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“APPENDICES A-L TO SENATOR LEVIN'S IMPEACHMENT TRIAL STATEMENT OF FEBRUARY 12, 1999” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S1794-S1799 on Feb. 23, 1999.
The publication is reproduced in full below:
[Pages S1794-S1799]
APPENDICES A-L TO SENATOR LEVIN'S IMPEACHMENT TRIAL STATEMENT OF
FEBRUARY 12, 1999
Mr. LEVIN. Mr. President, as we close this chapter in the Senate's life and prepare our records for the annals of history, there are several points which I wish to highlight in a series of appendices.
I ask unanimous consent that the appendices be printed in the Record.
There being no objection, the appendices were ordered to be printed in the Record, as follows:
Appendix A
The indisputable, underlying reality of the impeachment case was that Monica Lewinsky's denial of a sexual relationship with the President was part of a long-term understanding and pattern, long before the subpoena in the Paula Jones case.
``Q: Had you talked with him earlier about these false explanations about what you were doing visiting him on several occasions?
A: Several occasions throughout the relationship. Yes. It was a pattern of the relationship to sort of conceal it.''--Grand Jury Testimony of Monica Lewinsky, Part One; Independent Counsel Appendices, Page 844.
``A Juror: Did you ever discuss with the President whether you should deny the relationship if you were asked about it?
A: I think I always offered that.''--Grand Jury Testimony of Monica Lewinsky, Part One; Independent Counsel Appendices, Page 1077.
``A: And she [Linda Tripp] told me that I should put it in a safe deposit box because it could be evidence one day. And I said that was ludicrous because I would never--I would never disclose that I had a relationship with the President. I would never need it.''--Grand Jury Testimony of Monica Lewinsky, Part One; Independent Counsel Appendices, Page 1107.
``A Juror: And what about the next sentence also? Something to the effect that if two people who are involved say it didn't happen, it didn't happen. Do you recall him saying that to you?
A: Sitting here today, very vaguely . . . And this was--I mean, this was early--obviously not something we discussed too often, I think, because it was--it's a somewhat unpleasant thought of having to deny it, having it even come to that point.
A Juror: Is it possible that you also had these discussions after you learned that you were a witness in the Paula Jones case?
A: I don't believe so. No.
A Juror: Can you exclude the possibility?
A: I pretty much can.''--Grand Jury Testimony of Monica Lewinsky, Part One; Independent Counsel Appendices, Page 1119.
____
Appendix B
Did Ms. Lewinsky think her affidavit in the Paula Jones case was false when she signed it?
``Ms. L had a physically intimate relationship with the President. Neither the Pres. nor Mr. Jordan (or anyone on their behalf) asked or encouraged Ms. L to lie. Ms. L was comfortable signing the affidavit with regard to the `sexual relationship' because she could justify to herself that she and the Pres. did not have sexual intercourse.''--Proffer of Monica Lewinsky to the Independent Counsel.
``Q: When he said that you might sign an affidavit, what did you understand it to mean at that time?
A: I thought that signing an affidavit could range from anywhere between maybe just somehow mentioning, you know, innocuous things or going as far as maybe having to deny any kind of relationship.''--Grand Jury Testimony of Monica Lewinsky, Part One; Independent Counsel Appendices, Page 844.
``Q: You were trying to be truthful throughout [the proffer]?
A: Exactly.''--Grand Jury Testimony of Monica Lewinsky, Part One; Independent Counsel Appendices, Page 1142.
``A: But I did some justifying in signing the affidavit, so--
Q: Justifying--does the word `rationalizing' apply as well?
A: Rationalize, yes.''--Grand Jury Testimony of Monica Lewinsky, Part One; Independent Counsel Appendices, Page 925.
____
Appendix C
House Managers implied that when the President allegedly told John Podesta Ms. Lewinsky threatened him, the President was lying. But Monica Lewinsky did write a threatening letter to President Clinton.
``If you believe the aides testified truthfully to the grand jury about what the President told them about his relationship, the President told them many falsehoods, absolute falsehoods. So when the President described them under oath to the grand jury as truths, he lied and committed the crime of perjury. One example of this comes from Deputy Chief John Podesta. . . [a]nother is Sidney Blumenthal. His testimony was that on January 23 the President told him that.
. . Lewinsky threatened him and said that she would tell people that they had had an affair. . .''--House Manager McCollum, Congressional Record, January 15, 1999, Page S266.
``Q: You mentioned that in that July 3rd letter that you sent to the President through Betty you made a reference to the fact that you might have to explain things to your parents. What did you mean by that?. . . Were you meaning to threaten the President that you were going to tell, for example, your father about the sexual relationship with the President?
A: Yes and no.''--Grand Jury Testimony of Monica Lewinsky, Part One; Independent Counsel Appendices, Page 807.
____
Appendix D
There was much debate about the consequences of calling live witnesses. The President's lawyers argued that calling witnesses would require them to engage in extensive discovery and would significantly stretch-out the trial. It is relevant in evaluating that claim to look at the impeachments of Judge Nixon and Judge Alcee Hastings. In both of those cases, the Judges' attorneys were given extensive discovery, including Justice Department files, to prepare their defense. See letter of Senator Wyche Fowler, Chairman of the Senate Impeachment Trial Committee, and letter of Professor Terence Anderson, University of Miami School of Law, below:
U.S. Senate,
Washington, DC, July 18, 1989.John C. Keeney,Deputy Assistant Attorney General, Criminal Division,
Department of Justice, Washington, DC.
