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/ 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./
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 "substantial and credible information . . . that may constitute grounds for impeachment." 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--evidence 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 untruthfulness--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, "reliability" simply is not the touchstone of a grand-jury inquiry. The Supreme Court itself has said that "the mere fact that evidence is unreliable is not sufficient to require a dismissal of [an] indictment." Bank of Nova Scotia v. United States, 487 U.S. 250, 261 (1988). The same is true of "inadequate or incompetent" 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--indeed, mandated--by 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?