition. The OIC continues to investigate this matter.

In light of these three issues, and to help ensure the reliability, authenticity, and accuracy of the evidence, the accompanying submission only refers to recorded conversations which meet four conditions: (1) the recorded conversation is contained on a tape that FBI examination has preliminarily determined not to exhibit signs of duplication; (2) Monica Lewinsky has listened to the recording and identified her voice

227

and Linda Tripp's voice;" (3) Monica Lewinsky has identified the recording as an accurate depiction of a conversation she remembers;" and (4) there is independent evidence to corroborate the contents of the recorded conversation.

Even though they do not appear in the submission, the Office of Independent Counsel has provided all of the recorded conversations as raw evidence. Consequently, a fourth issue arises when assigning dates to the tapes that exhibit signs of duplication.

When a tape was filled with recorded conversations, Ms. Tripp removed the tape and stored it in the bowl. Ms. Tripp did not mark the tapes, and she did not catalog them. As a result, the only way to determine which day Ms. Tripp recorded each tape was to use the information she provided while she was debriefed, 73 combined with information from the conversations.

'I Ms. Lewinsky stated with respect to these recordings that she believes the voice on the tapes is hers, based on "intonation and content."

72 Although Ms. Lewinsky cannot attest to whether there are missing portions of the conversations, she could specific conversation that was excluded from the conversations on the tapes. Ms. Lewinsky noted, she had many more conversations with Linda Tripp subject matters than were captured on tape.

not recall any particular however, that about certain

73 Ms. Tripp appeared at the Office of the Independent Counsel on many occasions between January 1998, and July 1998. During most of her initial visits, Ms. Tripp listened to the recordings of her conversations with Ms. Lewinsky and compared them with transcripts that the Office of the Independent Counsel prepared. Ms. Tripp corrected the transcripts as necessary. Ms. Tripp told the grand jury that the tapes accurately depict her conversations with Ms. Lewinsky and that the transcripts are accurate.

228

For the seven tapes which contain audible conversations and which exhibit signs of duplication, the Office of the Independent Counsel cannot exclude the possibility of tampering at this time. For this reason, the Office of the Independent Counsel cannot have full confidence that the dates assigned to these tapes are accurate. The following appendix represents the opinion of the Independent Counsel regarding the date of each tape. The tapes that exhibit signs of duplication are marked to reduce the possibility of confusion.

B. Dating the Tape Recorded Conversations

The following discussion represents the opinion of the Office of the Independent Counsel regarding the date of each tape. Although they are assigned dates, the duplicates are marked to reduce the possibility of confusion.

In her later visits to the Office of the Independent' Counsel, Ms. Tripp participated in debriefing sessions with investigators and attorneys. One aspect of these sessions included eliciting information about the tapes and when Ms. Tripp made them.

229

1. Reference Charts Summarizing The Dates of the Tapes Conversations ListedBvDate Conversations Ikted Bv Tape

Note: Tapes Which Exhibit Sign of Duplication Are Printed In Italics

1. Friday, October 3, 1997: Tape 18, side A, first conversation on tape. Transcript pages: 2- 25.

2. Friday, October 3, 1997: Tape 18, side A, second conversation on tape. Transcript pages: 25- 7 1.

3. Saturday, October 4, 1997: Tape 18, side B, third conversation on tape. Transcript pages: 7 1 - 110.

4. Sun& y, October 5,1997: Tape 19, side A, first conversation on tape. Transcript pages: 2- 2 1.

5. Sunday, October 5, 1997: Tape 19, side A, second conversation on tape. Transcript pages: 2 l- 34.

6. Sunday, October 5, 1997: Tape 19, side A, third conversation on tape. Transcript page: 34.

7. Monday, October 6, 1997: Tape 19, side A, fourth conversation on tape. Transcript pages: 35- 4 1.

8. Monday, October 6, 1997: Tape 1, Side A, first conversation on tape. Transcript pages: 2- 40.

9. Monday, October 6, 1997: Tape 1, side A, second conversation on tape. Transcript pages: 40- 110.

10. Thursday, October 16,1997: Tape 2, Side A, third conversation on tape. Transcript pages: 2- 38.

11. Thursday, October 16, 1997: Tape 13, Side A, first conversation on tape. Transcript pages 2- 30.

1. Tape 1, Side A, first conversation on tape: Transcript pages: 2- 40. Monday, October 6, 1997

2. Tape 1, side A, second conversation on tape: Transcript pages: 4O- 110. Monday, October 6, 1997.

3. Tape 2, Side A, third conversation on tape: Transcript pages: 2- 38. Thursday, October 16,1997.

4. Tape 3, side A, first conversation on tape: Transcript: pages 2- 39. Saturday, October 18, 1997.

5. Tape 5, side A. @st conversation on tape: Transcript pages: 2- 16. Thursaky, November 20, 1997.

6. Tape 5. side A. third conversation on tape: Transcript pages: I 7- 41. Thursdrry, November 20, 1997.

7. Tape 5, side A. finuth conversation on tape: Transcript pages: 41- 47. Thursdqv, November 20. 1997.-

8. Tape 5, si& A. fifih conversation on tape: Transcript pages: 47- 52. Friday, November 21, 1997.

9. Tape 5, side B, s& h comtersation on tape: Transcript pages: 53- 55. Fr$ q November 21, 1997.

IO. Tape 5. side B. seventh conversation on tape: Transcript pages: 55- 59. Fri&, November 21. 1997.

II. Tape 5. side B, eighth conversation on ta. lx: Transcript pages: 59- 91. Friday, November 21, 1997.

230

12. Friday, October 17,1997: Tape 13, side A. second conversation on tape. Transcript pages: pages 30- 38.

13. Saturday, October 18, 1997: Tape 3, side A, first conversation on tape. Transcript: pages 2- 39.

14. Saturday, October 18,1997: Tape 8, Side A, first conversation on tape. Transcript pages 2- 34.

15. Sunday October 19,1997: .Tape 7, Side A, first conversation on tape. Transcript pages: 2- 5 1.

16. Thursday, October 23,1997: Tape 15, Side A, fmt conversation on tape- Transcript pages: 2- 30.

17. Thursday, October 23,1997: Tape 15, Side A, second conversation on tape. Transcript pages: 30- 73.

18. Wednesa& v. October 29, 1997: Tape I I, first conversation on tape. Transcript pages: 2- 57.

19. Monday, November 3. 1997: Tape I I, Side B. f; fih conversation on tape. Transcript pages: 58- l 13.

20. Saturday, November 8, 1997: Tape 16, side B, skth conversation on tape_ Transcript pages: 60- 103.

21. Tuesday, November II, 1997: Tape 16, side B. ninth conversation on tqx. Transcript pages: 104- l 14.

22. Tuesday, November 11, 1997: Tape 26, side A, first conversation on tape. Transcript pages: 2- 5.

23. Tuesday, November II, 1997: Tape 26, side A. second conversation on tape. Transcript pages: 5- 32.

24. Tuesday, November II, 1997: Tape 26, side A. third conversation on tape. Transcript pages: 32- 55.

12. Tape 6, side A. second conversation on tape: Transcript pages: 2- 24. Monday, December 22, 1997.

13. Tape 6, side A, fourth conversation on tape: Transcript pages: 24- 32. Monday, December 22, 1997.

14. Tape 6, side B, fifth conversation on tape: Transcript pages: 33- 68. Mondq, December 22, 1997.

15. Tape 7, Side A, first conversation on tape: Transcript pages: 2- 5 1.

Sunday October 19,1997.

16. Tape 8, Side A, first conversation on tape: Transcript pages 2- 34. Saturday, October 18, 1997.

17. Tape 9, side A. first conversation on tape: Transcript pages: 2- 33. Sunday, November 16. 1997.

18. Tape 9, side A, second conversation on tape: Transcript pages: 33- 51.

Monday, November 17,1997. 19. Tape 9, side B. third conversation on tap: Transcriptpages: 51- 79. Tuesdqv, November 18, 1997.

20. Tape 9, side B, forth conversation on tape: Transcript pages: 79- l 00. _

Thursday, November 20, 1997 21. Tape I I. Side A. first conversation on tape: Transcript pages: 2- 5 7. Wednesday, October 29, I997

22. Tape 11, Side B, fifth conversation on tape: Transcript pages: 58- 113. Monday, November 3,1997.

23. Tape 13, Side A, first conversation on tape: Transcript pages 2- 30. Thursday, October 16, 1997.

24. Tape 13, side A, second conversation on tape: Transcript pages: pages 30- 38. Friday, October 17, 1997.

25. Thursday, November 13, 1997: 25. Tape 15, Side A, first conversation on tape:

Tape 16, side A. first conversation on tape. Transcript pages: 2- 30.

Transcript pages: 2- 9. Thursday, October 23,1997.

26. Friday, November 14, 1997: Tape 16, side A, second conversation on tape. Transcript pages: 9- 5 I.

27. Sunday, November 16, 1997: Tap 16, side A, third conversation on tape. Transcript pages: 52- 60.

28. Sunday, November 16, 1997: Tape 9, side A. first conversation on tape. Transcript pages: 2- 33.

29. Monday, November 17.1997: Tape 9, side A, second conversation on tape. Transcript pages: 33- 5 I.

30. Tuesday, November 18, 1997: Tape 9, side B, third conversation on tape. Transcript pages: 5 I- 79.

31. Thursdqy, November 20, 1997: Tape 9, side B, fourth conversation on tape. Transcript pages: 79- 100.

32. Thursday, November 20, 1997: Tape 5, side A, first conversation on tape. Transcript pages: 2- l 6.

33. Thursday, November 20, 1997: Tape 5, side A, third conversation on tape. Transcript pages: 17- 41.

34. Thursoky, November 20. 1997: Tape 5, side A, fourth conversation on tape. Transcript pages: 41- 4 7.

35. Friday, November 21. 1997: Tape 5, side A, fifth conversation on tape. Transcript pages: 4 7- 52.

36. Friday. November 21, 1997: Tape 5. side A, sixth conversation on tape. Transcript pages: 53- 55.

37. Friday, November 21, 1997: Tape 5, side A, seventh conversation on tape. Transcript pages: 55- 59.

231

26. Tape 15, Side A, second conversation on tape: Transcript pages: 30- 73. Thursday, October 23,1997.

27. Tape 16, si& A, first conversation on tape: Transcript pages: 2- 9. Thurs& y, November 13.1997.

28. Tape 16, side A, secondconversation on tape: Transcript pages: 9- 5 I. Fri& y, November 14.1997.

29. Tape 16. side B, sixth conversation on tape: Transcript pages: 60- 103. Satur& y, November 8.1997.

30. Tape 16, side B, ninth conversation on tape. Transcriptpages: 104- 114. Tuesday, November II. 1997:

31. Tape 16, side A, third conversation on tape: Transcript pages: 52- 60. SunaIzy, November 16, 1997.

32. Tape 18, side A, first conversation on tape: Transcript pages: 2- 25. Friday, October 3, 1997.

33. Tape 18, side A, second co? versation on tape: Transcript pages: 25- 7 1. Friday, October 3, 1997.

34. Tape 18, side B, third conversation on tape: Transcript pages: 71- 110. Saturday, October 4, 1997.

35. Tape 19, side A, first conversation on tape: Tr+ nscript pages: 2- 2 1. Sunday, October 5, 1997

36. Tape 19, side A, second conversation on tape: Transcript page: 2 l- 34. Sunday, October 5.1997

37. Tape 19, side A, third conversation on tape: Transcript pages: 34. Sunday, October 5,1997.

232

38. Friday, November 21, 1997: Tape 5, side A, eighth conversation on tape. Transcript pages: 59- 91.

39. Tue.& y, December 9, 1997: Tape 23. side A, first conversation on tape. Transcript pages: 2- 6.

40. Tuesday, December 9, 1997: Tape 23. side A, second conversation on tape. Transcript pages: 6- 56.

41. Frisky, December 12, 1997: Tape 23, side A. fifi conversation on tape. Transcript pages: 5 7- 68.

42. Friday, December 12, 1997: Tape 23. side B, sixth conversation on tape. Transcript pages: 68- 127.

43. Frisky, December 12, 1997: Tape 23, side B, eighth conversation on tape. Transcriptpages: 127- 131.

44. Mot& y, December 22, 1997: Tape 6. side A, second conversation on tape. Transcript pages: 2- 24.

45. Monday, December 22, 1997: Tape 6, side A. fourth conversation on tape. Transcript pages: 24- 32.

46. Monday, December 22, 1997: Tape 6, side B, fifth conversation on tape. Transcript pages: 33- 68.

47. Thursday, January 15, 1998: Tape 22, side A, first conversation on tape. Transcript pages: 2- 55.

48. Thursday, January 151998: Tape 22, side A, second conversation on tape. Transcript pages: 55- 76.

38. Tape 19, side A, fourth conversation on tape: Transcript pages: 35- 4 1. Monday, October 6, 1997.

39. Tape 22, side A, first conversation on tape: Transcript pages: 2- 55. Thursday, January 15,1998.

40. Tape 22, side A, second conversation on tape: Transcript pages: 55- 76. Thursday, January 15, 1998.

41. Tape 23, side A, first conversation on tape: Transcript pages: 2- 6. Tuesday, December 9,1997.

42. Tape 23, side A, second conversation on tape: Transcript pages: 6- 56. Tuesday, December 9,1997.

43. Tape 23, side A, fifth conversation on tape: Transcript pages: 57- 68. Friday, December 12,1997.

44. Tape 23, side B, sixth conversation on tape: Transcript pages: 68- 127. Friday, December 12,1997.

45. Tape 23, skk B, eighth conversation on tape: Transcriptpages: 127- 131. Friday, December 12, 1997

46. Tape 26, side A, first conversation on tape: Transcript pages: 2- 5. -

Tuesday, November II, 1997, 4 7. Tape 26, siak A, second conversation on tape: Transcript pages: 5- 32. Tuesday, November II, 1997.

48. Tape 26, side A, third conversation on tape: Transcript pages: 32- 55. Tu& dqv, November I I, 1997.

233

2. How the OIC Determined the Chronology of these Undated Tapes

Conversation # 1: Friday, October 3, 1997 Tape 18, side A, first conversation on the tape. Transcript pages: 2- 25.

During this conversation, Ms. Tripp says it is October. &

T18 at 24. Ms. Lewinsky observes that the President will be delivering a radio address on the following morning, and then traveling to Maryland and Camp David. m T18 at 20. The President's October 4, 1997, schedule shows he gave a radio address, m 968- DC- 00003058, and then traveled to Prince George's County, Maryland and Camp David. m 968- DC- 00003059. Ms. Lewinsky also comments the President will be at an event in Virginia on Saturday night. m page 21 Schedule shows the President attended a Airport Hilton on October 4, 1997. %Z

. The Presidential Press function at the National 968- DC- 00003060. These factors are consistent with a conversation on October 3, 1997. Conversation # 2: Friday, October 3, 1997 Tape 18, side A, second conversation on the tape. Transcript pages: 25- 71.

During this conversation, Ms. Tripp says it is Friday night, and Ms. Lewinsky says she is going to New York City on the next Saturday for the weekend. m T18 at 28. Ms. Lewinsky's American Express bill reveals she bought an airplane ticket from LaGuardia Airport to the Ronald Reagan National Airport on October 13, 1997. a 852- DC- 00000042. Ms. Lewinsky also mentions that the

234

President is leaving the following Sunday, October 12, 1997. & T18 at 41. The President's schedule shows he left for a week- long trip to Latin America on October II, 1997. & united

at 1608, 1609, 1652. These factors are consistent with a conversation on Friday, October 3, 1997. .

Conversation # 3:

Saturday, October 4, 1997 Tape 18, side B, third conversation on the tape. Transcript pages: 71- 110.

The conversation that immediately precedes this conversation on the tape occurred on Friday, October 3, 1997. At the end of the previous portion, Ms. Lewinsky notes that it is 10: 20, that she is going to sleep, and she indicates that she is not working the next day. &z T18 at 70. This conversation begins with Ms. Lewinsky describing her trip to the Potomac Mills Mall for the day. & T18 at 70- 79. The placement tape and the day- long trip to the mall weekend day.

of the conversation on the are consistent with a

In addition, Ms. Lewinsky says Betty Currie was in the office during the morning because of the Radio Address. w T18 at 88. The President delivered a Radio Address on Saturday October 4, 1997, at lo: 06 am. Also, Betty Currie rarely works on Sunday because it is her "church day." m Currie 5/ 7/ 98 GJ at 91. Ms. Lewinsky further says she wants to buy the President a gift because he now had a hearing aid. m T18 at 80. The

235

President was fitted for hearing aids on October 3, 1997. & 'IAge Catching Up With Clinton; He's Getting Hearing Aids," Sandra Sobieraj, The Associated Press, October 3, 1997.

Ms. Lewinsky also says there are three months before the beginning of the year, and she refers to sunglasses she bought the President for his Latin America trip. m Tl8 at 103- 4. This statement would place the tape in early October.

These factors are consistent with a conversation on October 4, 1997. Conversation # 4: Sunday, October 5, 1997 Tape 19, side A, first conversation on the tape. Transcript pages: 2- 21.

Ms. Lewinsky tells Ms. Tripp that CNN is leading its "Headline News" with a story about the White House releasing video tapes of the coffee receptions for Democratic supporters. Srre T19 at 2. At the outset of the call, Ms. Lewinsky is waiting excitedly for the next half hour news cycle so she can see the whole story. Evidently, she was concerned the White- House might have a video taping system that showed her on tape.

The White House released these tapes, and the story broke on October 5, 1997. m Videotapes Released Showing Presidential Coffee Meetings, NBC Nightly News, October 5, 1997. Because of her excitement and the fact that Ms. Lewinsky followed White House news so carefully, it is likely she is describing the story that broke earlier in the day.

In addition, Ms. Tripp refers to a message she received at 34

236

work on Friday, and she says she did not call back because it was "the kind of thing that could wait until Monday." w T19 at 31. This statement is consistent with a weekend conversation. Also, Ms. Tripp and Ms. Lewinsky discuss how Ms. Lewinsky will help Ms. Tripp with parking final point places

These factors October 5, 1997. Conversation # 5: Sunday, October 5,

at work the next day. a T19 at 15. This this conversation on a Sunday night. are consistent with a conversation on Sunday,

1997 Tape 19, side A, second conversation on the tape.

21- 34. Transcript pages: Ms. Lewinsky President and how

discusses the sunglasses she bought for the she will send them to him. m T19 at 24. Because Ms. Lewinsky bought these sunglasses on October 4, 1997, this conversation must have occurred after that day. Ms. Tripp also says Ms. Lewinsky should send the glasses by FedEx. FedEx receipts show that Ms. Lewinsky sent a Federal Express package to the White House on October 10, 1997. m 925- DC- 00000003. For this reason, the conversation probably occurred before October

10, 1997. In the conversation that immediately precedes conversation, Ms. Lewinsky and Ms. Tripp discussed plans for the next morning. meeting until approximately Tripp into the parking lot.

Ms. Lewinsky said she this

their parking would be in a 8: 00 am, and then she could bring Ms. w T19 at 16. Ms. Tripp and_ Ms. Lewinsky ended this conversation by bidding each other good night

237

and with Ms. Tripp saying she would call Ms. Lewinsky "probably eight- ish." m T19 at 34. For these reasons, the conversation that immediately precedes this conversation likely occurred on October 5, 1997.

The conversation that immediately follows this one also occurred on October 5, 1997 (see explanation of next conversation). Because this conversation comes between two October 5 conversations on T19, it most likely occurred on October 5, 1997.

These factors are consistent with a conversation on Sunday, October 5, 1997.

Conversation # 6: Sunday, October 5, 1997 Tape 19, side A, third conversation on the tape. Transcript page: 34.

Ms. Lewinsky and Ms. Tripp spoke during the early evening of October 5, 1997. m T19 at 2- 21. After this first conversation, Ms. Tripp went to the gym to exercise and Ms. Lewinsky called back. m 19 at 21- 34. Sometime after that conversation ended, Ms. Tripp received a call from her friend Kate Friederich and turned off the recorder. m T19 at 34. Ms.

Tripp knows the conversation with Ms. Friederich occurred in the late evening of Sunday, October 5, 1997, because the conversation happened the day before Ms. Tripp met with Jonah Goldberg, and Michael Isikoff. That October 6, 1997. Furthermore, in a letter

Lucianne Goldberg, meeting occurred to the President, Ms. Lewinsky wrote that Ms. Friederich spoke to Ms. Tripp on Sunday

238

night. m MSL- 55- DC- 0178. These factors are consistent with a conversation on Sunday October 5, 1997.

Conversation 7:

Monday, October 6, 1997 Tape 19, side A, fourth conversation on the tape. Transcript pages: 35- 41.

The segment of conversation that immediately precedes this conversation is the interrupted discussion between Ms. Tripp and Ms. Friedrich. In this conversation, Ms. Tripp tells Ms. Lewinsky what Ms. Friederich said. During her debriefing, Ms. Tripp remembered having this conversation the morning after speaking with Ms. Friederich. One thing that sparked Ms. Tripp's memory was her statement during the conversation, "Let me get my coffee . - . I've got to wake up." T19 at 35. According to Ms.

Trim, she usually only drinks coffee in the morning. There are further indications that this conversation occurred on October 6, 1997. In this conversation, Ms. Tripp says she has not spoken to Kate in a month. During a conversation taped on the night of October 6, 1997, Ms. Tripp and Ms. Lewinsky discussed this conversation again. m Tl at 13- 23. Consequently, this conversation must have occurred before the evening of October 6, 1997.

These factors are consistent with a conversation on October

6, 1997.

Conversation # 8:

Monday, October 6, 1997 Tape 1, Side A, first conversation on the tape. Transcript pages: 2- 40.

239

Ms. Lewinsky tells Ms. Tripp that Ms. Currie would not get her into the White House this evening because of a dinner. a Tl at 6. The Presidential press schedule reveals the President hosted a state dinner with the President of Israel on October 6, 1997. a 968- DC- 00003063.

Also, this conversation ends with a discussion about a letter that Ms. Lewinsky intends to send to the President. At the end of the conversation, Ms. Lewinsky says she will write the letter and call Ms. Tripp back in about 15- 20 minutes. w Tl at 40. The next conversation, which follows immediately on the tape, begins with a discussion of the letter Ms. Lewinsky has composed. The next conversation also features Ms. Lewinsky saying it is the 6th. m Tl at 90.

In addition, Ms. Lewinsky and Ms. Tripp discuss a conversation between Ms. Tripp and her friend Kate Friederich who works at the National Security Council. m Tl at 13- 36. For the reasons cited above, the conversation between Ms. Tripp and Ms. Friederich occurred on the previous night.

These factors are consistent with a conversation on Monday, October 6, 1997.

Conversation # 9:

Monday, October 6, 1997 Tape 1, side A, second conversation on the tape. Transcript pages: 40- 110.

During this conversation, Ms. Lewinsky says: "Today is the 6th." & Tl at 90. In addition, Ms. Lewinsky and Ms. Tripp are discussing a letter that Ms. Lewinsky intends to send to the

240

White House. There is a courier receipt which shows a delivery from Ms. Lewinsky to the White House on October 7, 1997. m 837- DC- 00001.

Ms. Lewinsky also observes that Mrs. Clinton "is coming home Friday night from Panama to go to South America with him on Sunday, just so she can be here for their anniversary." m Tl at 69. The First Lady's travel schedule reveals Mrs. Clinton returned from Panama on Friday, October 10. & 968- DC- 00003477. Ms. Lewinsky further refers to the fact that the President is leaving for Latin America on Sunday. & Tl at 69. The Presidential Press Schedule shows that the President left for Latin American on Sunday October 12, 1997. m 968- DC- 00003076.

These factors are consistent with a conversation on Monday, October 6, 1997. Conversation # 10: Thursday, October 16, 1997 Tape 2, Side A, third conversation on the tape. Transcript pages: 2- 38.

Ms. Tripp says tomorrow is the 17th. m T2 at 31. Also, on page 4, Ms. Lewinsky says the President is in Latin America and will be back on Sunday morning. The Presidential Press Schedule reveals the President returned from Latin America on October 19, 1997. m 968- DC- 00003141.

These factors are consistent with a conversation on October 16, 1997.

241

Conversation # 11: Thursday, October 16, 1997 Tape 13, Side A, first conversation on the tape. Transcript pages: 2- 30.

This conversation ends with Ms. Tripp telling Ms. Lewinsky, "1'11 talk to you tomorrow." & T13 at 30. The next conversation on the tape begins with Ms. Tripp asking Ms. Lewinsky what Ms. Lewinsky is still doing in the office on a Friday night. & T13 at 30. These factors are consistent with a Thursday conversation.

The following factors place the conversation in a more general time frame. Ms. Lewinsky says the President will get a package she has sent him on Monday. ti T13 at 17. The Presidential Press Schedule shows the President returned from his Latin America trip on Sunday, October 19, 1997. m 968- DC- 00003141. Ms. Lewinsky also indicates the First Lady will be in New York on Monday and then go to Chicago "for some big birthday thing." &g T13 at 17. The First Lady's schedule reveals that she was in New York on October 20, 1997, that her birthday was October 26, 1997, and that she went to Chicago on October 27, 1997. &. e 968- DC- 00003477.

All of these factors are consistent with a conversation on Thursday, October 16, 1997. Conversation # 12: Friday, October 17, 1997 Tape 13, side A, second conversation on the tape. Transcript pages: pages 30- 38.

At the outset of this tape, Ms. Tripp asks she is working late on a Friday night. ti T13

Ms. Lewinsky why at 31. October

242

17, 3.997, was a Friday. Also, Ms. Lewinsky tells Ms. Tripp the First Lady's birthday is the next week. & T13 at 12. The First Lady's birthday is October 26. & 968- DC- 00003477.

These factors are consistent with a conversation on Friday October 17, 1997. Conversation # 13:

Saturday, October 18, 1997

Tape 3, side A, first conversation on the tape. Transcript: pages 2- 39.

In a question regarding the President, Ms. Tripp asks: "When does he get back? Tonight, tomorrow?" Ms. Lewinsky responds: nI think early tomorrow morning." & T3 at 12. The President's schedule reveals that he returned from Latin America on the morning of October 19. sef: 968- DC- 00003141. Later, Ms. Lewinsky once again notes that the First Lady's birthday is the next weekend, and she recites the First Lady's travel schedule including a trip to New York, a trip to Chicago, and a trip to Ireland. The First Lady's travel schedule includes a trip to New York (October 20), her birthday (October 26), and a trip to Ireland (Starting October 301. ii& e 968- DC- 00003477.

These factors are consistent with a conversation on Saturday, October 18, 1997. Conversation # 14: Saturday, October 18, 1997 Tape 8, Side A, first conversation on tape. Transcript pages 2- 34.

Ms. Lewinsky says she called Andy Bleiler earlier in- the day. & T8 at 8. Phone records reflect four calls from Ms. Lewinsky to Mr. Bleiler on October 18 (three were one minute each

243

and one was four minutes, the first at 7: 33 p. m. and the last at 7: 41 p. m.). & 810- DC- 00000017. In addition, Ms. Lewinsky says she first told the President she wanted help finding a job on January 8, 1997-- ten months ago. This statement is consistent with this conversation's being in October.

These factors are consistent with a conversation on Saturday, October 18, 1997.

Conversation 15: Sunday October 19, 1997 Tape 7, Side A, first conversation on the tape. Transcript pages: 2- 51.