Dear Mr. Keeney: As Chairman of the Senate Impeachment Trial Committee on the Articles of Impeachment against Judge Nixon, I write to request the Department's assistance in the Committee's efforts to assure that Judge Nixon receives a fair trial in the Senate. The Committee has determined that it would make a useful contribution to the trial process if the Department were willing to permit the Committee, through its staff, to review the documents (excluding grand jury materials governed by Rule 6(e)) in the possession of the Department, including those possessed by the Federal Bureau of Investigation, that were requested by Judge Nixon in his June 1, 1989 letter to the Attorney General, which was the subject of your response on June 21, 1989.
The review would be consistent with that conducted in the case of the Hastings impeachment matter. That is, the focus of the review would be to determine if there is evidence that the investigations were conducted in a manner intended to mislead a court or trier of fact as to Judge Nixon's guilt or innocence. In the event that it is determined that particular documents should properly be made part of the pending impeachment proceedings, and accordingly made available to the parties for use at trial, the committee would hear from the Department prior to disclosing any documents that you believe contain particularly sensitive matters, so that we may address any continuing concerns that you have. No documents or portions of documents would be made available to the parties without the consent of the Department.
Your expeditious response to this request would be most helpful to the committee in attempting to complete discovery by July 31st.
Sincerely,Wyche Fowler, Jr.
____
The University of Miami School of Law,
Coral Gables, FL, January 28, 1999.Hon. Carl Levin,U.S. Senate.
Discovery Precedents From Hastings
Dear Senator Levin: Ms. Linda Gustitus asked that I describe the process by which and the materials to which I was given access as counsel for then Judge Hastings during the impeachment trial proceedings before the United States Senate. After the matter was referred to an Impeachment Trial Committee, I submitted requests for production of documents to the House, to the Investigating Committee of the Judicial Council of the Eleventh Circuit, to the Federal Bureau of Investigation, and the Justice Department. Over the initial objections of the House Managers, at the ``request'' of the Impeachment Trial Committee I received documents from all but the Justice Department. In lieu of direct production, the Impeachment Trial Committee examined the sensitive Justice Department materials to determine what should be supplied. I was also permitted to take at least three discovery depositions. The proceedings that resulted in this production are reported in Report of the Senate Impeachment Trial Committee on the Articles of Impeachment Against Judge Alcee L. Hastings, S. Hrg. 101-194, Pt. I (Pretrial Matters).
By way of illustrations I enclose an appendix to a memorandum that I submitted to the Impeachment Trial Committee. That appendix describes in some detail the materials that I received from the FBI and my estimate that in the aggregate the production amounted to about 16,000. The enclosed copy was reproduced from S. Hrg. 101-194, Pt. I at 433-436. Please let me know if I can be of further assistance.
Sincerely,
Terence J. Anderson.
Professor of Law.
Appendix E
Many of us in the Senate thought the House of Representatives failed to meet its responsibilities by not calling witnesses before the House Judiciary Committee. A review of impeachments shows that in every impeachment but the one (where the subject of the impeachment was mentally incompetent and the House relied on the record of his decisions as a judge), the House called fact witnesses. According to information obtained by my staff from the Congressional Research Service, there have been 16 impeachments by the House. 14 of those impeachments have resulted in trials in the Senate; two did not because the impeached officials resigned.
15 of those impeachments had fact witnesses in the House; one didn't. That was the case of Judge Pickering. He was impeached for being mentally incapacitated. There were charges of drunkenness and ``ungentlemanly language'' in the courtroom. The articles against him, however, all dealt with his rulings and decisions that ``proved'' he was mentally incompetent. During the House inquiry, a number of affidavits were presented.
____
Appendix F
Independent counsel Kenneth Starr intervened in the Senate impeachment trial by obtaining a court order addressed to Monica Lewinsky requiring her to meet privately with House Managers, based on a motion and ex parte hearing with no notice to the Senate counsel or White House counsel. The independent counsel then mischaracterized his own action in seeking that order, describing it as seeking an
``interpretation'' rather than an ``order''.
See the letters to Kenneth Starr, Robert Bittman, Jacob Stein, & Robert Bittman; the Emergency Motion on Immunity Agreement; the letter to Congressman Henry Hyde; the letter to Sen. Daschle; Congressman Hyde's press release; the order of Judge Norma Holloway Johnson and the transcript of Mr. Starr's remarks as follow:
Washington, DC,
January 21, 1999.Hon. Kenneth W. Starr,Office of Independent Counsel,Washington, DC.
Re: Interview of Monica Lewinsky.
Dear Independent Counsel Starr: I am writing to you as the Lead Manager of the Managers of the Impeachment Trial of William Jefferson Clinton, currently underway in the United States Senate. We are in the process of selecting witnesses for testimony in these proceedings. The attorneys for Monica Lewinsky have declined to make her available for an interview.
We have reviewed a copy of Ms. Lewinsky's Immunity Agreement. Pursuant to paragraph 1(c) of that Agreement, it would appear that she is required to submit to interviews and debriefings if so requested by the Office of Independent Counsel.
We would like to arrange an interview with Ms. Lewinsky prior to any such testimony. We would be happy to accommodate her wishes as to the precise time and location of that interview. However, it is important that this interview be scheduled to take place on the earliest possible date, specifically Friday, Saturday, or Sunday. Your assistance with this interview will be appreciated.
