The OIC cannot make out even a colorable claim of perjury. If answers are truthful or literally truthful but misleading, there is no perjury as a matter of law, no matter how misleading the testimony is or is intended to be. The law simply does not require the witness to aid his interrogator. The Referral seeks to punish the President for being unhelpful to those trying to destroy him politically.

A. The Law of Perjury

Perjury requires proof that a defendant, while under oath, knowingly made a false statement as to material facts./ See, e.g., United States v. Dunnigan, 507 U.S. 87, 94 (1993). The "knowingly" requirement is a high burden: the government must prove the defendant had a subjective awareness of the falsity of his statement at the time he provided it. See, e.g., United States v. Dowdy, 479 F.2d 213, 230 (4th Cir. 1973); United States v. Markiewicz, 978 F.2d 786, 811 (2d Cir. 1992). It is beyond debate that false testimony provided as a result of confusion, mistake, faulty memory, carelessness, misunderstanding, mistaken conclusions, unjustified inferences testified to negligently, or even recklessness does not satisfy the "knowingly" element. See, e.g., Dunnigan, 507 U.S. at 94; United States v. Dean, 55 F.3d 640, 659 (D.C. Cir. 1995); see also Department of Justice Manual, 1997 Supplement, at 9-69.214.

Moreover, it is of course clear that a statement must be false in order to constitute perjury. It is equally beyond debate that the following types of answers are not capable of being false and are therefore by definition non-perjurious: literally truthful answers that imply facts that are not true, see, e.g., United States v. Bronston, 409 U.S. 352, 358 (1973), truthful answers to questions that are not asked, see, e.g., United States v. Corr, 543 F.2d 1042, 1049 (2d Cir. 1976), and failures to correct misleading impressions. See, e.g., United States v. Earp, 812 F.2d 917, 919 (4th Cir. 1987). The Supreme Court has made abundantly clear that it is not relevant for perjury purposes whether the witness intends his answer to mislead, or indeed intends a "pattern" of answers to mislead, if the answers are truthful or literally truthful.

Thus, in explaining the law of perjury, the Supreme Court and numerous lower federal courts have set forth three clear standards. First, answers to questions under oath that are literally true, but unresponsive to the questions asked, do not, as a matter of law, fall under the scope of the federal perjury statute. That is so even if the witness intends to mislead his questioner by his answer and even if the answer is false by "negative implication." The second clear rule is that answers to questions that are fundamentally ambiguous cannot, as a matter of law, be perjurious. Finally, a perjury conviction under 18 U.S.C. ' 1621 cannot rest solely on the testimony of a single witness, and, at the very least as a matter of practice, no reasonable prosecutor would bring any kind of perjury case based on the testimony of one witness without independent corroboration - especially if the witness is immunized, or has any question as to credibility or truthfulness. As the Supreme Court has made clear, a perjury case "ought not to rest entirely upon >an oath against an oath.=@ United States v. Weiler, 323 U.S. 606, 608-09 (1945).

1. Bronston and "Literal Truth.@

In United States v. Bronston, 409 U.S. 352 (1973), the leading case on the law of perjury, the United States Supreme Court addressed "whether a witness may be convicted of perjury for an answer, under oath, that is literally true but not responsive to the question asked and arguably misleading by negative implication." Id. at 352. The Court directly answered the question "no." It made absolutely clear that a literally truthful answer cannot constitute perjury, no matter how much the witness intended by his answer to mislead.

Bronston involved testimony taken under oath at a bankruptcy hearing. At the hearing, the sole owner of a bankrupt corporation was asked questions about the existence and location of both his personal assets and the assets of his corporation. The owner testified as follows:

Q: Do you have any bank accounts in Swiss banks, Mr. Bronston?

A: No, sir.

Q: Have you ever?

A: The company had an account there for about six months in Zurich.

Q: Have you any nominees who have bank accounts in Swiss banks?

A: No, sir.

Q: Have you ever?

A: No, sir.

Id. at 354. The government later proved that Bronston did in fact have a personal Swiss bank account that was terminated prior to his testimony. The government prosecuted Bronston "on the theory that in order to mislead his questioner, [Bronston] answered the second question with literal truthfulness but unresponsively addressed his answer to the company's assets and not to his own--thereby implying that he had no personal Swiss bank account at the relevant time." Id. at 355.

