Clinton Rebuttal (3)

This document is intended to be a preliminary response to the Referral submitted by the Office of Independent Counsel to The Congress. Because we were denied the opportunity to review the content, nature or specifics of the allegations made against the President by the Office of Independent Counsel (OIC), we do not pretend to offer a point-by-point refutation of those allegations, or a comprehensive defense of the President.

We commend the House of Representatives for the extraordinary steps it has taken to safeguard the secrecy of the OIC's allegations. Unfortunately, its efforts were thwarted by unnamed sources familiar with the details of the OIC's allegations -- sources that could only come from the OIC itself -- who saw fit to leak elements of the allegations to the news media.

Based on these illegal leaks, as well as our knowledge of the President's testimony, we offer this document as a summary outline of his side of the case. We will provide you with a specific rebuttal as soon as we have had a chance to review the materials that the OIC has already transmitted to you.

The simple reality of this situation is that the House is being confronted with evidence of a man's efforts to keep an inappropriate relationship private. A personal failure that the President has acknowledged was wrong, for which he apologized, and for which he accepts complete responsibility. A personal failure for which the President has sought forgiveness from members of his family, members of the Cabinet, Members of Congress, and the American people. Such a personal failing does not, however, constitute "treason, bribery and high crimes and misdemeanors" that would justify the impeachment of the President of the United States.

The President himself has described his conduct as wrong. But no amount of gratuitous details about the President's relationship with Ms. Lewinsky, no matter how salacious, can alter the fact that:

1) The President did not commit perjury:

2) The President did not obstruct justice;

3) The President did not tamper with witnesses; and

4) The President did not abuse the power of his office.

Impeachment is a matter of incomparable gravity. Even to discuss it is to discuss overturning the electoral will of the people. For this reason, the Framers made clear, and scholars have long agreed, that the power should be exercised only in the event of such grave harms to the state as "serious assaults on the integrity of the processes of government," or "such crimes as would so stain a president as to make his continuance in office dangerous to public order." Charles L. Black, Impeachment: A Handbook 38-39 (1974). We do not believe the OIC can identify any conduct remotely approaching this standard. Instead, from press reports, if true, it appears that the OIC has dangerously overreached to describe in the most dramatic of terms conduct that not only is not criminal but is actually proper and lawful.

The President has confessed to indiscretions with Ms. Lewinsky and accepted responsibility and blame. The allegations concerning obstruction, intimidation, perjury and subornation of perjury that we anticipate from the OIC are extravagant attempts to transform a case involving inappropriate personal behavior into one of public misconduct justifying reversal of the judgment of the electorate of this country. I. STANDARDS FOR IMPEACHMENT

The Constitution provides that the President shall be removed from office only upon ÒImpeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.Ó U.S. Const. Art. II, ¤ 4. Of course, there is no suggestion of treason or bribery present here. Therefore, the question confronting the House of Representatives is whether the President has committed a Òhigh Crime[] or Misdemeanor.Ó The House has an obligation to consider the evidence in view of that very high Constitutional threshold. It should pursue the impeachment process only if there is evidence implicating that high standard.

The House must approach the question with solemnity and with care, for history teaches that an "impeachable offense" is no ordinary kind of wrongdoing. The Framers included specific provisions for impeachment in the Constitution itself because they understood that the most severe political remedy was necessary to remedy the most serious forms of public wrongdoing. Impeachment is a basic constitutional safeguard, designed both to correct harms to the system of government itself and to protect the people from ongoing malfeasance. Nothing less than the gravest executive wrongdoing can justify impeachment. The Constitution leaves lesser wrongs to the political process and to public opinion.

Presidential impeachment is thus a matter of incomparable gravity. As Professor Charles Black stated, [t]he presidency is a prime symbol of our national unity. The election of the president (with his alternate, the vice-president) is the only political act that we perform together as a nation; voting in the presidential election is certainly the political choice most significant to the American people, and the most closely attended to by them. No matter, then, can be of higher political importance than our considering whether, in any given instance, this act of choice is to be undone, and the chosen president dismissed from office in disgrace. Everyone must shrink from this most drastic of measures. Impeachment: A Handbook 1 (1974). Presidential impeachment is thus an Òawful step.Ó Ibid. The Framers knew this. For that reason they framed the constitutional procedure with precision and specified grounds for impeachment with great care.

The Framers deliberately chose to make Òhigh Crimes and MisdemeanorsÓ the standard of an impeachable offense. They were familiar with English common law and parliamentary history and they borrowed the expression directly from the English law of impeachment. They did so knowing that the expression was a term of art and they made the choice after deliberate rejection of alternative formulations of the impeachment standard.

The Framers intended the standard to be a high one. They rejected a proposal that the President be impeachable for "maladministration," for, as James Madison pointed out, such a standard would "be equivalent to a tenure during the pleasure of the Senate."{1} The Framers plainly did not intend to permit Congress to debilitate the executive by authorizing impeachment for something short of the most serious harm to the state. In George Mason's apt phrase, impeachment was thought necessary to remedy "[a]ttempts to subvert the Constitution."

In English practice, the term "high crimes and misdemeanors" had been applied to various offenses, the common elements of which were their severity and the fact that the wrongdoing was directed against the state.{2} The English cases included misappropriation of public funds, interfering in elections, accepting bribes, neglect of duty, and various forms of corruption. Ibid. These offenses all affected the discharge of public duties by public officials. In short, under the English practice, Òthe critical element of injury in an impeachable offense was injury to the state.Ó{3}

That is why, at the time of the ratification debates, Alexander Hamilton described impeachment as a Òmethod of NATIONAL INQUEST into the conduct of public men.Ó The Federalist No. 65 at 331 (Gary Wills ed. 1982). This ÒinquestÓ is perhaps the gravest process known to our Constitution. No act touches more fundamental questions of constitutional government than does the process of Presidential impeachment. No act more directly affects the public interest. No act presents the potential for greater injustice -- injustice both to the Chief Executive and to the people who elected him.

For these reasons, the impeachment process must be painstaking and deliberate. It must focus only on such harms as the Framers intended to be redressed by the incomparably severe act of impeachment. And most importantly, it must be understood for what it is -- a process of inquiry. That process is itself the exercise of a public trust Òof delicacy and magnitude.Ó{4} Accordingly, if the process is begun it is only just that the members engaged in this solemn task withhold judgment until the process is complete and all the facts are known. Our Constitution's most basic values and the requirements of simple justice together demand no less.

The President is sole head of one branch of our government -Ð indeed, in a certain sense the President is the Executive Branch. The Constitution provides that Ò[t]he executive Power shall be vested in a President of the United States of America.Ó U.S. Const. art. II, ¤ 1. The President is the only government official to have been popularly elected by all the American people. When the people elect a President, the popular will is expressed in its most important, most visible and most unmistakable form.{5} The impeachment process, by definition, threatens to undo the popular will. Impeachment presents the prospect of reversing the electoral mandate that brought the executive to office. Conviction upon articles of impeachment actually does so.