Thank you for your prompt attention.
Sincerely,
Henry H. Hyde,
On Behalf of the Managerson the Part of the House.
____
Law Offices of
Plato Cacheris,
Washington, DC, January 21, 1999.Robert J. Bittman, EsquireDeputy Independent Counsel, Office of the Independent
Counsel, Washington, DC.
Dear Bob: In your call today you mentioned that the managers requested Ms. Lewinsky's cooperation by way of an interview. As I told you, we believe it is inappropriate for Ms. Lewinsky to be placed in the position of a partisan--meeting with one side and not the other--in this unique proceeding. Therefore, we have recommended against interviews with either side.
Sincerely,Jacob A. Stein.Plato Cacheris.
____
Independent Counsel,
Washington, DC, January 21, 1999.Jacob A. Stein, Esq.Stein, Mitchell & Mezines,
Washington, DC.Plato Cacheris, Esq.Law Offices of Plato Cacheris,Washington, DC.
Dear Jake and Plato: Pursuant to her Immunity Agreement with this Office, we hereby request that Monica Lewinsky meet for an interview with the House of Representatives' Impeachment Managers this Friday, Saturday, or Sunday, January 22, 23, or 24, 1999.
As you will recall, both parties contemplated congressional proceedings at the time we entered into the Immunity Agreement. The Agreement specifically requires Ms. Lewinsky to ``testify truthfully . . . in any . . . congressional proceedings.'' It further requires Ms. Lewinsky to ``make herself available for any interviews upon reasonable request,'' and stipulates that these interviews may include
``representatives of any other institutions as the OIC may require.''
While I understand Ms. Lewinsky's misgivings, I must disagree with one statement in your letter to me today: your assertion that submitting to an interview would make Ms. Lewinsky into a partisan. The Managers are acting on behalf of the House of Representatives as a whole, not on behalf of a political party. There task is constitutional in nature.
Please feel free to call me if you have any questions.
Sincerely,
Robert J. Bittman,Deputy Independent Counsel.
____
Stein, Mitchell & Mezines,
Washington, DC, January 22, 1999.Robert J. Bittman, EsquireOffice of the Independent CounselWashington, DC.
Dear Bob:
1. We have your January 21, 1999 letter.
2. The Agreement does not require Ms. Lewinsky to be interviewed by the House Managers or any Congressional body.
3. Paragraph 1.C. of the Agreement states: ``Ms. Lewinsky will be fully debriefed concerning her knowledge of and participation in any activities within the OIC's jurisdiction. This debriefing will be conducted by the OIC, including attorneys, law enforcement agents, and representatives of any other institutions as the OIC may require. Ms. Lewinsky will make herself available for any interviews upon reasonable requests.''
4. This paragraph deals with OIC debriefings, not OIC's acting as an agent for others.
5. The Senate itself has provided its own rules for witness interviews. As we understand them, there first must be a deposition with equal access. As of now the Senate has not voted for depositions.
6. Ms. Lewinsky will, of course, respond to a subpoena to appear and testify before the Senate. Yesterday, we raised with you the issue of immunity for any proposed congressional testimony. You opined that your office could grant such immunity in conformance with Title 18 U.S.C. Sec. Sec. 6002, 6005. It is our understanding that only the Senate by majority vote can do that. We would appreciate your supplying your legal authority for your position.
Sincerely,Jabob A. Stein.Plato Cacheris.
____
[In the United District Court for the District of Columbia, Misc. No.
99- (NHJ)]
In Re Grand Jury Proceedings
emergency motion of the united states of america for enforcement of immunity agreement
The United States of America, by Kenneth W. Starr, Independent Counsel, respectfully submits this motion for an order requiring Ms. Lewinsky to comply with the terms of her Immunity Agreement (the ``Agreement'') with the Office of the Independent Counsel (``OIC''). Ms. Lewinsky has refused an OIC request that she be debriefed by the House of Representatives, as required by the Agreement. The United States respectfully requests that this Court orders Ms. Lewinsky to comply with the Agreement by allowing herself to be debriefed.I. Factual background
As this Court is no doubt aware, the United States Senate is currently conducting an Impeachment Trial of the President of the United States. According to public reports, it is expected that the House will be required to submit to the Senate its motion to call witnesses as early as Monday, January 25. Again according to public reports, some potential witnesses have spoken with the House Managers as the Managers attempt to determine which witnesses should be mentioned in their motion to the Senate.
On January 21, 1999, House Judiciary Committee Chairman Henry J. Hyde, on behalf of the House of Representatives, as represented by its duly-appointed Managers, asked for the OIC's assistance in having Ms. Lewinsky debriefed by the House. See Letter from Henry J. Hyde to Kenneth W. Starr
(Jan. 21, 1999) (Attachment A). The House stressed that it needs this debriefing to occur no later than Sunday, January 24.