Ms. Lewinsky mentions that the President returned from Latin America and could have gone to his office and seen her package. &_ e T7 at 10. The Presidential travel schedule reveals the President returned from Latin America on the morning of Sunday, October 19. a 968- DC- 00003141. Also, Ms. Lewinsky comments that a World Series game is on television. UT7at2. Game2 of the 1997 World Series occurred on Sunday, October 19, 1997. w "The Schedule," The Daily. News, October 19, I. 9971

There are other indications that this call happened on a Sunday. First, Ms. Lewinsky suggests that the President can call her on a Sunday even if Mrs. Clinton is in the White House. & T7 at 10- 11. Lewinsky also 'mentions that Ms. Currie usually does not come in on Sundays. & T7 at 14. Furthermore, Ms. Lewinsky refers to going to the Mall earlier that day. & T7 at 2- 5. This assertion is consistent with a weekend conversation.

These factors are consistent with a conversation on Sunday, 42

244

October 19, 1997. Conversation # 16: Thursday, October 23, 1997 Tape 15, Side A, first conversation on tape. Transcript pages: 2- 30.

Ms. Lewinsky indicates that Ambassador Richardson called on Tuesday. sftfz T15 at 15. Phone records reflect a call from Ambassador Richardson's line to Ms. Lewinsky on Tuesday, October 21. See 828- DC- 00000004.

These factors are consistent with a conversation on Thursday, October 23, 1997.

Conversation # 17: Thursday, October 23, 1997 Tape 15, Side A, second conversation on the tape. Transcript pages: 30- 73.

This is a continuation of the previous conversation. In the conversation that immediately precedes this conversation on the

tape, Lewinsky is upset because she has not had enough contact with the President. During this previous conversation, Ms. Lewinsky says it is 8: 15 and she promises to call Ms. Tripp as

soon as the President calls her. W T15 at 27. This conversation opens with Ms. Lewinsky describing the conversation she has just finished with the President. Ms. Lewinsky says it is 10: 30. se9;. T15 at 34. This timing and Ms. Lewinsky's comments are consistent with back- to- back phone calls. Also, Ms. Lewinsky says she told the President that Ambassador Richardson called her on Tuesday. W T15 at 31. Ambassador Richardson called Ms. Lewinsky on Tuesday, October 21, 1997. & 828- DC- 00000004. Also, as a general matter, Ms. Lewinsky says it

245

is October. & T15 at 65. These factors are consistent with a conversation on Thursday, October 23, 1997. Conversation 18:

Wednesday, October 29, 1997 Tape 11, first conversation on tape. Transcript pages: 2- 57.

This Conversation Appears On A "Likely To Be Duplicate Tape." Ms. Lewinsky says she spoke to Bayani Nelvis on the telephone that afternoon. Tll at 2. Telephone records reflect a conversation between Mr. Nelvis and Ms. Lewinsky on this day. & 1051- DC- 00000003. Ms. Lewinsky also says she last spoke to the President a week ago. m Tll at 30. At this time, Ms. Lewinsky and the President last spoke six days before-- on October 23. Finally, Ms. Lewinsky says she sent the President a present. On October 28, Ms. Lewinsky sent a .package to the White House via Speed Service Couriers. w 837- DC- 00000004.

These factors are consistent with a conversation on Wednesday, October 29, 1997.

Conversation # 19:

Monday, November 3, 1997 Tape 11, Side B, fifth conversation on the tape. Transcript pages: 58- 113.

This Conversation Appears On A Tape That Exhibits Signs of Duplication.

Ms. Lewinsky refers t/ o a call from the U. N. regarding a job offer. w Tll at 60- 63. Phone records show a call from the U. N. to Ms. Lewinsky at 11: 02 a. m. m 828- DC- 00000003. Ms.

1 245

246

Lewinsky further says she arranged with Ms. Currie to send a package to the White House by courier. sste Tll at 84, A courier receipt reflects that Ms. Lewinsky sent a package to the White

House on November 3, 1997. a 837- DC- 00000006. Moreover, Ms.

Lewinsky remarks that the First Lady is leaving on Sunday. The First Lady's travel schedule reveals that she left for London on Sunday, November 9; 1997.

These factors are consistent with a conversation on Monday,

November 3, 1997.

Conversation # 20:

Saturday, November 8, 2997

Tape 16, side B, sixth conversation on tape. Transcript pages: 60- 103.

This Conversation Appears On A Tape That Exhibits Signs of Duplication.

An answering machine recording that immediately precedes this conversation identifies the date as November 8. $& 22 T16 at 60. In addition, Ms. Lewinsky tells Ms. Tripp the First Lady is leaving the next day. a T16 at 69. Mrs. Clinton left for London on Sunday, November 9, 1997. There are two additional indications that this conversation occurred on a Saturday. First, Ms. Lewinsky says that, when she asked Ms. Currie if she could see the President Wtomorrow, V Ms. Currie said the President would be attending church in the morning. W T16 at 68. Second, Ms. Lewinsky says that she was told by Ms. Currie that the President taped the Radio Address on the previous day: sp; f: T16 at 65. Furthermore, because Ms. Lewinsky tells Ms. Tripp how

247

she asked Ms. Currie for a Veterans Day meeting with the President, the conversation must have occurred before November 11. m T16 at 69.

These factors are consistent with a conversation on Monday, November 8, 1997.

Conversation # 21: Tuesday, November 11, 1997

Tape 16, side B, ninth conversation on tape. Transcript pages: 104- 114.

This Conversation Appears On A Tape That Exhibits Signs of Duplication.

Ms. Tripp says she has a message from Norma Asnes in which Ms. Asnes invites Ms. Tripp to a play at the Arena Theatre for the next night. & T16 at 104. That event was on November 12,

1997 - Also, Ms. Lewinsky describes a conversation with Ms. Currie in which she asked about the President's schedule "tonight," then l'tomorrow, n then Thursday, and then Friday. & T16 at 107- 08. This sequence places this conversation on a Tuesday. November 11, 1997, was a Tuesday.

These factors are consistent with a conversation on Tuesday, November 11, 1997.

Conversation # 22:

Tuesday, November 11, 1997 Tape 26, side A, first conversation Qn tape. Transcript pages: 2- 5.

This Conversation Appears On A Tape That Exhibits Signs of Duplication.

Ms. Tripp asks Ms. Lewinsky whether she would like to attend the play with Ms. Tripp, Ms. Asnes, and others. As noted in the

248

description of conversation 21, this production occurred on November 12, 1997. Also, in the next conversation, which is clearly a continuation of this one, Ms. Tripp says it is the llth. &a~ T26 at 22.

These factors are consistent with a conversation on Tuesday,

November 11, 1997.

Conversertion # 23:

Tuesday, November 11, 1997

Tape 26, side A, second conversation on tape. Transcript pages: 25- 32.

This Conversation Appears On A Tape Tbat Zxbibits Signs of Duplication.

Ms. Tripp says it is the llth. m T26 at 22. This exchange is clearly a continuation of the conversation that immediately precedes it on the tape because the topic is the same, and Ms. Lewinsky hung up from the last conversation merely to get a telephone number from information. Ms. Lewinsky said she would call back immediately. m T26 at 5.

These factors are consistent with a conversation on Tuesday, November 11, 1997.

Coxwersation # 24:

Tuesday, November 11, 1997

Tape 26, side A, third conversation on tape. Transcript pages: 32- 55.

This Conversation Appears On A Tape That Exhibits Signs of Duplication.

Ms. Lewinsky says she wants to see the President because it is Veterans Day and he is all alone. m T26 at 35. Veterans Day is November 11. In addition, this conversation is a continuation

249

of the previous conversation (also dated November 11) which was interrupted by call waiting. Ms. Tripp says she just got off the phone with Ms. Asnes, whom Ms. Tripp was trying to reach. m T26 at 36.

These factors November 11, 1997.

Conversation # 25- z

Thursday, November

are consistent with a conversation on Tuesday, 13, 1997

Tape 16, side A, first conversation on tape. Transcript pages: 2- 9.

This Conversation Appears On A Tape That Exhibits Signs of Duplication.

In this brief conversation, Ms. Lewinsky says she was in the White House earlier in the evening while President Zedillo of Mexico was there. She says she saw the President for 60 seconds. President Zedillo dined at the White House on November 13. w Baltimore Syn (Nov. 14, 1997, at 17A. WAVES records confirm Ms. Lewinsky was at the White House on this date. See 827- DC- 000018, V006- DC- 000008, 137- DC- 000318..

These factors are consistent with a conversation on Thursday, November 13, 1997.

Conversation # 26:

Friday, November 14, 1997

Tape 16, side A, second conversation_ on tape. Transcript pages: 9- 51.

This Conversation Appears On A Tape That Exhibits Sign6 of Duplication.

On T16, this conversation immediately follows the one in which Ms. Lewinsky describes her visit earlier in the day with

250

President Clinton while President Zedilfo was in the White House.

The previous discussion ends with Ms. Lewinsky and Ms. Tripp exchanging "good night" wishes. m T16 at 9. This conversation begins with Ms. Lewinsky commenting that the President is in Las Vegas. & T16 at 9. The President's travel schedule indicates he was in Las Vegas on November 14, 1997. m 968- DC- 0003257. Also, Ms. Lewinsky says she is going to New York by train. & T16 at 11. On November 14, 1997, Ms. Lewinsky sent an e- mail which indicated her plans to travel to New York by train. a V06- DC- 000359.

These factors are consistent with a conversation on Friday, November 14, 1997.

Conversation # 27:

Sunday, November 26, 1997 Tape 16, side A, third conversation on tape. Transcript pages: 52- 60.

This Conversation Appears On A Tape That Exhibits Signs of Duplication.

This very brief conversation, which is the last- one on Tl6, immediately follows a Friday, November 14, 1997, conversation. This conversation is also cut off in the middle. The first conversation on TS is also from Sunday night, November 16, 1997. Ms. Tripp told the Office of the Independent Counsel she would record until a tape ran out and then replace it with another tape. Ms. Tripp also told the Office of the Independent Counsel that when a tape was filled up, she would not put it in the recorder again.

251

Ms. Lewinsky left for New York City early in the morning on November 15, 1997. Ms. Lewinsky returned the night of the 16th. In this conversation, she describes her trip. Sunday night would have been the first time she could. have made such a call. Moreover, T9 contains additional discussion of the weekend in New York City, and it was also recorded on Sunday night. For all of these reasons, it is likely that Ms. Tripp began this recording of Ms. Lewinsky on Sunday night and the tape ran out. Ms. Tripp then apparently inserted T9 into the recorder and captured the remaining discussion.

These factors are consistent with a conversation on Monday, November 16, 1997.

Conversation # 28: Sunday, November 16, 1997 Tape 9, side A, first conversation on tape. Transcript pages: Z- 33.

This Conversation Appears On A Tape That Exhibits Signs of Duplication.

Ms. Lewinsky says that she arrived in New York City l'yesterday. tl ti T9 at 3. Ms. Lewinsky was in New York City on November 15 and 16. These facts would place this conversation on Sunday night, November 16, 1997. In addition, Ms. Lewinsky describes a chance encounter with Ambassador Richardson in a restaurant in New York the day before. During this meeting, Ambassador Richardson commented on Ms. Lewinsky's pending job offer. ti Richardson 4/ 30/ 98 Depo. at 115 (recalling encounter with Ms. Lewinsky on his birthday, November 15).

252

More generally, Ms. Lewinsky says she tried to buy Ms. Tripp a birthday present at a flea market in New York City over the weekend. sr= I: T9 at 8. Ms. Tripp's birthday is November 24. Since Ambassador Richardson offered Ms. Lewinsky a job at the UN on November 3, 1997, this conversation would have to be between these two dates. Of the three intervening weekends, Ms. Lewinsky was in New York City only once: on November 15 and 16.

These factors are consistent with a conversation on Sunday, November 16, 1997. Conversation # 29:

Monday, November 17, 1997 Tape 9, side A, second conversation on tape. Transcript pages: 33- 51.

This Conversation Appears On A Tape That Exhibits Signs of Duplication.

Ms. Lewinsky mentions it is November. W T9 at 41. Furthermore, Ms. Lewinsky says she spotted an attractive man in New York the day before. m T9 at 43. During November 1997, Ms. Lewinsky was only in New York City on November 15 and 16. In addition, this conversation immediately follows a conversation from Sunday, November 16, 1997, on tape T9. The previous conversation ended with Ms. Tripp and Ms. Lewinsky saying good night. In the next conversation on T9, Ms. Lewinsky says it is Tuesday.

These factors are consistent with a conversation on Monday, November 17, 1997.

253

Conversation I 30:

Tuesday, November 18, 1997

Tape 9, side B, third conversation on tape. Transcript pages: 51- 79.

This Conversation Appears On A Tape Fiat Exhibits Signs of Duplication.

Ms. Lewinsky says it is Tuesday. mT9at60. In addition, the conversation that immediately precedes this one on T9 is November 17, 1997, the Monday Ms. Lewinsky returned from

New York City- Also, Ms. Lewinsky says she spoke with the President a week ago. m T9 at 60. According to an e- mail Ms. Lewinsky sent to a friend, she spoke to the President on November 12, 1997, six days earlier. & 1037- DC- 0000318.

These factors are consistent with a conversation on Tuesday, November 18, 1997.

Conversation # 31:

Thursday, November 20, 1997 Tape 9, side B, fourth conversation on tape. Transcript pages: 79- 100.

This Conversation Appears On A Tape -

mat Exhibits Signs of Duplication.

Ms. Lewinsky says her 60 second meeting with the President was one week before. srtr: T9 at 84. Ms. Lewinsky visited with the President for 60 seconds on November 13, 1997, when President Zedillo of Mexico was at the White House. In addition, Ms. Lewinsky describes a conversation with Ms. Currie in which Ms. Lewinsky says the First Lady is leaving tomorrow. T9 at 80. The First Lady's travel schedule shows she left for Los Angeles on

November 21, 1997. a 968- DC- 00003478.

- 254

These factors are consistent with a conversation on Thursday, November 20, 1997.

Conversation # 32:

Thursday, November 20, 1997 Tape 5, side A, first conversation on tape. Transcript pages: 2- 16.

Conversation # 33: Thursday, November 20, 1997 Tape 5, side A, third conversation on tape. Transcript pages: 17- 41.

Conversation # 34: Thursday, November 20, 1997 Tape 5, side A, fourth conversation on tape. Transcript pages: 41- 47.

These 3 Conversations Appear On A Tape That Exhibits Signs of Duplication. /

Conversations 32- 34 (treated together here) concern an audio tape that Ms. Lewinsky is making for the President. In the first two conversations, Ms. Lewinsky plays portions of the tape for Ms. Tripp and asks for advice preparing it. In conversation 34, Ms. Lewinsky calls Ms. Tripp to thank her for her help. Consistent with Ms. Lewinsky's sending the tape the next morning, courier receipts show Ms. Lewinsky ordered a courier delivery from the Pentagon to the White House at 8: 18 a. m. on November 21. &= 837- DC- 00000014.

Also, Ms. Lewinsky says that Ms. Currie told her the President will leave too early on Saturday to allow a 15- minute visit by Ms. Lewinsky. W T5 at 5. Presidential schedule, the President

According to the left for Vancouver on

255

November 22. Baggage check- in occurred at 6: 00 a. m. at Andrews Air Force Base, and Air Force One press pool check- in occurred at 8: 30. 968- DC- 00003301. This schedule early wake- up at the White House.

is consistent with an These factors are consistent with a conversation on Thursday, November 20, 1997.

Conversation # 35: Friday, November 21, 1997

Tape 5, side A, fifth conversation on tape. Transcript pages: 47- 52.

This Conversation Appears On A Tape That Exhibits Signs of Duplication.

This conversation immediately follows a conversation from November 20, 1997, on the tape. Ms. Lewinsky ended the last conversation by saying, "I'll see you tomorrow." ti This conversation is clearly the next day because Ms. describes several phone calls she had with Ms. Currie

day, including calls after an interview the President at 6: 15 p. m. mT5at51.

These factors are consistent with a conversation November 21, 1997.

Conversation # 36: Friday, November 21, 1997

Tape 5, side A, sixth conversation on tape. Transcript pages: 53- 55.

This Conversation Appears On A Tape That Exhibits Signs of Duplication.

T5 at 47.

Lewinsky during the was taping

on Monday, At the end of the conversation that immediately precedes this conversation on T5, Ms. Tripp instructs Ms. Lewinsky to call

256

Ms. Currie and Ms. Currie her to remain at work until the President leaves. m T5 at 52. At the beginning of this conversation Ms. Lewinsky reports the results of the call. TS at 53. These exchanges indicate this conversation was shortly after conversation 33 In addition, Ms. Currie told Ms. Lewinsky she was waiting for the President to leave the office and return to the residence. m T5 at 53. Since the President left for Denver, Seattle, and Vancouver early in the morning on November 22, a 968- DC- 00003301, this conversation most likely occurred on November 21, 1997.

These factors are consistent with a conversation on Monday, November 21, 1997.

Conversation # 37: Friday, November 21, 1997 Tape 5, side A, seventh conversation on tape. Transcript pages: 55- 59.

This Conversation Appears On A Tape

That Exhibits Signs of Duplication.

This conversation is another report from Ms. Lewinsky regarding whether Ms. Currie gave Ms. Lewinsky's cassette the President. Besides the context of the tapes, in the conversation that immediately follows this one, Ms. Tripp is the 21st. & T5 at 69.

tape to

says it

These factors are consistent with a conversation on Monday, November 21, 1997.

257

Conversation # 38:

Friday, November 21, 1997 Tape 5, side A, eighth conversation on tape. Transcript pages: 59- 91.

This Conversation Appears On A Tape That Exhibits Signs of Duplication.

Ms. Tripp says it is the 21st during this conversation. m T5 at 69. Also, Lewinsky says that Monday is the 24th. Se T5 at 81. November 2 1, 1997, was a Friday, so November 24, 1997,

was a Monday. Moreover, this conversation is clearly a continuation of the earlier conversations in the evening because

Ms. Lewinsky gives another report regarding Ms. Currie and the cassette tape Ms. Lewinsky sent to the President.

These factors are consistent with a conversation on Monday, November 21, 1997. Conversation # 39:

Tuesday, December 9, 1997 Tape 23, side A, first conversation on tape. Transcript pages: 2- 6.

This Conversation Appears On A Tape -

That Exhibits Signs of Duplication.

Ms. Lewinsky says she delivered something to the White House on "Monday," which was "yesterday morning." m T5 at 4- 5. This

statement is consistent with a courier receipt which shows a delivery from Ms. Lewinsky at the Pentagon to the White House on December 8, 1997. ti 837- DC- 00000017. In addition, Ms. Lewinsky says she is having lunch with Vernon Jordan on Thursday. m T23 at 2. The visitor log at Mr. Jordan's law firm and his calendar reveal that Ms. Lewinsky met with Mr. Jordan on

258

Thursday, December 11, 1997. & V004- DC- 00000171. (Akin and Gump visitor/ contact log); V004- DC- 00000148. (Vernon Jordan's calendar).

These factors are consistent with a conversation on Monday, December 9, 1997.

Conversation # 40: Tuesday, December 9, 1997 Tape 23, side A, second conversation on tape. Transcript pages: 6- 56.

This Conversation Appears On A Tape That Exhibits Signs of Duplication.

Ms. Tripp says it is "Tuesday afternoon." m T23 at 19. December 9, 1997, was a Tuesday. Ms. Tripp also says, "1 can't believe you got in there Saturday." m T23 at 44. Epass records reveal Ms. Lewinsky saw the President at the White House on Saturday, December 6, 1997. m 827- DC- 00000018. Ms. Tripp further mentions that Ms. Lewinsky will be seeing Mr. Jordan on Thursday. The visitor log at Mr. Jordan's law firm and his calendar reveal that Ms. Lewinsky met with Mr. Jordan on Thursday December 11, 1997. m V004- DC- 00000171. (Akin and Gump visitor/ contact log); V004- DC- 00000148. (Vernon Jordan's calendar).

Moreover, Ms. Tripp mentions Ms. Lewinsky had an item sent to the White House by courier on Monday morning. m T23 at 19. A courier receipt reveals a delivery from Ms. Lewinsky at the Pentagon to the White House on Monday, December 8, 1997. -a 837- DC- 17, 20.

259

These factors are consistent with a conversation on Monday, December 9, 1997.

Conversation # 41:

Friday, December 12, 1997 Tape 23, side A, fifth conversation on tape.

Transcript pages: 57- 68.

Conversation I 42:

Friday, December 12, 1997 Tape 23, side B, sixth conversation on tape.

Transcript pages: 68- 127. Conversation X 43: Friday, December 12, 1997 Tape 23, side B, eighth conversation on tape. Transcript pages: 127- 131.

These Conversations Appear On A Tape That Exhibits Signs of Duplication.

These three segments on tape 23 were likely two different conversations held on the same night. Because they concern the same subject matter (Ms. Tripp's meeting with her attorney regarding the subpoena she received in the Jones case), and because they wrap around two sides of the same cassette tape (conversation 39 ends side A and conversation 40 begins side B of tape 23) conversation 39 and conversation 40 are most likely the same discussion interrupted by side A of the tape's running out.

Conversation 41 is most likely a new conversation on the same night. In conversation 41, Ms. Lewinsky reads a letter she composed to the President. The letter concerns suggestions on how to settle the &nes case. ti T23 at 129. Ms. Tripp and Ms. Lewinsky discussed this issue in conversation 40. W T23 at 88.

260

In addition, conversation 40 ends with Ms. Tripp saying she will speak to her attorney in the morning and then call Ms. Lewinsky. m T23 at 126. At the outset of conversation 41, Ms. Tripp says, "1 cannot believe someone who I thought was already in bed is at the computer." This statement is consistent with a later call on the same night.

Given these circumstances, the date for all three conversations comes from conversation 40. In conversation 40, Ms. Tripp describes how she watched a movie called "A Home of Our Own" on this evening. The Family Channel broadcast this movie on December 12, 1997 at 8: 00 p. m. During her debriefings, Ms. Tripp confirmed she watched the movie on the night it was broadcast on the Family channel.

These factors are consistent with a conversation on Monday, December 12, 1997. Conversation # 44:

Monday, December 22, 1997

Tape 6, side A, second conversation on tape. Transcript pages: 2- 24.

This Conversation Appears On A Tape That Exhibits Signs of Duplication.

Ms. Lewinsky received her subpoena on December 19, 1997. m 902- DC- 00000135- 138. In this conversation, Ms. Tripp refers to the subpoena and the fact that it calls for a hat pin. m T6 at 3. For this reason, the conversation has to be after the 19th. Ms. Lewinsky also says she had a short meeting with Mr. Jordan on this day. Mr. Jordan's calendar reveals he met with

261

Ms. Lewinsky on December 22, 1997. This is the day Mr. Jordan brought Ms. Lewinsky to see Frank Carter. & V004- DC- 0000072, 1034- DC- 00000103. Vernon Jordan also met with Ms. Lewinsky on December 19, 1997, but that meeting was for 45 minutes. & V004- DC- 00000172.

These factors are consistent with a conversation on Monday, December 22, 1997. Conversation # 45:

Monday, December 22, 1997 Tape 6, side A, fourth conversation on tape. Transcript pages: 24- 32.

This Conversation Appears On A Tape That Exhibits Signs of Duplication.

This brief conversation is a continuation of conversation 42. At the end of conversation 42, Ms. Tripp told Ms. Lewinsky to speak with her mother about their plan to avoid the subpoena. ti T6 at 23. At the beginning of this conversation, Ms. Lewinsky says her mother thinks the plan is brilliant. ti T6 at 24.

These factors are consistent with a conversation on Monday, December 22, 1997. Conversation # 46:

Monday, December 22, 1997 Tape 6, side B, fifth conversation on tape. Transcript pages: 33- 68.

This Conversation Appears On A Tape That Exhibits Signs of Duplication.

runs out. This conversation, Conversation 43 is brief because the first side of the tape

which is the first conversation on 60

262

side B, is clearly a continuation of the same conversation. Ms. Tripp and Ms. Lewinsky were speaking about Ms. Currie at the end of conversation 43. & T6 at 32. This conversation begins with a continuation of the same conversation about Ms. Currie. m T6 at 33.

These factors are consistent with a conversation on Monday, December 22, 1997.

Conversation # 47:

Thursday, January 15, 1998 Tape 22, side A, first conversation on tape. Transcript pages: 2- 55.

Conversation # 48:

Thursday, January 15, 1998 Tape 22, side A, second conversation on tape. Transcript pages: 55- 76.

Both of the conversations on this tape were made under the supervision of the Office of the Independent Counsel. For this reason, the OIC knows the date of the conversations independently from the contents of the tapes.

263

Tab J

Legal Reference

264

LEGAL REFERENCE

I. Perjury -- 18 U. S. C. 55 1621 & 1623 ...........

A. Elements of 5 1621 .................

B. Elements of § 1623 ................. C. Essential Elements Further Defined .........

1. Oath ..................... 2. Civil Proceedings and Criminal Charges ....

3. Falsity ....................

4. State of Mind .................

5. Materiality .................. ::

General Definition ............

Causation in Investigations ....... ::

Interpretation in Civil Proceedings ...

Legal Rulings Relating to Jones i. Rulings by Judge Wright in Jones v.

.............. ii. Ruling by the D. C. Circuit .....

D. Literal Truth Defense to Perjury ..........

E. Perjury in Cases of Feigned Forgetfulness ..... 1. Proof of Knowledge ..............

2. Cases in Brief ................

3. Summary .................... F. Inconsistent Statements Under 5 1623( c) ...... G. Perjury Trap Defense ................

-2

. 3

. 4 .5

. 5 -5 .9 . 9

10 11 12 16 23

24 29 31 40 41 42 48 49

51 II. Obstruction of Justice -- 18 U. S. C. 0 1503 ....... 53

A. Elements of § 1503 Further Defined ........ 56 1. Pending Judicial Proceeding .......... 56 2. Knowledge of Pending Judicial Proceeding ... 56 3. Specific Intent ................ 57 B. False and Evasive Testimony as Obstruction of Justice 59

1. Generally .................... 59 2. Civil Proceedings ............... 61 3. Legal Rulings Relating to Jones v. Clinton . . 64 D. Other Obstructive Behavior ............. 65

1. Generally ................... 66 2. Civil Proceedings ............... 72

III. Witness and Evidence Tampering -- 18 U. S. C. § 1512 . . 75 A. Elements ......... . ............ 76 B. Pending and Civil Proceedings ........... 78 C. Intent ....................... 80

1. "Misleading Conductl' .............. 80 2. "Corruptly Persuades" ............. 81

IV. v.

VI.

265

Conspiracy -- 18 U. S. C. § 371 ............. 84 A. Generally ..................... 84 B. Elements of 5 371 ................. 87

1. Existence of an Agreement ........... 87 2. Membership in the Conspiracy ......... 90 3. OvertAct ................... 92 C. Withdrawal Defense ................. 93

Aiding and Abetting -- 18 U. S. C. 5 2( a) .........

A. Generally B. Elements of'9'2iai

.................

1. Act ...................... 2. Crime Committed ................

3. Intent ..................... C. Defenses and Limitations ..............

95 95 97 98 99 99 100

Use of an Intermediary -- 18 U. S. C. 5 2( b) ....... 101 A. Generally ..................... 101 B. Intent ....................... 102 C. Particular Cases .................. 103

VII. Evidentiary Issues .................. 104 A. Circumstantial Evidence .............. 104 B. Inferences from False Exculpatory Testimony ..... 107 C. Willful Blindness ................. 108 D. Testimony of a Cooperating Witness ......... 109 E. Testimony of the Accused .............. 112

266 LEGAL REFERENCE

This section contains a brief summary of the statutes and legal precepts that, in the context of a criminal proceeding, would be germane to a determination of the criminality of the conduct described in the Referral. The Office of Independent Counsel recognizes that Congress, in assessing whether the information presented constitutes "substantial and credible" information that "may constitute grounds for an impeachment" need not consider the elements of analogous criminal offenses. In other words, a showing of criminality is neither necessary nor sufficient to an impeachment; Congress may impeach for conduct that is less than criminal or decline to impeach for conduct that, nonetheless, constitutes a crime.