For these reasons, impeachment is limited to only certain forms of potential wrongdoing and it is intended to redress only certain kinds of harms. Again, in Hamilton's words: the subjects of [the Senate's impeachment] jurisdiction are those offenses which proceed from the misconduct of public men, or in other words from the abuse of violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done to the society itself. Federalist 65 at 330-31.

The Framers and early commentators on the Constitution are in accord on the question of impeachment's intended consequence. In Justice James Wilson's words, impeachments are Òproceedings of a political nature . . . confined to political charactersÓ charging only Òpolitical crimes and misdemeanorsÓ and culminating only in Òpolitical punishments.Ó J. Wilson, Works 426 (R. McCloskey, ed. 1967) And as Justice Story put the matter, Òthe [impeachment] power partakes of a political character, as it respects injuries to the society in its political character.Ó Joseph Story, Commentaries on the Constitution ¤ 744 (1st Ed. 1833).{6} That understanding of the Framers and early commentators reflected the historical understanding of impeachable offenses in England. Ò'High crimes and misdemeanors' were a category of political crimes against the state.Ó Berger, Impeachment, at 61 (emphasis in original). Therefore, the Framers "intended that a president be removable from office for the commission of great offenses against the Constitution."{7}

Impeachment therefore addresses public wrongdoing, whether denominated a Òpolitical crime[] against the state,Ó{8} or Òan act of malfeasance or abuse of office,"{9} or a Ògreat offense[s] against the federal government.Ó{10} In short, impeachment is a necessary Constitutional check by a coordinate branch of government upon serious and aggravated abuses of executive power that, given the President's four-year term, might otherwise go unchecked.

Holders of public office are therefore not to be impeached for private conduct, however wrongful. To the contrary, only Òserious assaults on the integrity of the processes of government,Ó{11} and Òsuch crimes as would so stain a president as to make his continuance in office dangerous to public orderÓ{12} should constitute impeachable offenses. Conduct which is not an "offense[] against the government,"{13} or Òmalfeasance or abuse of office,Ó{14} and which bears no Òfunctional relationshipÓ{15} to public office, does not constitute grounds for impeachment. Allegations concerning private conduct-Ðprivate sexual conduct in particular--simply do not implicate high crimes or misdemeanors.

Private misconduct, or even public misconduct short of an offense against the state, is not redressable by impeachment because that solemn process, in Justice Story's words, addresses Òoffences[] which are committed by public men in violation of their public trust and duties.Ó Story, Commentaries ¤ 744 (emphasis added). Impeachment is a political act in the sense that its aims are public; it attempts to rein in abuses of the public trust committed by public officeholders in connection with conduct in public office. As one scholar has put it, Ò[t]he nature of [impeachment] proceedings is dictated by the harms sought to be redressed Ð Òthe misconduct of public menÓ relating to the conduct of their public office Ð and the ultimate issue to be resolved Ð whether they have forfeited through that conduct their right to continued public trust.Ó{16}

Impeachment's public character is further evidenced by the fact that, as Justice Story expressed it, the process is conducted Òby the representatives of the nation, in their public capacity,Ó and Òin the face of the nation.Ó Story, Commentaries ¤ 686. Constitutionally, impeachment's public function demands public accountability. Elected officials are no more qualified than ordinary voters to assess the private wrongs of public officeholders. The Constitution's impeachment mechanism does not exist to punish such wrongs.

The public character of impeachable wrongs is also reflected in the fact that the remedy imposed for commission of impeachable acts is a wholly public one. Impeachment results in removal from office and possible disqualification from further office. U.S. Const. art.I, ¤ 3, cl. 7.

To say that impeachment is fundamentally a ÒpoliticalÓ process, however, is not to say that it is ÒpartisanÓ in nature. Indeed, the Framers warned against the spirit of partisanship in impeachment proceedings. In Federalist 65, Hamilton wrote that the impeachment process threatened to Òagitate the passions of the whole community . . .to divide it into parties . . . [to] connect itself with pre-existing factions [and] to enlist their animosities, partialities, influence and interest.Ó Id. at 331. Justice Story warned of the danger that Òthe decision [to impeach] will be regulated more by the comparative strength of the parties, than by the strength of the proofs.Ó Commentaries ¤ 744. Only substantial evidence of presidential wrongdoing that threatened the processes of government or the public order can justify this grave and ideally bipartisan process.

What is ultimately intended by impeachment's truly ÒpoliticalÓ nature is the manner of limitation the Constitution allows one elected (political) branch to place on the other elected (political) branch, the Presidency. Impeachment is necessarily a public act conducted by public bodies (the Houses of Congress exercising their constitutionally allotted portion of impeachment power) against a public officeholder (here, the President). Exercise of that limiting function is justified only when the people's representatives conclude that the people themselves must be protected from their own elected executive.

Impeachment must therefore be approached with the utmost solemnity. The process must focus on public acts, performed in the President's public capacity, and affecting the public interest. Cognizant of the enormous harm that must follow the bare suggestion of formal impeachment processes, the House should pursue an impeachment inquiry if and only if there is credible evidence of actions constituting fundamental injuries to the governmental process. Indeed, the Committee should consider and approve articles of impeachment only for such acts as have, in its judgment, so seriously threatened the integrity of governmental processes as to have made the President's continuation in office a threat to the public order.

Impropriety falling short of that high standard does not meet the constitutional measure. It must be left to the court of public opinion and the judgment of history. II. THE RELEVANT FACTUAL BACKGROUND

The Monica Lewinsky investigation is the most recent phase of an amorphous, languorous, expensive, and seemingly interminable investigation into the affairs of a small Arkansas real estate firm, Whitewater Development Company, Inc. In January, 1994, Attorney General Reno made an administrative appointment (the Ethics in Government Act of 1978 having expired) of Robert B. Fiske, Jr., to investigate the relationship of the President and Mrs. Clinton to Whitewater, Madison Guaranty Savings & Loan Association, and Capital Management Services. After the reenactment of the Ethics in Government Act, the Special Division for the Purpose of Appointing Independent Counsels of the Court of Appeals appointed Kenneth W. Starr, a former high official in two Republican administrations, to replace Mr. Fiske on August 5, 1994, and gave him a generally similar grant of investigatory jurisdiction.

During the past four and a half years, the President has cooperated extensively with this investigation. He has given testimony by deposition at the White House to the Independent Counsel on four separate occasions, and on two other occasions, he gave videotaped deposition testimony for Whitewater defendants and was cross-examined by the Independent Counsel. He has submitted written interrogatory answers, produced more than 90,000 pages of documents and other items, and provided information informally in a variety of ways. The OIC subpoenaed from the President, and reviewed, virtually every personal financial record and gubernatorial campaign finance record that exists for the period from the mid-1980s to the present, in its endless search to find something to use against the President. This comprehensive and thorough financial review yielded the OIC nothing.

In May 1994, President Clinton was sued civilly by Ms. Paula Jones, who made various claims arising out of an encounter on May 8, 1991, when the President was Governor of Arkansas. Various constitutional questions were litigated, and it was not until the Supreme Court's decision on May 27, 1997{17} that the case proceeded to discovery. The Independent Counsel had no jurisdiction with respect to the Jones case, but there were occasional press reports that the OIC was in fact investigating the President's personal life.{18} III.