That same day, the OIC sent a letter to Ms. Lewinsky's counsel requesting that Ms. Lewinsky allow herself to be debriefed by the House Managers. See Letter from Robert J. Bittman, Deputy Independent Counsel, to Jacob A. Stein, Esq. and Plato Cacheris, Esq. (Jan. 21, 1999) (Attachment C). At approximately 1:20 p.m. this afternoon, Ms. Lewinsky informed the OIC that she does not intend to comply with this request. See Letter from Jacob A. Stein and Plato Cacheris to Robert J. Bittman (Jan. 22, 1999) (Attachment D).II. The immunity agreement plainly requires Ms. Lewinsky to be debriefed by any institution that the OIC specifies
Ordinary contract law principles govern immunity agreements. See In re Federal Grand Jury Proceedings, Misc. No. 98-59 (NHJ), slip op. at 12 (D.D.C. May 1, 1998) (under seal) (``Courts generally interpret immunity and proffer agreements, like plea agreements, under principles of contract law.''), appeal dismissed sub nom. In re Sealed Case, 144 F.3d 74 (D.C. Cir. 1998) (per curiam); accord United States v. Black, 776 F.2d 1321, 1326 (6th Cir. 1985)
(``Like a plea agreement, an immunity agreement is contractual in nature and may be interpreted according to contract law principles.''); United States v. Irvine, 756 F.2d 708, 710 (9th Cir. 1985) (per curiam) (``Generally speaking, a cooperation-immunity agreement is contractual) in nature and subject to contract law standards.''); United States v. Hembree, 754 F.2d 314, 317 (10th Cir. 1985)
(characterizing an immunity agreement as ``simply a contract'').
Under contract law, an agreement is interpreted according to its plain terms. See Nicholson v. United States, 29 Fed. Cl. 180, 191 (1993). The operative portion of the Immunity Agreement states: ``C. Ms. Lewinsky will be fully debriefed concerning her knowledge of and participation in any activities within the OIC's jurisdiction. This debriefing will be conducted by the OIC, including attorneys, law enforcement agents, and representatives of any other institutions as the OIC may require. Ms. Lewinsky will make herself available for any interviews upon reasonable request.'' Immunity Agreement para. 1.C (emphasis added)
(Attachment E). This provision follows paragraph 1.B, which expressly requires Ms. Lewinsky to ``testify truthfully . . . in . . . congressional proceedings.''
By the plain terms of the Agreement, Ms. Lewinsky has agreed to be debriefed by representatives of any institution, when so required by the OIC. She is also required to ``make herself available for any interviews upon reasonable request.'' The duly-appointed House Managers represent the House of Representatives, which plainly is an institution. The OIC has unambiguously requested that Ms. Lewinsky submit to each debriefing. Accordingly, Ms. Lewinsky must allow herself to be debriefed by the House Managers or she will have violated the Agreement.
To be sure, Ms. Lewinsky has the right to have her
``debriefing . . . conducted by the OIC.'' The OIC, of course, is fully willing to conduct these debriefings, if Ms. Lewinsky so desires. The suggestion in her counsel's letter that this provision is void if the OIC is ``acting as an agent for other,'' Attachment D at para. 4, is contrary to the Agreement, as there is no such limitation on Ms. Lewinsky's duties. A party to an agreement may not invent clauses to a contract that are not contained therein.
In any event, the OIC is not acting as an agent for the House Managers. The OIC has its own, continuing duty to provide the House with information relating to impeachment. See 28 U.S.C. Sec. 595(c).
Ms. Lewinsky's counsel's other suggestion--that a debriefing would be contrary to Senate Rules, see Attachment D at para. 5--is equally without merit. Senate Resolution 16 (106th Cong.) states, in relevant part: ``If the Senate agrees to allow either the House or the President to call witnesses, the witnesses shall first be deposed and the Senate shall decide after deposition which witnesses shall testify, pursuant to the impeachment rules.'' Although it is plain that depositions may not be conducted absent a vote of the Senate, nothing in this resolution restricts the ability of the House to debrief witnesses in a non-deposition setting. Indeed, it would be strange for the Senate to prohibit the House and the President from doing the investigation necessary to determine whether they wish to call witnesses and which witnesses to list in their motions.III. This court should grant an order requiring Ms. Lewinsky to comply with the immunity agreement or forfeit its protection
Under the Agreement, this Court has the authority to determine whether Ms. Lewinsky has ``violated any provision of this Agreement.'' Immunity Agreement para. 30. ``[A] declaratory judgment will ordinarily be granted only when it will either serve a useful purpose in clarifying the legal relations in issue or terminate and afford relief from the uncertainty, insecurity, and controversy giving right to the proceeding.'' Tierney v. Schweiker, 718 F.2d 456 (D.C. Cir. 1983) (internal quotation marks omitted). In this case, a declaratory judgment will resolve the uncertainty arising from this controversy between the OIC and Ms. Lewinsky by settling whether she has the right to refuse to be debriefed without forfeiting the protections of the Agreement.
Indeed, declaratory judgment is a common remedy when a party to a contract intends conduct that may be a breach: ``
`(A) party to a contract is not compelled to wait until he has committed an act which the other party asserts will constitute a breach, but may seek relief by declaratory judgment and have the controversy adjudicated in order that he may avoid the risk of damages or other untoward consequence.' '' (Application of President & Directors of Georgetown College, Inc.) 331 F.2d 1000, 1002 n.6 (D.C. Cir. 1964) (quoting Keener Oil & Gas v. Consolidated Gas Utilities Corp., 190 F.2d 985, 989 (10th Cir. 1951)); see Gilbert, Segall & Young v. Bank of Montreal, 785 F. Supp. 453. 462
(S.D.N.Y. 1992); Fine v. Property Damage Appraisers, Inc., 393 F. Supp. 1304, 1309-10 (E.D. La. 1975). Accordingly, this Court has the power to issue a declaratory judgment before Ms. Lewinsky's actions become irreversible.IV. Conclusion
The Immunity Agreement plainly requires that Ms. Lewinsky allow herself to be debriefed by any institution at the request of the OIC. Ms. Lewinsky has the right to insist that the OIC conduct the debriefing, but she must comply with the plain terms of the Immunity Agreement. Accordingly, the United States respectfully requests that this Court enter an order requiring Ms. Lewinsky to submit to debriefing by the House.