However, as an Office which exercises the investigative and prosecutorial function of the Department of Justice, u 28 U. S. C. 5 594( a), our assessment of what constitutes "substantial and credible" information that "may constitute grounds for an impeachment" is necessarily informed by our understanding of criminal law. Hence, we deem it appropriate to set forth our understanding of the law that would be applicable to the conduct described in the Referral if that conduct were to be judged in a criminal proceeding. We do not attempt to be comprehensive, but merely set forth principles of law that might reasonably be deemed applicable.

Briefly, we highlight the following legal conclusions of

267

general applicability:

. .

Perjury in connection with a pending civil proceeding may be, and has been, charged as a violation of 18 U. S. C. 85 1621, 1623, see infra § I. C. 2. b ;

False statements made during the course of civil discovery can be material to perjury charged as a violation of 18 U. S. C. 8s 1621, 1623, see infra §§ I. C. 5. c, I. C. 5. d;

The Court of Appeals for the District of Columbia Circuit has determined that Monica Lewinsky's affidavit was material . to the Jones '. Clanton matter and was legally sufficient to

support a chazge of perjury in violation of 18 U. S. C. 5 1623 and a charge of obstruction of justice in violation of 18 U. S. C. § 1503, pee infra 85 I. C. s. d. ii, 11- B- 3;

Feigned forgetfulness and other evasive conduct may form the basis for a charge of perjury in violation of 18 U. S. C. §§ 1621, 1623, see infra 5 1. E;

Obstruction of justice in connection with a pending civil proceeding may be, and has been, charged as a violation of 18 U. S. C. § 1503, see infra §§ II. B. 2, II. D. 2;

Concealment of documents and other materials called for by a subpoena may form the basis for a charge of obstruction of justice in violation of 18 U. S. C. §S 1503, 1512, see infra S§ II- D, III;

Seeking to influence the testimony of a potential witness may form the basis for a charge of obstruction of justice in violation of 18 U. S. C. 5 1503, see infra 5 II. D, or a charge of witness tampering in violation of 18 U. S. C. S 1512, m infra § III.

Perjury -- 18 U. S. C. §§ 1621 & 1623 Two separate statutes address the crime of perjury. 18

U. S. C. 5 16211 covers perjury lNgenerally, n while 18 U. S. C. 5

1 Section 1621 provides: Whoever --

(1) having taken an oath before a competent tribunal, officer or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or

268

1623' specifically addresses false declarations before a grand jury or court. 3 The elements of perjury under 5 1621 and 5 1623 are virtually the same but, as discussed below, with 5 1623 Congress eased some of the prosecution's burden imposed by the common law.

A. Elements of § 1621 "The essential elements of the crime of perjury as defined

certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or

(2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true;

is guilty of perjury . . . . 2 Section 1623 provides:

(a) Whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code) in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration, shall be fined under this title or imprisoned not more than five years, or both.

18 U. S. C. B 1623 (1996 Supp.).

3 Both provisions note that where 28 U. S. C. § 1746 permits the use of an unsworn declaration 'under penalty of perjury" in place of an oath, then it is also a crime to make a false statement in such a declaration. & J& ited States v. Gomez- w, 929. F. 2d 254, 258 (6th Cir. 1991).

269

in 18 U. S. C. p 1621 . . . are (I) an oath authorized by a law of the United States, (2) taken before a competent tribunal, officer or person, and (3) a false statement wilfully made as to facts material to the hearing. W4 Because perjury has a specific intent element, )1 [tlestimony resulting from confusion, mistake or faulty memory cannot support a perjury conviction. ll'

B. Elements of 0 1623 The government's burden for establishing false declarations before a court under 18 U. S. C. 5 1623 is largely the same as its burden under 18 U. S. C. § 1621.6 The prosecution must

4 ted States v. Hvw, 355 U. S. 570, 574 (1958) (internal quotation marks omitted). The Model Jury Instructions for Perjury under D. C. Code 5 22- 2511 provide:

[tlhe essential elements of perjury, each of which the government must prove beyond a reasonable doubt, are:

1. That the defendant testified under oath or affirmation;

2. That the oath or affirmation were taken before a competent [tribunal] [officer] [person] in a case in which the law authorized that oath or affirmation;

3. That in his/ her testimony the defendant made the statements detailed in the indictment;

4. That the statements were false; and 5. That the defendant knew or believed that the statements were false when s/ he made them.

. 1 Ju~ tructjons for the District of Columbia (4th ed. 1993) 4.87.

5 tes v. De= 55 F. 3d 640, 659 (D. C. Cir. 1995), cert. de- 116 S. Ct. 1288‘ (1996) (citing United States v. -, 50; U. S. 87, 94 (1993)).

6 Section 1623 differs from 5 1621 in five minor respects. First, 5 1623 annlies only to false statements made during or ancillary to grand jury or court proceedings, whereas § 1621 applies also to false statements made under oath in other proceedings. Second, Congress expressly exempted 5 1623 prosecutions from the two- witness rule; the government need only

270

demonstrate: '1. that the defendant testified under oath before [or in a proceeding ancillary to a court or] grand jury; 2. that the testimony so given was false in one or more respects charged; 3. that the false testimony concerned matters that were material to the [court proceedings]; and, 4. that the false testimony was knowingly given as charged .117

C. Essential Elements Further Defined 1. Oath The taking of an oath before giving allegedly false testimony is an essential element of the crime of perjury. '

2. Civil Proceedings and Criminal Charges

prove beyond a reasonable doubt that the defendant make a knowing false declaration. & 18 U. S. C. 8 1623( e). Third, W [i] n contrast to 5 1621, the Government need not prove the falsity of [inconsistent] declarations under § 1623( c); rather, the Government [need only] prove that 'the defendant under oath has knowingly made two or more declarations, which are inconsistent to the degree that one of them is necessarily false." ' Wted States v. m, 8 F. 3d 1010, 1014 (5th Cir. 1993) (quoting 18 U. S. C. § 1623( c)). Fourth, under § 1623, retraction of a false statement is a defense to prosecution "if, at the time the admission is made, the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed. '! 18 U. S. C. 5 1623( d); se., e Ul+ j

mtes v. Moore, 613 F. 2d 1029, 1039 (D- C. Cir.), cert. denled 446 U. S. 954 (1980); ti. Wed States v. Norrti, 300 U. S. 564: 573 (1937) (under [the predecessor to 18 U. S. C. 5 16211 witnesses who testified falsely cannot purge themselves by later recanting). Finally, while 5 1621 requires proof that a false statement was made "willfully," 5 1623 requires proof that the false statement was made 'knowingly."

7 noted States v. Bradoes, 717 F. 2d 1444, 1449 n- 30 (D. C. Cir. 1983) (citations omitted), (1984).

8 noted States v. Debrow, cert. dew, 465 U. S. 1036

346 U. S. 374, 377 (1953). 5

271

Section 1623 applies only to "proceedings before or ancillary to any court or grand jury of the United States." Courts uniformly agree that civil depositions taken pursuant to Fed. R. Civ. P. 30 are ancillary proceedings under 5 1623. ' Even though civil depositions, unlike their criminal counterparts, do not require a court order, courts faced with the issue have rejected the argument that § 1623 is thereby limited to criminal proceedings."

The Department of Justice often prosecutes for perjury that occurs during the course of civil proceedings. This section details some of the recent case& l in which the Department has

' See. e. a., mted States v. Wilkinson, 137 F. 3d 214 (4th Cir. 1998) (deposition is ancillary proceeding for purposes of 5 1632); United States v. McAfee, 8 F. 3d 1010, 1014 (5th Cir. 1993) (affirming conviction in prosecution under § 1623( c) for

inconsistent statements made in two deposition testimonies); United States Scott 682 F. 2d 695, 698 (8th Cir. 1982) (terms "deposition" a: d "ancillary proceeding" are synonymous); United States Kroqh 366 F. Supp. 1255- 56 (D. D. C. 1973) (sworn depositIon taken at Office of the United States Attorney found to be 'ancillary" to Watergate grand jury proceedings). In Dunn

ted States, 442 U. S. 100, 113 (1979), the Supreme Court held that 5 1623 does not encompass statements made in contexts less formal than a deposition -- implying that it does cover deposition testimony.

lo ti McAfee, 8 F. 3d at 1014.

11 Several other cases involving criminal perjury charges for actions in civil cases are described in the discussions of materiality in civil cases (Rross; &J& y; EJaddeQ; Edmonson;

Chaalln; Moreno E& y; Yale; Hendrickson- Allen), feigned forgetfulness as

) and obstruction of justice charges for actions in civil cases ( Rob-), infra. This is, of course, a list of only some of the cases which have been reported. By definition, an unknown number of similar unreported cases may also exist.

272

brought criminal charges for civil perjury- l2 A partner at a New York law firm was charged under 5 1623, convicted, and sentenced to 15 months imprisonment for declaring under oath in a civil bankruptcy proceeding that he was lVunaware of any other current representation by Milbank [Tweed] of any equity security holder or institutional creditor" of Bucyrus- Erie when he was, in fact, aware that Milbank Tweed was representing certain creditors of Bucyrus- Erie in a legal dispute against Bucyrus- Erie. '3 The partner had been retained to represent Bucyrus- Erie in filing for bankruptcy, and had made the false statement during a hearing relating to Milbank Tweed's approximately $2 million in legal fees. 14 Another corporate defendant was charged with perjury for falsely denying -- during his civil deposition in a civil suit based on a corporate failure to satisfy an outstanding loan -- that he knew about the use of a fictitious name in the accounting books of the company. He was convicted, and his conviction was affirmed by the Fourth Circuit- l5

12 On occasion civil perjury is charged as obstruction of justice. A summary of recent instances of such charges is included in the obstruction of justice section infra.

I3 m mt. ed States v. Gellene (No. 97- Cr- 221, E. D. Wise., Dec. 9, 1997) (Indictment, Co& t Three).

14 Gellene was also charged with, and convicted of, two violations of 18 U. S. C. S 152, which proscribes the making of a false declaration in relation to a bankruptcy proceeding.

I5 &.. e Wed States v- * * Wllkx~~~ , 137 F. 3d 214, 225 (4th Cir. 1998).

273

Another defendant in a civil suit filed an affidavit (in response to plaintiff's motion for summary judgment) in which he falsely denied any knowledge of the fraudulent schemeI that was the subject of the suit. For filing this false affidavit, he was charged and convicted of perjury; his conviction was affirmed on appeal. 17 Another defendant was charged with, and convicted of, perjury under 18 U. S. C. 5 1621 after he made a false declaration about his financial status (so that he would be able to prosecute an appeal from a civil judgment ti fom gauDeris) and repeated that declaration in a post- judgment deposition. '* The district court, citing the civil nature of Holland's perjury, declined to apply the Sentencing Guidelines (which called for a sentence of 87 to 108 months) and instead sentenced Holland to home detention. On appeal, however, the Eleventh Circuit vacated the sentence and remanded for application of the Sentencing Guidelines. -The court held that the perjury statute applies "without distinction both to perjury committed in a civil proceeding and to perjury in a criminal prosecution. W'g In so holding, 16 The plaintiff had alleged that Sassanelli had fraudulently- inflated construction bills invoices.

l7 -United I 1997).

'* m United States v. How, 22

, 513 U. S. 1109 (1994).

lg L at 1047. 8

and created fictitious 118 F. 3d 495 (6th Cir. F. 3d 1040 (11th Cir.),

274

the court: categorically reject[ edl any suggestion, implicit or otherwise, that perjury is somehow less serious when made in a civil proceeding. Perjury, regardless of the setting, is a serious offense ,

that results in incalculable harm to the functioning and integrity of the legal system as well as to private individuals. In the instant case, Holland's perjury inexcusably wasted valuable and scarce public resources. His actions needlessly consumed court time, forced the Federal Bureau of Investigation and the United States Attorney's Office to engage in prolonged investigations, and attempted to prevent private citizens . . . from satisfying their judgment."

3. Falsity

Under both 5 1621 and 5 1623, the government must prove the falsity of the statement that is the basis for the perjury accusation. As discussed in detail infra, "the falsity of an 'I don't recall' answer must be proven by circumstantial evidence."* l Furthermore, under the less burdensome § 1623( c), the government may prove that a statement is false merely by proving that the defendant made two "irreconcilably contradictory declarations II 2.2

4. State of Mind

While § 1621's "wilfulness" requirement appears on its face to demand a more burdensome showing than .§ 1623's knowledge

*' & at 1047- 48.

21 ted States v. Cu, 515 F. 2d 1274, 1284 (D- C. Cir.), cert. denied ,

22 For example, Cir. 19931, affirmed 8 1623( c) based upon civil depositions.

423 U. S. 1015 (1975). ted States v. M& f= 8 F. 3d 1010 (5th the conviction of a defindant under two contradictory statements he gave in two

275

element, the cases make little, if anything, of the distinction. 23 Indeed, the D. C. Circuit has held that "in the perjury statute [willfully] means 'knowingly' or 1intentionally. '" 24 In order to prove that a defendant's false testimony was provided "knowingly" or "wilfully," the government must prove beyond a reasonable doubt that the defendant did not believe his testimony to be true at the time he testified. 25 Often, the government may do so merely by proving that the testimony was in fact false. 26

5. Materiality

Under both 5 1621 and 5 1623, the government must prove that the misrepresentation was "mater. ial." In 1995, the Supreme Court held that whether the misrepresentation was material is a question of fact that must go to the jury. 27 The jury may be

23 m J,& ited States . && Q 635 F. 2d 321, 323 (4th Cir. 1980) (" The substantive difTerence'( whether the accused acted 'knowingly' or 'willfully') . . . has no pertinence for our purposes. A) .

(sustainin; aaon United . States 187 F. 2d

convic; ion under 79, 80 (D. C. Cir.

. 1950) perjury D. C. Code 5 22- 2501), cert. dew, 341 U. S. 932 (1951).

25 u v. United States 212 U. S. 1015 (1954).

F. 2d 236, 240 (D- C. Cir.), cert. denled , 347

26 ee id._ at 241 (" Generally, a belief as to the- falsity of testimony may be inferred by the jury from proof of the falsity itself.").

27 w United States v. Gau 115 S. Ct. 2310 (1995) (in construing 18 U. S. C. 5 1001 Court holds materiality is a question of fact); see al- mted States v. Leva 72 F. 3d 920 (D. C. Cir. 1995) (extending r$&& din to 5 1621).. briar to the Supreme Court's decision, most courts had treated materiality as a question of law for the judge to decide.

276

guided by the precepts explained in the following discussion. a. General Definition

A misrepresentation or concealment is material if it "was predictably capable of affecting, i. e., had a natural tendency to affect, the official decision; n2* or if it concerns "Ia fact that would be of importance to a reasonable person in making a decision about a particular matter or transaction; 'I* or if ua truthful answer would have aided the inquiry. 130 '[ Tlhe effect necessary to meet the materiality test is relatively slight, and certainly not substantial." 31

In addition, in proving that a statement was material, the government need not prove that the false statement actually was

28 crvs v. United States, 485 U. S. 759, 771 (1988). Although a construes a denaturalization statute rather than 5 1001 or a perjury statute, the Court indicated that "material" bears the same meaning in all three spheres. &x KunavS, 485 U. S. at 769- 72. w also might be distinguished on the ground that it treats materiality as a question of law, a L at 772, a doctrine that Gaum overturned. But Gaum did not modify the materiality standard; in fact it cites a for the applicable standard. 115 S. Ct. at 2313:

2g wd States v. Wdtead 74 F. 3d 1313, 1320 (D. C. Cir. 1996) (quoting and approving lankage in jury instructions); m also mted States v. u ,131 F. Supp. 323, 325 (E. D. Mich. 1955) (citations omitted) (: A material matter does not necessarily mean a matter that directly affects the ultimate issue of the trial. . . . It is sufficient if the false testimony gives weight and force to or detracts from testimony as to matters that are material.").

30 ted States . Cm 723 F. 2d 217, 226 (2d Cir. 1983), cert. de-, 46vs U. S. 951 (; 984) -

31 ed States v. Moore 613 F. 2d 1029, 1038 (D. C. Cir. 1979) (distinguishing materiality from "substantial effect" standard of perjury recantation provision), cert. de&, 446 U. S. 954 (1980)

277

relied upon, but rather need show only that the statement was capable of influencing the outcome -- or of adding or detracting

to facts that themselves could influence the outcome -- if it had been relied upon. 32 For example, the Eighth Circuit affirmed the perjury conviction of an individual whose false testimony (that he had not visited Florida during 1983) had been contradicted by the testimony of other witnesses, despite the defendant's argument that his statements before the grand jury were not material. The court found that "Moeckly's denials, regardless of the availability to the grand jury of accurate information through other witnesses, tended to obscure Moeckly's whereabouts at critical times during the conspiracies. 1133

b. Causation in Investigations

In cases involving investigations or other inquiries, 34 the 32 w & 991 F. 2d 819, 834 n- 27 (D. C. Cir.), cert. de& 114 S. Ct. 2; 6 (1993); ynited States v. Jones, 464 F. 2d 111; 1, 1122 (8th Cir. 19721, cert. de-, 409 U. S. 1111 (1973); I&. ited States v. H& ckson, 200 F. 2d 137 (7th Cir. 1952). The causation aspect of false statements in civil actions has been infrequently addressed by the courts. When they do address it, however, courts have interpreted causation broadly. For example, when a defendant argued that his false testimony was immaterial because the topic concerning which he had testified falsely was not directly relevant to the question before the court in which he testified, the Seventh Circuit held that: "[ Wlhere the false testimony is capable of influencing the tribunal, then the actual effect of the false testimony is not the determining factor, but its capacity to affect or influence the trial judge in his judicial action and the issue before him."

dricw, 200 F. 2d at 139.

33 * * 769 F. 2d 453, 465 (8th Cir. 19851, cert. denid, 47v5 U. S. lOi5 (1986).

34 When assessing materiality, courts do not distinguish between the various contexts -- civil, administrative, or

278

test for materiality has been stated as "whether a truthful answer would have aided the inquiry.~ 135 This question seems to call for speculation as to the likelihood that a truthful answer would have changed the course of official actions, such as by provoking or re- channeling an investigation that in turn might have altered the final outcome. The Supreme Court has suggested that a fact can be material even if there was a less than 50% chance of changing the official decision: "It has never been the test of materiality that the misrepresentation or concealment would more likely than not have produced an erroneous decision, or even that it would more likely than not have triggered an investigation. W36

Other courts agree that the government need not shoti such a consequence to have been likelier than not. The D. C. Circuit, for example, has held in connection. with the false statements statute, 18 U. S. C. 5 1001, that ll[ alpplication of 5 1001 does not require judges to function as amateur sleuths, inquiring whether

criminal -- in which an investigation can arise.

35 ted States v. m 723 F. 2d 217, 226 (2d Cir. 19831, cert. deni_& 466 U. S. 951 (; 984). One court in the Southern District of New York applied a similar test in a case charging false statements to prosecutors as well as courtroom perjury: WIM1ateriality is the flimsiest of obstacles to a perjury conviction. 'Materiality is . . . demonstrated if the question posed is such that a truthful answer could help the inquiry, or a false response hinder it, and these effects are weighed in terms of potentiality rather than probability." '

ted States v. . * Gum # 757 F. Supp. 259, 266 (S. D. N. Y. 1991) (e mted States v. Ber&, 629 F. 2d 723, 728 (2d Cir.), cert. denid, 449 U. S. 995 (1980)).

36 w, 485 U. S. at 771. 13

279

information specifically requested and unquestionably relevant to the department's or agency's charge would really be enough to alert a reasonably clever investigator that wrongdoing was afoot. ‘I37

Another Circuit opinion, in a different formulation, said that a statement is material if it would have caused

has investigators to make additional inquiries, even if it would not have affected the agency's ultimate decision. The court found a defendant's false answers in a security clearance application to be material because truthful responses would have prompted investigators to make further inquiries. Whether the clearance would still have been granted was irrelevant, the court said, because V1[ m] ateriality . . . is not concerned with whether the alleged omission would have affected the ultimate agency determination." 36 The court appeared to reason that a statement's materiality is judged by its effect on an ongoing

investigation, rather than its effect on the ultimate decision. In other words, materiality exists if a statement would have had a 100 percent likelihood of affecting an investigation, even if it that effect on the investigation would in turn have had a zero percent likelihood of changing the agency outcome. 3g

37 ted States v. Hansen, 772 940, 950 F.. 2d (D. C. Cir. .

19851, cert. deni&, 475 U. S. 1045 (1986).

38 I 782 F. SUPP. 615, 625- 26 (D. D. C. 1991).

3g & ynited States v. Di Fo~; LQ, 603 F. 2d 1260, 1266 (7th Cir. 1979) (a statement is material if it influences the agency's decision to investigate or the agency's conclusion as to whether

280

"[ Wlhether a truthful answer would have aided the inquiry" depends to some degree upon the type of investigation occurring. "[ IIn a grand jury setting," the D. C. Circuit has said, "the false testimony must have the natural effect or tendency to impede, influence or dissuade the grand jury from pursuing its investigation. n40 Because a grand jury investigation is usually wide- reaching, information can be material to a grand jury even if it might not be material to a more tightly focused inquiry. 41 For example, information is material if it would help investigators locate other witnesses whose testimony would be directly pertinent to the grand jury. The Second Circuit affirmed the conviction of a defendant whose false statements impeded investigation because "they covered up the fact that additional witnesses . . . should also have been interviewed. l14* Similarly, in an Prohibition- era case, a grand jury witness was

it has jurisdiction), cert. de& 444 U. S. States v. Rose 570 F. 2d 1358, 1364 (9th Cir.

1018 (1980); J& j&& i

1978) (false statement to a'customs inspector was material because a truthful answer would have led to a more rigorous inspection).

40 ted States v. Mw 613 F. 2d 1029, 1038 (D. C. Cir. 1979), cert. de- 446 U. S. 954 (1980) (internal quotation marks and citation Amitted).

41 m mted States v. Pm, 861 F. 2d 730, 733 (D. C. Cir. 1988) (finding false statements- before grand jury material and noting that *l[ m] any cases have recognized that hindsight is not the proper perspective for discerning the limits of a grand jury's investigative power. It must pursue its leads before it can know its final decisions."); mecca v. United States, 337 F. 2d 39, 43 (8th Cir. 1964) (" the grand jury is imbued with broad inquisitorial powers").

42 ted States v. Gra, 984 F. 2d 47, 52 (2d Cir. 1993).

281

convicted for falsely denying that a particular woman had been present at a party where liquor allegedly had been served: "A false statement as to the woman tended to mislead the grand jury, and to deprive them of knowledge as to who she was, so that she might not be obtained as a witness. 143

c. Interpretation in Civil Proceedings Courts act similarly in deciding the materiality of false statements made in the context of civil discovery -- i. e., affidavits, false deposition testimony, or false responses discovery requests. As the Supreme Court has explained, in deciding whether a statement is material a court must

false to

determin[ e] at least two subsidiary questions of purely historical fact: (a) 'what statement was made?"; and (b) "what decision was the [decisionmaker] trying to make?" The ultimate question: (c) "whether the statement was material to the decision," requires applying the legal standard of materiality [as defined in -1 to these historical facts. 44

The third of these issues -- application of the legal standard to the facts -- is characterized as a mixed question of law and fact which requires "delicate assessments of the inferences a 'reasonable [decision maker] ' would draw from a given set of facts and the significance of those inferences to him. 145

In deciding "what decision is being made" in the context of

43 roll v. Un& ed Staw (1927;.

16 F. 2d 951, 954 (2d Cir.), cert. de- , 273 U. S. 763

. edmtes v. Gauu, 515 U. S. 506, 512 (1995).

. 45 J& (quoting TSC , 426 U. S. 438, 450 (1976)).

282

a discovery deposition, courts have generally concluded that the decision being made is not, "does this prove the case?" but rather "does this inquiry lead to potentially relevant evidence?" This is because, as when analyzing materiality in other investigative contexts, the courts look at what decision is "being made" in response to the (false) information provided in the deposition or discovery answer, rather than at the ultimate issue for decision in the case.

The definition of "materiality" in the context of a deposition or discovery response, therefore, is tied to the purposes of civil discovery. Discovery is intended to allow a party to uncover any information that "appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26( b) (1). Discoverable information need not itself be admissible -- to the contrary it encompasses many matters that are manifestly inadmissible in a civil trial. Thus, as the Second Circuit has explained, a false statement in a civil deposition is material when "a truthful answer might reasonably be calculated to lead to the discovery of evidence admissible at the trial of the underlying suit. W46 In other words, as one court has said, the broad scope of civil discovery means that the test for materiality in a civil context is "broader than that used to determine materiality during trial." 47

14 F. 3d 751, 754 (2d Cir.),

47 ted ates v. Nad,& Q I 336 F. Supp: 238, 240 (N. D. Ohio 1972).

283

Such a broader definition of materiality in the discovery context is appropriate and even necessary. Otherwise, the oath to testify truthfully would become a contingent one. A person could knowingly tell a falsehood in the hope or expectation that if the llinformation elicited . . . ultimately turn[ sl out not to [meet the higher standards of admissibility] at a subsequent trial, tt48 then the person would suffer no penalty for the lie.

In determining materiality in the context of civil discovery, then, some courts have treated the guestion categorically, so that if the question falsely answered was

itself permissible under the rules of discovery, then the false

answer is deemed material. For example, while convicting a defendant of perjury for his false civil deposition in a. civil forfeiture case pendent to a criminal investigation, the Second Circuit reasoned that there was "no persuasive reason not to apply [to the defendant's statements] the broad standard of materiality of whether a truthful answer might reasonably be calculated to lead to the discovery of evidence admissible at trial. n4g

Other courts have engaged in a inquiry -- albeit a very

limited one -- to ensure that the questions and answers at issue in the perjury charge bore some general relationship to the underlying civil litigation. For example, the chairman of a bank

48 States v. Ho- 942 F. 2d cert. dena . 510 U. S. 82; (1993).

916, 925 (5th 19911,

49 ICrosS, 14 F. 3d at 754. 18

Cir.

284

was charged with and convicted of perjury for lying in a deposition -- taken in the course of civil bankruptcy proceedings initiated by the bank -- about his actions at the bank. On appeal he argued that the materiality of his statements had to be measured against the issues specifically raised in the bank's bankruptcy filings and, thus, that the court should ask whether his false statements were about those transactions that had caused a loss to the bank. The Fifth Circuit rejected this narrow reading of materiality and found that so long as the false statements were related to the allegations of the underlying civil complaint in a ongoing discovery. 50

One reason that general way, they would be material to the

the standard is not quite settled is that the proximate relation between the false statements supporting the perjury charge, and the underlying civil case, can be quite attenuated and still satisfy the materiality requirement. For example, the plaintiffs in a civil rights lawsuit charging a police department with racial bias falsely claimed in a deposition that they had not violated the department‘ s sick leave policy. The Ninth Circuit began with the premise of w -- that a statement is material if it has a "natural tendency to influence" the decision maker -- and read this broadly to define a material false statement as "one which 'is relevant to any

So See Holley, 942 F. 2d at 924- 25; accord -ted States v. Edmondson, 410 F. 2d 670, 673 (5th Cir. 1969) (false letters used at a bankruptcy creditors* meeting were material).