THE PRESIDENT'S TESTIMONY ABOUT MS. LEWINSKY

In his grand jury testimony on August 17, 1998, the President acknowledged having had an improperly intimate relationship with Ms. Lewinsky. This is enormously difficult for any person to do even in private, much less in public.

It is important to recognize that the improper relationship with Ms. Lewinsky ended in early 1997, at the President's behest. It therefore had been over for almost a year at the time of the President's deposition in the Jones case. From feelings both of friendship and responsibility, the President remained in touch with Ms. Lewinsky after the improper relationship ended and tried to help her: none of this help was improper or conditioned on her behaving (or testifying) in any particular way.

It is not true that the President had an improper 18-month relationship with Ms. Lewinsky, as several media reports have alleged. In his grand jury deposition, he testified that on certain occasions in early 1996 and once in early 1997, he engaged in improper conduct with Ms. Lewinsky. These encounters did not consist of sexual intercourse, and they did not consist of "sexual relations" as he understood that term to be defined at his Jones deposition on January 17, 1998 (explained infra), but they did involve inappropriate intimate contact. These inappropriate encounters ended, at the President's insistence, in early 1997, not because of the imminence of discovery, not because of the Jones case (which the Supreme Court had not yet decided), but because he knew they were wrong. On August 17, 1998, the President expressed regret to the grand jury and, later, to the country, that what began as a friendship came to include this conduct, and he took full responsibility. He has frequently, to different audiences, made similar expressions of regret and apology.

In this investigation, no stone has been left unturned--or (we believe) unthrown. In simple fairness, therefore, it is important to distinguish between what the President has acknowledged and what the OIC merely alleges (on the basis of evidence we have not yet seen). IV. THE NATURE OF THE OIC'S EVIDENCE

Use of a federal grand jury to compile evidence for possible impeachment proceedings in Congress raises numerous troubling questions regarding the credibility of that evidence. Indeed, given the limited role of a grand jury in our system and the total absence of procedural protections in the process, the Independent Counsel's insistence that his investigation has been a search for "truth" is deeply misleading. In fact, it has been a one-sided effort to present the worst possible version of a limited set of facts.

Section 595(c) requires the OIC to provide the House with Òsubstantial and credible information . . . that may constitute grounds for impeachment.Ó But a grand jury is a totally unsuitable vehicle for generating information that can, without more, be taken as credible beyond challenge. The grand jury's historic role is not to determine the truth but rather to act as an accusatory body. United States v. Williams, 504 U.S. 36, 51 (1992). The process excludes contrary views of the information gathered and fails to identify the kinds of exculpatory information that might have been elicited or presented had a targeted individual, and not just the OIC, had an opportunity to cross-examine and the ability to compel responses.

Because it is inherently so one-sided and untested by cross-examination, it normally is not permissible to use grand jury testimony as a basis for anything other than permitting a grand jury to indict or decline to indict. It may constitute nothing more than hearsay, Costello v. United States, 350 U.S. 359, 364 (1956), or even multiple hearsay-Ðevidence which would likely be excluded from a trial. Indeed, the information a grand jury gathers is not circumscribed by the Federal Rules of Evidence at all, see Fed. R. Evid. 1101(d)(2), nor delimited by the other safeguards of reliability which would be enforced at trial. The testimony a grand jury elicits is not subject to impeachment by interested parties, and such testimony may come from immunized witnesses, from witnesses who fear prosecution, from witnesses prepared by the prosecution, from witnesses with a history of untruthfulnessÐ-or from disinterested witnesses. On the record of the grand jury there need be no distinction among these sources, despite the fact that their reliability varies greatly.

In its day-to-day operations, no judge presides over grand jury proceedings. United States v. Williams, 504 U.S. 36, 48 (1992). Grand jury witnesses do not have counsel present. Fed. R. Crim P. 6(d). The Double Jeopardy Clause does not prevent a grand jury from returning an indictment after a first grand jury has declined to do so. Ex Parte United States, 287 U.S. 241, 250-51 (1932). The exclusionary rule does not apply to grand jury proceedings. United States v. Calandra, 414 U.S. 338, 349 (1974). Grand jury witnesses have no right to respond with information, however related, if it is not called for by the prosecution, and targets and subjects of its inquiry have no compulsory process to gather and present their side of the matter. Nor does the target of a grand jury inquiry have any right to offset potentially incriminating information with exculpatory information in his possession. Williams, 504 U.S. at 55. In short, the most basic techniques our adversary system of justice employs for testing and assuring the reliability of evidence are completely missing in the grand jury context.

As a consequence, ÒreliabilityÓ simply is not the touchstone of a grand-jury inquiry. The Supreme Court itself has said that Òthe mere fact that evidence is unreliable is not sufficient to require a dismissal of [an] indictment.Ó Bank of Nova Scotia v. United States, 487 U.S. 250, 261 (1988). The same is true of Òinadequate or incompetentÓ evidence. Its presence will not justify dismissal of an indictment. Calandra, 414 U.S. at 345; see also Holt v. United States, 218 U.S. 245 (1910) (same).

It must therefore be recognized that it is not the grand jury's function to provide information about anything that can be taken as true on its face. Its function is not to get at the ultimate truth. The grand jury's inquisitorial powers serve but one end: to empower a body of citizens to make a threshold decision whether to initiate the search for truth that is the purpose of adversarial proceedings or to decline to indict and thereby forego that search altogether. Only after the grand jury renders that threshold decision does the search for truth really commence because only then are the adversary system's credibility-assessing mechanisms available.

The grand jury secrecy rule, Rule 6(e), Fed. R. Crim. P., is justified-Ðindeed, mandated-Ðby this reality. Grand jury information is to be kept secret largely because it has been generated without the protections of the adversarial system. Unlike information presented in a trial setting, grand jury information presents an enormous risk that persons' reputations will be injured or destroyed on the basis of non-credible or insubstantial assertions. That harm may damage both witnesses and persons who are subjects of witness testimony. That is why, when a grand jury elects to indict, grand jury materials are sealed and withheld from the petit jury ultimately convened to find the truth and render a verdict.

Accordingly a fair report from the OIC would, inter alia, provide all exculpatory evidence, assess the credibility of witnesses in terms of bias, reason to falsify, prior inconsistent statements, etc., and draw reasonable inferences. A fair report would identify shortcomings in the investigation itself, including any excesses, mistakes, errors in judgment, or impermissible tactics. A fair report would demonstrate that every possible effort had been made to identify all possibly exculpatory evidence, and that all such evidence had been given appropriate weight. And a fair report would address honestly and answer truthfully the following questions:

1)

What were Linda Tripp's motives in seeking out the OIC in January, 1998? Did she articulate a fear of being prosecuted in Maryland under that State's anti-taping laws? Why did she request immunity from prosecution? Why was she given immunity?