The Supreme Court unanimously rejected this theory of perjury. It assumed for purposes of its holding that the questions referred to Bronston's personal bank accounts and not his company's assets. Moreover, the Court stated, Bronston's "answer to the crucial question was not responsive," and indeed "an implication in the second answer to the second question [is] that there was never a personal bank account." Id. at 358. The Court went so far as to note that Bronston's answers "were not guileless but were shrewdly calculated to evade." Id. at 361. However, the Court emphatically held that implications alone do not rise to the level of perjury, and that Bronston therefore could not have committed perjury. "[W]e are not dealing with casual conversation and the statute does not make it a criminal act for a witness to willfully state any material matter that implies any material matter that he does not believe to be true." Id. at 357-58. The Court took pains to point out the irrelevance of the witness's intent: "A jury should not be permitted to engage in conjecture whether an unresponsive answer, true and complete on its face, was intended to mislead or divert the examiner." Id. at 359.

The Supreme Court in Bronston provided several rationales for its holding that literally true, non-responsive answers are by definition non-perjurious, regardless of their implications. First, the Court noted that the burden always rests squarely on the interrogator to ask precise questions, and that a witness is under no obligation to assist the interrogator in that task. The Court "perceive[d] no reason why Congress would intend the drastic sanction of a perjury prosecution to cure a testimonial mishap that could readily have been reached with a single additional question by counsel alert - as every counsel ought to be--to the incongruity of petitioner's unresponsive answer." Id. at 359. Moreover, the Court noted that because of the adversarial process, perjury is an extraordinary sanction that is almost always unwarranted, since "a prosecution for perjury is not the sole, or even the primary safeguard against errant testimony." Id. at 360. The perjury statute cannot be invoked "simply because a wily witness succeeds in derailing the questioner - so long as the witness speaks the literal truth." Id.

Bronston is just one of scores of cases across the federal circuits that make clear that the definition of perjury must be carefully limited because perjury prosecutions are dangerous to the public interest since they "discourage witnesses from appearing or testifying." Id. at 359./ For instance, in United States v. Earp, 812 F.2d 917 (4th Cir. 1987), the defendant, a member of the Ku Klux Klan, had stood guard during the attempted burning of a cross on the lawn of an interracial couple, and further evidence demonstrated that he had personally engaged in other attempts to burn crosses. During questioning before a grand jury, however, he denied ever having burned crosses on anyone's lawn. He was convicted of perjury, but the United States Court of Appeals for the Fourth Circuit reversed his conviction, because "like the witness in Bronston, [the defendant's] answers were literally true although his second answer was unresponsive." Id. at 919. That is, the defendant had not actually succeeded in his cross-burning attempts, so it was literally true that he had never burned crosses on anyone's lawn. The court noted that "while he no doubt knew full well that he had on that occasion tried to burn a cross, he was not specifically asked either about any attempted cross burnings." Id. Literally every federal court of appeals in the nation concurs in this reading of Bronston./

2. Fundamentally Ambiguous Questions Cannot Produce Perjurious Answers.

When a question or a line of questioning is "fundamentally ambiguous," the answers to the questions posed are insufficient as a matter of law to support a perjury conviction." See, e.g., United States v. Finucan, 708 F.2d 838, 848 (1st Cir. 1983); United States v. Lighte, 782 F.2d 367, 375 (2d Cir. 1986); United States v. Tonelli, 577 F.2d 194, 199 (3d Cir. 1978); United States v. Bell, 623 F.2d 1132, 1337 (5th Cir. 1980); United States v. Wall, 371 F.2d 398, 400 (6th Cir. 1967); United States v. Williams, 552 F.2d 226, 229 (8th Cir. 1977). In other words, when there is more than one way of understanding the meaning of a question, and the witness has answered truthfully as to his understanding, he cannot commit perjury. Many courts have emphasized that "defendants may not be assumed into the penitentiary" by "sustain[ing] a perjury charge based on [an] ambiguous line of questioning." Tonelli, 577 F.2d at 199.

