9/12/98 -- 4:28 PM
By The Associated Press Text of 43-page report released Saturday by the White House as rebuttal to Independent Counsel Kenneth Starr's impeachment referral to Congress:
On May 31, 1998, the spokesman for Independent Counsel Kenneth W. Starr declared that the Offices Monica Lewinsky investigation ''is not about sex. This case is about perjury, subornation of perjury, witness tampering, obstruction of justice. That is what this case is about.''
Now that the 450-page Referral to the United States House of Representatives Pursuant to Title 28, United States Code 595(c) (the ''Referral'') is public, it is plain that ''sex'' is precisely what this four-and-a-half year investigation has boiled down to. The Referral is so loaded with irrelevant and unnecessary graphic and salacious allegations that only one conclusion is possible: its principal purpose is to damage the President.
The President has acknowledged and apologized for an inappropriate sexual relationship with Ms. Lewinsky, so there is no need to describe that relationship in ugly detail. No one denies that the relationship was wrong or that the President was responsible. The Referrals pious defense of its pornographic specificity is that, in the independent counsel's view:
''The details are crucial to an informed evaluation of the testimony, the credibility of witnesses, and the reliability of other evidence. Many of the details reveal highly personal information; many are sexually explicit. This is unfortunate, but it is essential.''
This statement is patently false. Any fair reader of the Referral will easily discern that many of the lurid allegations, which need not be recounted here, have no justification at all, even in terms of any OIC legal theory. They plainly do not relate, even arguably, to activities which may be within the definition of ''sexual relations'' in the Presidents Jones deposition, which is the excuse advanced by the OIC. They are simply part of a hit-and-run smear campaign, and their inclusion says volumes about the OIC's tactics and objectives.
Review of a prosecutors case necessarily starts with an analysis of the charges, and that is what we offer here. This is necessarily a very preliminary response, offered on the basis of less than a days analysis and without any access to the factual materials cited in the Referral.
Spectacularly absent from the Referral is any discussion of contradictory or exculpatory evidence or any evidence that would cast doubt on the credibility of the testimony the OIC cites (but does not explicitly quote). This is a failure of fundamental fairness which is highly prejudicial to the President and it is reason alone to withhold judgment on the Referrals allegations until all the prosecutors evidence can be scrutinized - and then challenged, as necessary, by evidence from the President.
The real critique can occur only with access to the materials on which the prosecutors have ostensibly relied. Only at that time can contradictory evidence be identified and the context and consistency (or lack thereof) of the cited evidence be ascertained. Since we have not been given access to the transcripts and other materials compiled by the OIC, our inquiry is therefore necessarily limited. But even with this limited access, our preliminary review reaffirms how little this highly intrusive and disruptive investigation has in fact yielded. In instance after instance, the OICs allegations fail to withstand scrutiny either as a factual matter, or a legal matter, or both. The Referral quickly emerges as a portrait of biased recounting, skewed analysis, and unconscionable overreaching.
In our Preliminary Memorandum, filed yesterday, at pages 3-12, we set forth at some length the various ways in which impeachable ''high Crimes and Misdemeanors'' have been defined. Nothing in the Referral even approximates such conduct. In the English practice from which the Framers borrowed the phrase, ''High Crimes and Misdemeanors'' denoted political offenses, the critical element of which was injury to the state. Impeachment was intended to redress public offenses committed by public officials in violation of the public trust and duties.
Because presidential impeachment invalidates the will of the American people, it was designed to be justified for the gravest wrongs - offenses against the Constitution itself. In short, only ''serious assaults on the integrity of the processes of government,'' and ''such crimes as would so stain a president as to make his continuance in office dangerous to the public order,'' constitute impeachable offenses. The eleven supposed ''grounds for impeachment'' set forth in the section of the Referral called ''Acts That May Constitute Grounds for an Impeachment'' (''Acts'') fall far short of that high standard, and their very allegation demeans the constitutional process. The document is at bottom overreaching in an extravagant effort to find a case where there is none.
Allegation I - Perjury in January 17, 1998, Deposition
We begin our response to the OICs charge that the President committed perjury in his January 17 deposition in the Jones case with these simple facts: the Presidents relationship with Ms. Lewinsky was wrong; he admitted it was wrong; and he has asked for the forgiveness of his family and the American people. The perjury charges in the Referral in reality serve one principal purpose for the OIC - to provide an opportunity to lay out in a public forum as much salacious, gratuitous detail as possible with the goal of damaging the President and the presidency.
The OIC begins its catalogue of ''acts that may constitute grounds for impeachment'' with the allegation that '' 1/8t 3/8here is substantial and credible information that President Clinton lied under oath as a defendant in Jones v. Clinton regarding his sexual relationship with Monica Lewinsky.''
The OIC contends that, for legal reasons, it must discuss its allegations of sexual activity in detail and then goes out of its way to supply lurid detail after lurid detail that are completely irrelevant to any legal claim, obviously hoping that the shock value of its footnotes will overcome the absence of legal foundation for the perjury allegation.
In reaching any fair judgment as to the merits of the OICs claim that the Presidents testimony establishes a basis for impeachment, it is important to understand a few additional points. First, the OIC barely acknowledges the elements of perjury, including, in particular, the substantial burden that must be met to show that the alleged false statements were made ''knowingly,'' Preliminary Memorandum at 52, or that they were material to the Jones proceeding.
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