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In the Senate of the United States Sitting As a Court of Impeachment IN THE SENATE OF THE UNITED STATES SITTING AS A COURT OF IMPEACHMENT ______________________________ In Re Impeachment of William Jefferson Clinton President of the United States ______________________________ TRIAL MEMORANDUM OF PRESIDENT WILLIAM JEFFERSON CLINTON ______________________________ David E. Kendall Charles F.C. Ruff Nicole K. Seligman Gregory B. Craig Emmet T. Flood Bruce R. Lindsey Max Stier Cheryl D. Mills Glen Donath Lanny A. Breuer Alicia L. Marti Office of the White House Counsel Williams & Connolly The White House 725 12th Street, N.W. Washington, D.C. 20502 Washington, D.C. 20005 January 13, 1999 TABLE OF CONTENTS I. INTRODUCTION............................................................................................................. 1 A. The Constitutional Standard for Impeachment Has Not Been Satisfied................ 4 B. The President Did Not Commit Perjury or Obstruct Justice................................... 5 C. Compound Charges and Vagueness........................................................................ 5 II. BACKGROUND................................................................................................................ 6 A. The Whitewater Investigative Dead-End ................................................................ 6 B. The Paula Jones Litigation ...................................................................................... 8 C. The President’s Grand Jury Testimony About Ms. Lewinsky.............................. 11 D. Proceedings in the House of Representatives ....................................................... 12 III. THE CONSTITUTIONAL STANDARD AND BURDEN OF PROOF FOR DECISION.............................................................................................................. 15 A. The Offenses Alleged Do Not Meet the Constitutional Standard of High Crimes and Misdemeanors........................................................................... 15 1. The Senate Has a Constitutional Duty to Confront the Question Whether Impeachable Offenses Have Been Alleged ................................ 15 2. The Constitution Requires a High Standard of Proof of “High Crimes and Misdemeanors” for Removal ................................................. 16 a. The Constitutional Text and Structure Set an Intentionally High Standard for Removal ..................................... 16 b. The Framers Believed that Impeachment and Removal Were Appropriate Only for Offenses Against the System of Government.................................................................. 19 3. Past Precedents Confirm that Allegations of Dishonesty Do Not Alone State Impeachable Offenses .................................................... 21 a. The Fraudulent Tax Return Allegation Against President Nixon............................................................................. 21 b. The Financial Misdealing Allegation Against Alexander Hamilton ...................................................................... 23 4. The Views of Prominent Historians and Legal Scholars Confirm that Impeachable Offenses Are Not Present............................... 24 a. No Impeachable Offense Has Been Stated Here........................... 24 - L b. To Make Impeachable Offenses of These Allegations Would Forever Lower the Bar in a Way Inimical to the Presidency and to Our Government of Separated Powers ........................................................................................... 26 5. Comparisons to Impeachment of Judges Are Wrong................................ 27 B. The Standard of Proof ........................................................................................... 31 IV. THE PRESIDENT SHOULD BE ACQUITTED ON ARTICLE I ............................ 33 A. Applicable Law ..................................................................................................... 33 B. Structure of the Allegations................................................................................... 36 C. Response to the Particular Allegations in Article I............................................... 38 1. The President denies that he made materially false or misleading statements to the grand jury about “the nature and details of his relationship” with Monica Lewinsky................................... 39 2. The President denies that he made perjurious, false and misleading statements to the grand jury about testimony he gave in the Jones case ............................................................................... 45 3. The President denies that he made perjurious, false and misleading statements to the grand jury about the statements of his attorney to Judge Wright during the Jones deposition ........................ 50 4. The President denies that he made perjurious, false and misleading statements to the grand jury when he denied attempting “to influence the testimony of witnesses and to impede the discovery of evidence” in the Jones case ............................... 51 V. THE PRESIDENT SHOULD BE ACQUITTED ON ARTICLE II...........................54 A. Applicable Law ..................................................................................................... 54 B. Structure of the Allegations................................................................................... 55 C. Response to the Particular Allegations in Article II.............................................. 56 1. The President denies that on or about December 17, 1997, he “corruptly encouraged” Monica Lewinsky “to execute a sworn affidavit in that proceeding that he knew to be perjurious, false and misleading”......................................................................................... 56 2. The President denies that on or about December 17, 1997, he “corruptly encouraged” Monica Lewinsky “to give perjurious, false and misleading testimony if and when called to testify personally” in the Jones litigation ............................................................. 60 - LL 3. The President denies that he “corruptly engaged in, encouraged, or supported a scheme to conceal evidence” -- gifts he had given to Monica Lewinsky -- in the Jones case..................... 65 a. Ms. Lewinsky’s December 28 Meeting with the President........................................................................................ 65 b. Ms. Currie’s Supposed Involvement in Concealing Gifts............................................................................................... 68 c. The Obstruction-by-Gift-Concealment Charge Is at Odds With the President’s Actions ............................................... 73 4. The President denies that he obstructed justice in connection with Monica Lewinsky’s efforts to obtain a job in New York in an effort to “corruptly prevent” her “truthful testimony” in the Jones case.................................................................................................. 76 a. The Complete Absence of Direct Evidence Supporting This Charge ................................................................................... 77 b. Background of Ms. Lewinsky’s New York Job Search................ 78 c. The Committee Report’s Circumstantial Case.............................. 82 1) Monica Lewinsky’s December 11 meeting with Vernon Jordan ................................................................... 82 2) The January job interviews and the Revlon employment offer .............................................................. 86 d. Conclusion..................................................................................... 90 5. The President denies that he “corruptly allowed his attorney to make false and misleading statements to a Federal judge” concerning Monica Lewinsky’s affidavit.................................................. 91 6. The President denies that he obstructed justice by relating “false and misleading statements” to “a potential witness,” Betty Currie, “in order to corruptly influence [her] testimony”................ 93 7. The President denies that he obstructed justice when he relayed allegedly “false and misleading statements” to his aides.......................... 98 VI. THE STRUCTURAL DEFICIENCIES OF THE ARTICLES PRECLUDE A CONSTITUTIONALLY SOUND VOTE ........................................ 101 A. The Articles Are Both Unfairly Complex and Lacking in Specificity................ 103 1. The Structure of Article I ........................................................................ 103 2. The Structure of Article II....................................................................... 105 - LLL B. Conviction on These Articles Would Violate the Constitutional Requirement That Two-Thirds of the Senate Reach Agreement that Specific Wrongdoing Has Been Proven.............................................................. 107 1. The Articles Bundle Together Disparate Allegations in Violation of the Constitution’s Requirements of Concurrence and Due Process ...................................................................................... 107 a. The Articles Violate the Constitution’s Two-Thirds Concurrence Requirement........................................................... 107 b. Conviction on the Articles Would Violate Due Process Protections that Forbid Compound Charges in a Single Accusation................................................................................... 112 C. Conviction on These Articles Would Violate Due Process Protections Prohibiting Vague and Nonspecific Accusations...............................................
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