2)

What role did the OIC play in arranging for Ms. Tripp to meet with the Jones lawyers on Friday, January 16, 1998, the evening before the President's deposition? Did anyone from the OIC drive Ms. Tripp to this meeting? Did the OIC warn Ms. Tripp about the criminal law pertaining to sharing with third parties the fruits of illegal tapings or even communicating the fact that illegal tapes exist? Has anyone at the OIC made any assessment of what impact Ms. Tripp's conduct might have on any federal immunity deal Ms. Tripp might have obtained from the OIC?

3)

What authority did the OIC have to wire Linda Tripp and

attempt to develop evidence before obtaining permission to expand its jurisdiction from the Attorney General or the Special Division? What prevented the OIC from going directly to the Attorney General upon receiving the tapes from Ms. Tripp? If the primary basis for the expansion of the OIC's jurisdiction was evidence that was obtained in an ultra vires manner by the OIC, does that taint other information obtained by the OIC?

4)

What assessment has the OIC made of Ms. Tripp's ideological motivations? Was the OIC aware she had submitted an anti-Clinton book proposal to avowed Clinton hater Lucianne Goldberg? Was the OIC aware of Goldberg's role in Ms. Tripp's taping and arrangement for Ms. Lewinsky's use of a messenger service?

5)

How many statements on the Tripp-Lewinsky tapes are false or exaggerated? How many statements contradict assertions in the OIC's report?

6)

When Ms. Tripp was asked to record Ms. Lewinsky surreptitiously, was this because the OIC was concerned about the legality of Ms. Tripp's previous telephone tapes of Ms. Lewinsky?

7)

What was Ms. Tripp's motivation in initiating the

surreptitious recording of her conversations with Ms. Lewinsky? Did Tripp steer the taped conversations with Ms. Lewinsky to obtain details about Ms. Lewinsky's sexual activities? Was the taping connected in any way to her relationship with Lucianne Goldberg? If Ms. Tripp began to tape Ms. Lewinsky with an unlawful purpose, did she commit a violation of the federal wiretapping statute (Title III)? If the tapes were obtained in violation of federal law, can the tapes or evidence derived from them be part of any official proceeding in Congress (see 18 U.S.C. ¤ 2515)?

8)

What, if anything, did the OIC offer the press to keep secret its investigation into Ms. Lewinsky? 9)

Why was the OIC in such haste to petition the Attorney General for an expansion of jurisdiction? Precisely what was the Attorney General told about Ms. Tripp's telephone taping of Ms. Lewinsky? Did the "talking points" play any role in the application? What particular alleged crimes did the OIC seek authorization to investigate?

10)

Ms. Lewinsky's lawyers, William Ginsburg and Nathaniel Speights, wrote in an essay in Time (Feb. 16, 1998) that the OIC informed them on Friday, January 16, 1998, "We've got a deal, and we want to wire her and record some phone calls;" these lawyers also wrote in that essay that "[The OIC] wanted her [Ms. Lewinsky] wired, and they wanted her to record telephone calls with the President of the U.S., Vernon Jordan and others--at their will." What persons did the OIC intend Ms. Lewinsky to record surreptitiously?

11)

In a letter from the Independent Counsel to the

President's personal counsel, dated February 6, 1998, the Independent Counsel wrote: "From the beginning, I have made the prohibition of leaks a principal priority of the Office. It is a firing offense, as well as one that leads to criminal prosecution." However, Chief Judge Johnson has entered a series of orders finding prima facie reason to believe that persons in the OIC violated Rule 6(e), Fed. R. Crim. P., by illegal leaking (for example, "[t]he Court finds that the serious and repetitive nature of disclosures to the media of Rule 6(e) material strongly militates in favor of conducting a show cause hearing" (June 19, 1998, Order, at 5)). Has anyone been fired or disciplined by the OIC for illegal leaking? What steps have been taken to investigate and discipline OIC personnel who have engaged in illegal leaking? V.

LIKELY OIC ALLEGATIONS OF OBSTRUCTION OF JUSTICE, SUBORNATION OF PERJURY, AND INTIMIDATION OF WITNESSES

The OIC obtained jurisdiction on January 16, 1998 to investigate possible obstruction of justice, subornation of perjury, and intimidation of witnesses in the Jones case. These crimes are quite specifically defined in the law, and the elements do not always have an obvious meaning. We consider first the definition and then the possible conduct to which these definitions might be applied.

The term "obstruction of justice" usually refers to violations of 18 U.S.C. ¤ 1503, the "Omnibus Obstruction Provision," which prohibits the intimidation and retaliation against grand and petit jurors and judicial officers and contains a catch-all clause making it unlawful to "influence, obstruct, or impede the due administration of justice." It may also refer to 18 U.S.C. ¤ 1512, which proscribes intimidating, threatening, or corruptly persuading, through deceptive conduct, a person in connection with an official proceeding.

For a conviction under ¤ 1503, the government must prove that there was a pending judicial proceeding, that the defendant knew of the proceeding, and that the defendant acted "corruptly" with the specific intent to obstruct or interfere with the proceeding or due administration of justice. See, e.g., United States v. Bucey, 876 F.2d 1297, 1314 (7th Cir. 1989); United States v. Smith, 729 F. Supp. 1380, 1383-84 (D.D.C. 1990). Thus, if a defendant is unaware of a pending grand jury proceeding, he cannot be said to have obstructed it in violation of ¤ 1503. See, e.g., United States v. Brown, 688 F.2d 1391, 1400 (9th Cir. 1992). Perhaps more significant is the "acting corruptly" element of the offense. Some courts have defined this term as acting with "evil and wicked purposes." See United States v. Banks, 942 F.2d 1576, 1578 (11th Cir. 1991). Four federal courts of appeals have held that to "act corruptly" under the statute, a defendant must have acted with the specific intent to obstruct justice. See United States v. Moon, 718 F.2d 1219, 1236 (2d Cir. 1983); United States v. Bashaw, 982 F.2d 168, 170 (6th Cir. 1992); United States v. Anderson, 798 F.2d 919, 928 (7th Cir, 1986); United States v. Rasheed, 663 F.2d 843, 847 (9th Cir. 1981). That is, it is not enough to prove that the defendant knew that a result of his actions might be to impede the administration of justice, if that was not his intent.