The Senate's schedule requires the House to submit its motion to call witnesses as early as Monday, and the House has stressed its need to debrief Ms. Lewinsky this weekend. Accordingly, the United States respectfully requests that this Court act on this motion as an emergency matter. Specifically, we request a hearing on this matter today.
Respectfully submitted,Kenneth W. Starr,
Independent Counsel.Robert J. Bittman,
Deputy Independent Counsel.Joseph M. Ditkoff,
Associate Independent Counsel.Richard C. Killough,
Assistant Independent Counsel.
____
Washington, DC,
January 23, 1999.Hon. Henry J. Hyde,Chairman, Committee on the Judiciary,Washington, DC.
Dear Mr. Manager Hyde: We understand that the Office of Independent Counsel, on behalf of the House Managers, sought a court order to compel Ms. Lewinsky to submit to an interview with the Managers in preparation for her possible testimony. We further understand that Chief Judge Norma Holloway Johnson has granted the order sought by the Independent Counsel.
As you know, Senate Resolution 16, which was passed by a 100-0 vote just over two weeks ago, expressly deferred any consideration or action related to additional witness testimony until after opening presentations, a question-and-answer period and an affirmative vote to compel such testimony. These actions by the Managers, undertaken without notice to the Senate or the President's Counsel, raise profound questions of fundamental fairness and undermine the ability of this body to control the discovery procedures that will take place under the imprimatur of its authority.
In light of these concerns, we ask that you withdraw any and all requests to Mr. Starr that he assist your efforts to interview Ms. Lewinsky. The Senate, in a matter of days, will have an opportunity to formally address this issue pursuant to the procedures established by Senate Resolution 16. Moreover, we insist that you take no action related to the proposed interview of any witness until such time as the Senate has given you the authority to do so.
Sincerely,
Harry Reid.
[Also signed by 43 Senators.]
____
Washington, DC,
January 23, 1999.Hon. Tom Daschle,Democratic Leader, U.S. Senate,Washington, DC.
Dear Mr. Democratic Leader: I am in receipt of your letter of today expressing your concern with the House of Representatives' request to interview Monica Lewinsky.
It has always been the position of the House Managers that a full trial with the benefit of relevant witnesses is in the best interest of the Senate and the American people. Representatives of President Clinton and many Senators have publicly stated that they want the Senate to preclude the testimony of witnesses. Many other Senators have made it clear that they prefer the witness lists for both sides to be sharply focused and limited to only the most relevant witnesses. The Managers have been mindful of these Senators' concerns.
It is clear that the two most important witnesses in this trial are President Clinton and Ms. Lewinsky. Yesterday, I wrote to Majority Leader Lott and you to express the Managers' willingness to participate in the fair examination of the President if the Senate chooses to invite him to testify. The presentation of the President's counsel ended just two days ago. We are in the process of evaluating that presentation and determining what witnesses we will request the Senate to call. We believe that interviewing Ms. Lewinsky will help us make this determination. Counsel for the President may have already interviewed witnesses or may wish to interview witnesses they will propose to the Senate. That is their prerogative. The Senate has required us to submit a proffer of anticipated testimony of any proposed witnesses. Interviews of potential witnesses will assist the parties in providing the Senate with informative proffers.
The House of Representatives has not violated S. Res. 16. When the House passed H. Res. 10 appointing the Mangers, it authorized that the Managers may ``in connection with the preparation and the conduct of the trial, exhibit the articles of impeachment to the Senate and take all other actions necessary, which may include * * * sending for persons and papers . . . .'' Implicit in this authority is the ability to conduct interviews and gather additional information relevant to the articles of impeachment.
The Managers, who represent the House of Representatives, retain powers separate and apart from the Senate. The Managers are not, just as the President's Counsel are not, an office or subset of the Senate. The Managers, like the President's Counsel, may conduct activities, such as further investigation and legal research, that are not specifically authorized by the Senate.
Senate Resolution 16 does not prohibit the Managers from conducting further investigation or interviews of witnesses. If the resolution was intended to restrict the Managers in this way, we believe that it would violate principles of bicameralism, the ability of each House to establish its own rules of procedure, and would therefore be an unconstitutional infringement on the prerogatives of the House.
Implicit in the right of the Managers to report to the House amendments to articles of impeachment, is the right of the Managers to receive and evaluate additional information. For example, if the Managers received additional exculpatory or inculpatory information, they could file amendments to the articles of impeachment in the House.
Senate Resolution 16 set a schedule for deciding whether to depose witnesses. The decision to depose witnesses is subject to a request from the House Managers. The House Managers have decided that they need to talk with Ms. Lewinsky before making a recommendation to the Senate to depose her. The action of the House Managers is not unusual. It is not unfair, and it is not contrary to the rules of the Senate.