285

subsidiary issue under consideration. tw5' Because the plaintiffs' violation of a sick leave policy was, to some degree, relevant to their underlying complaint of racial bias, the court concluded that false statements about the violation were material to the underlying civil litigation and were a sufficient basis for a perjury charge. This attenuated standard makes the difference more one of theory'than of practice, and seems to have made it unnecessary for most courts to resolve the issue. '*

Despite the attenuated nature of the materiality standard, it does sometimes operate to preclude prosecution. At least one reported case has overturned a perjury conviction based upon a civil deposition because it found that the misrepresentation was not material. In this case the defendant had been asked in a civil deposition for the source of the prior earnings figures she had provided to her employer, she had replied that it was a "Schedule C worksheet [used] in preparation for doing the income taxes, Ws3 and she had been convicted of perjury because she had,

51 States v. Cl-, 918 F. 2d 843, 846 (9th Cir. 1990) (quoting aed States v. Jfloco~, 450 F. 2d, 1196, 1199 (9th Cir. 197111, overruled I -ted States v. Kea I

95 F. 3d 874 (9th Cir. 1996).

52 For example, in a recent case the Fourth Circuit recognized these somewhat diverging treatments of civil materiality but found it unnecessary to resolve the question in disposing of the case because the matters were material under any standard of materiality adopted. m Wilkinson, 137 F. 3d at 224- 25.

53 870 F. 2d 1140, 1147 (6th Cir. 1989) (involving a sex discrimination law suit against the Equal Employment Opportunity Commission).

286

in fact, taken the figures from a prepared Schedule C rather than a Schedule C worksheet. 54 The Sixth Circuit overturned the conviction. While agreeing generally that the "test of whether a false declaration satisfies the materiality requirement is whether a truthful answer might have assisted or influenced the tribunal in its inquiry, 1q55 and recognizing the contingent nature of the materiality inquiry, the court concluded that there was no adequate explanation for why the difference between a prepared Schedule C and a Schedule C worksheet mattered to any decisionmaker.

Another method of assessing materiality considers the timing of the false statement. Under this method of analysis, the question is not whether the false statements are material to some issue at the underlying civil trial, but rather whether the statements were "at the time made, material to the proceeding which [the] deposition was taken.""

Such an analysis makes clear that statements do not lose in

54 &L at 1147. 55 % (citing Yn, ited States v. Swift, 809 F. 2d 320, 324 (6th Cir. 1987)).

56 a, 879 F. 2d at 1147. The Court appeared to be animated in part by its concern that- the perjury prosecution was vindictive retaliation for Adams' discrimination suit. &L_ at 1145- 46 (noting the "thinness of the [criminal] charges" and holding that "there is enough smoke here, in our view, to warrant the unusual step of letting defendants find out how this unusual prosecution came about")

57 _u, 942 F. 2d at 923 (citing .UniS; ed States v. Gremilllon 464 F, 2d 901, 904- 05 (5th Cir.), cert. c&&&, 409 U. S. 1085 i1972H.

287

their materiality because of subsequent devehqments. Indeed, courts generally do not hold that settlement of a case renders a false statement immaterial; nor do they accept the argument that a decision to exclude a statement at trial (based upon the stricter standards for trial admissibility) reaches backward, to make immaterial, statements that were material during a deposition. For example, one defendant convicted of perjury in connection with a civil deposition argued on appeal that his deposition was immaterial because it had not been used at trial." The Tenth Circuit rejected those arguments: "When the oath was administered to Hale and he false testimony as to material facts elements of the offense were present been committed.""

thereafter willfully gave in the case, all of the and the crime of perjury had

The Second Circuit has made this point strongly, albeit in a criminal context. 60 A defendant's conviction under the Wagering Tax Act61 was reversed on appeal because the underlying statutes were deemed unconstitutional violations of the Fifth Amendment privilege against self- incrimination; the United States then

'* a H& e v. TTQQ, ted States, 406 F. 2d 476 (10th Cir,) (rejecting the defendant's argument that he could not be charged with perjury because he had not read. or signed the deposition after it was transcribed), cert. du, 395 U. S. 977 (1969).

5g & at 480 (citing mted States v. No&, 300 U. S. 564

(1957) ) . 6o See United states v. * Wadxcd~ u I

1969).

61 26 U. S. C. 55 4401, 4411, 7203 and 22

414 F. 2d 760 (2nd Cir. 7262 (1968).

288

charged him with perjury because he had lied in h. is original criminal trial when he denied accepting wagers. After his perjury conviction, the defendant argued on appeal that the lies were not "material" because his underlying wagering conviction had been vacated on constitutional grounds, effectively rendering the perjury prosecution legally Nuntenable.* 1 The Second Circuit rejected this argument as follows:

In advancing this argument appellant completely ignores the purpose of the perjury statute which is to keep the process of justice free from the contamination of false testimony. It is for the wrong done the courts and the administration of justice that punishment is given, not for the effect that any particular testimony might have on the outcome of any given trial. . . .

Indeed, it has long been established that an acquittal of the defendant in a trial where false testimony was given does not bar a prosecution for perjury. _ . . It has likewise been held that the reversal of a conviction because of an improper indictment will not prevent a prosecution for perjury committed at the former trial. . . . In all of these cases the questioned testimony was material at the time it was given and subsequent events do not eliminate that materiality. To sustain a conviction of perjury f * * * materiality must be established only as of the time the answers were given. ':*

d. . Legal Rulings Relating to Jones v, m This Referral concerns, ,in part, allegedly false statements

. made in connection with Jones v. Cm No. LR- C- 94- 290 (E- D.

Ark.), a civil rights case filed in the Eastern District of Arkansas. The materiality of some of those statements has already been the subject of court rulings, as detailed below.

62 Manfredonia. 414 F. 2d at 764- 65 (citations and footnotes omitted) (asterisks in original).

. 1. Rulings by Judge Wright in Jones vc

During discovery in the Jones case, Jones, repeatedly sought discovery as to Clinton had sexual encounters with women during the time that he was Governor and district court judge, Judge Susan Webber

the plaintiff, Paula whether President other than his wife then President." The Wright, rejected most of the President's arguments against such discovery. Her discovery orders reflect her conclusion that the evidence about "other womenR known as "Jane Does* -- including evidence related to Ms.

Lewinsky -- was relevant and material to the discovery process in Jonrzs (and potentially relevant or material to summary judgment or trial, though, as discussed above, admissibility at trial is typically not a part of a materiality inquiry).

Judge Wright twice held that Ms. Jones was entitled to the testimony of the Jane Does. First, on November 24, 1997 Judge Wright held that Ms. Jones could question the Jane Does if Ms. Jones first established a factual predicate for doing so. In the words of the Clerk's minutes:

Plaintiff is entitled to ask questions that are calculated to lead to admissible evidence;. . . In response to [President Clinton's counsel, Robert] Bennett's concerns that pleadings will become public and do damage to institution of. presidency, Court states questions have to be related to this cause of action and believes the Rules of Evidence and rules governing sexual harassment require Court to permit the

63 Ms . Jones's attorneys intended to use evidence of any such encounters to establish that the President was engaged in a pattern and practice of sexual advances in the workplace.

290

questions [about sexual activity with the Presidentl. 6i Second, on December 18, 1997 Judge Wright issued an order discussing the materiality and relevance of testimony about "other women." She indicated that- it was likely that not all of the discoverable evidence would be admissible, and stated that if the case went to trial, then she "anticipate[ d] limiting the amount of time and number of witnesses that will be spent on issues of alleged sexual activity of both the President and the plaintiff (should such matters be deemed admissible) .n65 Judge Wright then held, however, that the "other women" questions were proper questions to ask during discovery. As she explained, "the issue [before the Court was] one of discovery, not admissibility of evidence at trial. Discovery, as all counsel know, by its very nature takes unforseen twists and turns and goes down numerous paths, and whether those paths lead to the discovery of admissible evidence often simply cannot be predetermined. n66 For this reason, Judge Wright ordered the Jane Does to answer certain deposition questions regarding whether they had engaged in sexual activity with Mr. Clinton.

Judge Wright also several times held that the President was obliged to answer written or oral questions about whether he had engaged in sexual activity with other women. First, on December

64 & 921- DC- 00000268- 69 (Clerk's Minutes of m Hearing, Nov. 24, 1997).

65 1414- DC- 00001012- 13 (Dec. 18 Order, at 7).

66 1414- DC- 00001012- 13 (Dec. 18 Order at 7- 8). 25

291

11, 1997, Judge Wright held &at "the information regarding any individuals

pla:& nt$ ff is entitled to with whom the President had sexual relations or proposed or sought to have sexual relations and who were during the relevant time frame state or federal employees." 67

Second, on January 8, 1998, Judge Wright reiterated that: [she] hafd] allready ruled that questions regarding whether the President, as Governor of Arkansas, had sexual relations with certain women (other than his wife) in meetings that were arranged, facilitated, concealed, and/ or assisted by at least one member of the Arkansas State Police and whether some of these women were or became employees of the State of Arkansas (or an agency thereof) me wiu scone of t.& . . es In the case . To the extent the President denies

these allegations, he can so state without any undue burden. To the extent answers to the questions require something other than an outright denial, the Court finds that such answers may not necessarily be redundant to any previous answers the President has given to such questions and, further, that -answers . may be relevant to the 1fisOs case zux3- u~ led 68

Third, at a January 12, 1998 hearing, Judge Wright ruled that Ms. Jones would be permitted to ask questions about "other women" during the President's deposition. During the same hearing, Judge Wright all the evidence they made several comments evidence at trial:

also required the plaintiffs to describe planned to introduce at trial, and then about the potential admissibility of that

67 921- DC- 0000461 (Dec. 11 Order, at 3) (emphasis supplied). Judge Wright did establish a limited time frame for such discovery, and also required that any women question& d have been federal or state employees during the time of their encounter with the President.

68 g21- DC- 00000734 (Jan, 8 Order, at 4) (emphasis supplied) -

292

[Tlhe Rules of Evidence in harassment cases -- and I'm not citing any authority right now for it, but I know in harassment cases, frequently, court's [sic] permit other bad acts, other volatile acts, that kind of thing. And I'm also aware that in sexual assault cases, the Rules of Evidence promulgated by the Violence Against Women Act has certainly opened it up. So I can't say that you can't call any of the witnesses in group B [the pattern and practice issue witnessesf. 6g

Judge Wright concluded that for purposes of discovery and depositions, she would permit Ms. Jones's attorneys to ask the President "about people whose -- you know, whose names have been given you or people whom you have, you know, a reasonable basis for asking about. N70 This list included Monica Lewinsky.

Fourth, just before Ms. Jones* attorneys deposed President Clinton on Saturday, January 17, 1998, Judge Wright rejected the President's counsel's attempt to place limits on the scope of deposition questioning. In so ruling, she commented about the nature of the questions that President Clinton would be asked: l'Unfortunately, the nature of this case is such that people will be embarrassed. I have never had a sexual harassment case where there was not some embarrassment." 71 President Clinton's counsel also attempted to stop the questioning about Ms. Lewinsky during the deposition, by citing Ms. Lewinsky's affidavit. Judge

69 1414- DC- 00001327- 32 (Transcript of Jan. 12, 1998 Hearing, at 37- 42).

70 1414- DC- 00001336 (Transcript of Jan, 12, 1998 Hearing, at 46).

71 Clinton Depo. at 9. l/ 17/ 98 27

293

Wright refused to limit the questioning. 72 Finally, on January 29, 1998, after the OIC moved to suspend discovery relating to Ms. Lewinsky because she was the subject of a pending criminal investigation, Judge Wright concluded that Lewinsky- related evidence might be capable of influencing the ultimate decision in the lawsuit, 73 but determined pursuant to Fed. R. Evid. 40374 that the probative value of the evidence was outweighed by the prejudice that would result from delaying the trial to allow the evidence. to be obtained without conflicting with the OIC's criminal investigation. Judge Wright's order also held that other evidence of improper conduct occurring in the White House would not be precluded by the Court's ruling.

Judge Wright amplified this holding in an Order entered March 9, 1998. She first "readily acknowledg[ ed] that evidence of the Lewinsky matter might have been relevant to the plaintiff's case,"" but then re iterated her decision to exclude

'* L at 53- 56.

73 * ones v. Cl-, Jan. 29 Order, at 2 (" The Court acknowledges that evidence concerning Monica Lewinsky might relevant to the issues in this case.").

74 Federal Rule of Evidence 403, entitled "Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time" provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue

_ delay, waste of time, or needless presentation of cumulative evidence.

75 es V. Cl-, March 9 Order, at 9 (footnote

omitted). 28

294

the evidence under Fed. R. l% id. 403 on the ground that it was not "essential to the coreissues" of the case (namely, whether "plaintiff &rseU was the victim of gslid pro OUQ sexual harassment. W) 76

ii. Ruling by the D. C. Circuit The materiality of the allegedly false statements made in

. es v. Cl- has also been litigated by the OIC. Chief Judge Norma Holloway Johnson of the District Court for the District Columbia ordered Francis Carter (Ms. Lewinsky's first lawyer) testify as to matters relating to his representation of Ms. Lewinsky. In ordering the testimony, the court invoked the crime- fraud exception to the attorney- client privilege, based

. the OIC's QX.& W facie showing that Ms. Lewinsky had used Mr.

Carter to prepare a false affidavit "for the purpose of of

to on committing perjury and obstructing justice. f17' On appeal to the United States Court of Appeals for the District of Columbia Circuit, Ms. Lewinsky argued that her affidavit related to matters later excluded from the Jones case and hence, as a matter of law, was not *@ material." '* The appellate court rejected this argument:

76 & (emphasis in original) n re Grad Jurv Proceed- slip op. at 5 (D. D. C., Misc. No. 98- 68, March 31, 1998). '

75 Being immaterial, she argued, the affidavit could not form the basis for a criminal charge and thus the crime- fraud exception could not be applied to vitiate her attorney- client privilege.

295

Lewinsky tells us she could not have committed [the] crime: the government could not estqblish perjury because her denial of having had a %qual relationship" with President Clinton was not "materiall' to the Arkansas proceedings within the meaning of 18 U. S. C. 5 1623( a). . . . Lewinsky's proposition[ J rel[ ies] on the Arkansas district court's ruling on January 30 [sic], 1998, after Lewinsky had filed her affidavit, that although evidence concerning Lewinsky might be relevant, it would be excluded from the civil case under Fed. R. Evid. 403 as unduly prejudicial, "not essential to the core issues in th[ el case" and to prevent undue delay resulting from the Independent Counsel's Investigation.

A statement is nmaterialH if it "has a natural tendency to influence, or was capable of influencing, the decision of the tribunal in making a [particular] determination." -ted States v. Barrett 111 F. 3d . 947, 953 (D. C. Cir.), cert. dti 118 S: Ct. 176

(1997). The "central object" of any materiality inquiry is "whether the misrepresentation or concealment was predictably capable of affecting, i. e., had a natural tendency to affect, the official . decision." 9 , 485 U. S. 759, 771

(1988). Lewinsky used the statement in her affidavit, quoted above, to support her motion to quash the subpoena issued in the discovery phase of the Arkansas litigation. District courts faced with such motions must decide whether the testimony or material sought is reasonably calculated to lead to admissible evidence and, if so, whether the need for the testimony, its probative value, the nature and importance of the litigation, and similar factors outweigh any -burden enforcement of the subpoena might impose. m Fed. R. Civ. P. 26( b) (a),. 45( c) (3) (A) (iv); Linder vt of D& en& e, 133 F. 3d 17, 24 (D. C. Cir. 1998); Bee uem 9A Charles Allan Wright & Arthur R. Miller, Federal Practice and Procedure 5 2459 (2d ed. 1995). There can be no doubt that Lewinsky's statements in her affidavit were -- in the words of . c; v. United *Statea -- predictably capable of

affecting this decision. She executed and filed her affidavit for this very purpose."

" wed Case, slip op. at 4- 6 (D. C. Cir., Nos. 98- 3052, 98- 3053, 98- 3059, May 26, 1998) (brackets and ellipsis in original).

296

D. Literal Truth Defense to Perjury Where a witness's answers are literally true -- even if they are unresponsive, misleading, or false by negative implication -- a perjury conviction cannot be maintained." This is because, as the the the the

Supreme Court held in -ton, "If a witness evades, it is lawyer's responsibility to recognize the evasion and to bring witness back to the mark, to flush out the whole truth with tools of adversary examination." 81

In Hronston, the defendant was convicted of testimony given at a bankruptcy hearing relating

perjury for to a corporation of which he was the sole owner. In pertinent part, the following colloquy gave rise to the conviction:

Mr. for not his

Q. Do you have any bank accounts in Swiss banks, Mr. Bronston?

A. No, sir. Q. Have you ever? A. The company had an account there for

about six months, in Zurich. Bronston had in fact had a personal bank account in Geneva five years, but his answers were literally truthful: he did have a Swiss bank account at the time of the questioning and company did have the account described. The prosecution's theory in the lower court was "that in order to mislead his questioner, petitioner answered the second question with literal

13’ L at 358- 59. , 409 U. S. 352, 360 (1973).

297

truthfulness but unresponsively addressed his answer to the company's assets and not to his own -- thereby implying that he had no personal Swiss bank account at the relevant time. ne2

The Supreme Court, however, found it irrelevant that Bronston may have intended to mislead the questioner and reversed the perjury conviction. The Court explained that though in casual conversation. one might interpret the responses to mean that there was never a personal bank account, "the statute does not make it a criminal act for a witness to willfully state any material matter that implies any material matter that he does not believe to be true. W* 3 Following RronsW, courts have repeatedly found literal truth a complete defense to perjury where the witness's answer was literally true but misleading or unresponsive. 84

Rron- sta made clear, however, that in order for a statement

82 409 U. S. at 354. 83 & at 357- 58. *' Se. a., l? nN= d States v. . Char> lln , 25 F. 3d 1373, 1380 (7th Cir. 1994) (defense applies where witness denied giving $8,000 on October 23 and government only showed that transaction took place sometime in October); mted States v. l& x& 812 F. 2d 917, 919 (4th Cir. 1987) ("[ IIn questioning [defendant], the questioner simply did not probe deep enough to recognize any potential evasion."); -ted Smtes v. Teddex 801 F. 2d 1437, 1447- 48 (4th Cir. 1986) (defense applicable where government .

failed to ask defendant if he knew of prior bank accounts held by named individual and defendant truthfully answered question posed in the present tense), cert. C& K&, 480 U. S. 938 (1987); ti.

States v. Rm, No. 91- 5585, 1992 WL 86528, at *3-( 6th Cir. April 27, 1992) (defense not applicable to defendant's testimony that he could not recall statements he made to FBI a year earlier, as his answers were not non- responsive) (unpublished disposition).

be considered the question. which a witness,

298

literally true, it must be true in the context The Court analyzed a hypothetical example in when asked how many times she entered a store on a given day, responds "five" when she actually visited the store 50 times. The district court had considered the response in this hypothetical to be literally true, but had instructed the jury that a defendant could be convicted of perjury if the answer was .'not literally false but when considered in the context in which it was given, nevertheless constituteEd] a false statement. '1V* 5 The Supreme Court agreed that a perjury conviction would be proper in such a case, noting that "the answer 'five times' is responsive to the hypothetical question and contains nothing to alert the questioner that he may be sidetracked. n86 The Court also expressed doubt that the answer in the hypothetical was literally true in any event, explaining: "Whether an answer is true must be determined with reference to the question it purports to answer, not in isolation. An unresponsive answer is unique in this respect because its unresponsiveness by definition prevents its truthfulness from being tested in the context of the question. n87

In light of E& onstcrn, a witness who gives a responsive answer that is false when viewed in the context of the question

8.5 409 U. S. at 354. *6 L at 354 n. 3. *' ;z; d,

299

may not benefit from the literal truth defense," Indeed, most courts (including the D. C. Circuit) have held that the literal truth defense does not bar perjury convictions where the defendant and the government interpret the relevant question differently. In other words, most circuits hold that Bronston's literal truth defense is inapposite where "the answer is true only if one of two asserted interpretations of the question is accepted. n89 The Bell court, for example, said:

In f3ronston, the answer was a full, explanatory sentence, the truthfulness of which could be determined without reference to the question. Here, the answer simply was "no"; the truthfulness of that answer can be determined only by first looking to the question. ]Snnston simply did not deal with a yes or no answer given to a question susceptible to more than one interpretation. g0

Under these circumstances, when the defendant claims that he understood the question differently from the questioner "the

88 m mited States v. Scbgfrick 871 F. 2d 300, 303 (2d Cir. 1989) (t$ In Bronston the crucial iactor was that the answer Bronston gave was not re; ponsive to the question he was asked. . a . If an answer is responsive to the question, then there is no notice to the examiner and no basis for applying m.");

562 F. 2d 65, 68- 69 (1st Cir. 1977) (" An answer that is responsive and false on its face does not come within monsta's literal truth analysis simply because the defendant can postulate unstated premises of the question that would make his answer literally true."); 5ited States v, CriDDen 570 F. 2d 535, 537 (5th Cir. -1978) (" The words- used were to be understood in their common sense, not as they might be warped by sophistry or twisted"), gl; ert. l

de@ , 439 U. S. 1069 (1979). .

623 F. 2d 1132, 1136 (5th Cir. 1980). As discussed below, only the First Circuit's G& U& Z decision may be at odds with this line of cases.

go LLg, at 1136. 34

300

defendant's understanding of the question is a matter for the jury to decide."" (The First Circuit has, however, applied the literal truth defense to "bar perjury convictions for arguably untrue answers to vague or ambiguous questions when there is insufficient evidence of how they were understood by the witness. ng2 )

In a Watergate- related case, for example, the defendant was convicted of falsely stating that he was not "'familiar with" ' the distribution of negative campaign literature by a Nixon staffer he had hired, and that he did not recall Utexpress[ ing] any interest . . . or giv[ ing him] any directions or instructions with respect to any single or particular candidate. lHg3 The government had charged that the defendant did know of the literature distribution and that he did give specific instructions regarding a particular Senator, Senator Muskie, a

'l & (collecting cases). B. eJJ itself held "that [because] 'a reasonably minded jury must have a reasonable doubt as to the existence of the essential elements of the- crime charged,* the conviction may not stand." &L (quoting United States v. Revno-, 511 F. 2d 603, 606 (5th Cir. 1975)); &. Pehoe, 562 F. 2d at 69 (finding no evidence to support defendant's claim that the context of the questions was unclear); mted States v. Cash, 522 F. 2d 1025, 1029- 30 (9th Cir. 1975) (affirming perjury conviction where jury chose to disbelieve defendant's purported understanding of question); & J.& ited States . ~DSOQ, 637 F. 2d 267, 270 -( 5th Cir. 1981) (R- n ndzes not mean . . . that question and answer must be aligned in categorical and digital order.").

92 ted States v. Glw 847 F. Zd 1, 6 (1st Cir. 1988).

GJa& z might be viewed as premiied on an insufficiency of the evidence analysis, however the court characterized it as a literal truth defense.

g3 See United States v. . ChaPln 515 F. 2d 1274, 1277 (D. C. Cir. 19751, wt. denled, 423 U. S. ;015 (1975).

301

potential political opponent of President Nixon. The defendant argued on appeal that because the questions were vague, his answers were truthful: he did not know whether the staffer actually passed out literature, and he never gave directions about one candidate to the exclusion of others. The D. C. Circuit rejected this argument, explaining:

As another court stated when faced with the charge that "met with" and "regular" were too vague, "mere vagueness or ambiguity in the questions is not enough to establish a defense to perjury. Almost any question or answer can be interpreted in several ways when subjected to ingenious scrutiny after the fact." When the questions involved here are considered in the context of both the purpose of the grand jury investigation, which was known to Chapin, and the series of questions actually asked, we cannot say that the words involved could not be "subject to a reasonable and definite interpretation by the jury. 11g4

The court distinguished BrOnSton, in which the answer was unresponsive, because there I1 [tlhe [Supreme] Court explicitly considered only the problem posed by a declarative statement which was true no matter what the question might have meant, and did not consider the effect of any possible vagueness of the question." The court then with the situation where a answer, the truth of which of the question posed." g5

explained that "Bronston does not deal defendant has given a 'yes or no' can be ascertained only in the context

g4 u. at 1279- 80 (quoting && ited States v. Ceccerelli, 350 F. supp. 475, 478 (W- D. Penn. 1972) and Wed States v. . *

Marcbsm 344 F. 2d 653, 662 (2d Cir. 1965), respectively); isee &so &, 515 F. 2d at 1280 n. 3 (collecting cases in which

questions challenged as ambiguous were upheld as sufficient to support an indictment or a conviction)

" w, 515 F. 2d at 1279- 80. 36

302

The court was also unpersuaded by the defendant's argument that the lack of follow- up questions meant "that the prosecutors were not successfully misled by Chapin. lVg6 Instead, the court observed that "neither the court nor the jury must accept as conclusive the meaning the defendant, after the fact, puts on a question." The court found the jury's interpretation of the question, as evidenced by the verdict, the "only reasonable [one] .11g7

One D. C. district court has recently relied upon EhaDin to reject an Iran- Contra defendant's motion to dismiss perjury counts based perjuries to

on his having "dissect[ ed] each of the alleged demonstrate that they are true, albeit unresponsive. llge The court explained:

Such stretching of the language would be unnecessary were the contested statements literally true. Nor does Prom give a defendant latitude to insulate himself from prosecution by reinterpreting his statements in order to give them a meaning which is literally true. . . . Bronsf; an requires the court to dismiss the indictment only when it is plain that the government cannot prove that the defendant's statement was- false. In situations, as here, where there may be one or more arguable constructions of the defendant's statements under which those statements might be true, and the

g6 il; sk at 1283. " & In w, the district court had charged the jury that it could not convict if w reasonable interpretation of the question rendered the answer true. The D. C. Circuit therefore did not need to decide "whether a conviction would be upheld if the government proved that the defendant was truthfully answering some possible- and- reasonable interpretation of the question but falsely answering the question as he himself interpreted it." L at 1280.

'* m ynited States v. Clarids I 811 F. Supp. 697, 712 (D. D. C. 1992).

303

other constructions that the statements were, the question is left for the jury."

The difference between perjury and literal truth is well illustrated by another high- profile case, in which the D. C. Circuit affirmed a perjury count involving conflicting interpretations of questions and answers but reversed another count because the statement was literally true. loO The defendant, a HUD official, had been convicted of four counts of perjury and four 8 1001 violations for statements made during congressional hearings investigating favoritism in the administration of funding for substandard housing. A Senator had asked the defendant, in pertinent part:

[I] t is suggested that informal solicitations and unawarded applications from the past are guarded by

you, and that you personally go through the selections, excluding review by the appropriate staff experts.

Furthermore, it is suggested that developers have personally come to you asking for awards. Now, as you know, the proper procedure is for the HUD Washington office to deal with housing authorities and for them to deal with developers. In some cases, the housing authorities have subsequently alerted HUD that these funds aren't even needed. How do you respond to that?" l

In response, the defendant had explained the procedure for reviewing funding applications, including review by a panel. The statement found perjurious was that II it1 hat panel goes solely on

100 ted States v. Des, 55 F. 3d 640, 659 (D. C. Cir. 19951, cert. denied 1184 (1996) (citing mted States

lo1 &L at 659. 38

304

information provided by the Assistant Secretary for Housing."- - Challenging her perjury conviction on appeal, the defendant claimed that she had answered the question asked, to wit, whether she made funding decisions alone. The court rejected the argument, saying that 11 [tlhe thrust of the Senator's inquiry was

whether Dean played a D- in any moderate rehabilitation funding decision in which Departmental regulations were not followed," and that W [iln essence, Dean denied [the Senator's] intimations." 103 The court concluded from the government's evidence that "the jury was entitled to find that the panel did not base its decisions solely on information provided by the Assistant Secretary for Housing. n104 Thus, notwithstanding the wordiness and complexity of the question and the defendant's explanation of how she understood it, the court affirmed the conviction on this count.

