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")./ 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"/ 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 "smoking gun" 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: Y 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:
"And 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. Y 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." NBC Nightly News, February 4, 1998.
"Prosecutors 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 - which is why this document, obtained last night by NBC News, could be a smoking gun. It's called >Points to Make in Affidavit.' Prosecutors say it might as well be called >How to Commit Perjury in the Paula Jones Case.=@ NBC News at Sunrise, January 22, 1998.
"A 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." Washington Times, May 18, 1998.
"Because 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." Washington Post, March 10, 1998.
"'If the author of the talking points is anywhere near the president,' said Jonathan Turley, law professor at George Washington University in Washington, >this case will take a dramatic turn against the White House.=@ USA Today, July 1, 1998.
"The 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." USA Today, June 29, 1998.
"Based largely on two pieces of evidence - those talking points and the secret tapes made by Ms. Tripp of her conversations with Ms. Lewinsky - 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." New York Times, March 7, 1998.
"Starr wants to find out if anyone in the White House was involved in preparing the talking points." The Plain Dealer, February 19, 1998.
"The evidence that strikes dread in the White House is a three-page document called >the talking points.' Y 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." William Safire, New York Times, February 12, 1998.
"The 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." 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:
"It 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 >talking 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." Chicago Tribune, April 3, 1998 (emphasis added).
"The 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." New York Times, July 27, 1998.
"Prosecutors regard the legalistic, three-page talking points - intended to guide Tripp's testimony in the Jones lawsuit - as a key piece of evidence in a possible case of obstruction of justiceY. >Anyone who wrote a document like that is out of is mind,' one prosecutor said. >Those talking points are the smoking gun.=@ Pittsburgh Post-Gazette, February 8, 1998 (emphasis added).
"Leakers 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." Clarence Page, Sun-Sentinel, June 4, 1998 (emphasis added).
"But a three page document known as the >talking points' may prove to be the most important. . . >The talking points are the closest thing to a smoking gun in this case. . .' legal scholar Paul Rothstein said Tuesday." USA Today, July 1, 1998.
"The 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." New York Times, June 11, 1998.
"The talking points memo, whose authorship is unknown, is of keen interest to Starr." Baltimore Sun, February 26, 1998.
"It 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. Y 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." New York Times, February 19, 1998.
"That 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." 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 "black mark" 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--as 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 "to whom much is given much is required" 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 "at her request" and Mr. Jordan simply "took her to Mr. Carter's office, introduced them, and returned to my office." 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, "I never received any kind of information from [Ms. Lewinsky] at any time that contradicted anything that's in that affidavit." 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 AProtective 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 ("Ruff Dec.") & 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.
C. The President's Assertion of the Attorney-Client Privilege was Solidly Grounded in the Law of this Circuit
For centuries, the law has recognized the attorney-client privilege as absolute in protecting the confidentiality of communications between lawyers and their clients. The D.C. Circuit has also recognized that the attorney-client privilege protects confidential communications between government lawyers and officials. E.g. Mead Data Control, Inc. v. Dep't of the Air Force, 566 F.2d 242 (D.C. Cir. 1977). Courts recognize that a government official, like any other citizen, must be able to provide information to and seek advice from government lawyers without fear of public disclosure. Ultimately, the privilege serves an important governmental function by fostering well-advised and fully-informed decision-making. The possibility that those communications may be disclosed will forfeit the benefits the privilege was intended to protect.
Despite the law in the D.C. Circuit recognizing the attorney-client privilege in the governmental context, the Independent Counsel pushed to breach the bonds of the governmental attorney-client privilege. Unlike his predecessors, who have respected the professional obligation of government attorneys to provide confidential legal advice on official matters, the Independent Counsel has insisted that government attorneys and clients do not have the right to discuss legal issues in confidence. In this context, the White House's assertion of the attorney-client privilege was not only appropriate, but it was an ethical and institutional obligation.
Prior to the D.C. Circuit litigation, the OIC was well aware that the White House fundamentally disagreed with the OIC regarding the applicability and scope of the governmental attorney-client privilege. In the Eighth Circuit, the OIC had attempted to obtain a White House lawyer's notes that reflected confidential communications. In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997). At the time of that litigation, which the White House resisted and the OIC won, there was no authority rejecting the existence of a governmental attorney-client privilege.
Two years later, the OIC, in the Lewinsky investigation, sought to compel the disclosure of confidential communications between the President and his official lawyers in which legal advice was either being sought by or provided to the President regarding official matters. In view of the law of the D.C. Circuit, which recognized an absolute governmental attorney-client privilege, the White House Counsel recommended, and the President asserted, the privilege.
A recent Supreme Court ruling that rejected the OIC's sweeping attack on the attorney-client privilege provided additional support for the President's position. In Swidler & Berlin v. United States, ___U.S.___ (1998); 1998 U.S. Lexis 4214 (1998), the OIC argued that the personal attorney-client privilege should automatically give way to the needs of a criminal investigation. The Court rejected the OIC's position and stated that "there is no case authority for the proposition that the privilege applies differently in criminal and civil cases," id. at *7, supporting the principle that the privilege remains absolute in a grand jury context. Accordingly, the President's position on the applicability of the privilege in this context had a substantial basis in the decisions of both this Circuit and the Supreme Court.
Undaunted, the OIC argued that, based upon the non-binding Eighth Circuit opinion, the governmental attorney-client privilege is inapplicable in a grand jury context. 112 F.3d 910 (8th Cir. 1997). From an institutional standpoint, the OIC's position stripped the President of any ability to obtain confidential advice from government lawyers about official matters in the event that the OIC made a referral to Congress for possible impeachment hearings. In an impeachment context, the President is entitled to rely on Counsel's Office lawyers to provide critical legal guidance. Without the ability to receive such confidential advice, he is left without any legal guidance regarding the conduct of his official duties.