It is critical to note which actions cannot fall under the ambit of ¤ 1503. First, false statements or testimony alone cannot sustain a conviction under ¤ 1503. See United States v. Thomas, 916, F.2d 647, 652 (11th Cir. 1990); United States v. Rankin, 870 F.2d 109, 111 (3d Cir. 1989). For instance, in United States v. Wood, 6 F.3d 692, 697 (10th Cir. 1993), the United States Court of Appeals for the Tenth Circuit found that a defendant's false statements to the Federal Bureau of Investigation during a grand jury investigation did not violate ¤ 1503, because they did not have the natural and probable effect of impeding the due administration of justice. Moreover, ¤ 1503 does not apply to a party's concealing or withholding discoverable documents in civil litigation. See, e.g., Richmark v. Timber Falling Consultants, 730 F. Supp. 1525, 1532 (D. Or. 1990) (because of the remedies afforded by the Federal Rules of Civil Procedure, ¤ 1503 does not cover party discovery in civil cases, and "[t]he parties have not cited and the court has not found any case in which a person was charged with obstruction of justice for concealing or withholding discovery in a civil case").{19} Most cases that have found ¤ 1503 applicable to civil cases do not involve the production or withholding of documents. See United States v. London, 714 F.2d 1558 (11th Cir. 1983) (attorney forged court order and attempted to enforce it), cited in Richmark, 730 F. Supp. at 1532; Sneed v. United States, 298 F. 911 (5th Cir. 1924) (influencing juror in civil case); cited in Richmark, 730 F. Supp at 1532. While ¤ 1503 can apply to concealment of subpoenaed documents in a grand jury investigation, the defendant must have knowledge of the pending grand jury investigation, must know that the particular documents are covered by a subpoena, and must willfully conceal or endeavor to conceal them from the grand jury with the specific intent to interfere with its investigation. See United States v. McComb, 744 F.2d 555 (7th Cir. 1984).

Section 1512 specifically applies to "witness tampering." However, by its terms, it does not purport to reach all forms of witness tampering, but only tampering by specified means. In order to obtain a conviction under ¤ 1512, the government must prove that a defendant knowingly engaged in intimidation, physical force, threats, misleading conduct, or corrupt persuasion with intent to influence, delay, or prevent testimony or cause any person to withhold objects or documents from an official proceeding. While there is no "pending proceeding" requirement for convictions under ¤ 1512, it is clear that a defendant must be aware of the possibility of a proceeding and his efforts must be aimed specifically at obstructing that proceeding, whether pending or not; ¤ 1512 does not apply to defendants' innocent remarks or other acts unintended to affect a proceeding. See United States v. Wilson, 565 F. Supp. 1416, 1431 (S.D.N.Y. 1983).

Moreover, it is important to define the terms "corruptly persuade" and "misleading conduct," as used in ¤ 1512. The statute itself explains that "corruptly persuades" does not include "conduct which would be misleading conduct but for a lack of a state of mind." 18 U.S.C. ¤ 1515(a)(6). It is also clear from the caselaw that "misleading conduct" does not cover scenarios where the defendant urged a witness to give false testimony without resorting to coercive or deceptive conduct. See, e.g., United States v. Kulczyk, 931 F.2d 542, 547 (9th Cir. 1991) (no attempt to mislead witnesses knew defendant was asking them to lie); United States v. King, 762 F.2d 232, 237 (2d Cir. 1985) (defendant who attempts to persuade witness to lie but not to mislead trier of fact does not violate ¤ 1512).

Subornation of perjury is addressed in 18 U.S.C. ¤ 1622. The elements of subornation are that the defendant must have persuaded another to perjure himself, and the witness must have actually committed perjury. See, e.g. United States v. Hairston, 46 F.3d 361, 376 (4th Cir. 1959), rev'd on other grounds, 361 U.S. 529 (1960). If actual perjury does not occur, there is simply no subornation. See id. at 376 (reversing conviction for subornation because of conclusion that, in applying Bronston, witness did not commit perjury due to his literally truthful testimony). Moreover, ¤ 1622 requires that the defendant know that the testimony of witness will be perjurious -- i.e., knowing and willful procurement of false testimony is a key element of subornation of perjury. See Rosen v. NLRB, 735 F.2d 564, 575 n.19 (D.C. Cir. 1984) ("a necessary predicate of the charge of subornation of perjury is the suborner's belief that the testimony sought is in fact false").

Based upon illegal OIC leaks and press reports, we believe that the OIC's principal claims of obstruction, intimidation and subornation -- the three prongs of the January 1998 expansion of jurisdiction -- appear to arise out of: (1)

"Talking Points"

The so-called "talking points"{20} have been widely hailed as the linchpin of any charge of subornation of perjury or obstruction of justice. Not only were they touted as the Òsmoking gunÓ of the investigation, they were instrumental in the OIC efforts to secure an expansion of its jurisdictional authority. Charles Bakaly, the OIC spokesman, appearing on Meet the Press, emphasized the critical nature of this document to the expansion of the OIC jurisdiction: Tim Russert: É How important is it that we find out who is the author of those talking points? Charles Bakaly: Well, in the grant of jurisdiction that the special division of the D.C. Circuit Court of Appeals gave to Judge Starr after the request of the Attorney General, that was the key mandate to look into, those kinds of issues of subornation of perjury and obstruction of justice. NBC Meet the Press, July 5, 1998 (emphasis added).

The "talking points" were the basis of thinly veiled smears, groundless speculation, and allegations against President Clinton, White House aides and others close to the President: ÒAnd NBC News has learned more about another critical piece of evidence. A memo first discovered by Newsweek that Linda Tripp claims was given to her by Monica Lewinsky. É Sources in Starr's office and close to Linda Tripp say they believe the instructions came from the White House. If true, that could help support a case of obstruction of justice.Ó NBC Nightly News, February 4, 1998. ÒProsecutors suspect the President and his longtime friend, Vernon Jordan, tried to cover up allegations that Mr. Clinton was involved sexually with former White House intern Monica Lewinsky and other women Ð which is why this document, obtained last night by NBC News, could be a smoking gun. It's called ÔPoints to Make in Affidavit.' Prosecutors say it might as well be called ÔHow to Commit Perjury in the Paula Jones Case.'Ó NBC News at Sunrise, January 22, 1998. ÒA three page summary telling Linda R. Tripp how to lie in the Paula Jones sexual misconduct lawsuit remains a key reason why independent counsel Kenneth Starr wants to question top White House aides in the Monica Lewinsky sex-and-lies grand jury investigation. Mr. Starr, according to lawyers and other close to the grand jury probe, wants to know what White House Deputy Counsel Bruce R. Lindsey and senior aide Sidney Blumenthal know about the source of the summary, or 'talking points,' that were given to Mrs. Tripp by Miss Lewinsky, the former White House intern. The summary, which prosecutors are convinced was not written by Miss Lewinsky, could corroborate accusations of a White House attempt to obstruct justice and suborn perjury in the Jones suit, sources said.Ó Washington Times, May 18, 1998. ÒBecause of Lindsey's earlier discussions with Tripp about the Willey incident, prosecutors appear to be trying to learn whether he had any role in helping Lewinsky prepare the three-page document. Lindsey, who has been summoned to the grand jury twice, has denied any connection to the talking points.Ó Washington Post, March 10, 1998. Ò'If the author of the talking points is anywhere near the president,' said Jonathan Turley, law professor at George Washington University in Washington, Ôthis case will take a dramatic turn against the White House.'Ó USA Today, July 1, 1998. ÒThe document has emerged as possible evidence of obstruction of justice as Starr investigates whether Clinton or his associates made attempts to conceal the president's encounters with women.Ó USA Today, June 29, 1998. ÒBased largely on two pieces of evidence Ð those talking points and the secret tapes made by Ms. Tripp of her conversations with Ms. Lewinsky Ð Mr. Starr is trying to determine whether the President, Mr. Jordan, Ms. Lewinsky or others set about to obstruct justice in the Jones case by lying, concealing evidence and tampering with witnesses. These are the central charges in the case, and the participants' versions appear to diverge.Ó New York Times, March 7, 1998. ÒStarr wants to find out if anyone in the White House was involved in preparing the talking points.Ó The Plain Dealer, February 19, 1998. ÒThe evidence that strikes dread in the White House is a three-page document called Ôthe talking points.' É The author of the talking points will most likely be found, is in real danger of going to jail and may not want to go alone for long.Ó William Safire, New York Times, February 12, 1998. ÒThe memo is a critical piece of evidence to Whitewater independent counsel Kenneth Starr because it could be proof of an effort to induce Tripp to lie under oath. Starr's investigators are exploring whether anyone close to Clinton prepared or knew about the talking points.Ó USA Today, February 6, 1998.