United States v. Lattimore, 127 F. Supp. 405 (D.D.C. 1955), is the key case dealing with ambiguous questions in the perjury context. In Lattimore, a witness was questioned before the Senate Internal Security Subcommittee about his ties to the Communist party. He was asked whether he was a "follower of the Communist line," and whether he had been a "promoter of Communist interests." He answered "no" to both questions, and was subsequently indicted for committing perjury. The United States District Court for the District of Columbia found that the witness could not be indicted on "charges so formless and obscure as those before the Court." Id. at 413. The court held that "follower of the Communist line' is not a phrase with a meaning about which men of ordinary intellect could agree, nor one which could be used with mutual understanding by a questioner and answerer unless it were defined at the time it were sought and offered as testimony." Id. at 110. As the court explained further:

[The phrase] has no universally accepted definition. The Government has defined it in one way and seeks to impute its definition to the defendant. Defendant has declined to adopt it, offering a definition of his own. It would not necessitate great ingenuity to think up definitions differing from those offered either by the Government or defendant. By groundless surmise only could the jury determine which definition defendant had in mind.

Id. at 109.

Many other cases stand for the proposition that a witness cannot commit perjury by answering an inherently ambiguous question. For instance, in United States v. Wall, 371 F.2d 398 (6th Cir. 1967), a witness was asked whether she had "been on trips with Mr. X," and she answered "no." The government could prove that in fact the witness, who was from Oklahoma City, had been in Florida with "Mr. X." However, the government could not prove that the witness had traveled from Oklahoma City to Florida with "Mr. X." The court noted (and the government conceded) that the phrase "been on trips" could mean at least two different things: "That a person accompanied somebody else travelling with, or it can mean that they were there at a particular place with a person." The court then stated that "[t]he trouble with this case is that the question upon which the perjury charge was based was inarticulately phrased, and, as admitted by the prosecution, was susceptible of two different meanings. In our opinion, no charge of perjury can be based upon an answer to such a question." Id. at 399-400.

Similarly, in United States v. Tonelli, 577 F.2d 194 (3d Cir. 1978), the defendant answered negatively a question whether he had "handled any pension fund checks." The government then proved that the defendant had actually handled the transmission of pension fund checks by arranging for others to send, mail, or deliver the checks. The government charged the defendant with perjury. The court held that perjury could not result from the government's ambiguous question. The court explained:

It is clear that the defendant interpreted the prosecutor's questions about >handling' to mean >touching' . . . To sustain a perjury charge based on the ambiguous line of questioning here would require us to assume [defendant] interpreted >handle' to include more than >touching.' The record will not allow us to do so and as the Court of Appeals for the Fifth Circuit has observed >[e]specially in perjury cases defendants may not be assumed into the penitentiary.

United States v. Bell, 623 F.2d 1132, 1137 (5th Cir. 1980), is yet another example of this doctrine. In Bell, a witness was asked before a grand jury, "Whether personal or business do you have records that are asked for in the subpoena," and the witness answered, "No, sir, I do not." It was later established that the witness's files clearly contained relevant records. Nonetheless, the court held that the question was ambiguous, and therefore incapable of yielding a perjurious answer. The witness interpreted the question to ask whether he had brought the records with him that day, and not whether he had any records anywhere else in the world./

3. A Perjury Case Must Not Be Based Solely Upon the Testimony of a Single Witness.

The law is clear that in a perjury prosecution under 18 U.S.C. ' 1621, the falsity of a statement alleged to be perjurious cannot be established by the testimony of just one witness. This ancient common law rule, referred to as the "two-witness rule," has survived repeated challenges to its legitimacy, and has been judicially recognized as the standard of proof for perjury prosecutions brought under ' 1621. See, e.g., Weiler v. United States, 323 U.S. 606, 608-610 (1945) (discussing the history and policy rationales of the two-witness rule); United States v. Chaplin, 25 F.3d 1373, 1377-78 (7th Cir. 1994) (two-witness rule applies to perjury prosecutions). The Department of Justice recognizes the applicability of the two-witness rule to perjury prosecutions brought under ' 1621. See Department of Justice Manual, 1997 Supplement, at 9-69.265.