With all due respect to the Senate, the rules and the constitutional principles of bicameralism do not require that the House obtain the permission of the Senate merely to conduct an interview of a potential witness. A decision to merely interview a witness as opposed to conducting a deposition, does not interfere with the Senate's ability to control the procedures set forth under S. Res. 16.
Sincerely,
Henry J. Hyde,
On behalf of the Managers on the
Part of the House of Representatives.
[From the U.S. House of Representatives, Committee on the Judiciary,
Henry J. Hyde, Chairman]
Managers' Response to Judge's Ruling
(Washington, D.C.)--Paul McNulty, chief spokesman for the House Managers, made the following statement today following Judge Johnson's ruling that Monica Lewinsky must cooperate with the managers' request for an interview, in keeping with her immunity agreement:
``Monica Lewinsky received extraordinary protection in exchange for her truthful testimony. Judge Johnson ruled that she has an obligation to cooperate in the search for truth.
``Ms. Lewinsky's testimony has never been more important than it is now. In the last four days, the White House has challenged the reliability of her testimony in a number of key instances relating to her conversations with the President and Ms. Currie.
``Ms. Lewinsky can resolve some of these crucial conflicts, and House Managers have a responsibility to interview her before deciding to call her as a witness. This is Lawyering 101--any good lawyer would talk to a witness before deciding to put her on the witness stand. When the House of Representatives appointed the Managers, it also granted them the investigative authority necessary to find the truth.
``The White House's protests are psuedo-objections designed to divert attention from the President's behavior.''
____
[In the United States District Court for the District of Columbia,
Misc. No. 99-32 (NHJ)]
In re Grand Jury Proceedings
order
Upon consideration of the Emergency Motion of the United States of America for Enforcement of Immunity Agreement, it is hereby ordered that the Motion is granted. It is further ordered that Monica S. Lewinsky allow herself to be debriefed by the House Managers, to be conducted by the Office of the Independent Counsel if she so requests, or forfeit her protections under the Immunity Agreement between Ms. Lewinsky and the OIC.
January 23, 1999.
Norma Holloway Johnson,Chief Judge.
____
Excerpt from CBS Radio Transcript, January 24, 1999
kenneth starr delivers remarks concerning the upcoming interview with monica lewinsky; Washington, d.c.
QUESTION: Sir, people are saying on the Capitol Hill that you're trying to influence the trial by bringing back Monica, before they had a chance to vote.
What do you say about that?
STARR: Well, as I indicated, we had a request from the Lead Manager, Chairman Hyde, it was a formal request. And we responded as I felt that we were obligated to do to that request. And we then took what I felt was the appropriate action and we went to court.
I want to make it very clear that Chief Judge Johnson has only interpreted the agreement between Ms. Lewinsky, who's advised by her very able lawyers, and our office. She did not direct an order in any sense other than to interpret the meaning of the agreement, which we asked her to interpret. So, I want it to be very, very clear that the judge was simply acting at our request to interpret the terms of the agreement, which we believe are quite clear.
QUESTION: Senator Harkin said yesterday that Judge Johnson may not have acted on, you know, constitutionally. Do you have any comment on that?
STARR: Well we think that we have taken the appropriate action in going to the court and the court acted appropriately in interpreting the agreement, which is all that she did. So if there is an issue, the issue has to be one that's entrusted to the wisdom of the Senate. And their relationship with the House managers.
But from our standpoint, the agreement we felt was clear, we asked the judge to determine whether our interpretation of the agreement was clear. And she has issued her ruling.
____
Appendix G
Although the House Managers argued strenuously about the need to call witnesses in the Senate trial, their position in the House of Representatives on the same subject was the opposite.
``Well, they've already testified . . . I don't think we need to reinvent the wheel. To keep calling people to reiterate what they've already said under oath.''--Rep. Henry Hyde, CNN, October 10, 1998.
``I don't really believe that we need more live testimony from those type of witnesses. We have sworn testimony from Monica Lewinsky, from Betty Currie, from all the principal players. We also have sworn testimony from corroborating witnesses to their testimony . . . And--and . . . I don't think we need any former witnesses. I don't think we need to bring any in.''--Rep. Bill McCollum, NBC ``Saturday Today'', November 28, 1998.
``Bringing in witnesses to rehash testimony that's already concretely in the record would be a waste of time and serve no purpose at all.''--Rep. George Gekas, New York Times, November 6, 1998.
Appendix H
Although the House Managers argued strenuously about the need to call witnesses in the Senate trial, they also claimed that the record conclusively proved the President's guilt.
``A reasonable and impartial review of the record as it presently exists demands nothing less than a guilty verdict.''--House Manager Bryant, Congressional Record, January 14, 1999, Page S232.
``Finally, before turning to that merger of the law and the facts, which I believe will illustrate conclusively that this President has committed and ought to be convicted on perjury and obstruction of justice . . .''.--House Manager Barr, Congressional Record, January 15, 1999, Page S274.
``[L]adies and gentlemen of the Senate, there are conclusive facts here that support a conviction.''--House Manager Bryant, Congressional Record, February 8, 1999, Page S1358.
Appendix I
At times, the House Managers took different and oft-time conflicting positions on the need to call witnesses in the Senate trial.
``I submit that the state of the evidence is such that unless and until the President has the opportunity to confront and cross-examine witnesses like Ms. Lewinsky, and himself, to testify if he desires, there could not be any doubt of his guilt on the facts.''--House Manager Bryant, Congressional Record, January 14, 1999, Page S232.