Dean reversed the defendant's conviction on a separate perjury count, however. The defendant had been convicted for stating that "no moderate rehabilitation [funds] have ever gone to my home State of Maryland, simply for that reason -- that I sat on the panel [which made allocation decisionsl1t. 105 The D. C.

lo3 L at 660 (emphasis added); a. Schafrick, 871 F. 2d at 304 (" The questions as well as the answers, and the answers understood as a whole, are crucial to the determination of whether [defendant] Is statements were perjury.").

lo4 Jleaq, 55 F. 3d at 660. lo5 & at 661.

305

Circuit rejected the government's claim that the statement represented the defendant's denial of ever having participated in a moderate rehabilitation funding decision for a Maryland project, because "that is not literally what she said." The court wrote:

While Dean had participated in decisions for Maryland projects, her testimony indicated that those projects did not receive special consideration "simply" because Dean sat on the panel. Dean's statement could have been true, and, in any event, the government never proved at trial that she showed particular favoritism to Maryland projects. Although it may be, as Mark Twain said, that "[ olften, the surest way to convey misinformation is to tell the strict truth," a statement that is literally true cannot support a perjury conviction. 106

In addition, the prosecution provided no evidence to support the alleged falsity of the defendant's statement, and the defendant made the statement gratuitously -- it was not in response to a pending question. Thus, unlike the perjury count discussed above, the court could not view the answer in the context of the question to determine the defendant's understanding. As a result, it concluded that the conviction could not stand as it might be literally true.

E. Perjury in Cases of Feigned Forgetfulness Perjury cases can be and have been charged when a witness feigns forgetfulness about the events in question. When this type of charge is brought, the government must prove that the witness in fact had knowledge about the events as to which he claims

lo6 L at 662 (citing Bronston, 409 U. S. at 360). 40

306

memory loss.

1. Proof of Knowledge Because proving feigned forgetfulness requires proving the state of mind of the witness, the key issue is "whether th[ el circumstantial evidence meets the test of proof beyond a reasonable doubt. 11107 In rare instances, direct proof of feigned forgetfulness -- an inconsistent statement of recollection, for example -- might be available, and such proof would constitute "direct evidence that the defendant did know or recall the fact that he denied knowing or recalling under oath." loa

Such direct proof is unlikely and courts have generally concluded that the government can also meet its burden (to prove

lo7 3. d; iice also Unitedtes Mathern 329 F. Supp. 536, 538 (E- D. Pa. 1971); u, 515 F. 2: at 1284 '(" Of course . . .

the falsity of an 'I don't recall' answer must be proven by . circumstantial evidence."); Fotie v. Urllf; ed States 137 F. 2d 831, 842 (8th Cir. 1943) (" Necessarily the recollection'of a witness must be shown by circumstantial evidence .'I).

108 ebmd v. United States, 422 F. 2d 281, 287- 88 (9th Cir. 1970); m also mted States v. Forrest 623 F. 2d 1107, 1111- 12 (5th Cir. 1980) (admission recounted by inother witness is direct evidence of falsity), cert. denied, 449 U. S. 924 (1980); United States 515 F. 2d 1274, 1284 (D. C. Cir.) (implying that only possible direct evidence tending to prove falsity of claimed inability to recall would be statement of defendant), cert, denied, 423 U. S. 1015 (1975).; -ted States $ eiq 441 F. 2d 114, 116 (2d Cir.) (same), cert. denfed 403vU. Sw 93; (1971).

ted States v. Reach, 296 F. 2d 153, l& 7 (4th Cir. 1961) (direct evidence of defendant, and others, that he knew certain men, supported perjury conviction for defendant's grand jury testimony that he did not know identity of men) ; 1 354 F. 2d 931, 934 (2d Cir. 1966) (upholding conviction for false of grand jury testimony denying recollection of receipt of kickbacks and income from unlawful sources when such income was proven by extrajudicial admissions and circumstantial evidence that defendant possessed additional funds).

307

beyond a reasonable doubt that claimed forgetfulfulness was feigned) when it presents enough circumstantial evidence that a defendant must have remembered. l" A broad range of circumstantial evidence can support a perjury conviction on the theory that purported inability to remember was a lie. In general, just as with any other attempt to prove a defendant's state of mind,

[tlhe jury must infer the state of a man's mind from the things he says and does. Such an inference may come from proof of the objective falsity itself, from proof of a motive to lie, and from other facts tending to show that the defendant really knew the things he claimed not to know. ll'

Thus, in order to prove the claimed forgetfulness was feigned, "the witness must testify to some overt act from which the jury may infer the accused's actual belief." 111 As the D. C. Circuit has said, in a different formulation of the same principle, "a belief as to the falsity of testimony may be inferred by the jury from proof of the falsity itself. 11112

2. Cases in Brief The following subsection briefly reviews some representative

log m Fehrle v. Ur& ed States 100 F. 2d 714, 716 (D. C. Cir. 1938) (prosecution may use circ; mstantial evidence to prove that a witness charged with perjury must have remembered facts about which he testified that "he 'remembered nothingV1').

'lo Sweig, 441 F. 2d at 117.

“’ Beach, 296 F. 2d at 155 (internal quotation marks omitted).

112 a v. United 212 Stat- U. S. 1015 (1954).

F. 2d 236, 241 (D- C. Cir.),

sort. . denled , 347 42

308

reported cases involving feigned forgetfulness and perjury charges. The next subsection summarizes principles gleaned from a larger number of such cases. l13 . A witness to a shooting, who had made a written statement to

the police and testified before the grand jury, was convicted of perjury when -- after being called to testify at the trial of the men charged with the shooting -- he first denied having seen anything happen; then, when shown his signed statement, admitted his signature but said he did not know the contents; and finally, when the statement was read to him, said he did not remember whether any of the events described in it happened or not. '14 The D. C. Circuit affirmed the conviction, stating: While "[ dlirect proof that [the defendant] did remember was impossible, [tlhe circumstantial evidence that he must have remembered was, if believed, enough to overcome the presumption of innocence

113 Claims of inability to remember past events have arisen in obstruction of justice cases as well. See.# anited States V. A~ O 439 F. 2d 751, 754 (2d Cir. 1971) (affirming obstruction 0; justice conviction for professed memory loss in connection with SEC Investigation), Ert. dd 404 U. S. 850 (1971); Avionic Co. v. Gewal Dvna~ u. ics Corn, 957 F. 2d 555, 557 (8th Cir. 1992) (affirming sanction for obst& ction of discovery where defendant avoided having to disclose information he later claimed not to recall); ynited States v. Murw, 65 F. 3d 1161, 1165 (4th Cir. 1995) (district court properly enhanced sentence on perjury conviction for obstruction of justice where defendant signed statement implicating another individual but testified that she could not remember making statement about other's involvement). Typically, however, feigned forgetfulness is charged as a perjury violation.

II4 z&! z Cir. 1938).

le v. uted States, 100 F. 2d 714, 715- 16 (D. C.

309

and leave no reasonable doubt of guilt. 111'5

. Another defendant was convicted of perjury under 8 1623 for testifying before a grand jury investigating a drug conspiracy that "he did not recall being in Florida during 1983Yn6 But V [tlhere was other grand jury testimony, however, that Moeckly had been in Florida, and had stayed with [a co- conspirator] and studied Spanish there. 1'117 The Eighth Circuit affirmed the conviction. . A justice of the Michigan Supreme Court was convicted under

0 1621 when he testified before a grand jury that "he had no recollection of two conversations with" a co- defendant, but then two days later (after he became aware that some of his activities had been the subject of FBI surveillance) told the grand jury that the conversations had taken place." ' The Sixth Circuit affirmed the conviction. The court first noted that,

'15 L at 716. Citing m, the Eight Circuit reversed a perjury conviction because the defendant recanted his allegedly false statement. Fotie v. United States 137 F. 2d 831, 842 (8th Cir. 1943). The defendant had claimed no recollection of ever having filed for naturalization papers or having sworn that he was born in Italy. When shown the original and duplicate of his declaration of intention to become a citizen, which was made 24 years before he made the allegedly perjurious- statement, "he promptly admitted it." JL The court distinguished the case from instances where witnesses recant statements once their perjury is exposed. J& at 843.

116 ted States . Moe- 769 F. 2d 453, 459- 65 (8th Cir. 1985), cert. de-, 47: U. S. 1015 (1986).

11’ & at 459. I18 w =ited de&, States v. Swam . 548

937 (197;). F. 2d 657, 662 (6th

Cir.), ert. 431 U. S. 44

1 - 3G9

310

[w] hen the alleged perjury relates to the state of mind of the accused, as in the present case ('I have no recollection'), proof of perjury must necessarily consist of proof of facts from which the jury could infer that the defendant must have known or remembered that which he denied knowing or remembering while under oath. '1g

The court found that in this case there was enough evidence that the jury could infer that the defendant "had wilfully failed to answer the questions concerning these conversations truthfully at his first appearance."" '

. Another defendant had been convicted under 5 1621 for 15 counts of perjury before a grand jury investigating illegal card games at a ~lub. '~ ' Gebhard had been questioned (under a grant of immunity) about his role in the installation and operation of electronic devices placed in the club to enable gamblers to fleece fellow members. In pertinent part, Gebhard's "responses to the questions involved in [certain] counts of the indictment were invariably, 'I don't recall' or 'I don't know' or '1 don't remember.* m122 The appeals court noted that "[ g] iven answers of this nature, it would be difficult to find two witnesses to testify that the defendant did in fact know or believe or recall a matter

119 JL 120 LL 121 sse

Cir. 1970).

lZ2 LL

at 662. Gebued States, 422 F. 2d 281, 283- 88 (9th at 287.

311

which he said he did not.@ 1123 The court therefore concluded that circumstantial evidence could be used to prove the case for perjury: "[ iIf the government can build up a strong enough set of facts to show what the truth of the matter was and what the defendant must have known, this should be enough to go to the jury. V1124 . In the Watergate- era case mentioned earlier, the defendant

(Nixon's Appointment Secretary, Chapin) was convicted under S 1623 for stating "Not that I recall" in answer to a question about whether he had hired a particular aide (Donald" Segretti) to play pranks on the contenders for the Democratic nomination, or had given Segretti "any instructions with respect to any single or particular candidate. t’125 The D. C. Circuit affirmed the conviction, noting that the "the falsity of an 'I don't recall' answer must be proven by circumstantial evidence," that in this case the evidence showed that Chapin had given the aide "a large number of instructions about Senator Muskie over a six- month period," and that Chapin's "obvious desire before

123 L The court also suggested that a contrary admission by the defendant would constitute direct evidence of his state of mind. J. L

124 L at 288.

125 ted States Cu 515 F. 2d 1274, 1274- 90 (D- C. Cir.), cert. de-, 42: U. S. lOi5 (1975). Chapin had in 1971 hired Segretti to play "political pranks" on the contenders for the Democratic presidential nomination. The actual question in full was: "Did you ever express any interest to [Segrettil, or give him any instructions with respect to any single or particular candidate?" Chapin responded, "Not that I recall."

312

the grand jury and the court to put himself as far as possible from the specifics of Segretti's campaign provided sufficient evidence of his motive to conveniently omit recollection of any specific instructions. VV126 Even though Chapin argued on appeal that he had believed the question was asking whether he had given any instructions to "zero in" on a particular candidate to the exclusion of others, and that he had not done so, the court rejected the argument, finding that if that had been Chapin's true understanding, "he would not have responded so unequivocally

as he did, 'Not that I recall' . . . but would probably have given a flat and emphatic negative," and that II[ t] his was

too central a matter not to be clear in his mind." 12'

. Another defendant, was convicted of perjury under § 1623 for testifying to a grand jury first that he had been in Florida during a major fire in Lynn, Massachusetts, and later that he could not remember, the exact date that he had returned to Lynn. 12* At trial, the government had introduced evidence to show that Goguen had been in Lynn and that, because of the fire's magnitude, it was more than likely that when Goguen appeared before the grand jury he did remember that he had been in Lynn during the fire. The First Circuit affirmed

126 X at 1284. 12' L at 1283. 12* a =ted States v. GO-, 723 F. 2d 1012, 1014- 15 (1st Cir. 1983).

313

the conviction, noting that "while the average person may not remember where he was the day before President Kennedy was assassinated, he surely would remember if he was at the Texas Book Depository in Dallas the day before the assassination. f112v

3. S- rY

A review of the case law reveals that perjury convictions for false claims of memory loss are likely where there is either strong circumstantial evidence or other factors tending to show that the witness must have remembered, such as a motive to lie (Beha; Seltzer, Nicoletti, Ponticelli, m); 13' a reason to remember (Ponticelli, Chapin); a selectively spotty memory (Nicoletti); a suddenly revived memory upon learning of the

government's evidence (Swati); 13' testimony or other evidence confirming the occurrence of an event and the likelihood that the defendant would not have forgotten it (Moeckly, mnoreale,

12' & at 1021 n. 11. 130 le v. United Statee 100 F. 2d 714 (D- C. Cir. 1938); ted States Seltzer 794 F. 2d 1114 (7th Cir. 1986), cert. &nied, 479 u.:. 1054 (1987); United- States v. Nicoletti 310 F. 2d 359 (7th Cir. 1962), cert. denied 372 U. S. 942 (1963) -

ed States

, 449 d.

Ponticeu 622 F. 2d 485 (9th Cir.), cert. ' 1016 (1980; overruled on other around& United

States . v. Dew 730 F. 2d11255 1259 (9th Cir. 1984); United States Cm U. S. 10; 5 (1975) '

515 F. 2d 1274 Cb. C. Cir.), srt. dpm ; 423 131 . ed States v. Swaw, 548 F. 2d 657 (6th Cir.), cert de- . , 431 U. S. 937 (1977).

314

ponticeu, Devitt, ChaDin; but see u);" ' or statements by the defendant contradicting the claim (B&. X&, Nicoletti). Courts have also considered the chronology of a defendant's statements or inconsistent claimsof forgetfulness (B$), or proximity in time between the testimony and the event at issue (Kjcoletti, Mathea; &. Fotie, PI& YL! L).~~~ Moreover, courts have adverted to the "enormity of the events" as an indication that purported failure to recollect was a lie (SelW, Moreno Morale,, PMticelli, men), 134 or have highlighted the repetitiveness of some witnesses' claims of inability to remember (Gebhard). 135 The defendant's uncooperative attitude in testifying before a grand jury is also relevant (Seltzer).

F. Inconsistent Statements Under § 1623( c)

As noted above, under § 1623( c) the government may prosecute a perjury charge based solely upon .inconsistent statements (if both of the statements in question were made under oath, before

132 United 769 F. 2d 453 (8th Cir. 1985), cert. denied 475 U. S. 515 F. 2d 184'( 2d Cir.

1015 (1986:; Wed States v. woreale I

1975); United States v. Devitr

135 (7th Cir. 1974), cert. de- 421 U. S. 975 (19i'5)? g~ t~~ States . Clizer, 464 F. 2d 121 (9th Cir.), cert. deni&, 409 U. S. 1086 (1; 72).

133 ted States v. Mathern 329 F. Supp. 536 (E- D. Pa. 1971); Fotie v. United %a-, 13; F. 2d 831 (8th Cir. 1943).

134 ted Morales F. 2d (1st States Moreno 815 725 Cir.), cert. deni&, 48: U. S. 966 (1987): United States v. Goguen, 723 F. 2d 1012 (1st Cir. 1983).

135 rd United F. 2d (9th Cir. 1970). v. States, 422 281

315

or ancillary to a court or grand jury) .136 The prosecution need not prove which statement is false, but need only prove beyond a

This provision is the result of a 1970 amendment to § 1623 that 136 Section 1623( c) of Title 18 provides:

Any indictment or information for violation of this section alleging that, in any proceedings before or ancillary to any court or grand jury of the United States, the defendant under oath has knowingly made two or more declarations, which are inconsistent to the degree that one of them is necessarily false, need not specify which declaration is false if --

(1) each declaration was material to the point in question, and

(2) each declaration is made within the period of the statute of limitations for the offense charged under this section.

In any prosecution under this section, the falsity of the declaration set forth in the indictment or information shall be established sufficient for conviction by proof that the defendant while under oath made irreconcilably contradictory declarations material to the point in question in any proceeding before or ancillary to any court or grand jury.

was intended to l'provide[ l specifically for the prosecution of a false declaration in the case of irreconcilable contradictory statements yithout the necessity of specifying which- of the declarations is false." H. R. Rep. No. 1549, 91st Cong., 2nd Sess., med i.~ 1970 U. S. C. C. A. N. 4007 (emphasis added). Of course, both statements must be made under oath before or ancillary to a court or grand jury. ti United St& es v. . Jaramlllo 69 F. 3d 388, 390 (9th Cir. 1995) (" To take advantage

of 8 1623ic) 's lesser requirement of proof, the government must demonstrate, inter alia, that both contradictory declarations are within the scope of 18 U. S. C. § 1623( c)."); & Ynited St& es v. &rvev, 657 F. Supp. 111, 113- 14 (E- D. Tenn. 1987) (including as an element of crime under § 1623( c) that the statements "were .

made before or ancillary to a federal court or grand jury proceeding").

Section 1623( c) also provides that W [ilt shall be a defense to an indictment or information made pursuant to the first sentence of this subsection that the defendant at the time he made each declaration believed the declaration was true." 18 U. S. C. § 1623( c) (2).

316

reasonable doubt that the statements are irreconcilably contradictory (and material to the case) -I37

0. Perjury Trap Defense

The so- called "perjury trap defense" has been discussed by many courts, but adopted by few. 13* In theory, "[ al perjury trap is created when the government calls a witness before the grand jury for the primary purpose of obtaining testimony from him in order to prosecute him later for perjury. 1Q'3g The essence of this theory is that by using its power to compel testimony toward this end, particularly when the perjured information is neither material nor germane to the legitimate ongoing investigation of the grand jury, 14' the government violates the Due Process clause of the Fifth Amendment and that this conduct requires dismissal of the indictment. 141 Criminal defendants often argue that their indictments should be dismissed for improprieties surrounding the requirement that they give grand jury testimony.

13' m mted S&& es v. Portex 994 F. 2d 470, 473 n. 4 (8th Cir. 1993). Thus, in order to sustain a conviction under § 1623( c), based upon inconsistent statements the government must prove the following elements beyond a reasonable doubt: (1) a defendant, under oath; (2) made two or more declarations; (3) which were irreconcilably inconsistent; (4) each of which was material to the point in question, and (5) each of which was made within the statute of limitations.

13' m wheel v. Rob-, 34 F. 3d 60, 67- 68 (2d Cir. 1994).

, 933 F. 2d 793, 796 (9th Cir. I40 a -ted States v. Criscoa, 520 F. Supp. 915, 920 (D. De1.1981).

14' &L at 67 (quoting m, 933 F. 2d at 796- 97). 51

317

Insofar as the doctrine exists, "any application of the 'perjury trap' doctrine" is precluded if there is a "legitimate basis" for an investigation and for the particular questions answered falsely. '42 When testimony is elicited before a grand jury that is "attempting to obtain useful information in furtherance of its investigation" '43 or t'conducting a legitimate investigation into crimes which had in fact taken place within its jurisdiction," '44 the perjury trap defense cannot succeed.

Furthermore, no perjury trap defense is available simply because the government anticipated that the defendant would commit perjury in testifying before the grand jury. Even if the government anticipates that a defendant would give false testimony, the government is entitled to hope "that [the defendant] . . . might provide information about the pending investigation11145 and to anticipate that a witness will testify truthfully once placed in the solemn atmosphere of the grand jury room. "[ Flor many witnesses the grand jury room engenders an atmosphere conducive to truthtelling, for it is likely that upon

WheeJ, 34 F. 3d at 68; 1072 (2nd Cir. 1997),

ted States v. Rem 2484 ’

142 103 F. 3d

(1997). 143 ted States v. Devitt 499 F. 2d 135, 140 (7th Cir. 1974), cert. denj& I 421 U. S. 9; 5( 1975).

144 ted States v. Chevoor 526 F. 2d 178, 185 (1st Cir. l975), cert. denied, 425 U. S. '( 1976). sS= r: United States V. m, 933 F. 2d 793, 797 (9th Cir. 1991); see United $tateS v. Brown, 49 F. 3d 1162, 1168 (6th Cir. 1995).

145 ted States v. Caputo, 633 F. Supp. 1479, 1487 (E. D. Pa. 1986), 1, 823 F. 2d 754 (3d Cir. 1987).

318

being brought before such a body of neighbors and fellow citizens, and having been placed under a solemn oath to tell the truth, many witnesses feel obliged to do just that. 11146

II. Obstruction of Justice -- 18 U. S. C. § 1503 The obstruction of justice statute applicable to cases involving a defendant's false swearing or obstructive conduct is 18 U. S. C. 5 1503.14' Section 1503 provides:

(a) Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United .

States, or officer who may be serving at any examination or other proceeding before any United States magistrate judge or other committing magistrate,

146 mted States v. Wasbaton, 431 U. S. 181, 187- 88 (1977) f

147 Section 1505 of Title 18 applies to pending "department or agency" proceedings, not to pending judicial or grand jury proceedings. While "mere 'police investigation[ s] ‘I’ do not constitute proceedings for purposes of the statute, "agency investigative activities are proceedings within the scope of § I505 [where they] involve[] agencies with some adjudicative power, or with the power to enhance their investigations through the issuance of subpoenas or warrants." United States v. Kellev, 36 F. 3d 1118, 1127 (D. C. Cir. 1994) (citation omitted).

In the D. C. Circuit, § 1505 applies only where the defendant influenced another person to. violate the law. In llILi, ted States

Poindexter 951 F. 2d 369 (D- C. Cir. 19911, cert. den& J 506 ks. 1021 (1992) the court applied a 1505 and held that,

"transitive' reading'to § "[ aIs used in 6 1505 . . . the term 'corruptly' is too vague to provide constitutionally adequate notice that it prohibits lying to the Congress." L at 379. The court thus narrowed S 1505 "to include only 'corrupting' another person by influencing him to violate his legal duty." & (emphasis added). The court observed, however, that the "language of 5 1505 is materially different from that of § I503. l' &L at 385. The transitive uextec reading of § 1505 does not apply to 5 1503. ynited States v. Ra, 104 F. 3d 431, 435- 47 (D- C. Cir. 1997); United States v. Watt, 911 F. Supp. 538, 545- 47 (D. D. C. 1995).

319

in the discharge of his duty, . - - grv&& a~~&

threats of force. or by w threatenma letter ox uences. obstructs. or imnedes. or endeavors to auence. obstruct. or impede. the due

ration of lustice shall be punished as provided in subsection (bi. l"

The underlined "'Omnibus Clause' serves as a catchall, prohibiting persons from endeavoring to influence, obstruct, or impede the due administration of justice. The latter clause, it can be seen, is far more general in scope than the earlier clauses of the statute. H14g Put differently, the omnibus clause "prohibits acts that are similar in result, rather than manner, to the conduct described in the first part of the statute. 11'50

The Court of Appeals for the District of Columbia Circuit has characterized the offense of § 1503 obstruction of justice as having three main elements: (1) the government must prove that the defendant engaged in conduct or behavior or endeavored to engage in conduct or behavior; (2) that the defendant engaged in such behavior corruptly and with specific intent; and (3) that the defendant's intent was to impede the due administration of justice. 151 In order for § 1503 to apply, there must be judicial proceedings pending at the time of the defendant's conduct, such

148 18 U. S. C. 5 1503 (emphasis added). 145 .

1, 515 U. S. 593, 598 (1995). 150 ed States v. w, 569 F. 2d 1331, 1333 (5th Cir.), cert. dew, 439 U. S. 834 (1978).

151 ted States v. Rridaes, 717 F. 2d 1444, 1449 n. 30 (D. C. Cir. 19831, cert. denied I 465 U. S. 1036 (1984); w &% J Pvramid . I SecurJtles md. v. 1s ResolutiQn InG , 924 F. 2d 1114, 1119 (D- C.

Cir.), cert. de-, 502 U. S. 822 (1991). 54

320

as a grand jury investigation. 15' Finally, knowledge of the pending judicial proceedings is required. 153 Other courts have combined these elements as follows:

[Tlhe elements of obstruction. of justice, pursuant to the omnibus clause of section 1503, are (1) a pending judicial proceeding; (2) the defendant must have knowledge or notice of the pending proceeding; and (3) the defendant must have acted corruptly, that is with the intent to influence, obstruct, or impede that proceeding in its due administration of justice. '54

A. Elements of 5 1503 Further Defined

152 . * d Secursies J# td. , 924 F. 2d at 1119. Is3 Bguila, 515 U. S. at 599. It bears noting that materiality is not an element of the offense under 5 1503. E. g.

ed States v. . Ra # 1 F. Supp. 2d 445, 454 (E- D. Pa. 1998) (citing ynited States v. Ra& j.~, 870 F. 2d 109, 112 (3d Cir. 1989)).

154 ted States v. Gru&, 11 F. 3d 426, 437 (4th Cir. 1993); m j&~ -ted States v. Wood 6 F. 3d 692, 695 (10th Cir. . . 1993); United States v. Williams , 874'F. 2d 968, 977 (5th Cir.

1989). The Model Jury Instructions for "Obstructing the Due Administration of Justicel' under D. C. Code 8 22- 722( a) are:

1. That the defendant acted corruptly, by means of threat or force, [obstructed or impeded] [endeavored to obstruct or impede] the due administration of justice in the Court of the District of Columbia; and

2. That the defendant acted with specific intent to obstruct or impede the due administration of justice.

You are instructed that the term 'corruptly1 means with an improper motive. The term 'endeavor' means any effort, whether successful or not. The term 'threats' means any words or actions having a reasonable tendency to intimidate the ordinary person.

. al Jury Instructions for the District of Co- (4th ed. 1993) 4.81( B). The Comment provides that pendency of formal court proceedings and a showing of knowledge are also required.

321

1. Pending Judicial Proceeding

A pending investigation by a grand jury is a judicial proceeding for purposes of 5 1503.155 Similarly, a civil proceeding is a pending judicial proceeding for purposes of 5 1503?

2. Knowledge of Pending Judicial Proceeding

"[ A] defendant may be convicted under section 1503 only when he knew or had notice of [the1 pending proceeding." 15' In m, the Supreme Court held that a judge's utterance of false statements to an FBI agent "who might or might not testify before a grand jury is [not] sufficient to make out a violation of the catchall provision of 5 1503. n'58 The Court indicated that the government must show the would be provided to the

155 wood, 6 F. 3d at grand jury proceeding is issued in furtherance of i. e., to secure a presently contemplated presentation of evidence before [a regularly sitting1 grand jury." United States v. $Val&, 527 F. 2d 676, 678 (3d Cir. 1975).

defendant "knew that his false statement grand jury"; evidence that the defendant

696. The Third Circuit has held that a pending once a "subpoena [has been1 an actual grand jury investigation,

156 ted States v. Jlundwa 1 F. Supp. 2d 249, 251 (S. D. N. Y. 1998). Section 1503 has'been applied in a wide variety of civil matters. wted States v. Muhammad -120 F. 3d 688 (7th Cir. 1997) (civil juror solicits bribe from litigant); United

States v. T, oQ& Q, 714 F. 2d 1558 (11th Cir. 1983) (lawyer presents . fraudulent civil judgment to client); Roberts v. Unrted States I' 239 F. 2d 467, 470 (9th Cir. 1956) (" obstruction of justice statute is broad enough to cover attempted corruption of a prospective witness in a civil action").