The crux of the two-witness rule is that "the falsity of a statement alleged to be perjurious must be established either by the testimony of two independent witnesses, or by one witness and independent corroborating evidence which is inconsistent with the innocence of the accused." Department of Justice Manual, 1997 Supplement, at 9-69.265 (emphasis in original). The second witness must give testimony independent of the first which, if believed, would "prove that what the accused said under oath was false." Id.; United States v. Maultasch, 596 F.2d 19, 25 (2d Cir. 1979). Alternatively, the independent corroborating evidence must be inconsistent with the innocence of the accused and "of a quality to assure that a guilty verdict is solidly founded." Department of Justice Manual, 1997 Supplement, at 9-69.265; United States v. Forrest, 639 F.2d 1224, 1226 (5th Cir. 1981). It is therefore clear that a perjury conviction under ' 1621 cannot lie where there is no independent second witness who corroborates the first, or where there is no independent evidence that convincingly contradicts the testimony of the accused.

While 18 U.S.C. ' 1623 does not incorporate the "two-witness rule," it is nonetheless clear from the case law that perjury prosecutions require a high degree of proof, and that prosecutors should not, as a matter of reason and practicality, even try to bring perjury prosecutions based solely on the testimony of a single witness. In Weiler v. United States, 323 U.S. 606, 608-09 (1945), the United States Supreme Court observed that "[t]he special rule which bars conviction for perjury solely upon the evidence of a single witness is deeply rooted in past centuries." The Court further observed that "equally honest witnesses may well have differing recollections of the same event," and hence "a conviction for perjury ought not to rest entirely upon >an oath against an oath.=@ Id. at 609 (emphasis added). Indeed, the common law courts in seventeenth-century England required the testimony of two witnesses as a precondition to a perjury conviction, when the testimony of a single witness was in almost all other cases sufficient. See Chaplin, 25 F.3d at 1377, citing Wigmore on Evidence ' 2040(a), at 359-60 (Chadbourne rev. 1978). The common law courts actually adopted the two-witness rule from the Court of Star Chamber, which had followed the practice of the ecclesiastical courts of requiring two witnesses in perjury cases. Id. The English rationale for the rule is as resonant today as it was in the seventeenth century: "[I]n all other criminal cases the accused could not testify, and thus one oath for the prosecution was in any case something as against nothing; but on a charge of perjury the accused's oath was always in effect evidence and thus, if but one witness was offered, there would be merely . . . an oath against an oath." Id. And, as noted above, no perjury case should rest merely upon "an oath against an oath.@

B. The Jones Deposition

Without knowledge of the OIC's specific allegations it is impossible to address why any particular claim of perjury fails although we are confident that no colorable claim of perjury can be made out. However, illegal leaks and speculation make clear that there are certain misperceptions about this testimony that can immediately be laid to rest. For example,

Allegation: The President falsely testified in his Jones deposition that he was never alone with Ms. Lewinsky.

Not so. The President acknowledged in his deposition that he met with Ms. Lewinsky on up to five occasions while she worked at the White House. (p. 50). He then referred back to that testimony when asked if he ever was alone with her in the Oval Office (p. 52), and again when asked whether he was alone with her in any room in the White House. (p. 59). The Jones lawyers did not follow up and ask the President to describe the nature of any physical contact that may have occurred on these occasions.

Allegation: The President falsely testified in his Jones deposition that he never had any improper physical contact of any kind with Ms. Lewinsky.

Not so. The President was asked whether he had "an extramarital sexual affair" with Ms. Lewinsky (p. 78) and responded that he did not. That term was undefined and ambiguous. The President understood the term "sexual affair" to involve a relationship involving sexual intercourse. He had no such relationship with Ms. Lewinsky.

The President also was asked whether he had "sexual relations" with Ms. Lewinsky, "as that term is defined in Deposition Exhibit 1, as modified by the Court." (p. 59). The Court explicitly directed the President's attention to Definition Number 1 on Exhibit 1, which the President had circled.