``[I]f we had Mr. Jordan on the witness stand--which I hope to be able to call Mr. Jordan--you would need to probe where his loyalties lie, listen to the tone of his voice, look into his eyes and determine the truthfulness of his statements. You must decide whether he is telling the truth or withholding information.''--House Manager Hutchinson, Congressional Record, January 14, 1999, Page S234.
``The case against the President rests to a great extent on whether or not you believe Monica Lewinsky. But it is also based on the sworn testimony of Vernon Jordan, Betty Currie, Sidney Blumenthal, John Podesta and corroborating witnesses. Time and again, the President says one thing and they say something entirely different . . . . But if you have serious doubts about the truthfulness of any of these witnesses, I, again, as all my colleagues do, encourage you to bring them in here.''--House Manager McCollum, Congressional Record, January 15, 1999, Page S266.
``[O]n the record, the weight of the evidence, taken from what we have given you today, what you can read in all these books back here . . . I don't know what the witnesses will say, but, I assume if they are consistent, they'll say the same that's in here.''--House Manager McCollum, Congressional Record, January 15, 1999, Page S266-S267.
``[N]o one in this Chamber at this juncture does not know all the facts that are pertinent to this case. That is a magnificent accomplishment on the part of the managers.''--House Manager Gekas, Congressional Record, January 15, 1999, Page S267.
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Appendix J
The House of Representatives articles were intended to charge President Clinton with specific crimes.
``[T]his honorable Senate must do the right thing. It must listen to the evidence; it must determine whether William Jefferson Clinton repeatedly broke our criminal laws and thus broke his trust with the people.''--House Manager Sensenbrenner, Congressional Record, January 14, 1999, Page S227.
``Moreover, in engaging in this course of conduct, referring here to the words of the obstruction statute found at section 1503 of the Criminal Code, the President's actions constituted an endeavor to influence or impede the due administration of justice in that he was attempting to prevent the plaintiff in the Jones case from having a `free and fair opportunity to learn what she may learn concerning the material facts surrounding her claim'. These acts by the President also constituted an endeavor to `corruptly persuade another person with the intent to influence the testimony they might give in an official proceeding'. Such are the elements of tampering with witnesses found at section 1512 of the Federal Criminal Code.''--House Manager Barr, Congressional Record, January 15, 1999, Page S274-S275.
``Under both sections of the Federal Criminal Code, that is, 1503, obstruction, and 1512, obstruction in the form of witness tampering, the President's conduct constituted a Federal crime and satisfies the elements of those statutes.--House Manager Barr, Congressional Record, January 15, 1999, Page S275.
``The evidence, however, clearly establishes that the President's statement constitutes perjury, in violation of section 1623 of the U.S. Federal Criminal Code for the simple reason the only realistic way Ms. Lewinsky could get out of having to testify based on her affidavit. There was no other way it could have happened. The President knew this. Ms. Lewinsky knew this. And the President's testimony on this point is perjury within the clear meaning of the Federal perjury statute. It was willful, it was knowing, it was material, and it was false.--House Manager Barr, Congressional Record, January 15, 1999, Page S275.
``Please keep in mind also, it is not required that the target of the defendant's actions actually testify falsely. In fact, the witness tampering statute can be violated even when there is no proceeding pending at the time the defendant acted in suggesting testimony. As the cases discussed by Manager Cannon demonstrate, for a conviction under either section 1503, obstruction, or 1512, obstruction by witness tampering, it is necessary only to show it was possible the target of the defendant's actions might be called as a witness. That element has been more than met under the facts of this case.--House Manager Barr, Congressional Record, January 15, 1999, Page S276.
``In my opening statement before this body, I outlined the four elements of perjury: An oath, intent, falsity, materiality. In this case, all those elements have been met.''--House Manager Chabot, Congressional Record, February 8, 1999, Page S1341.
``In the past month, you have heard much about the Constitution; and about the law. Probably more than you'd prefer; in a dizzying recitation of the U.S. Criminal Code: 18 U.S.C. 1503. 18 U.S.C. 1505. 18 U.S.C. 1512. 18 U.S.C. 1621. 18 U.S.C. 1623. Tampering. Perjury. Obstruction. That is a lot to digest, but these are real laws and they are applicable to these proceedings and to this President.''--House Manager Barr, Congressional Record, February 8, 1999, Page S1342.
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Appendix K
Though written in his diary almost 200 hundred years ago, John Quincy Adams' thoughts on the impeachment of Justice Samuel P. Chase, who was acquitted, are relevant to the impeachment of President Clinton.
On the day that Justice Chase was acquitted in 1805, John Quincy Adams wrote the following:
``. . . This was a party prosecution, and is issued in the unexpected and total disappointment of those by whom it was brought forward. It has exhibited the Senate of the United States fulfilling the most important purpose of its institution. . . It has proved that a sense of justice is yet strong enough to overpower the furies of factions; but it has, at the same time, shown the wisdom and necessity of that provision in the Constitution which requires the concurrence of two-thirds for conviction upon impeachments.''