And the "talking points" were regarded throughout the investigation as the critical piece of evidence in any charge of subornation of perjury or obstruction of justice: ÒIt seems clear that Starr's focus is now on building a case that Clinton or his agents tried to sway the testimony of witnesses in the Jones case. A critical piece of evidence is the Ôtalking points' memo that Lewinsky gave her friend Linda Tripp, apparently advising Tripp on how to fudge her testimony. The document is the only known physical evidence of witness tampering, and its authorship remains one of the great mysteries of the Lewinsky matter.Ó Chicago Tribune, April 3, 1998 (emphasis added). ÒThe talking points, which seemed intended to coach Ms. Tripp in possible testimony about Mr. Clinton, are central to Mr. Starr's effort to determine whether obstruction of justice occurred.Ó New York Times, July 27, 1998. ÒProsecutors regard the legalistic, three-page talking points Ð intended to guide Tripp's testimony in the Jones lawsuit Ð as a key piece of evidence in a possible case of obstruction of justiceÉ. ÔAnyone who wrote a document like that is out of is mind,' one prosecutor said. ÔThose talking points are the smoking gun.'Ó Pittsburgh Post-Gazette, February 8, 1998 (emphasis added). ÒLeakers from the Starr chamber have implied that the talking points are instructions to lie. But lawyers routinely give there clients talking points before a grand jury. The Lewinsky case is about something else, spelled S-E-X.Ó Clarence Page, Sun-Sentinel, June 4, 1998 (emphasis added). ÒBut a three page document known as the Ôtalking points' may prove to be the most important. . . ÔThe talking points are the closest thing to a smoking gun in this case. . .' legal scholar Paul Rothstein said Tuesday.Ó USA Today, July 1, 1998. ÒThe talking points memorandum and the Tripp-Lewinsky tapes form the backbone of the independent counsel's inquiry into whether anyone lied or obstructed justice over Ms. Lewinsky's relationship with President Clinton.Ó New York Times, June 11, 1998. ÒThe talking points memo, whose authorship is unknown, is of keen interest to Starr.Ó Baltimore Sun, February 26, 1998. ÒIt is unclear who wrote the talking points and whether they were given to Ms. Tripp on Jan. 14 to encourage her to give false testimony in the Paula Corbin Jones sexual misconduct lawsuit against the President. These are questions of intense interest to the independent counsel Kenneth W. Starr, said lawyers close to his investigation. É The talking points could be an important piece of physical evidence showing that there were unlawful efforts to encourage false testimony in the Jones case.Ó New York Times, February 19, 1998. ÒThat suggests one particular piece of evidence will play a huge role: the list of written talking points Lewinsky gave her friend Linda Tripp on how to testify in the Paula Jones sexual harassment case. Who wrote the document is one of the key questions, whoever did could be charged with obstruction of justice.Ó Chicago Tribune, February 15, 1998.

After all of the rumor and speculation regarding a connection between the White House and the "talking points," President Clinton was not asked one single question relating to the talking points during his August 17 deposition. Ms. Lewinsky is reported to have testified that she wrote the document without any assistance other than conversations she had with Linda Tripp. In the venerable tradition of Whitewater allegations, the "talking points" were surfaced as important and damning evidence of wrongdoing, but in the fullness of time and after investigation, have apparently vanished entirely. Only the stigma remains. (2) Ms. Lewinsky's Transfer of Gifts to Betty Currie

The President frequently gives gifts to and receives gifts from friends and supporters; he gave Ms. Lewinsky the same kind of gifts he has shared with others. He was not concerned about the Jones lawyers' knowledge of the gifts. In the Jones deposition, he acknowledged knowing Ms. Lewinsky, acknowledged seeing her, acknowledged she had given him gifts, and acknowledged he had given her gifts. Moreover, in his grand jury testimony, he acknowledged giving Ms. Lewinsky good-bye gifts on December 28, 1997, shortly before she moved to New York, a date which we believe to be after Ms. Currie picked up the box of gifts from Ms. Lewinsky. The gifts simply were not a concern to him.

It is our understanding that Ms. Lewinsky may have testified that she raised with the President a concern about the Jones lawyers' request for gifts from the President and that, shortly thereafter, Ms. Currie appeared at her home stating that she understood Ms. Lewinsky had something for her. Ms. Lewinsky apparently testified that she then provided to Ms. Currie for safekeeping a box containing some of the gifts received from the President.

For Ms. Lewinsky's account to be credible, Ms. Currie must have been asked by the President to contact Ms. Lewinsky for the box. However, her account conflicts directly both with that of the President and with what we believe to be Ms. Currie's testimony. The President told Ms. Lewinsky she would have to produce what she had in response to a request. He did not ever suggest that gifts from him should be disposed of, and he did not ever ask or instruct Ms. Currie to pick up the gifts from Ms. Lewinsky. We believe that Ms. Currie's testimony corroborates this recollection. Ms. Currie has apparently testified that Ms. Lewinsky initiated the contact with her about the box, asking Ms. Currie to come by her apartment building, giving a sealed box to her, and asking her to hold on to it. Ms. Currie has no knowledge that the President ever even knew about the box prior to public disclosures about it, and the President testified that he did not learn about the box until after the OIC investigation became public.

(3)

Job Assistance to Ms. Lewinsky

The President made certain efforts to try to assure that Ms. Lewinsky had a fair shot at a job other than her Pentagon position, where she was not happy, and he generally was aware of other efforts by his secretary Ms. Currie and his friend Mr. Jordan. These actions were totally appropriate. At no time did the President ask that Ms. Lewinsky be accorded specially favorable or unfavorable treatment because of his relationship with her or for any other reason. These actions began well before Ms. Lewinsky was ever named a witness in the Jones litigation, and they were in no way intended to influence Ms. Lewinsky to keep secret what was at that time an already terminated relationship. There is no evidence of any link whatsoever between the President's actions and possible testimony by Ms. Lewinsky in the Jones case.

In April 1996, Ms. Lewinsky was reassigned from the White House to the Pentagon. Although the transfer was viewed as a promotion, the President became aware that Ms. Lewinsky was upset about it, did not see it as a positive change, and feared that the transfer would be appear to be a demotion or Òblack markÓ on her resume. To the extent that Ms. Lewinsky was criticized for spending more time in the West Wing than was required by her responsibilities in the Office of Legislative Affairs, the President felt responsible.