The District Court rejected the OIC's position and held that the President had a valid, though qualified, governmental attorney-client privilege. In re Grand Jury Proceedings, 1998 U.S. Dist. Lexis at *21-52. Performing a need analysis similar to executive privilege, the Court balanced the President's interests against those of the grand jury and ultimately determined that the grand jury was entitled to the information. Once again, the District Court did not suggest that the privilege claim was spurious or made in bad faith.
On appeal, a divided D.C. Circuit Court of Appeals ruled that the President had an attorney-client privilege with White House Counsel in some contexts, but not this one. In re: Bruce R. Lindsey, 1998 U.S. App. Lexis 17066, *7-43 (D.C. Cir. 1998). Judge David Tatel, whose dissenting opinion in the Court of Appeals' decision in Swidler & Berlin was adopted by the Supreme Court, dissented here as well. Consistent with his analysis in Swidler & Berlin, Judge Tatel found that the Court's opinion did not account for "the unique nature of the Presidency, its unique need for confidential legal advice, or the possible consequences of abrogating the attorney-client privilege for a President's ability to obtain such advice." Id. at *54. Judge Tatel's recognition of the validity of the absolute nature of the privilege and the President's need to assert this and belies the notion that the assertion was in any way an abuse of power.
The OIC's apparent argument that the assertions of privilege were for purposes of delay lacks any evidentiary support and, more significantly, overlooks the OIC's own dilatory conduct. After Mr. Lindsey was subpoenaed and before he was scheduled to testify, the Office of the President attempted to avoid litigating these issues by reaching an accommodation that would provide the OIC with access to the information to which it was entitled while maintaining the legitimate confidentiality interests of the President. Id. && 31-32. The OIC rejected those efforts and instead filed its motion to compel. Id. &51. The OIC has continued to reject any attempt by the White House to compromise, choosing instead to litigate these issues. The Office of the President has sought to avoid any delay by agreeing to expedited briefing schedules involving privilege litigation, and the courts, appreciating the time-sensitivity of the issues, have ruled swiftly on these matters.
In any event, any delay that might have been caused by the White House had no substantive impact on the OIC's investigation. Privilege claims have been advanced as to only a narrow portion of the testimony of three witnesses. The OIC originally filed motions to compel the testimony of two senior staff members and one Counsel's Office lawyer. The litigation only temporarily postponed the testimony of the two senior staffers; in March, they both appeared before the grand and testified fully. The privilege assertions ultimately involved the testimony of only three Counsel's Office lawyers. Each of these individuals has testified at length regarding any facts they may have possessed about whether the President had a relationship with Ms. Lewinsky. The questions as to which they asserted privilege were narrow in scope and irrelevant to the matters being investigated.
Finally, substantial delay in the investigation has been self-inflicted. The OIC has wandered aimlessly down more alleys and byways than any federal prosecutor would appropriately do. The OIC has called current and former White House staffers before the grand jury, and interviewed many others. The OIC has called presidential advisers before the grand jury four, five and six times; sometimes for only one- or two-hour sessions. Some witnesses appeared to testify only to find themselves waiting for hours and then being told to return on another day. The OIC has also insisted on exploring such irrelevant subjects as White House contacts with the press, and has required testimony from attorneys whose primary function was to deal with the OIC. Such actions are highly unusual, if not unprecedented.
4. White House Lawyers Played an Appropriate Role in the Investigation
Finally, the open and lawful efforts of the White House lawyers to assist White House staff obtain lawyers, to speak with witnesses and their lawyers, and to provide advice on the ramifications of the investigation also cannot be considered an abuse of power.
As a threshold matter, when there is an official nexus between the duties of the President and an ongoing investigation, which certainly exists here, it is the duty of government attorneys to represent their official client. The specter of impeachment loomed from the day the Lewinsky story broke in the press. Ruff Dec. & 21. Members of the Congress asserted that the investigation, which drew explosive media, public and congressional attention, burdened the President's ability to perform his constitutional and statutory duties. Accordingly, the White House Counsel's Office lawyers, among others, were responsible for providing the President and White House officials with informed, candid advice on the issues raised by the investigation that affected the President's official duties. Id. && 16-30.
When it suited the OIC's interests, the OIC recognized the appropriateness of, and relied on, the White House Counsel's efforts. From the beginning of this investigation, the OIC sought -- and received -- the cooperation of the White House lawyers in setting up interviews and grand jury appearances of current and former White House employees. The OIC, however, refused to allow the White House lawyers to represent even the most junior, uninvolved witnesses. Thus, all White House officials, from the most senior to the most junior, were required to obtain private counsel. White House lawyers also provided relevant documents to witnesses' attorneys to ensure complete and accurate testimony, provided privilege instructions and guidance, and followed-up afterwards to discuss an individual's interview or grand jury appearance and any outstanding issues. All of the Counsel's Office activities were well-known to the OIC, and no objection was ever voiced.
Lastly, it was not uncommon for the White House to be faced with inaccurate and spurious stories that seemed to be coming from the OIC or "sources close to the OIC" shortly after a witness testified or was interviewed by the prosecution. Indeed, Judge Johnson examined media reports, and concluded that they contained grand jury material and that there was evidence that the OIC as the source. In re Grand Jury Proceedings, Misc. No. 98-55 (D.D.C. June 19, 1998), Mem. Op. at 6. Accordingly, Judge Johnson held that this evidence established a prima facie case that the OIC had violated Rule 6(e) and ordered the OIC to appear to show cause why it should not be held in contempt for Rule 6(e) violations. These leaks created a deluge of press inquiries to the White House; not surprisingly, White House Counsel lawyers were required to gather information and advise senior staff concerning the appropriate response to these inquiries.