The President denied he had "sexual relations" with Ms. Lewinsky under this definition. Although the President's counsel, Mr. Bennett, had invited the Jones lawyers to ask specific questions about the President's conduct--"Why don't they ask the President what he did, what he didn't do, and then we can argue in Court later about what it means?" (p. 21)--the Jones lawyers declined to do so, relying instead on the definition. The President was not asked any specific questions at all about his physical contact with Ms. Lewinsky, and in particular he was not pointedly asked whether he had engaged in any of the conduct outside the definition provided. The President's testimony in response to these questions was accurate. He did not have sexual intercourse with Ms. Lewinsky or otherwise engage in sexual conduct covered by the definition, as provided by plaintiff and narrowed by the Court.

The President also testified in the Jones deposition that Ms. Lewinsky's affidavit, in which she stated she had never had a "sexual relationship" with the President, was accurate (p. 204). He believed this testimony to be truthful. The term "sexual relationship" was not defined in the affidavit or in the deposition. The definition of the different term "sexual relations" utilized by the Jones lawyers did not apply to that question. The term "sexual relationship," like sexual affair, has no definitive meaning. To the President, that term reasonably requires sexual intercourse as a necessary component of the relationship. Since his relationship with Ms. Lewinsky did not involve intercourse, he truthfully answered that the affidavit was accurate.

Allegation: The President falsely testified in his Jones deposition that his relationship with Ms. Lewinsky was the same as that with any other White House intern.

Not so. The President's answers left no doubt that he had a special relationship with Ms. Lewinsky. He acknowledged knowing how she had gotten her internship at the White House. He acknowledged meeting with her and knowing where she worked after leaving the White House. He acknowledged exchanging small gifts with her. He acknowledged that he knew she was moving to New York and that her mother had moved there. He acknowledged knowing about her job search in New York, and that she had had an interview with (then) U.N. Ambassador Bill Richardson. He acknowledged that Mr. Jordan reported on his meeting with Ms. Lewinsky about her New York job search. He acknowledged receiving cards and notes from her through Ms. Betty Currie. The Jones lawyers received affirmative responses to particular questions. Had they opted to ask precise questions on other matters, they would have received truthful responses. They did not do so.


The expansion of the Independent Counsel's jurisdiction to encompass the Jones case and Ms. Lewinsky did not occur by accident or easily. The OIC deliberately and purposefully sought this expansion on an emergency basis. Media accounts that the Attorney General herself requested this expansion are highly misleading.

On January 16, 1998, upon the OIC's request, the Special Division of the Court of Appeals for the Purpose of Appointing Independent Counsels expanded the OIC's jurisdiction to allow it to investigate "whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law . . . in dealing with witnesses, potential witnesses, attorneys, or others concerning the civil case Jones v. Clinton." Order, Div. No. 94-1 (Jan. 16, 1998) (Div. for Purpose of Appointing Independent Counsel) (D.C. Cir.). The series of events that led to this expansion of authority raise serious questions as to the motivations and manipulations of the OIC in securing this expanded jurisdiction.

Under the Independent Counsel statute, if the "independent counsel discovers or receives information about possible violations of criminal law by [covered persons], which are not covered by the prosecutorial jurisdiction of the independent counsel, the independent counsel may submit such information to the Attorney General." 28 U.S.C. ' 593 (c)(2)(A). The Attorney General is then to conduct a preliminary investigation. 28 U.S.C. ' 592. The statute did not give the OIC authority to conduct its own preliminary investigation in order to gather or create evidence to present to the Attorney General to support a request for an expansion of jurisdiction.

According to media reports, Ms. Linda Tripp contacted the OIC on Monday, January 12, 1998. There was no particular logic to this contact, and she could easily have taken her concerns to state or federal authorities. In any event, the OIC arranged for Ms. Tripp to wear an F.B.I. recording device and tape surreptitiously a conversation that she had with Ms. Lewinsky the next day, Tuesday, January 13, 1998 (Ms. Lewinsky had not yet filed an affidavit in the Jones case). On Friday, January 16, 1998, at the OIC's request, Ms. Tripp lured Ms. Lewinsky to a meeting, where she was apprehended by OIC agents, who confronted her and attempted to pressure her into doing surreptitious taping herself. She was informed that an immunity agreement was contingent on her not contacting her lawyer./

That same day, the Special Division agreed to expand the OIC's authority, based upon the Independent Counsel's earlier application to the Attorney General and on the tapes that the OIC had already created: "In a taped conversation with a cooperating witness, Ms. Lewinsky states that she intends to lie when deposed. In the same conversation, she urges the cooperating witness to lie in her own upcoming deposition. . . . Independent Counsel Starr has requested that this matter be referred to him." (Text of Attorney General's Petition to Special Division, The Associated Press, January 29, 1998.)