In the summer of 1997, the President spoke to Marsha Scott, the deputy personnel director at the White House, and inquired about the possibility of a position being available for Ms. Lewinsky in the White House. He never ordered Ms. Scott or anyone else to provide her special treatment or directed that she be given a job at the White House. He simply wanted to assure that she had been treated fairly and asked only that Ms. Scott look into the possibility of a position at the White House for Ms. Lewinsky if it was appropriate. Ms. Lewinsky was never offered an opportunity to return to the White House-Ðas a result of that conversation or otherwise.

In the fall of 1997, Ms. Betty Currie spoke to Mr. John Podesta about finding a job for Ms. Lewinsky in New York, and Mr. Podesta ultimately spoke to Ambassador Bill Richardson about the matter. The Ambassador agreed to interview Ms. Lewinsky for a position in his New York office. The President was not involved in arranging the Richardson interview. When Ms. Lewinsky indicated to Ms. Currie that she preferred a job in the private sector, Ms. Currie contacted Mr. Jordan, her long-time friend, to see whether he would be willing to make inquiries regarding a job opportunity for Ms. Lewinsky in the private sector. Mr. Jordan referred her for interviews at American Express and Revlon, and to the advertising agency of Young & Rubicam. As Mr. Jordan said in his January 22, 1998 statement on the matter: Throughout my professional career, I have been privileged to assist people with their vocational aspirations. I have done so for two reasons. first, I stand on the shoulders of many individuals who have helped me. Second, I believe Òto whom much is given much is requiredÓ so I have tried to lend a helping hand. For many years now . . . I am consulted by individuals, young and old, male and female, black and white, Hispanic and Asian, rich and poor, cabinet members and secretaries, for assistance. And I have met with some success, from paralegals to mailroom clerks, to corporate directors, to CEO's. I was pleased to be helpful to Ms. Lewinsky whose drive, ambition, and personality were impressive. She was referred by Ms. Betty Currie, a secretary to the president. Mr. Jordan is a private individual who is free to offer job assistance to whomever he chooses.

Questions have been raised about a connection between the timing of Ms. Lewinsky's affidavit (which was executed January 7 and filed January 16) and the timing of any job offer. There was no connection. Francis Carter, Esq., Ms. Lewinsky's attorney at the time she executed the affidavit, apparently has stated that Ms. Lewinsky never asked him to delay the filing of an affidavit until after she had secured a job in New York and never suggested when the affidavit should be filed. The Washington Post, June 19, 1998. Indeed, Mr. Carter has reported that he himself delayed the filing of the affidavit while he attempted to persuade the Jones attorneys to withdraw the subpoena to Ms. Lewinsky. Ibid.

Indeed, it was totally appropriate for Mr. Jordan to refer Ms. Lewinsky to Francis Carter to represent her in the Jones litigation. Mr. Carter is a highly respected lawyer who would owe his duty to Ms. Lewinsky and represent her interests. Assuring a witness has her own counsel in whom she may confide is the surest and most appropriate way to protect the integrity of the process. As Mr. Jordan indicated in his January 22 statement, the referral was Òat her requestÓ and Mr. Jordan simply Òtook her to Mr. Carter's office, introduced them, and returned to my office.Ó Ms. Lewinsky paid Mr. Carter herself. Mr. Carter has said that Mr. Jordan brought Ms. Lewinsky to his office, introduced them, and told him that she had been subpoenaed in the Jones case and needed an attorney. The Washington Post, June 19, 1998. According to Mr. Carter, Mr. Jordan did not suggest what should be done or how the matter should be handled, but promptly left. Ibid. Mr. Carter has stated, ÒI never received any kind of information from [Ms. Lewinsky] at any time that contradicted anything that's in that affidavit.Ó Ibid.

Finally, in January of 1998, the President asked Mr. Erskine Bowles whether the legislative affairs office where Ms. Lewinsky once had worked would be able to give Ms. Lewinsky a reference that would not be negative. The President understood from Ms. Lewinsky that she thought she could get a good reference from The Department of Defense but hoped for a White House reference that was at least neutral. The President did not instruct anyone to provide such a reference and did not follow up on the inquiry. This innocuous query for an honest reference cannot conceivably be a basis for any charge of wrongdoing. VI. "ABUSES OF POWER"

From the very beginning, the Lewinsky investigation has been about potential impeachment -- a direct attack by the OIC on the constitutional status of the President. It is in that context that the OIC's allegations of abuse of power must be judged.

Any charge the OIC might make that the President has abused the powers of his office through the assertion of privileges -- privileges that were asserted at the initiation and recommendation of the Counsel's Office, not by the President himself -- is utterly baseless. Indeed, those charges are more a reflection of the OIC's unfettered abuse of his authority and his wholesale abandonment of any prosecutorial judgment in his campaign to prevent the President from consulting with his most senior advisors in confidence. No prosecutor, not even during Watergate, ever has contemplated the sort of sweeping intrusion into the President's ability to obtain advice that has been undertaken by the OIC. At bottom, the Independent Counsel believes that, merely because he demands confidential information, the President may not defend himself against impeachment without raising a charge that he is thereby abusing his power.

Before moving to these issues, one other point is worthy of note. It has been suggested in media reports that one of the grounds for impeachment advanced by the OIC is that the President abused his power by denying to his staff, in the days immediately following disclosure of the Lewinsky investigation, that he had engaged in any improper conduct when he knew that they might be called as witnesses before the grand jury and knew that they were making public statements in his defense. If this allegation were not so serious, such a suggestion would be ludicrous.

Implicit in the allegation is the notion that any official, in any branch of the government, who makes a statement about his own conduct, or indeed any other matter, that is not absolutely true is liable for misusing his office for so long as he fails to admit wrongdoing, for the official's staff will inevitable repeat his explanation in any number of forums. It would follow, therefore, according to what appears to be the OIC's reasoning, that no official could mount a defense to impeachment, or to ethics charges, or to a criminal investigation while remaining in office, for anything other than an admission of guilt will be treated as an abuse of his official powers. 1.The President's Decision to Litigate Privilege Issues Cannot Be Compared to the Abuses of Power Alleged during Watergate

The Independent Counsel apparently attempts to evoke images of Watergate by charging that the President has abused the powers of his office. This allegation is simply meritless. In the Federalist Papers, Alexander Hamilton described abuse of power as the "corrupt use of the office for personal gain or some other improper purpose." Former President Nixon's use of the Central Intelligence Agency (CIA) to thwart a major criminal investigation by the Federal Bureau of Investigation (FBI) of a crime in which he was involved, to take but one example, fits squarely within that definition. President Clinton's lawful assertion of privileges in a court of law and the Counsel's Office conduct of its official duties plainly does not.

There is no comparison between the claimed abuses of power by President Nixon and the public and lawful assertion of privileges during the OIC investigation. Indeed, comparing this White House with President Nixon's diminishes the historical significance of the unprecedented claims of abuse of power by the Nixon administration and attempts to criminalize the proper exercise of presidential prerogatives. The specious nature of the OIC's allegations reveal the OIC's true motive: to create an offense where none exists.