157 UnitedStates 80 F. 3d 641, 650 (1st Cir. 1996).

158 515 U. S. at 600. 56

_- 322

was aware of the proceeding is usually not sufficient." ' 11 [I] f the defendant lacks knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct. n'6D

3. Specific Intent

The term "corruptly" in the omnibus clause connotes specific intent. 161 Courts have, however, defined the term llcorruptly~ in somewhat differing terms. 16* "[ Sluch intent may be inferred from proof that the defendant knew that his corrupt actions would obstruct justice then actually being administered. 11'63

In &J& m, the D. C. Circuit approved a jury instruction for obstruction of justice which charged that the jury "must find, in addition to the other elements, that [the defendant] had the specific intent to obstruct, impair, or impede the due

Is9 & at 601. I60 J& at 599; d. m, 11 F. 3d at 437 (false statement to FBI agent supported obstruction of justice conviction where defendant "was well aware of the existence of the grand jury investigation when interviewed").

‘a m mted States v. Haldeman 559 F. 2d 31, 114 (D- C. Cir. 1976) (per curiam), cert. den&$, '431 U. S. 933 (1977) f

16* See. e. q., mted States v. Pa?& i.~, 552 F. 2d 621, 641- 42 (5th Cir.) (improper motive or with evil or wicked purpose), . cert. denled 434 U. S. 903 (1977); mted States v. Rasheed, 663

F. 2d 843, 852 (9th Cir. 1981) (with purpose of obstructing justice), cert. de- 454 U. S. 1157 (1982); United States v,

Barfieti 999 F. 2d 1526, 1524 (11th Cir. 1993) (knowingly. and intentio; ally undertaking act from which obstruction was reasonably foreseeable result).

163

1984).

tes V. Bw, 727 F. 2d 50, 54 (2d Cir. 57

323

administration of justice and that his endeavor was not accidental or inadvertent." '64 The district court defined the term ncorruptlyV' as used in 5 1503 as "having an evil or improper purpose or intent .“ 16’

In Aauilar, the Supreme Court stated that, under the "very broad language of the catchall provision" of the omnibus clause, "[ tlhe action taken by the accused must be with an intent to influence judicial or grand jury proceedings; it is not enough that there be an intent to influence some ancillary proceeding, s

such as an investigation independent of the Court's or grand jury's authority. n'66 The Court further observed that “Is1 ome courts have phrased this showing as a 'nexus' requirement -- that the act must have a relationship in time, causation or logic with the judicial proceedings. . . . In other words, the endeavor must have the natural and probable effect of interfering with the due administration of justice." 167

Even if one is acting from a seemingly benign motive, a jury may nonetheless conclude that the acts were done corruptly. For example, one court reviewed altered and defaced certain

the conviction of a defendant who had corporate records relating to an

164 &II, 559 F. 2d at 114; a also -dwell v. Vu States, 218 F. 2d 370, 372 (D. C. Cir. 1954) (" The only intent involved in the crime is the intent to do the forbidden act."),

t. de-, 349 U. S. 930 (1955). 165 m, 559 F. 2d at 115 n. 229;. I66 m, 515 U. S. at 599. 16' &L (quotations omitted).

324

ongoing grand jury investigation of Medicare fraud. Faudman argued that he lacked the requisite intent because he intended by his acts only to "protect his brother and the company he had spent his life building. 1116e The jury rejected this defense and the court affirmed his conviction, concluding that his conduct was ~corrupt~ conduct covered by the omnibus clause of 5 15C13. '~ '

B. False and Evasive Testimony as Obstruction of Justice 1. Generally

"[ Sltatements . . . made directly to the grand jury itself, in the form of false testimony or false documents," may provide basis for 5 1503 1iability. l" For false statements to form the basis of obstruction, however, the government must prove the person making the statements had the intent to impede or effect of impeding the due administration of justice. l'l Likewise the D. C. Circuit recently concluded that "anyone who intentionally lies to a grand jury is on notice that he may be corruptly

168 8 , 640 F. 2d 20, 21 (6th Cir. 1981).

16’ ;Ig, at 23.

l'O* &U&& x, 515 U. S. at 600 & n. 2 (collecting cases); see - -ted States v. Na 300 U. S. 564, 574 (1937) (" Perjury is an obstruction of justice; its perpetration may well affect the dearest concerns of the parties before a tribunal.").

171 ed States v. RUSSQ, 104 F. 3d 431, 435- 36 (D- C. Cir.

1997); pee al&~ mted States v. Per- 748 F. 2d 1519, 1528 (11th Cir. 1984) (false statement impeding justice) ;United States v. Watt 911 F. Supp. 538, 547 (D. D. C. 1995) (while the government must plead and prove that the false testimony impeded the due administration of justice, "no additional act need be alleged in the indictment").

325

obstructing the grand jury's investigation . . . . Whatever the outer limits of 'corruptly' in 5 1503 . . . acts of perjury [are] near its center. 1V172 Similarly, the district court reasoned that false testimony obstructs justice because it "could cause undue delay, import unnecessary confusion into the grand jury process, and potentially lead to an erroneous indictment. 1,173

Even evasive testimony which is literally true may form the basis for an obstruction charge, though this is an unusual occurrence. '74 One district court examined an indictment containing multiple perjury charges and an obstruction charge. The court dismissed a number of the perjury charges as being literally true, given a "precise grammatical reading of the challenged question and answer. n175 Notwithstanding her conclusion that certain of the perjury charges were legally insufficient, Judge Rymer concluded that a 5 1503 charge based

172 ~SSQ, 104 F. 3d at 436 (citations omitted); see ~ ted States v. Watt 911 F. Supp. 538, 547 (D. D. C. 1995) (" the government may charge's defendant under the omnibus elause for making false statements before a grand jury while under oath if the making of such statements obstructs the due administration of justice") . Both RUSSO, 104 F. 3d at 436, and Watt, 911 F. Supp. at 546- 47, rejected application of Poindextey's lttransitiven reading of s 1505 to § 1503, as, indeed, Poindexter itself foretold, 951 F. 2d at 385.

173 Watt, 911 F. Supp. at 547; m also mted States v, m, 861 F. 2d 730 (D. C. Cir. 1988) (affirming conviction for making false declarations before a grand jury in violation of 18

U. S. C. §§ 1503, 1623).

174 d States v. Sr> alJ, iwa I 602 F. Supp. 417 (C. D. Cal. 1984) (Rymer, J.).

175 L at 422 (quoting wed, St& es v. Cook, 489 F. 2d 286, 287( 9th Cir. 1972)); see a& m 602 F. Supp. at 424 (literal truth in response to double negative question).

326

upon misleading, but true, statements should not be dismissed. Summarizing her own reservations, she wrote:

[Tlo the extent that defendant's testimony is not perjurious but rather evasive, or misleading, I think that interpreting 5 1503 to obtain a result unobtainable under the perjury statute is ill- advised.

. . . Although conviction under § 1503 may require proof of intention to impede justice thereby excluding the misleading or non- responsive statement, innocently made, the fear of possible prosecution for evasive or misleading testimony under § 1503 will burden every witness before a grand jury. '76

Nonetheless, the court concluded that giving evasive answers to a grand jury could violate § 1503 and denied the motion to dismiss. 17'

2. Civil Proceedings

False statements in connection with a pending civil proceeding can also form the basis an obstruction of‘ justice charge under 5 1503. We provide two examples:

One defendant was alleged to have given false testimony in a civil forfeiture proceeding relating to the proceeds of narcotics transactions. Thomas denied that he knew a co- defendant, one Ronald Calhoun, by the alias Robert Johnson. The Eleventh Circuit reaffirmed its view that "false testimony can provide the basis for a conviction under section 1503." 178 It emphasized, however, the need

'76 L at 426.

177 L (relying on Ynited States v. Rasheed, 663 F. id 843, 852 (9th Cir. 1981)).

178 ted w, F. 2d 647, 652 (11th Cir. States v. 916 1990) (citing aed States v. Peru, 748 F. 2d 1519, 1527- 28

327

for a "nexus between the false statements and the obstruction of the administration of justice." 173 Thus, the court concluded that it was "incumbent on the government to prove the statements had the natural and probable effect of impeding justice. 111eo Barbara Battalino was a psychiatrist at a Veterans Administration hospital in Boise, Idaho. '* 1 While working at the hospital she provided psychiatric treatment to a U. S. Army veteran, Edward Arthur. On at least one occasion, on June 27, 1991, while treating Mr. Arthur, Battalino performed oral sex on him. Thereafter, Battalino and Arthur began an intimate affair. Battalino resigned when her supervisor learned of the affair.

Later Arthur filed a complaint against Battalino and the United States alleging that Battalino's sexual conduct with him constituted medical malpractice. Battalino requested that the United States Attorney for the District of Idaho "certify" her under the Federal Tort Claims Act,

(11th Cir. 1984)). I" Thomas, 916 F. 2d at 652 (citing In, 326 U. S. *

224, 228 (1945)). la0 Thomas, 916 F. 2d at 652 (citing United States v. . Fti i 835 F. 2d 1571, 1573 (11th Cir. 1988); United States v. . Silvew, 745 F. 2d 1386, 1393 (11th Cir. 1984)). Because the

district court's jury instructions did not enunciate this requirement and because the government's proof was insufficient, the court reversed Thomas's conviction. a, 916 F. 2d at 654.

181 tes v. Battu, Crim. No. 98- 38- S- EJC (D. Idaho April 14, 1998).

328 (~~ FTCA”) -la2 Battalino was interviewed by attorneys for the United States and denied that she had engaged in sexual relations with Arthur in her office on June 27, 1991. in part on that denial, she was certified for coverage the FTCA as to her conduct occurring on or before June 1991.

Battalino appealed the United States Attorney's Based

under 27,

decision denying certification as within the scope of her employment for her conduct after June 27, 1991. At a hearing held before a United States Magistrate on July I3- 14, 1995, while Arthur's civil claim remained pending, Battalino was examined as follows:

Q. Did anything of a sexual nature take place in your office on June 27, 1991?

A. No, sir. le3 In April 1998, Battalino was charged with a single count information alleging that she had violated 18 U. S. C. 5 1503 by l'corruptly endeavor[ ingl to influence; obstruct and impede the due administration of justice in connection with a pending proceeding before a court of the United States" by making the false and misleading statements quoted

182 28 U. S. C. § 1346 et seq. Under the FTCA, if a federal employee is sued and it is certified that the employee's allegedly tortious conduct occurred "within the scopeI' of the employee Is federal employment, the United States is substituted as a defendant and the employee cannot be held personally- liable for damages.

183 Plea Agreement at 9- 12, United Crim. No. I

98- 38- S- EJC (D. Idaho April 14, 1998). 63

329

1. Generally Obstructive behavior can comprise behavior other than the false testimony of a defendant. One who proposes to a witness that the witness lie in a judicial proceeding is guilty of obstructing justice. '* ' A conviction for such conduct will be sustained where the evidence shows that the conduct had a "reasonable tendency to impede the witness in the discharge of her duties. t1'g0 The endeavor to influence the witness need not be successful to be criminal." '

Several cases are instructive examples of the type of fact pattern that will support a criminal obstruction charge:

One defendant was convicted of obstructing a grand jury investigation in violation of 5 1503, by attempting to influence a witness to lie to the grand jury. lg2 He challenged his conviction on the ground that it was not supported by sufficient evidence. The witness, Roeske, admitted to hiding income in a bank under a fictitious name. In Tranakos's obstruction trial Roeske testified:

Q. What did Mr. Tranakos tell you?

189

1985). , 752 F. 2d 963, 973 n. 11 (5th Cir.

190 nited States v. Harris, 558 F. 2d 366, 369 (7th Cir. 1977) (citation omitted).

191 fieu, 999 F. 2d 1520, 1523 (11th Cir. 1993); see also Osborn v. United SW, 385 U. S. 323, 332- 33 (1966).

192 ted States v. Trw . 911 F. 2d 1422 (10th Cir. 1990).

330

A. He said that -- he looked at me and he smiled and he said, 'Well you don't own any trusts, do you? ' And then he said -- he said, 'You don't have any bank accounts in Montana, do you? ' And I took that to mean that all of this flow of paper,. this complexity of paper meant that the things legally were not under my control and that was the whole reason for setting up this vast matrix of trusts and that I didn't have control over these things or I didn't own the matter of semantics at the time.

bank accounts. It was- a as far as I understood it

. . . .

Q. What happened when you appeared before grand jury then?

the A. They . . . asked me if I had any bank

accounts in Montana and I said no. Or they might have said, 'Do you know of any bank accounts in Montana? ' And I said, 'No. '

. . . .

Q. You used the word 'semantics' a while ago. It was not what he said, it was the way he said it to you, the smile [you] said he had on his face?

A. Yes. lg3 The court readily concluded that obstruction of justice, inasmuch

this conduct constituted as the "statute prohibits elliptical suggestions as much as it does direct commands." 1g4 It therefore held that a reasonable finder of fact could have concluded from this evidence that Tranakos

lg3 L at 1431- 32 (ellipsis and brackets in original). lg4 a at 1432 (citing United States v. Russell 255 U. S. 138, 141- 43 (1921); mted States v. Arw 773 F. 2d'823, (7th Cir. 1985); mted States v. O'Keefe, ;22 F. 2d 1175,

834 1181 (5th Cir. 1983)).

331

had suggested to Roeske that he testify falsely to the grand

jury-

Former Congressman Mario Biaggi appealed his conviction for (among other charges) obstructing a grand jury investigation, in violation of § 1503, by attempting to influence the testimony of a co- defendant, Meade Esposito. 'g5 At issue were Esposito's allegedly illegal payment of Biaggi' expenses for trips Biaggi took to St. Maarten and a Florida health spa. As the court recounted the evidence, after Biaggi became aware of a grand jury investigation, he called Esposito:

There can be no doubt that Biaggi sought to have Esposito impede the investigation. For example, having coached Esposito to characterize the Florida spa trips as emanating simply from an old and dear friend's concern for Biaggi's health (Biaggi: "You knew I had, you knew I had some trouble with my heart?" Biaggi urged concealment

MB [Biaggil : . . . Uh,

Maartens Esposito: "When?"),

of the St. Maarten trip: don't mention St. [sic] . . . cause I . .

ME [Esposito] : Oh, I thought you mentioned it. MB: No, they just, I didn't mention it.

ME: Okay.

MB: Uh, we just mentioned the two times at the spa.

ME: No problem. Returning to the matter of the spa vacations, defendants agreed:

ME: This is not a gift. It's uh, it's a, uh, 195 g, . . 853 F. 2d 89 (2d Cir. 19881, cert. de-, 489 U. S. 1989) -

MB:

ME: MB:

332

manifestation of my love for you. You didn't give it to me because I'm a member, member of Congress.

Nah. Never, no bull. No way. Have you ever done, have you ever done anything for me?

Have I ever done anything for you? I, I told them, "No." We say you haven't done anything form me and I haven't done anything for you. . . .

That's right. And that's the way we're gonna keep it. On this evidence the court saw "no basis for overturning Biaggi's conviction for obstruction of justice. n1g6 While an indictment of one Robert Gulino was pending, a potential witness in that trial, Robert Perry, approached the defendant, Jeremiah Buckley and asked his assistance in making "arrangements for a job outside of the United States so that he, Perry, could not be subpoenaed in" case. l" Perry testified that he told Buckley "tell all" at the Gulino trial. Buckley found

the Gulino he would

Perry a job in Mexico and Perry avoided the subpoena. On appeal, Buckley argued that he was not guilty of obstruction in violation of § 1503 because he did not improperly induce the witness to testify, but only responded to Perry's request

lg6 & 105 (ellipsis in original).

197 United Water Power Co., 793 F. 2d 1079, 1084 (9th Cir. 1986).

333

for assistance. The court rejected the argument, applying 8 1503 to this form of witness tampering. l'* Another defendant attempted to subtly influence a potential witness to "hold back" on his grand jury testimony. Defendant suggested to witness that a third party (and common friend) "could do a lot for him," but never explicitly asked the witness to lie." ' The court held that this was enough to convict under the omnibus clause of § 1503. "I [Tl he fact that the effort to influence was subtle or circuitous made no difference. 'If reasonable jurors could conclude, from circumstances of the conversation, that the defendant had sought, however cleverly and with whatever cloaking of purpose, to influence improperly [a witness], the offense was complete. tW200 One defendant was also convicted of obstruction of justice for attempting to convince a witness to testify falsely. After trying to convince the witness that the $900,000 payment in question was, instead, a loan, O'Keefe said "[ iIf you don't explain this thing right, I'm in jail.@ t201 The court affirmed the conviction. Another defendant was convicted under the omnibus clause of

lg8 & at 1084- 85.

199 ted States v. Tedesco 635 F. 2d 902, 903- 04 (1st Cir. 19801, cert. denred . , 452 U. S. 962' (1981).

2oo L at 907 (citation omitted).

201 ted States v. O'Keefe. 722 F. 2d 1175, 1181 (5th Cir. 1983) (brackets in original).

334

S 1503 for "urg[ ing] or persuad[ ing] a prospective witness * to give false testimony. n202 Defendant approached the witness, a bank teller, and advised her that it would be "in her best interest" to forget about any large currency transactions which she may have processed for him. Misleading conduct or false statements towards an attorney can also constituted criminal obstructive behavior if they may "materially alter" the conduct of a proceeding. 203 Two examples are instructive:

One defendant, Barfield, worked as a DEA informant in connection with the investigation of Donald Flores. 204 After Flores was indicted, Barfield contacted Flares's attorney and provided the attorney with information regarding the factual basis for the indictment of Flores. Thereafter, in an apparent effort to assist Flares's defense, Barfield gave a sworn statement to Flares's attorney that was inconsistent with information he had originally provided. The United States indicted Barfield'for obstruction of justice, alleging that his provision of inconsistent information to Flares's attorney was intended to obstruct justice by providing Flares's attorney with a basis- for cross- examining

202 ed States v. SW, 836 F. 2d 1125, 1128 (8th Cir.)

(citing wed Sutes v. 788 F. 2d 1361, 1369 (8th Cir. w 198611, cert. denied, 486 U. S. ;058 (1988).

203 ted States v. Field, 738 F. 2d 1571, 1574 (11th Cir. 1988).

204 , 999 F. 2d 1520, 1523 (11th Cir. 1993).

335

Barfield and impeaching his testimony at Flares's trial. The Court concluded that the false statement to Flares's attorney was intended to "materially alter [the] government's treatment" of Flores, and thus constituted obstruction of justice. 205

D Two other defendants were officers of the Border Patrol. 206 They were charged with conspiring to secure sexual favors from illegal aliens whom they had encountered. While those charges were pending, they gave documentation to their attorneys which purported to provide them with an alibi and their attorneys provided the documentation to the United States. Subsequent investigation established that the documentation was fabricated, and a superceding indictment added a charge of obstruction of justice in violation of § 1503. Defendants' challenge to the sufficiency of the evidence supporting their conviction was rejected. 207

2. Civil Proceedings .

Obstruction of justice charges may also arise in the context of civil proceedings. For example, in a recent case of some notoriety the defendants were former officials of Texaco, Inc. 208 Texaco was sued in a civil class action employment discrimination

2o5 & at 1524 (citation omitted).

206 ted . States v. Davila , 704 F. 2d 749 (5th Cir. 1983).

207 z$, at 752- 53.

208 ted States v. TI& wall, 1 F. Supp. ld 249 (S. D. N. Y. 1998).

336

suit, alleging racial discrimination. The defendants were advised of the pendency of the lawsuit and the need to retain documents relevant to the lawsuit. Following a request for document production, the defendants allegedly withheld and then destroyed documents sought by plaintiff's counsel. Defendants were charged with a violation of § 1503. They moved to dismiss the indictment, arguing that the destruction of documents during civil discovery was not covered by 5 1503.

The district court rejected the defendants' First, the court broadly construed the term "due of justice":

[Tlhe words 'due administration of justice' import a free and fair opportunity to every litigant in a pending cause in federal court to learn what he may learn (if not impeded or obstructed) concerning the material facts and to exercise his option as to introducing testimony or such facts. The violation of the law may consist in preventing a litigant from learning facts which he might otherwise learn, and in thus preventing him from deciding for himself whether or not to make use of such facts. 20g

argument. administration

The court thus recognized that 8 1503 had been "repeatedly applied in a wide variety of civil matters. 80210 It therefore concluded that nothing in the statute limited its application to grand jury proceedings and denied the motion to dismiss.

The court also offered these observations on the use of 8 1503 in the prosecution of civil obstruction:

Of course, there are a great many good reasons why federal prosecutors should be reluctant to bring

2og & at 252. 210 L at 253.

337

criminal charges relating to conduct in ongoing civil litigation. Civil litigation typically involves parties protected by counsel who bring frequently exaggerated claims that, under supervision of a judicial officer, are narrowed and ultimately compromised during pretrial proceedings. Prosecutorial resources would risk quick depletion if abuses in civil proceedings -- even the most flagrant ones -- were the subject of criminal prosecutions rather than civil remedies. Thus, for numerous prudential reasons, prosecutors might avoid entering this area. But that is quite different from concluding that 5 1503 precludes their doing so.

. . . .

This case, however, goes beyond civil discovery remediable through civil sanctions. Defendants are not charged with concealing and destroying

abuse here

documents they incorrectly concluded were not sought, or erroneously thought to be irrelevant or burdensome. Rather, they are charged with seeking to impair a pending court proceeding through the intentional destruction of documents sought in, and highly relevant to, that proceeding. 211

In an earlier Ninth Circuit decision during the course of a civil case, the defendant falsely swore that a written employment agreement existed.* '* He also attempted to induce a witness to testify that she had seen a copy of the written agreement. Roberts was charged with perjury213 and with obstruction of justice for his effort to influence a witness. He argued that a simple effort to suborn perjury was not a violation of § 1503. The court rejected that argument, holding that the "obstruction of justice statute is broad enough to cover the attempted

*I1 L at 254- 55. The defendants were subsequently acquitted, following trial.

212 213 criminal

. Roberts v. United States , 239 F. 2d 467 (9th Cir. 1956). Thus, Roberts is another civil perjury case charged as a violation.

corruption. of a prospective District Court. n2'4

-.- 338

witness in a civil action in Federal A seminal Fourth Circuit case also bears mention.* 15 The defendants were charged under the predecessor statute of § 1503,* 16 for soliciting false testimony in a civil action. The court said:

[tlhe contention that a violation of section 5339, consisting of obstructing the administration of justice in a civil litigation, between private citizens in a federal court, is not an offense against the United States, need not be discussed at any length. One of the sovereign powers of the United States is to administer justice in its courts between private citizens. Obstructing such administration is an offense against the Untied States, in that it prevents or tends to prevent the execution of one of the powers of the government.*"

It therefore rejected the defendant's demurrer to the indictment. III. Witness and Evidence Tampering -- 18 U. S. C. S 1512

Although witness and evidence tampering are prohibited by § 1503's general prohibition upon obstruction of justice,* '* they are also specifically prohibited by 5 1512. This latter section

*I4 & at 470.

, 143 F. 433 (4th Cir. 1906). 216 section 5339, Rev. Stat. (U. S. Comp. 1901).

*I' L at 440 (citations omitted). 218 The House and Senate agree that actions prosecutable under 5 1512 can be prosecuted under § 1503 as well. m 134 Cong. Rec. S7446- 01 (June 8, 1988) (stating that the amendments are intended "merely to include in section 1512 the same protection of witnesses from non- coercive influence that was (& ti) found in section 1503") (emphasis added); I34 Cong. Rec. S17360- 02 (Nov. 10, 1988) (same).

339

provides, in part: (b) Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct21g toward another person, with intent to --

(1) influence, delay, or prevent the testimony of any person in an official proceeding;

(2) cause or induce any person to -- (A) withhold testimony, or withhold a record document, or other object, from an official proceeding;

(B) alter, destroy, mutilate or conceal an object with intent to impair the object's integrity or availability for use in an official proceeding . . .

shall be fined under this title or imprisoned for not more than ten years, or both.

18 U. S. C. § 1512( b). A. Elements Some elements of a § 1512( b) offense vary with the nature of the conduct charged -- for example, whether the person is charged under 5 1512 (b) (1) or under 5 1512 (b) (21, and whether the person is charged with tampering with the witness or evidence through "force," "corrupt[] persua[ sion]," or "misleading conduct."

219 Misleading conduct is defined by the statute as: (A) knowingly making a false statement; (B) intentionally omitting information from a statement and thereby causing a portion of such statement to be misleading, or intentionally concealing a material fact, and thereby creating

_ a false impression by such statement; . . .

(E) knowingly using a trick, scheme, or device with intent to misleadf. 1

18 U. S. C. 5 1515( a) (3). 76

340

However, because the elements break down into two types -- the defendant must have acted in a certain manner, and must have done so with the specific intent to tamper with a witness** ' -- the courts have generally interpreted the common elements uniformly, without regard to the subsection under which the defendant is charged.** l

In proving intent to influence a witness's testimony or tamper with evidence, the government need not show that the action (whether corrupt persuasion, misleading conduct, or force) was successful -- or even likely to be successful -- in altering that conduct.*** Rather, courts have stated that in proving

** ' m United States v. Gabriel. 125 F. 3d 89, 104 (2d Cir. 1997) (" Section 1512( b) has two elements that are germane to the offenses charged: (1) that the defendant engaged in misleading conduct or corruptly persuaded a person, and (2) that the defendant acted with an intent to influence the person's testimony at an official proceeding.").

** ’ See., && x& l 125 F. 3d at 103 (relying on case construing § 1512( a) (1) (C) Lo interpret 5 1512( b) (1)). Compare the following: In connection with a charged violation of 5 1512( b) (2) (B), the government must prove: "the defendant . . .

knowingly attempted to use intimidation or to corruptly persuade the person identified in the indictment; and the defendant did so with the intent to cause or induce the person to alter, destroy, mutilate, or conceal an object or impair the object's integrity or availability for use in a. federal . . . proceeding." United States . Mu 22 F. 3d 1365,1369 (6th Cir. 1994). "[ iIn ozder to prove the defendant guilty of the [§

Similarly, 1512( a) (1) (C) l charge in the indictment, the government must prove each of the following elements- beyond a reasonable doubt: First, that on or about the date charged, the defendant used intimidation, physical force, or threats, or attempted to do so; and second, that the defendant acted knowingly and with intent to prevent the communication to a law enforcement officer of information relating to the commission or possible commission of a federal offense." mted States v. StansfJeld, 101 F. 3d 909, 912- 13 (3d Cir. 1996).

222 riel, 125 F. 3d at 103- 05. 77

341

intent under § 1512, "it is the endeavor to bring about a forbidden result and not the success in actually achieving the result that is forbidden." 223 Unsuccessful or inchoate efforts to influence are also covered by the statute, therefore. 224 For example, when a defendant killed a potential witness in violation of § 1512( a), the Government could prosecute him without having to prove that the victim "was willing to cooperate or that an investigation was underway . _ . or even [that the victim] had evinced an intention or desire to so cooperate. 11225

B. Pending and Civil Proceedings

Section 1503's prohibition against obstruction of justice applies only when there is a proceeding pending at the time of the offense, but there is no such limitation upon S 1512; 226

223 u * d st t es v. Macfaitt, 784 F. 2d 590, 593 (5th Cir. 1986) (citations omitted)

224 It is an affirmative defense available to a defendant to show by a preponderance of the evidence "that the conduct [in question] consisted solely of lawful conduct and that the defendant's sole intention was to encourage, induce or cause the other person to testify truthfully." 18 U. S. C. § 1512( d). A defendant is not, of course, obliged to present such evidence. See senerally uted States v. Clem I 658 F. Supp. 1116, 1123- 26 (W- D. Pa. 1987).