The Independent Counsel later suggested that the expansion of authority prior to the taping was unnecessary, as it was already within his jurisdiction. However, the Lewinsky matter had no connection whatsoever to the Whitewater activities, or any other activities, then being investigated by the OIC. In addition, the Attorney General specifically stated in her referral to the Special Division that she was seeking an expansion of the Independent Counsel's jurisdiction. Or, as former independent counsel Michael Zeldin pointed out, "If he had jurisdiction to investigate it when he wired her, why did he have to go to court to get it afterward? In some ways, he is talking out of both sides of his mouth. . . . It seems to me arguable that he obtained evidence unlawfully . . . ." Chicago Tribune, January 25, 1998. And former independent counsel Lawrence Walsh declared, "A prosecutor has no business getting into that case [Paula Jones] unless there's something terrible happening. I question Starr's judgment in going into it so hard." Chicago Tribune, January 25, 1998.

Furthermore, the sequence of events suggests that Independent Counsel Starr deliberately delayed requesting the expansion of jurisdiction. Neither Monica Lewinsky nor President Clinton had made any statements under oath in the Jones case (at least that had been filed with any court) when Linda Tripp approached the OIC on January 12. The only evidence the OIC possessed at that time were tapes illegally created by Tripp. The OIC itself proceeded to tape the Tuesday, January 13 conversation between Tripp and Lewinsky. Ms. Lewinsky's affidavit was not filed in the Jones case until January 16, and the OIC had petitioned the Attorney General the day before for an expansion of authority based on the evidence (the Tripp tapes and the OIC's tape) that he had acquired without any authority to do so.

Ms. Tripp remained through the day at the hotel where Ms. Lewinsky was apprehended by the OIC on Friday, January 16, 1998./ During that day, Ms. Jones' lawyers repeatedly tried to contact Ms. Tripp for a meeting, but she was unavailable. Ibid. Late in the afternoon, when it became clear that Ms. Lewinsky would not cooperate in the surreptitious taping of others, the Jones lawyers received a call arranging a meeting with Ms. Tripp for that night, so she could help them prepare for the President's deposition next day. Ibid./ It seems probable that Ms. Tripp, who was acting as the OIC's agent under an immunity agreement, must have gotten approval for this briefing from the OIC. Ms. Tripp met with the Jones lawyers at her home in Maryland that night and briefed them on the illegal tapes she had made of Ms. Lewinsky/, so they could use the contents of those tapes in their questioning of the President./ Ms. Tripp is under investigation in the state of Maryland because she secretly recorded Ms. Lewinsky and then shared the existence and contents of those tapes with the Jones lawyers. It is a crime in that state, punishable by imprisonment up to five years and a fine of up to $10,000, for a person to "wilfully" record a conversation without the consent of both parties or to "wilfully" disclose the contents of such an illegally recorded conversation. Md. Code Ann. ' 10-402 (1997)./

On January 17, armed with the information obtained from Ms. Tripp, Ms. Jones' attorneys deposed President Clinton in great detail regarding Ms. Lewinsky. At about this time, the OIC sought to prevent press coverage of its attempt to have Ms. Lewinsky cooperate in secret taping./

This entire sequence of events--the OIC's delay in requesting jurisdiction, the OIC's pressure on reporters to withhold public disclosure of the matter,/ the OIC's unwillingness to permit Ms. Lewinsky to contact her lawyer, and the OIC's dispatch of Ms. Tripp to brief the Jones lawyers about the fruits of her illegal taping the day before they were to depose the President--suggests an intention by the OIC to ensure that the expansion of jurisdiction was kept a secret until the President and Ms. Lewinsky had given testimony under oath and (if Ms. Lewinsky could be so persuaded) she had been enlisted to do surreptitious taping. In other words, rather than taking steps to defer or avoid any possible interference with the Jones case, the OIC did everything in its power--and some things outside its authority--to set up a case against the President.

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