In July 1974, the House Judiciary Committee lodged serious and significant abuse of power charges against President Nixon, alleging that President Nixon, among other things: Engaged in an elaborate cover-up scheme that included using his secret intelligence operation to pay both for illegal activities and subsequent blackmail money for the cover-up; Paid hush money to his advisor; Instructed administration officials on how to commit perjury; Violated grand jury secrecy rules by obtaining 6(e) material from the Justice Department and passing it on to presidential advisors, who were targets of the investigation; Attempted to subvert the IRS and CIA; Authorized illegal intelligence gathering activities; Directly interfered with the Justice Department's ITT investigation; and, Pressured the CIA to interfere with the FBI's investigation of the Watergate break-in -- a conversation caught on tape.

In contrast, the OIC apparently has made such charges of abuse against President Clinton, however erroneously, for purportedly encouraging the Secret Service to assert privilege claims over their testimony and invoking attorney-client and executive privileges. President Clinton's privilege claims have been open and lawful, and were reviewed and in significant measure validated by the courts. Thus, the Nixon investigation and precedent stand in sharp contrast to the OIC's investigation and baseless charges in this matter. 2.The United States Secret Service's Decision to Pursue A

Protective Privilege Was the Proper Exercise of Its Own Authority And In No Way an Abuse of Power By the President

The assertion of a protective function privilege by the Secret Service cannot possibly serve as a basis for the OIC's allegations of abuse of power. As a factual matter, the President never asked, directed, or participated in any decision regarding the protective function privilege. Moreover, no one at the White House asked, directed, participated or had any role in such decisions. The Treasury and Justice Departments independently decided to pursue a privilege for the Secret Service to ensure the protection of this and future presidents.

Second, ignoring significant security concerns expressed by the Secret Service, the Independent Counsel sought testimony from agents about non-criminal events they may have witnessed as well as non-criminal conversations they may have overheard in the course of protecting the President. For the first time in the history of the Independent Counsel statute, the Independent Counsel sought to use the protective service as a source of intelligence for admittedly non-criminal activities of a protectee. In the wake of this unprecedented demand, it was and continues to be the reasoned judgment of career professionals in the Secret Service that the absence of a protective privilege would severely impair agents' ability to fulfill their mission to protect this and future Presidents (as well as other protectees). The Secret Service's position was supported by former presidents and by former agents assigned to protect presidents in both Republican as well as Democratic administrations.

Thus, the Justice and Treasury Departments' assertion of a protective privilege advanced valid concerns about the Secret Service's ability to perform its function. The OIC's suggestion that the assertion of this privilege constituted an abuse of power not only insults the integrity of career law enforcement officials, but that of congressional policy makers too. Indeed, because of the Independent Counsel's unorthodox overreaching, Senator Hatch vowed to seek legislation to enact the type of limited privilege asserted by the Secret Service in response to the Independent Counsel's sweeping actions. Congressional Press Releases, Senator Orrin Hatch, July 17, 1998. 3.The President's Assertions of Executive and Attorney/Client Privilege were Valid and Necessary

Any charge by the OIC that the President's assertion of privileges constitutes an abuse of power is equally baseless. The White House advanced claims of privilege only sparingly and as a last resort to protect the core constitutional and institutional interests of this and future presidencies. In pursuing his attack on the institution of the Presidency, the OIC took the extreme position that executive privilege was inapplicable and that the governmental attorney-client privilege did not exist in the face of grand jury subpoena. The OIC now seeks to penalize the President for disagreeing with its interpretations of the law, despite the fact that the courts (and the Department of Justice) both also disagreed with the OIC. A.The President Followed the Advice of White House Counsel Regarding the Assertion of Official Privileges

A necessary component of the OIC's abuse of power allegation is that the President initiated the White House's claims of privilege -- both executive and attorney-client -- with intent to impede the OIC's investigation. The record completely refutes this premise.

The privilege issue initially arose when the OIC served on Bruce Lindsey, Assistant to the President and Deputy Counsel, a subpoena seeking his testimony before the grand jury. Declaration of Charles F.C. Ruff (ÒRuff Dec.Ó) ¦ 31. Prior to Mr. Lindsey's appearance, the White House Counsel met with the OIC to discuss privilege issues and to ask the OIC to describe with particularity possible areas of inquiry to determine whether they would encompass privileged information. Id. ¦ 32. The OIC declined to discuss this issue, and later stated that it intended to question Mr. Lindsey on areas implicating a wide array of privileges because it believed that executive and attorney-client privileges were inapplicable to information relating to the Lewinsky investigation. Id. ¦¦ 32-34. The White House offered, in good faith, to provide the OIC with any factual testimony regarding the Lewinsky investigation. Id. ¦¦ 45-50. The OIC rejected this offer. Id. ¦ 51.

Instead, the OIC suddenly filed motions to compel the testimony of Mr. Lindsey and other senior staff. Id. After careful deliberations, the White House Counsel notified the President of the privilege issue, explained the failed accommodation effort, and recommended that he invoke privilege. As he did in every instance, the President accepted the White House Counsel's recommendation and authorized the Counsel to make the claim of privilege. Id. ¦ 56. Thus, the President's decision to claim privilege was never the result of his own initiative, but of his Counsel's advice. B.

The President's Executive Privilege Assertions Were Upheld by the Court

To put the OIC's apparent abuse of power charges in context, it is important to recognize that the OIC took the extraordinary position that executive privilege was inapplicable in the face of a grand jury subpoena and that it therefore was entitled to immediate and full disclosure of all strategic and political communication among the President's most senior advisors. This position was squarely at odds with the law of the Supreme Court, and of course, the D.C. Circuit. Executive privilege is constitutionally-based and covers communications relating to the President's official duties and the effective functioning of the executive branch. It ensures that the President receives frank and candid advice and recommendations, which ultimately fosters more informed and effective decision-making.

Here, the President asserted executive privilege over communications that relate to matters that affect the performance of his official duties. In re Grand Jury Proceedings, 1998 U.S. Dist. Lexis 7736, *7 (D.D.C. 1998); Ruff Dec. ¦¦ 16-30. Indeed, some of these communications related to the President's decision whether to invoke privilege over other communications. Id. ¦¦ 26-28.

Rather than acknowledge the presumptively privileged nature of the information, the OIC maintained that the privilege was inapplicable and that it did not have to demonstrate any need for the information. Chief Judge Johnson rejected the OIC's position holding that the communications were presumptively privileged. In re Grand Jury Proceedings, 1998 U.S. Dist. Lexis at *3-10. The Court then required the OIC to make a showing that its need for the information was sufficient to overcome the privilege. Id. at * 13-21. Although the Court concluded that the OIC had met its burden, the Court at no time even suggested that the President's assertion of executive privilege was groundless, improper, or made in bad faith. In those circumstances, it cannot seriously be argued that assertion of the privilege was an abuse of power.

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