225 ited States v. ROIWrQ, 54 F. 3d 56, 62 (2d Cir. 1995).

226 The Senate Report notes that the Congress intended in 5 1512 to remove the requirements in § 1503 that an inquiry be "pending" and that the witness's testimony be admissible in court. m S. Rep. 97- 532, 97th Cong., 2d Sess. 5 4. C (1982). Specifically, the Report notes that "( d) (1) obviates the requirement that there be an official proceeding in progress or pending" and that "the scope of the offense should not be limited by concerns about the status of the victim as a person who has testified or will be able to testify in court." See also Stansfield, 101 F. 3d at 913 (" The law does not require that a

342

Furthermore, a person may be charged under § 1512 even when the testimony or record in question is subject to a claim of privilege or otherwise not likely to be admitted at trial. '* ' While conviction under 8 1512 does- not require tlproof that the proceeding in question actually was pending . . . it [does] requirell . . . that the defendant 'fear- Led] t that such a proceeding 'had been or might be instituted' and 'corruptly persuaded persons with the intent to influence their possible testimony in such a proceeding. '" 228 In other words, there is still a requirement that the defendant intended to influence any possible future proceeding.** '

It is also evident that § 1512 permits prosecution for federal proceeding be pending at the time or even that it was about to be initiated when the intimidation, physical force or threats were made."); but United States v. Kassouf, 144 F. 3d 952 (6th Cir. 1998) (applying pending investigation limit of § 1503 to § 1512, over dissent citing other circuits to argue that no such limit applies).

The Senate Report also states that 'l( d) (2) makes explicit the theory that section 1512 is meant to protect the- integrity of the process. It is' not for the alleged violator to determine what is, or is not, legally privileged evidence or what evidence may prove to be legally inadmissible. These findings are made by the court, not someone who seeks to withhold the evidence." S. Rep. No 97- 532 at 5 4- C.

227 18 U. S. C. § 1512( e).

223 nited States v. Morrisan 98 F. 3d 619 (D. C. Cir. 1996) (quoting mted States v Keu, 36 F. 3d 1118, 1128 (D- C. Cir. 1994)) (some brackets in original).

22g z uted States . A- 515 U. S. 593 (1995) (reversing conviction for w" itness tambering under § 1503 L- which does have pending proceeding requirement -- where court found defendant had not intended to influence grand jury proceeding but had intended only to misdirect separate FBI investigation that did not count as l'proceeding" under § 1503).

343

witness or evidence tampering in a civil matter as well as in a criminal one, because § 1512( i) provides for enhanced penalties when the conduct in question occurs in the context of criminal proceedings -- enhancements that would be unnecessary if the general statute did not apply to the civil context.

C. Intent

To sustain a tampering charge, the government must prove intent. The type of proof needed depends upon tampering was performed through force, corrupt misleading conduct.

1. 'Misleading Conduct" Section 1512( b) (1) prohibits engaging in in order to influence testimony before a grand investigative body. "The most obvious example

whether the persuasion, or

misleading conduct jury or other of a section 1512 violation [for misleading conduct] may be the situation where a defendant tells a potential witness a false story as if the story were true, intending that the witness believe the story and testify to it before the grand jury." 23o

Such a violation occurred when the Governor of Guam (Ricardo Bordallo), who was accepting bribes and keeping the money for his personal use, told the person paying the bribes (Johnny Carpio)

230 & United States. v. Rod&_& z 786 F. 2d 77 (2d Cir. 1986) (dicta describing statute). An Unpublished disposition extended Rodolltz by holding that "[ tlhe witness tampering statute is offended not only by making false statements but also by providing potential witnesses with incomplete information in an attempt to hinder a prosecution." Klicxak v. Unrted Stat= 940 F. 2d 660 (Table), 1991 WL 132499 (6th Cir., July. 19, 1991;.

344

that the money was being used to help the poor. The Governor was convicted of witness tampering under 5 1512, and the Ninth Circuit upheld the jury verdict, stating: "The jury could have concluded that Bordallo initially knowingly misled Carpio, intending that Carpio would offer Bordallo's explanation concerning the funds to the FBI." 231

Analogously, several cases have held that a defendant violates 5 1512 by falsifying a handwriting exemplar with the intent to mislead a handwriting expert into testifying that the exemplar did not match the handwriting on the sample_ 232

2. "Corruptly Persuades" The term "corruptly persuades" was added to the statue in 1988, when Congress amended § 1512 in order to reach actions that reflected an intent to tamper with a witness but did not fall within the definition of "misleading conduct. n233 The difference between the two turns more upon the witness's level of knowledge and upon the defendant's degree of honesty. As explained above,

231 w mted_ StTtes v. Roru, 879 F. 2d 519, 525 (9th Cir.) (citing Rodolitz , amended on other aroun&_, 872 F. 2d 334 (9th Cir. 1988).

232 See, e- o. mted States v. YusU, 63 F. 3d 505 (7th Cir. 1995) (giving obstruction- of- justice sentence enhancement under 3Cl. I to defendant who so falsified his handwriting; citing three other cases doing same).

233 a H. R. Rep. No. 100- 169, at 13 n- 27 (100th Gong., 1st Sess., 1987). The revision was necessary because some circuits had held that the 1982 version of § 1512 did not prohibit. simply asking a witness to lie, reasoning that doing so was neither "misleading" nor "intimidating." w, 762 F. 2d 232 (2d Cir.

SX+, United States v, 1985); mted States v. Kulczvk, 931 F. 2d 542, 547 (9th Cir. 1991).

345

when a defendant lies to a witness hoping the witness will believe the falsehood and pass it on to investigators, this is "misleading conduct." But when a defendant simply asks a witness to lie (and the witness knows that he is being asked to lie), then the defendant is "corruptly persuading" that witness.

Several cases have recently discussed the meaning of "corruptly persuades."

. The D. C. Circuit comprehensively reviewed the interpretation of the term "corruptly persuades" in a 1991 case. 234 The defendant in that case, Morrison, had been charged with attempting to prevent a witness from testifying truthfully at trial because he had asked her to tell "anyone who asked" that he had been living with her for the past year (which he had not). Morrison argued on appeal that the term l'corruptly persuades" excluded from its coverage a "simple request to testify falsely. t1235 He also argued that the term

234 & I&, ited States v. Morrison, 98 F. 3d 619 (D. C. Cir. 1996).

235 L at 629.

346

required a "transitive" reading, referring to the "manner of influencing another, not the motive for influencing another. n236 The court agreed that the term "corruptly persuades" has a transitive meaning under 5 1512, but concluded that asking a person to lie did constitute corrupt persuasion because it constituted ~~ fcorrupt[ ion' of] another person by influencing him to violate his legal duty. N237 The Court therefore concluded that the evidence was sufficient to support Morrison's conviction. As the Court said: "while Morrison assuredly didn't use the word 'testify' or 'trial' when he attempted to influence Holmes' behavior, the clear import of this request was that 'anyone who asked' should be deceived." 238 . In another case, the defendant spoke to the mother of his

friend Brian shortly after FBI agents had visited her. 23g He 236 L (relying on the "transitive" reading given to the term "corruptly persuades" in the D. C. Circuit's interpretation of § 1505, m Wted States v. Podextey, 951 F. 2d- 369, 379 (D. C. Cir. 1992)).

238 L at 630; see al= ynited States v. Her& ez- J, imon I

15 F. 3d 1092, 1994 WL 2543 at ** I, ** 7 (9th Cir. 1994) (unpublished) (upholding conviction of defendant who told witness: "Tell the truth, that if you didn't know anything, I knew even less," as a corrupt attempt to persuade a co- defendant to lie).

Courts have rejected challenges to the use of the phrase "corruptly" in § 1512 as unconstitutionally vague. United States v. Schott 145 F. 3d 1289, 1998 m 384047 at *g-* 10 (11th Cir. July 10, ;998) (collecting cases).

23g See United, 80 F. 3d 641 (1st Cir. 1996).

347

advised her to "clean out everything that's Brian's room, get rid of everything because back with a search warrant," and admonished want to be responsible for putting your son

upstairs in the FBI will be her: "DO you in jai1? t1240 On

appeal, the First Circuit affirmed his conviction for violating § 1512( b) (2) (B). Construing the phrase Wtcorrupt persuasion," the court held that a defendant must "act knowingly and with intent to .impair an object's availability for use in a particular official proceeding. n24' . In another D. C. Circuit case, the court held that the jury

must 'be reasonably able to infer from the circumstances that [defendant], fearing that a grand jury proceeding had been or might be instituted, corruptly persuaded persons with the intent to influence their possible testimony at such a proceeding. W242

IV. Conspiracy -- 18 U. S. C. § 371

A. Generally Title 18 U. S. C. § 371 provides, in pertinent part, that it is a crime:

240 ;IdL at 646. 241 & at 651.

242 ited States v. KP 1994). See am yDited State%

, 36 F. 3d 1118, 1128 (D. C. Cir. Mull&& 22 F. 3d 1365 (6th Cir. 1996) (finding intent proven where government showed that. defendant had instructed varioas employees to alter their log books prior to producing them in response to a grand jury subpoena, because intent encompassed the "general intent of knowledge as well as the specific intent of purpose to obstruct").

348

If two or more persons conspire . . _ to commit any offense against the United States . . . and one or more of such persons do any act to effect the object of the conspiracy . . . .

The essence of the crime of conspiracy is a criminal partnership, that is, an "agreement among the conspirators to commit an offense attended by an act of one or more of the conspirators to effect the object of the conspiracy. n243 II [Tlhe gist of conspiracy is the agreement; that of aiding, abetting or counseling is in consciously advising or assisting another to commit particular offenses, and thus becoming a party to them; that of substantive crime, going a step beyond mere aiding, abetting, counseling to completion of the offense."" '

Section 371 is violated when two or more persons conspire or agree to engage in conduct which is prohibited by a substantive federal statute, and one does an act in furtherance of that agreement. This includes federal statutes prohibiting obstruction of justice and false statements. 24s A single

243 u ' d it t es v. Falcone, 311 U. S. 205, 210 (1940). ton . United State& 328 U. S. 640, 649 (1946) (Rutledge, J. disse: ting) (emphasis'added).

245 See, e. cr., Wted States v. Ful&&& 105 F. 3d 443, 446 (9th Cir. 1997) (conspiracy to obstruct justice); mted States v, Kellev 36 F. 3d 1118 (D. C. Cir. 1994) (conspiracy to obstruct justice and tamper with witnesses in- violation of 18 U. S. C. . 89 1503, 1512); UnitedStates= , 28 F. 3d 1399, 1403 (5th

Cir. 1994) (conspiracy to obstruct justice); Wed States v. w, 22 F. 3d 1365, 1367 (6th Cir. 1994) (same); pnited States v. Curs 804 F. 2d 625, 628 (11th Cir. 1986) (conspiracy to make false skatements in violation bf 18 U. S. C. 5 1001); Wted States v. Jetey: 775 F. 2d 670, 682- 83 (6th Cir. 1985) (conspiracy to obstruct'justice under 18 U. S. C. 5 1503); United States v, Tread ell. 760 F. 2d 327, 333 (D- C. Cir. 1985) (conspiracy to make falsewsta; ements in violation of 18 U. S. C. § 1001); Wted Stat-

349

conspiracy may involve the violation of many statutes. 246 Because it is the criminal partnership agreement itself which is the crime, the success of the conspiracy or the attainment of its objective is immaterial. The crime is complete once the agreement is reached and a reasonably foreseeable overt act is committed in furtherance of the objective of the conspiracy by one of its members. 247 Moreover, because the agreement is a crime in and of itself, a defendant may be convicted of both the conspiracy and the substantive offense which is the object of the conspiracy. 248

A conspirator is criminally liable not only for his or her own acts but "all of the acts of his coconspirators undertaken in furtherance of the conspiracy and reasonably foreseeable to" the defendant. 24g Thus, if a co- conspirator commits a crime that (1) furthers the object of the conspiracy that (2) the defendant could have reasonably foreseen, the defendant is criminally

v. Heldt, 668 F. 2d 1238, 1250- 51 (D. C. Cir. 1981) (describing conspiracy to obstruct justice under § 1503 and upholding conviction); Wted States v. Shou, 608 F. 2d 950, 956 (3d Cir. 1979) (upholding conviction for conspiracy to obstruct justice under 8 1503); Wted States v. Franklin 598 F. 2d 954, 955 n. 1 (5th Cir. 1979) (per curiam) (conspiracy'to obstruct justice).

246 See. e. u._, United States v. Richerson, 833 F. 2d 1147, 1153- 54 (5th Cir. 1987).

247 m ynited States v. KQ& y 848 F. 2d ynited States v. NicolJ., 664'F. 2d 1308,

920, 922 (8th Cir.. 1988); 1315 (5th Cir. 1982).

248 &e merton, 328 U. S. at 645- 46.

249 ted States v. Dovle, 121 F. 3d 1078, 1091 (7th Cir. 1997); see al= mted States v. Casm, 113 F. 3d 420, 427 (3d Cir. 1997).

350 I

liable as if he or she had committed the crime personally. B. Elements of § 371

To sustain a conviction for conspiracy, the government must prove three elements: (1) that there was an agreement to commit a federal offense; (2) that the defendant knowingly and voluntarily joined the agreement; and (3) that at least one overt act was committed in furtherance of the object of

1. Existence of an Agreement In general, a conspiracy requires an

the agreement. 250 agreement or understanding to violate the law. This criminal partnership or meeting of the minds "need not be proven by direct evidence; a common purpose and plan may be inferred from a 'development and

250 a United States v. Mu, 22 F. 3d 1365, 1368 (6th Cir. 1994); accord United States v. Des 55 F. 3d 640, 647 (D. C. Cir. 1995); wd States v. Treadwell. ;60 F. 2d 327, 333 (D. C. Cir. 1985). The model federal jury instructions denote the elements thus:

1. The conspiracy, agreement, or understanding to violate one or more federal statutes or defraud the United States was formed, reached or entered into by two or more persons;

2. At some time during the existence or life of the conspiracy, agreement, or understanding, one of its alleged members knowingly performed an overt act in order to further or advance the purpose of the agreement;

3. At some time during the existence or life of the conspiracy, agreement or understanding, the defendant knew the purpose of the agreement, and then deliberately joined the conspiracy, agreement or understanding.

Edward J. Devitt, Charles B. Blackmar & Kevin F. O'Malley, FEDERAL JURY PRACTICE AND INSTRUCTIONS § 28.03 (1990).

351

collocation of circumstances. 'n251 ." Conspiracy can be proven circumstantially; direct evidence is not crucial. . . .

Seemingly innocent acts taken individually may indicate complicity when viewed collectively and with reference to the circumstances in general."* '* "Because a conspiratorial agreement is often reached in secrecy, the existence of the agreement or common purpose may be inferred from relevant and competent circumstantial evidence." 253

251 ser . Ud Stat- 315 U. S. 60, 80 (1942); Uni, i

States v. Khpyyy, V901 F. 2d 948, 962 (11th Cir. 1990).

252 . . ted States . m,

1984) (citations omittevd). 725 F. 2d 862, 865 (2d Cir.

253 -lard 663 F. 2d 534, 543 (5th Cir.

1981). Thus courts charge juries:

A criminal conspiracy is an agreement or a mutual understanding knowingly made or knowingly entered into by at least two people to violate the law by some joint or common plan or course of action. A conspiracy is, in a very true sense, a partnership in crime.

A conspiracy or agreement to violate the law, like any other kind of agreement or understanding, need not be- formal, written, or even expressed directly in every detail.

To prove the existence of a conspiracy or an illegal agreement, the government is not required to produce a written contract between the parties or even produce evidence of an express oral agreement spelling out all the details of the understanding. . . .

The government must prove that the defendant and at least one other person knowingly and deliberately arrived at some type of agreement or understanding that they, and perhaps others, would (violate some law( s)) by means of some common plan or course of action. . . . It is proof of this_ conscious understanding a? id deliberate agreement by the alleged members that should be central to your consideration of the charge of conspiracy.

Devitt, Blackmar & O'Malley, FEDERAL JURY PRACTICE AND INSTRUCTIONS

352 I

For example, "coordinated actions of the co- defendants are strong circumstantial evidence of an agreement. 11254 The jury "may infer the existence of a conspiracy from the presence, association, and concerted action of the defendant with others. n25' The government need merely prove that the "defendant knew the essential objective of the conspiracy;" it need not prove that the defendant knew the details or played an extensive role. 256

A tacit or implicit understanding is sufficient to fulfill the agreement requirement; the conspirators need not formally contract with each other. 257 The existence of an implicit agreement "may be inferred from acts done with a common purpose_ N258 The government may establish an implicit agreement

§ 28.04.

254 s , 876 F. 2d 774, 777 (9th Cir.

1989).

255 ted States v. Go-, 121 F. 3d 928, 935 (5th Cir. 1997).

256 m mted States v. Suba, 132 F. 3d 662, 672 (11th Cir. 1998).

257 e United States v. Roone, 951 F. 2d 1526, 1543 (9th Cir. 1991); ynited States _ Reifsteck 841 F. 2d 701, 704 (6th Cir. 1988) (" A tacit or murual understanding between or among the alleged conspirators is sufficient to show a conspiratorial agreement."); United States v. Avotte, 741 F. 2d 865, 867 (6th Cir. 1984) (" Proof of some kin& of formal agreement is not necessary to establish a conspiracy").

258 Avotte, 741 F. 2d at 867; accord mted States v. Alvarez, 548 F. 2d 542, 544 (5th Cir. 1977).

353

by showing "[ tlhe coordinated actions of the co- defendants, 11255 or by "acts done with a common purpose." 260 A jury can conclude that the defendant was part of an implicit agreement from evidence that the conspirators "acted as a team" or by a defendant's "knowledge of the scope of the operation. 11261

For example, the Sixth Circuit found an implicit agreement to commit health insurance fraud by misrepresenting the identity of the patient even though the defendant (the patient) was unconscious and injured when the conspiracy began. The court held that the defendant "furthered the conspiracy" by responding to the name of a person with insurance, and "signed various forms." "These acts sufficiently established a tacit and mutual understanding . . . and show conspiratorial agreement. 1@ 26?

2. Membership in the Conspiracy The prosecution must also prove a defendant's membership in a conspiracy. The evidence need not prove that the defendant knew all the details of the conspiracy or the identities of all the participants. 263 Mere presence or association, however, is

259 nlted Hem, States v. 876 F. 2d 774, 788 (9th Cir. 1989).

260 nrted Milliaa, States v. 17 177, 183 F. 3d (6th Cir. 1994).

261 Foone, 951 at 1543. F. 2d

262 m, 17 at * - F. 3d 183. 263 m States v. Mass2 ynited 740 629, 636 F. 2d (8th Cir. . . 1984); United States v. Diecldue , 6b3 F. 2d 535, 548 (5th Cir. 1979).

354

not sufficient to establish membership in a conspiracy. 264 The acts and declarations of co- conspirators are admissible to prove a defendant's membership in a conspiracy. 265 To admit a co- conspirator statement or act, the prosecution need only show by a preponderance of the evidence to the trial judge there is "evidence that there was a conspiracy involving the declarant and the nonoffering party, and that the statement was made in the course and in furtherance of the conspiracy." 266 The trial

264 &,= ynited States v. Cintolo, 818 F. 2d 980, 1003 (1st Cir. * . 1987); ynited States v. I% izuu 725 F. 2d 862, 865 (2d Cir. 1984). Thus, the standard charge to'the jury is:

the evidence . . . must show beyond a reasonable doubt that the defendant knew the purpose or goal of the agreement or understanding and deliberately entered into the agreement intending, in some way, to accomplish the goal or purpose by this common plan or joint action.

If the evidence establishes beyond a reasonable doubt that the defendant knowingly and deliberately entered into an agreement . . . the fact that the defendant did not join the agreement at its beginning, or did not know all of the details of the agreement, or did not participate in each act of the agreement, or did not play a major role in accomplishing the unlawful goal is not important to your decision regarding membership in the conspiracy.

Merely associating with others and discussing common goals, mere similarity of conduct between or among such persons, merely being present at the place where a crime takes place or is discussed, or even knowing about criminal conduct does not, of itself, make someone a conspirator.

Devitt, Blackmar & O'Malley, FEDERAL § 28.05.

265 Fed. R. Evid. 801( d) (2) (E) member of- the conspiracy or a

JURY PRACTICE AND INSTRUCTIONS (" A statement is not hearsay if... [it is1 a statement bps co- conspirator of a party during the course and in furtherance of the conspiracy.").

. * oun& v . United States, 483 U. S. 171, 173- 79 (1987) d. R. Evil. 104).

355

court's inquiry at this stage "is not whether the proponent of the evidence wins or loses his case on the merits, but whether the evidentiary Rules have been satisfied. Thus, the evidentiary standard is unrelated to issue." 26'

Once the government the burden of proof on the substantive

demonstrates that a conspiracy exists, its burden in showing that any particular defendant was a member of that conspiracy is light. The government need merely present "slight evidence . . . to implicate a defendant. w268 f1 [Elvidence which established beyond a reasonable doubt that a defendant is even slightly connected with the conspiracy is sufficient to convict him of knowing participation in the conspiracy. 1* 26g

3. Overt Act

To sustain a conviction of conspiracy the government must also prove beyond a reasonable doubt that an overt act was done in furtherance of the conspiracy. The government need not prove that the defendant personally committed an overt act in furtherance of the conspiracy. The government need only prove

267 , 483 U. S. at 175. The prosecutor need not produce evidence independent of the statements themselves to show the existence of a conspiracy for evidentiary purposes, rather any evidence, except privileged communications, may be considered by the trial court, including the very statements being offered into evidence. L at 177( overruling the "independent evidence". holdings of Qasser v. United States 315 U. S. 60 (19421, and

ed States v. Na, 418 U. S. 683'( 1974)).

268 ted States v. . . Mw , 17 F. 3d 177, 183 (6th. Cir. 1994).

269 ted States v. Boom, 951 F. 2d 1526, 1543 (9th Cir. 1991).

356

"that one of the co- conspirators did one or more overt acts in furtherance of the conspiracy." 270

C. Withdrawal Defense Withdrawal from the conspiracy can be a conditional or an absolute defense to the crime of conspiracy, depending on when the withdrawal occurs. If the defendant withdraws from the conspiracy before any of the co- conspirators commits an overt act in furtherance of the conspiracy, the withdrawal is an absolute defense and the defendant cannot be convicted of the conspiracy. If a single overt act has occurred, withdrawal is not an absolute

270 ted States v. Follow, 128 F. 3d 1254, 1257 (8th Cir. 1997). Thus the pattern jury instruction reads:

that one of the members to the agreement knowingly performed at least one overt act and that this overt act was performed during the existence or life of the conspiracy and was done to somehow further the goal( s) of the conspiracy or agreement.

The term "overt act" means some type of outward, objective action performed by one of the parties to or one of the members of the agreement or conspiracy which evidences that agreement.

Although you must unanimously agree thatthe same overt act was committed, the government is not required to prove more than one of the overt acts charged.

The overt act may, but for the alleged illegal agreement, appear totally innocent and legal.

Devitt, Blackmar & O'Malley, FEDERAL JURY PRACTICE AND INSTRUCTIONS S 28.07; See also United States v. Hermes, 847 F. 2d 493, 495 (8th Cir. 1988) (" government need show that only one of the conspirators engaged in one overt act in furtherance of the conspiracy, and the act itself need not be criminal in nature").

357

defense to the conspiracy charge.* 'l Withdrawal after the commission of an overt act, on the other hand, is a conditional defense. Such withdrawal excuses the defendant from liability for all criminal acts committed by the co- conspirators after the date of the withdrawa1.272 The defendant remains liable, however, for all reasonably foreseeable crimes committed by co- conspirators in furtherance of the conspiracy before the date of withdrawal, as well as for the conspiracy itself.

To demonstrate withdrawal from the conspiracy, the defendant must prove (1) that he or she has taken affirmative steps, inconsistent with the objectives of the conspiracy, to disavow or to defeat the objectives of the conspiracy and (2) that he or she has made a reasonable effort to communicate those acts to the co- conspirators or that he or she has disclosed the scheme to law enforcement authorities. 273 The burden of proof of withdrawal rests on the defendant. 274 The Eleventh Circuit has characterized the defendant's burden as nsubstantial." 275

Mere physical distance from the co- conspirators is

271 i5. c. e

Cir. 1988).

272 see

Cir. 1991).

273 s. e_ e

ted States v. Sarau; lf_, 840 F. 2d 1479, 1487 (9th ynited States v. r# ash, 937 F. 2d 1077, 1083- 85 (6th

ted States v. Dab&, 134 F. 3d 1071, 1083 (11th

Cir. 1998) (crtation omittea1.

274 &g United States v. Pavne, 962 F. 2d 1228, 1234- 35 (6th Cir. 1992).

275 Dabbs, 134 F. 3d at 1083.

358

insufficient to demonstrate withdrawal. If, however, the defendant completely severs ties with the conspiracy, a court will find that the defendant withdrew absent evidence of continued acts in furtherance of the conspiracy or evidence that the defendant continued to conspiracy. 276

Even if the defendant receive benefits from the

takes affirmative action contrary to the objectives of the conspiracy, his or her withdrawal may be ineffective if he or she acquiesced in the conspiracy after the affirmative act. Thus, n [cl ontinued acquiescence negates withdrawal, leaving [the defendant] liable for the continuing acts in furtherance of the conspiracy by the other conspirators.~ '277

v. Aiding and Abetting -- 18 U. S. C. 0 2( a)

A. Generally

Title I8 U. S. C. § 2( a) governs liability for aiding and

Cir. :: 95$ d_; w ynited States v. Ant=, 53 F. 3d 568, 582- 83 (3d

"' m, 937 F. 2d at 1084. As the model federal jury instructions put. it:

In order to withdraw from the conspiracy the defendant must take some definite, decisive, and affirmative action to disavow (himself) (herself1 from the conspiracy or to defeat the goal or purpose of the conspiracy.

Merely stopping activities or cooperation or merely being inactive for a period of time is not sufficient to constitute the defense of withdrawal.

Devitt, Blackmar & O'Malley, FEDERAL JURY PRACTICE AND INSTRUCTIONS 5 28.11; see. e. g._, United- States v. Nerliw, 862 F. 2d 967, 974 (2d Cir. 1988).

359

abetting in the commission of a federal crime. This section provides:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

This section is premised on the common law view that a person who does not personally commit a crime but orders or assists another in committing that crime is as guilty as if he or she had committed the crime personally.. The quintessential case of aiding and abetting is the getaway driver for a bank robbery., Although the getaway driver does not personally rob the bank, his or her assistance in the crime is sufficient to warrant his or her prosecution for the crime of bank robbery itself. 278

In an aiding and abetting case, the person who actually commits the crime is called the principal. If the jury finds, beyond a reasonable doubt, that the aider and abettor aided, abetted, counseled, commanded, induced, or procured the principal to commit a federal crime, it should find the aider and abettor guilty. The aider and abettor is then subject to the same criminal penalties as the principal would be.

278 Also of potential applicability to conduct of this general nature is the misprision of felony provision, 18 U. S. C. 5 4 which provides:

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known‘ the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned for not more than three years, or both.