Appendix L
Additional Statement of Senator Carl Levin regarding the Independent
Counsel
Mr. President, four and one half years ago, the Special Court under the independent counsel law appointed Kenneth Starr to investigate certain specific and credible allegations concerning President Clinton's involvement in the Madison Guaranty Savings and Loan Association of Little Rock, Arkansas. Three and half years later--and after what appears to be the most thorough criminal investigation of a sitting President, Mr. Starr was unable to find any criminal wrongdoing on the part of the President in what came to be known as ``Whitewater.'' A similar conclusion was reached by Mr. Starr with respect to additional investigations assigned to Mr. Starr along the way--namely, allegations with respect to the White House use of FBI files and the discharge of White House employees from the White House Travel Office.
A year ago Mr. Starr's investigation was coming to an end. That's when Linda Tripp walked through Mr. Starr's door with promises of taped phone conversations between Ms. Tripp and Monica Lewinsky about Ms. Lewinsky's sexual relationship with President Clinton. And what was the alleged crime? That President Clinton and Ms. Lewinsky were about to lie about their relationship--if they were asked about it by the attorneys for Paula Jones in her sexual harassment case against President Clinton. Mr. Starr had to know that the relationship between President Clinton and Monica Lewinsky had been a consensual one. Mr. Starr had to know that, because Ms. Tripp was informed by Ms. Lewinsky of every aspect of her relationship with President Clinton. And at this point--January 12, 1998--neither Monica Lewinsky nor President Clinton had been deposed.
I am convinced that no ordinary federal prosecutor, if confronted with the same situation involving a private citizen, would have pursued this case. But Mr. Starr was no ordinary federal prosecutor. Without jurisdiction with respect to these matters, he immediately gave Ms. Tripp immunity in exchange for access to her tapes, and he wired her to tape a private luncheon conversation with Ms. Lewinsky. Shortly after Mr. Starr wired Ms. Tripp, he confronted Ms. Lewinsky and, according to her, threatened her with 27 years in prison and the prosecution of her mother in order to get her cooperation and to tape Betty Currie, the President, and/or Vernon Jordan. Mr. Starr brought his enormous criminal investigative resources to bear on testimony yet to be given in a civil lawsuit involving a consensual, sexual relationship.
At the time Ms. Lewinsky was threatened by Mr. Starr, her affidavit in the Jones case had not been filed. She was still in a position to retrieve it or amend it. Also, President Clinton had not been deposed. He had not given his testimony in the Paula Jones suit. In effect, Mr. Starr and his agents lay in wait--waiting for the President to be surprised at the Jones deposition with information about Monica Lewinsky. And how did that information about Monica Lewinsky get in the hands of the Jones attorneys? Ms. Tripp gave them the information. And she was able to do that even though she was under an immunity arrangement with Mr. Starr, because--as Mr. Starr acknowledged to the House Judiciary Committee under questioning--Mr. Starr's agents never directed Ms. Tripp to keep her information confidential, even though Mr. Starr had a major concern that the Lewinsky matter would leak to the press. Mr. Starr's agents did not tell Ms. Tripp not to talk to the Jones attorneys or anyone else in order to ensure that the story would not leak to the press.
So the enormous criminal investigative resources of the federal government were brought to bear on the President of the United States to catch him by surprise in a future deposition in a civil proceeding on a matter peripheral to the lawsuit, prior to any of the suspected unlawful conduct.
Once the President testified in that civil suit, Mr. Starr convened a grand jury to investigate the truthfulness of Mr. Clinton's testimony. Again, using the virtually unlimited resources of the federal government with respect to a criminal investigation, Mr. Starr called countless witnesses before the grand jury--recalling numerous witnesses multiple times. Betty Currie testified on 5 different occasions; so did Vernon Jordan. Monica Lewinsky testified 3 times and was interviewed over 20 separate times. I don't believe any regular prosecutor would have invested the time and money and resources in the kind of investigation that Kenneth Starr did.
At the end, Mr. Starr wrote a report arguing for impeachment to the House of Representatives. He didn't just impartially forward evidence he thought may demonstrate possible impeachable offenses.
The Starr report spared nothing. Lacking good judgment and balance, the Starr report contained a large amount of salacious detail, and skipped over or dismissed important exculpatory evidence, such as Monica Lewinsky's statement that no one asked her to lie and no one promised her a job for her silence. Mr. Starr violated the standards enunciated by Judge Sirica when he addressed the status of the grand jury report in the Watergate matter. In that case, Judge Sirica wrote in granting Leon Jaworski, the Watergate prosecutor, the right to forward grand jury information to the House of Representatives:
``It draws no accusatory conclusions. . . It contains no recommendations, advice or statements that infringe on the prerogatives of other branches of government. . . It renders no moral or social judgments. The Report is a simple and straightforward compilation of information gathered by the Grand Jury, and no more. . . The Grand Jury has obviously taken care to assure that its Report contains no objectionable features, and has throughout acted in the interests of fairness. The Grand Jury having thus respected its own limitations and the rights of others, the Court ought to respect the Jury's exercise of its prerogatives.'' (In re Report and Recommendation of June 5, 1972, Grand Jury Concerning Transmission of Evidence to the House of Representatives, U.S. District Court, District of Columbia, March 18, 1974.)
What a far cry the Watergate grand jury report was from Mr. Starr's. The Starr Report violates almost every one of the standards laid out by Judge Sirica in the Watergate case.
The House of Representatives the Judiciary Committee then almost immediately released the Starr report and the thousands of pages of evidence to the public.
Because of that release--enormous damage had been done to the public's sense of decorum and to appropriate limits between public and private life.
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