360

Defendants have been charged with aiding and abetting the obstruction of justice on numerous occasions. 27g

In one case, the Sixth Circuit affirmed a conviction for aiding and abetting the obstruction of justice when a defendant attempted to convince a witness to tell a false story to federal investigators to keep a third person from being prosecuted for a weapons violation. This charge was affirmed despite the fact that the third person was not charged with the weapons violation .280

B. Elements The crime of

of S 2 (a)

aiding and abetting has three elements. The government must prove beyond a reasonable doubt (1) an act by a defendant that (2) contributes to the execution of a federal crime (3) committed with the intent to aid in the commission of that crime. 2e1

"' See, e. g,, Ynited States v. Fulbrig& 105 F. 3d 443 (9th Cir. 1997) (allowing the charge, although finding insufficient evidence); United States v. Morru, 1997 WL 331784, at *l (4th Cir. June 18, 1997) (per curiam); United St- rtes v. Balk, 28 F. 3d 1399, 1403 (5th Cir. 1994); 1, 870 F. 2d 109, 110 (3d Cir. 1989); yaited States v. MC-, 799 F. 2d 443, 445 (8th Cir. 1986); llnjfed States . v. Franklin, 598 F. 2d 954, 955 n. 1 (5th Cir. 1979); wck v. United States, 891 F. Supp. 72, 73 (N. D. N. Y. 1995); tited States v. Tota, 672 F. Supp. 716, 723- 24 (S. D. N. Y. 1987); united States v. J, ouie, 625 F. Supp. 1327, 1331 (S. D. N. Y. 1985). -

‘a’ & mted States v. Wi&.&& a~, 1996 WL 665379 (6th Cir. Nov. 15, 1996).

** I & United States v. Stz&& y, 765 F. 2d 1224, 1242 (5th Cir. 1985). The model federal jury instructions denote it thus:

In order to be found guilty of aiding and abetting the commission of the crime charged in . . _ the indictment, the

361

1. Act The statute itself lists several acts, all in the nature of instruction, that are sufficient to support liability.*** Therefore, if the defendant directs the principal to commit the crime, that fact in and of itself is sufficient to satisfy the act element of aiding and abetting.

Besides instruction, the aider and abettor may simply perform some act that assists the principal in completing the crime. This occurs when the defendant "does not do all of the things which causes a crime to be complete but only a portion of the various items that are required to complete the crime; n283 The defendant must have lUcommitted some overt act designed to facilitate the success of the criminal venture," and the act must

government must prove beyond a reasonable doubt that the Defendant:

One, knew that the crime charged was to be committed or was being committed,

Two, knowingly did some act for the purpose of (aiding) (commanding) (encouraging) the commission of that crime, and

Three, acted with the intention of causing the crime charged to be committed.

Edward J. Devitt, Charles B. Blackmar, Michael A. Wolff & Kevin F. O'Malley, FEDERAL JURY PRACTICE AND INSTRUCTIONS p 18.01 (1992) .

a2 m 18 U. S. C. § 2( a) (" counsels, commands, induces or procures") .

283 States v. Wailer, 607 F. 2d 49, 51 (3d Cir. 1979) (approving jury instructions).

362

"contribute[] to the execution of a crime. n284 2. Crime Committed The principal need not be convicted and punished for the aider and abettor to be charged. In fact, the Supreme Court has held that a conviction for aiding and abetting should be upheld even if the principal has been acquitted of that offense. 285

Nonetheless, the jury must be convinced that the federal crime, in fact, did occur. 286 Thus, showing that the government failed to prove beyond a reasonable doubt that a completed federal crime was committed is a complete defense to aiding and abetting.

3. Intent Central to the crime of aiding and abetting is the aider and abettor's affirmative desire to see that the federal crime actually be committed. An unknowing participant in a crime, who assists without knowledge of the principal's criminal intentions, is not guilty of aiding and abetting.

The aider and abettor must share with the principal "a community of unlawful purpose at the time the act is

284 ted States v. Star& y, 765. F. 2d 1224, 1242 (5th Cir.. 1985).

'a5 m Stanfeder v. United States, 447 U. S. 10, 14- 20 (1980).

286 see United . 105 F. 3d 443, 452 (9th Cir. 1997); msatesv., 60; F. 2d 49, 52 (3d Cir. 1979).

363

committed. 1f2* 7 The aider and abettor must wish that the crime occur and must seek by his or her acts to make it succeed. 2* a

The sharing of criminal intent need not rise to the level of

an agreement that would support a conspiracy charge. 2a3 Similarly, the "aider and abettor need not know every last detail of the substantive offense. 1t230 As the Eighth Circuit has put it: "Participation is wilful if done voluntarily and intentionally, and with with the requires

C. the specific intent to do something the law forbids, or

specific intent to fail to do something that the law

to be done. I’291

Defenses and Limitations

The government may not convict a defendant for aiding and abetting merely because the defendant was present at the scene of the crime or was known to associate with the principal. 2g2 As explained above, the government must show that the defendant intended for the crime to be committed and assisted in its

287 , 195 F. 2d 673, 675 (8th Cir.

1952). 2* 0 a. e 1990).

20g if& e

(1949). ted SW v. Martin I 920 F. 2d 345, 348 (6th Cir.

#, 336 U. S. 613, 618

290 nlted States v. Sa, 563 F. 2d 488, 491 (1st Cir. 1977).

291 ted States v. McK~. ig,& 799 F. 3d 443, 446 (approving jury instruction): (8th Cir. 1986)

2g2 ynited &g States v. Oberle, 136 F. 3d 1414, 1422 (10th Cir. 1998).

100

364

commission by some act. Aiding and abetting is a specific intent crime. 2g3 As a result, for example, voluntary intoxication is a defense to the crime of aiding and abetting. 2g4 This is true even if voluntary intoxication is not a defense to the underlying crime. 2g5 VI. Use of an Intermediary -- 18 U. S. C. S 2( b)

A. Generally

Traditional aider- and- abettor liability under 18 U. S. C. 8 2( a) requires that the principal and the defendant share criminal intent. Because a defendant using an innocent dupe to commit a crime is no less culpable than a defendant assisting another in the commission of a crime, Congress passed 18 U. S. C. fi 2( b) to criminalize the use of an intermediary to commit a crime. This section provides:

Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

The quintessential case is an employer who instructs an employee to mail a fraudulent document. Even though the employer did not use the mails directly, he or she still is guilty of mail

2g3 Se_ e United States v. . Savetstty , 107 F. 3d 1405, 1412 (9th Cir. 1997); but see 2, 867 F. 2d 436, 445 (8th Cir. 3989).

2g4 .& i~ Uniteds v. HataLky, 130 F. 3d 1399, 1404- 0s (10th Cir. 1997).

2g5 m & at 1404 (voluntary intoxication is not a defense to voluntary manslaughter but is a defense to aiding and abetting voluntary manslaughter).

101

365

fraud. 2q6 The primary burden of the government is to show that the defendant "willfully cause[ d] an act to be done by another which would be illegal if he did it himself. n2q' The actions of the intermediary must be such personally, the defendant

B. Intent that, had the defendant done them

would have committed a crime. Unlike traditional aider- and- abettor liability, the government need not prove that the intermediary had any criminal intent.* '* The the government either.*" The

intermediary's mental state is wholly irrelevant; need not prove that the intermediary was innocent government must prove that the defendant had the mental state that would be required for a violation of the underlying offense. 300

296 297

299, 307

298

127 F. 3d 380, 388

m 2, 347 U. S. 1 (1954).

mted States v, West- es Trwrt. In%, 127 F. 3d (3d Cir. 1997).

See., United States v. West Indies Tran. s. r? ort. h 299, 307 (3d Cir. 1997); United States v. Ww, 3 F. 3h (11th Cir. 1993) (" an individual is criminally culpable for causing an intermediary to commit a criminal act even though the intermediary has no criminal intent and is innocent of the substantive crime"); see also Uted States v. La-, 857 F. 2d 529, 535 (9th Cir. 1988).

*" & 2, 545 F. 2d 802, 806 (ad Cir. 1976).

3oo &I= ynited States v. Gabriel 125 F. 3d 89, 99, 161 (2d Cir. 1997); United States v. Trh 19$ 8 WL 427550 at *4- *6 (D. D. C. July 17, 1998) (holding same but noting elements of such proof would be higher in federal election law context); United States v. Cur=, 20 F. 3d 560, 569 (3d Cir. 1994) (same).

102

366

C. Particular Cases

Courts have allowed charges for using an intermediary to commit a perjury or false statements offense. 301 . The Eleventh Circuit found that a defendant was guilty of

perjury where he gave a witness a false document and then

allowed the witness to introduce it into evidence at a trial. Even though the defendant was not under oath and the witness did not commit perjury because he was not aware that

the document was false, the defendant's actions were sufficient to trigger criminal liability under 8 2( b). 302 . In another case, the Second Circuit found sufficient

evidence to support a conviction where the defendant used an intermediary in filing a false report. There, the defendant knew that the intermediary was preparing the report, "knew that the portfolio reports were false and misleading," and failed to provide correct information though requested to do so by the preparer. This evidence was found sufficient to support the conviction. 303

"I See. e- a., tited States v. Nola 136 F. 3d 265 (2d Cir. 1998) (filing false reports under 18 U. S. Cl § 1027); United States v. West Lx& es TrwDort. InG 127 F. 3d 299, 307 (3d Cir. 1997) (" When a defendant uses an innokent intermediary to . . .

make false statements to the government, the criminal intent of the intermediary is not an element of the crime."); ued States v. Gabriel 125 F. 3d 89, 99 (2d Cir. 19971 (false statements in violation Af 18 U. S. C. 5 1001). -States, 3 F. 3d 380, 388 (11th Cir. 1993) (periury).

302 ti Walser, 3 F. 3d at 389. 303 &JQ& Q, 136 F. 3d at 272.

103

367 . In a third case, a jury found a defendant guilty of making

false statements in the form of false packing slips. The court found that evidence that the defendant "had some influence" over the slip preparers and "used that influence to cause [the preparers] to prepare the false slip" was sufficient to support criminal liability. 304

VII. Evidentiary Issues

We briefly summarize in this section certain evidentiary principles that appear to bear on the conduct described in this Referral. It is, of course, for Congress to assess the evidence as it sees fit. These principles, however, bore upon the Office's own judgment as to the substance and credibility of the information presented.

A. Circumstantial Evidence Courts distinguish "direct evidence" from "circumstantial evidence." A witness may provide direct evidence of- a fact by stating the fact in testimony based on personal knowledge. 305 For example, a witness might provide direct evidence that a defendant destroyed documents by testifying that he or she saw the defendant shred them.

A witness may supply circumstantial evidence of a fact by 304 m Gabriel, 125 F. 3d at 100.

* . 305 &= Black's Jlaw DictioagEy 460 (6th ed. 1990) (defining direct evidence as "testimony from a witness who actually saw, heard or touched the subject of questioning").

104

368

testifying about circumstances from which the jury may infer fact. 306 For instance, a witness may provide circumstantial

the evidence that the defendant destroyed documents by testifying that the documents were intact when the defendant went to examine them, but were found shredded immediately afterward. Although the witness did not see jury may infer that the witness's testimony.

the defendant destroy the documents, the defendant shredded them based on the

One Court of Appeals has explained the difference between direct evidence and circumstantial evidence as follows:

The distinction between these two types of evidence is that with direct evidence, the jury does not have to draw inferences to decide whether the fact asserted exists, the evidence directly supports the existence or non- existence of the fact and the jury's involvement is to decide whether they believe what the witness says. With circumstantial evidence the jury must decide whether to draw the inference or connection between the evidence presented and the fact asserted. 307

Even though the two types of evidence may be distinguished they are of equal probative weight."* A jury may convict a

. I ictl- at 243 (defining circumstantial ony not ba) sed on actual personal knowledge or observation of the facts in controversy, but of other facts from which deductions are drawn, showing indirectly the facts sought to be proved.").

307 ted States v. Henderson I 693 F. 2d 1028, 1031 (11th Cir. 1982).

308 Thus, the standard jury instruction on the consideration of evidence reads:

There are two types of evidence you may consider. One is direct evidence -- such as testimony of an eyewitness. The other is indirect or circumstantial evidence -- the proof of circumstances that tend to prove or disprove the existence or nonexistence of

105

369

defendant of a crime based solely on circumstantial evidence, provided that the evidence proves the defendant guilty of each of the elements of the crime beyond a reasonable doubt. 30g For example, in one case a jury convicted the defendant of obstruction of justice based solely on circumstantial evidence that he had altered documents sought by a subpoena. Although the defendant denied wrongdoing, the court stated: "A reasonable jury was entitled to believe the government's circumstantial evidence and disbelieve [the defendantl. n310

Civil proceedings usually require proof only by a preponderance of the evidence. Because circumstantial evidence can prove guilt beyond a reasonable doubt, it naturally also can satisfy this lower standard. 311 As the Supreme Court stated in one civil case, "direct evidence of a fact is not required.

certain other facts. The law makes no distinction between direct and circumstantial evidence, but simply requires that you find the facts from a preponderance of all the evidence, both direct and circumstantial.

Devitt, Blackmar & O'Malley, FEDERAL JURY PRACTICE AND INSTRUCTIONS 5 72.03.

3og & &&& v. United Stat-, 348 U. S. 121, 139- 140 (1954). At one time, some courts held that a jury could convict based solely on circumstantial evidence only if the evidence excluded "every reasonable hypothesis except that of guilt."

on v. Unlted State8 408 F. 2d 1097, All of the circuits, how& er, 1098 (5th Cir. 1969).

now have rejected that rule. & ted States v. Rely, 678 F. 2d 547, 549 n. 3 (5th Cir. 1982) (en bane) (listing cases), aff'd 462 U. S. 356 (1983).

310

1997). States v. Rroob, 111 F. 3d 365, 373 (4th Cir.

. . . 311 isee Federal

k, 404 U. S. 453, 469 & n- 21 (1972). 106

370

Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence. 11312

B. Inferences from False Exculpatory Testimony

Criminal suspects often make exculpatory statements to

. investigators or to the courts (an alibi, for example). The courts have held that, if a jury determines that the exculpatory statement was false, it may draw an inference adverse to the suspect. In particular, the jury may consider the false statement to be circumstantial evidence that the defendant had a consciousness of guilt. 3'3 The jury may draw this inference because an innocent person generally does not have a reason to fabricate a description of his or her conduct. 314

One defendant, for example, told the police that he could not have committed a robbery because he was at a different location when the robbery occurred. The prosecution later produced evidence contradicting this statement. The court of appeals held that the trial judge properly had instructed the jury that, if it found the defendant's testimony false, it could infer that the defendant was conscious of his guilt. 315

312

(1960). c v. ClevelandTankers. InG, 364 U. S. 325, 330

‘13 * . See Government I~ lads v. Testamxk , 570 F. 2d 1162, 1168 (3d Cir. 1978).

314 m UnitedStates 840 F. 2d 143, i48 n. 4 (1st Cir.), cert. denied 488 U. S. 860 (1988).

315 ted States v. Inarm, 600 F. 2d 260, 262 (10th Cir. 1979).

107

371

C. Willful Blindness The term "willful blindness" refers "to a situation where the defendant tries to avoid knowing something that will incriminate." 3'6 The federal courts equate willful blindness with knowledge. 317 As a result, if a federal criminal statute requires a defendant to have knowledge of a fact, proof of deliberate ignorance of the fact generally will suffice to establish proof of knowledge of the fact. 31*

For example, a participant in a drug smuggling operation deliberately avoided determining that a secret compartment in an automobile contained marijuana. 31g He argued that a jury could not convict him of knowingly importing drugs into the United States because he did not actually know that the compartment contained drugs. The Ninth Circuit rejected this argument, holding that "deliberate ignorance and positive knowledge are equally culpable." 320

316 lack's J, aw nictior& y 1600 (6th ed. 1990). 317 m United 977 F. 2d 854, 858- 59 (4th Cir. 1992), cert. de&, 507 U- S. 938' (1993); United States v, <zoUlatos, 962 F. 2d 720, 724 (7th Cir.), St. . de- , 506 U. S.

919 (1992).

318 Se. e Learv v. United- States

(adopting Model Penal Code rule tha; existence of a particular fact is an knowledge is established if a person probability of its existence, unless does not exist.").

532

cert. &ued , 426 U. S. 951 (197k).

320 X at 704. 108

395 U. S. 6, 46 n. 93 (1969) ." When knowledge of the element of an offense, such is aware of a high he actually believes that it

F. 2d 697, 698 (9th Cir.),

372

Federal judges may instruct juries about willful blindness when the facts warrant. "A willful blindness instruction is appropriate when the defendant asserts a lack of guilty knowledge but the evidence supports an inference of deliberate ignorance. n321

D. Testimony of a In general, courts

Cooperating Witness agree that the testimony of a witness who has been immunized or entered into a plea bargain in return for the his or her cooperation must be viewed with caution. Caution, however, does not equate to disregard and courts are equally clear that a cooperating witness's testimony is competent and forms a lawfully sufficient basis for conviction if the finder of fact determines it to be credible. 322

321 ed States v. Gruenberq 989 F. 2d 971, 974 (8th Cir.) (quoting -ted States . Jlonq 977'F 2d at 1264, 199211, cert. de- 51: U. S. ;173 (1993). 1271 (8th Cir.

The court in Gruenbera approved the following jury instruction on willful blindness:

The element of knowledge may be satisfied by inferences drawn from proof that a defendant deliberately closed his eyes to what would otherwise have been obvious to him. A finding beyond reasonable doubt of a conscious purpose to avoid enlightenment would permit an inference of knowledge. Stated another way, a defendant's knowledge of a fact may be inferred from willful blindness to the existence of the fact. It is entirely up to you as to whether you find any deliberate closing of the eyes and the inference to be drawn from any such evidence. A showing of negligence or mistake is not sufficient to support a finding of willfulness or knowledge.

989 F. 2d at 974. 322 Thus, the standard jury instruction reads: The testimony of an immunized witness, someone who has

109

373

Giving this type of instruction is generally considered "the better practice." 323 However, this cautionary instruction is not mandatory; failure'to give such an instruction is not usually considered reversible error. 324

Indeed, notwithstanding the cautionary instructions recommended, there "is no absolute rule of law preventing convictions on the testimony of accomplices if juries believe

been told either that (his) (her) crimes will go unpunished in return for testimony or that (his) (her) testimony will not be used against (him) (her) in return for that cooperation, must be examined and weighed by the jury with greater care than the testimony of someone who is appearing in court without the need for such an agreement with the government.

may be considered to be an immunized witness in this case.

The jury must determine whether the testimony of the immunized witness has been affected by self- interest, or by the agreement (he) (she) has with the government, or by (his own) (her own) interest in the outcome this case, or by prejudice against the defendant.

Devitt, Blackmar, Wolff, & O'Malley, FEDERAL JURY PRACTICE INSTRUCTIONS § 15.03 (1992) .

AND

323 tti v. Vu States, 242 U. S. 430, 495 (" better practice for courts to caution juries against

(1917)

too much reliance upon the testimony of accomplices, and to require corroborating testimony before giving credence to such evidence") .

324 . . UnitedStates 783 F. 2d 755, 758 (8th Cir.

1986); pee am yaited States v. Rrm, 877 F. 2d 556, 565 (7th Cir. 1989) (better practice is to instruct but failure to do so is not reversible error if corroborating evidence exists); United States v- S ver 838 F. 2d 980, 983 (8th Cir. 1988) (" no absolute and mandatory duty is imposed upon the court to advise

the jury by instruction that they should consider the testimony of an uncorroborated accomplice with caution") (internal quotations and citation omitted); hut see ynited States v. v, 555 F. 2d 238, 242- 43 (9th Cir. 1977) (defendant entitled to cautionary jury instruction).

110

374

them. 1V325 Decisions as to the credibility of a cooperating witness's testimony remain for the jury to make. 326

In addition, courts agree that evidence of a cooperating witness's duty to testify truthfully as part of the plea agreement may be admitted into evidence. 327 Thus, evidence concerning a plea agreement and its provisions may have both a bolstering effect (because of the truthfulness requirement) and an impeaching effect (because of the promise of leniency) on the witness's credibility. 32e Hence, the entirety of the plea agreement allows the jury to accurately assess the witness's credibility. 32g

325 etti, 242 U. S. at 495 (citation omitted); see a- ted States v. Winter, 663 F. 2d 1120, 1134 n. 24 (1st Cir. 1981) (approving instruction that reads, in part, "[ olne who testifies with the benefit of immunity, with a promise from the government that he will not be prosecuted, does not become an incompetent witness"), cert. denled I 460 U. S. 1011 (1983).

326 . . cG=, 783 F. 2d at 758. 327 See. e. g, JJnited States v. I, ord, 907 F. 2d 1028, 1029- 31 (10th Cir. 1990) (collecting cases); & wted States v. m, 892 F. 2d 90, 95 n. 3 (D- C. Cir. 1989) (witness' testimony that he was ordered by the court to cooperate as part of plea bargain was admissible). The only dispute is whether evidence of the truthfulness requirement of a plea agreement may be admitted on direct examination of the witness, as the majority of circuits permit, or whether it may only be offered as evidence in rebuttal to a challenge to the credibility of the witness, as a minority of the circuits require. -a Lord, 907 F. 2d at 1029- 31 (describing majority rule of First,. Third, Fourth, Fifth, Sixth, Seventh, Eighth and Tenth Circuits and contrasting with minority rule of Second and Eleventh Circuits).

ted States v. DreJdS, 877 F. 2d 10, 12 (8th Cir; 1989); s v. Tom, 796 F. 2d 158, 163 (6th Cir. 1986).

329 United St t v. Mea, 851 F. 2d 890, 899 (7th Cir.

1988). 111

375 E. Testimony of the Accused As with the testimony of a cooperating witness, courts agree that the testimony of an accused who has an interest in the resolution of the allegations made against him must also be viewed with caution. Here too, caution does not equate with disregard and the courts agree that an accused's testimony is competent and may be credited by a finder- of- fact.

Thus, while "[ tlhe fact that [a witness] is a defendant does not condemn him as unworthy of belief, . . . at the same time it creates an interest greater than that of any other witness, and to that extent [it] affects the question of credibility. It is therefore a matter properly to be suggested by the court to the jury. W33o Accordingly courts generally agree that, while it is not mandatory, it is ** not improper for [a] district court, in instructing the jury about [al defendant's credibility as a witness, to point out [the] defendant's vital interest in the outcome of the case. W331 Typical of such instructions is one reminding the jury of a defendants "very keen personal interest in the result of your verdict. W332

330 , 157 U. S. 301, .305 (1895).

331 ted States v. Fir-, 545 F. 2d 389, 392 (4th Cir. also Cir. 1g76) igE;;! .

mted States v. && rson, 642 F. 2d 281, 286 (9th

332 States v. Yl.&, 643 F. 2d, 348, 352 (5th Cir. 1981); gee a& United States v. Stpllt; 601 F. 2d 325, 329 (7th Cir. 1979) (accused has a "vital inter& t in the outcome of his trial"), cert. de- 444 U. S. 979 (1980); ynited States V. vega, 589 F. 2d 1147, ;154 n. 6 (2d Cir. 1978) (accused's "deep

112

376

377

Tab K

Monica Lewinsky Immunity Agreement

- 378

Office of the Independent Counsel 1001 pwuvivm& A-. N. U! S& e 49~ kwth Rhrhington. LK 2tMkU (202) Sl+ MM Fat (202) 5144802 _

This is an agreement (“ Agreement”) between Monica S. Lcwinsky and the United

States, reprcsmtcd by the Office of the Independent Coke1 (“ OIC”). The terms of the

Agreement arc as follows: 1. Ms. Lewinsky~ tocoapcndt~ ywiththeOIC, includingspecialagents

of the Federal Bureau of Investigation (“ FBI”) and any other law enfbrcemcnt agencies that the OIC may require. This cooper& on will include the following:

A. Ms. LewinskywilIprovidetntthful,~ leteandaccurateti~ on to the OIC. She wiIl provide, upon quest, any documents, reco& or other tangible cvidcnce within her custody or control relating to the matters within the OK’s jurisdiction. She will assist the OIC in gaiuing access to such materials that are not within her custody and control, and she will assist in locating and gaining the uqeration of other individuals who possess relevant kfkmation. Ms. Lewinsky will not attempt to

protect any person or entity through false infixmation or omission, and she will not attempt fhlscly to implicate any person or entity.

B. Ms. Lcwinsky will testify truthfully before grand juries in this district and elsewhere, at any trials in this district and elsewhere, and in any other executive, military, judicial or congressional proceedings. Pending a final resolution of this matter, neither Ms. Lewkky nor her agents will make any statements about this matterto witnesses, subjects, or targets of the 010 investigation, or their agents, or to representatives of the news media, without first obtaining the OIC’s approval.

C. Ms. Lewinsky will be klly debriefed amc& ning her knowledge of and participation in any activities within the OK’s jurisdiction. This debriefing will he conducted by the OIC, including attorneys,, law e&& cment agents, and repmen& ves of any other institutions as the OIC may require. Ms. Lewkky will make herself available for any intenkws upon reasonable request.

D. Ms. Lewinsky acknowledges that she has orally profkred kfkmation to the OK on July 27,1998, pursuant to a proffkr am Ms. Lewinsky fix& her

379

represents that the statements she made during that proffer session were tnxthful and > accurate to the best of ha knowledge. She agrees that during her wqxration. she will truthfully elaborate with respect to these and other subjects.

E. MS- w agnz~ that, upon the OK’s request, she will waive any

cvidcntiary piivileses she may have, except fa the attomcy- dient priviiegc. 2. IfMs. Lewinsky fully complies with the terms and understandings set forth in thisAgreement, theOIC: 1) willnot~ herfaranycrimesannn& edpriortothe date of this Agreement arising out of the investigations within the j\ aisdiction of the OIC;

2) will grant her derivative use immunity within the meaning and subject to the limitationsof18UnitedStlnesCode, Section6002, andwiunotusc, inply~ prosecution against Ms. Lewinky, testimony or other information provided by her during the course of her debriefing, testimony, or other cooper& ion pursuant tothisagreemen~ or~ yinformationdcrivcd~ or~~~ suchdebriefing, tcstimony, information, or other cooper& q and 3) will not prosecute her tn& er, Marsha Lewis, or her f& her, Banard Ldnsky, for any offbnscs which may have been comdtcd by themp& rtothisAgreemematisingoutofthefkts ’ ~abovs, pmvidcdthat Ms. Lewis and Mr. Lewinsky cooptrate with the OIC’s investigation and provide complete and uuthful inknation regarding those facts.

3. Ifthe OIC determines that Ms. Lewinsky has intentionally given false, incomplete, or misleading infeon or testimony, or has otherwise violated any provision of this Agreement, the OIC may move the United States District Court fm the District of Columbia which supeksed the grand jury investigating this matter for a finding that Ms. Lewinsky has breached this Agreement, and, upon such a finding by the Court, Ms. Lewinsky shall be subject to proxcuuon for auy ftieral aiminal violation of which the OIC has knowledge, including but not limited to perjury, cknuction ofwce, and making false statements to government agencies. In such a prosmuion, the OJC may use infamation provided by Ms. Lewinslq during the course of her cooperation, aud such information, including her statements, will be &nissible against her in any grand jury, cow or other official procttdings.

4. Pending a final resolution of this matter, the OIC will not make any statements about this Agreement to rqrescntatives of the news media

380

5. This is the entire agreement bctwcen the parks. Tkre are no other agreements, promises or inducements.

Ifthe forep; oing terms are accqtable, please sign, and have your client sign, in the

spaces indicated below. Date:

3% 23, )? YP .

KENNETH w. STARR Iidcpcnbt Counsel

Ibave~ dthiscntirtAgncmentandfhavcdiscussdlitwi~ myattoPneys. I fkcly and voluntarily enter into this Agreement I undwstand that if1 viol& any provisions of this Agreeme% the Agmcxmnt will be null and void, and I will be subject

to federal prosecution as outlined in the Agreement. Date:

Counsel for Ms. Lewinsky: Plato Cacheris