Poor satire?

Thank you, Mr. Chairman. I welcome this opportunity to appear before the committee and to provide information relating to the committee's inquiry into possible impeachable offenses by the president of the United States. This is my first opportunity to publicly report on certain issues related to our investigation. I look forward to doing so and assisting the committee.

On September 9, pursuant to our statutory duty, we submitted a referral and backup documentation to the House. I am here today at your invitation in furtherance of our statutory obligation.

II. Lewinsky Investigation

As our referral explains, the evidence suggests that the president made false statements under oath and otherwise thwarted the search for truth in the Jones v. Clinton case. The evidence further suggests that the president made false statements under oath to the grand jury on August 17.

I am suggesting that consideration of our referral be focused on the issues actually presented by the referral.

C. The President's Actions: Dec. 5-Jan. 17

On Dec. 5, 1997, Ms. Jones's attorneys identified Ms. Lewinsky as a potential witness. Within a day, the president learned that Ms. Lewinsky's name was on the witness list.

During this 2 a.m. conversation, which lasted approximately half an hour, the president could have told Ms. Lewinsky that they must tell the truth under oath. The president could have explained that they might face embarrassment but that, as a citizen and as president, he could not lie under oath and he could not sit by while Monica did so. The president did not say anything like that.

On the contrary, according to Ms. Lewinsky, the president suggested that she could sign an affidavit and use – under oath – deceptive cover stories that they had devised long ago to explain why Ms. Lewinsky had visited the Oval Office area.

The president did not explicitly instruct Ms. Lewinsky to lie. He did not have to. Ms. Lewinsky testified that the president's suggestion that they use the pre-existing cover stories amounted to a continuation of their pattern of concealing their intimate relationship. S

tarting with this conversation, the president and Ms. Lewinsky understood, according to Ms. Lewinsky, that they were both going to make false statements under oath.

Recall that the Supreme Court had concluded that Paula Jones was entitled to an "orderly disposition" of her claims. The president's action on Dec. 17 was his first direct effort to thwart the Supreme Court's mandate.

The story continued: The president faced a second choice. On Dec. 23, 1997, the president submitted under oath a written answer to an interrogatory. The request stated in relevant part: "Please state the name ... of (federal employees) with whom you had sexual relations when you (were) ... president of the United States." In his sworn answer, the president stated "None."

On Dec. 28, the president faced a third critical choice. On that day, the president met with Ms. Lewinsky at the White House. They discussed the fact that Ms. Lewinsky had been subpoenaed for gifts she had received from the president. According to Ms. Lewinsky, she raised the question of what she should do with the gifts. Later that day, the president's personal secretary, Betty Currie, drove to Ms. Lewinsky's Watergate home. Ms. Lewinsky gave Ms. Currie a sealed box that contained some of the subpoenaed gifts. Ms. Currie then stored the box under her bed at home.

Let me add another point about the gifts. In his grand jury appearance in August, the president testified that he had no particular concern about the gifts in December 1997 when he had talked to Ms. Lewinsky about them. And he thus suggested that he would have had no reason to take part in December in a plan to conceal the gifts. But there is a serious problem with the president's explanation.

If it were true that the president in December was unconcerned about the gifts, he presumably would have told the truth under oath in his January deposition about the large number of gifts that he and Ms. Lewinsky had exchanged. But he did not tell the truth. At that deposition, when asked whether he had ever given gifts to Monica Lewinsky, and he had given her several on Dec. 28, the president stated "I don't recall. Do you know what they were?"

In short, the critical facts to emphasize about the transfer of gifts are these: First, the president and Ms. Lewinsky met and discussed what should be done with the gifts subpoenaed from Ms. Lewinsky.

Second, the president's personal secretary Ms. Currie drove later that day to Ms. Lewinsky's home to pick up the gifts. Third, Ms. Currie stored the box under her bed.

Meanwhile, the legal process continued to unfold, and the president took other actions that had the foreseeable effect of keeping Ms. Lewinsky "on the team."

The president helped Ms. Lewinsky obtain a job in New York. His efforts began after the Supreme Court's decision in May 1997 – at a time when it had become foreseeable that she could be an adverse witness against the president. These job-related efforts intensified in December 1997 after Ms. Lewinsky's name appeared on the witness list.

Mr. Jordan stated to the president that he was still working on getting her a job. The president replied, "Good."

In other words, the president, knowing that a witness had just signed a false affidavit, encouraged his friend to continue trying to find her a job. After Ms. Lewinsky received a job offer from Revlon on Jan. 12, Vernon Jordan called the president and said: "Mission accomplished.

As is often the situation in cases involving this kind of financial assistance, no direct evidence reveals the president's intent in assisting Ms. Lewinsky. Ms. Lewinsky testified that no one promised her a job for silence; of course, crimes ordinarily do not take place with such explicit discussion. But federal courts instruct juries that circumstantial evidence is just as probative as direct evidence. And the circumstantial evidence here is strong. At a bare minimum, the evidence suggests that the president's job assistance efforts stemmed from his desire to placate Ms. Lewinsky so that she would not be tempted – under the burden of an oath – to tell the truth about the relationship.

Monica Lewinsky herself recognized that at the time, saying to a friend, "Somebody could construe or say, 'Well, they gave her a job to shut her up. They made her happy."'

And given that the president's plan to testify falsely could succeed only if Ms. Lewinsky went along,

the president naturally had to be concerned that Ms. Lewinsky at any time might turn around and decide to tell the truth. Indeed, some wanted her to tell the truth. For example, one friend talked to Ms. Lewinsky about the Dec. 28 meeting with the president. The friend stated that she was concerned because she "didn't want to see (Monica) being like Susan McDougal" and did not want Monica to lie to protect the president.

Needless to say, any sudden decision by Ms. Lewinsky to tell the truth, whether out of anger at the president or simple desire to be law-abiding, would have been very harmful to the president. That helps to explain his motive in providing job assistance.

In mid-January, Ms. Lewinsky finalized her false affidavit with her attorney, who sent it to Judge Wright's Court. The affidavit falsely denied a sexual relationship with the president and essentially recounted the cover stories they had discussed in their middle-of-the-night conversation on Dec. 17.

Let me turn to the president's January 17 deposition. Some have suggested that the president might have been surprised or ambushed at his deposition.

Those suggestions are wrong. The president had clear warning that there would be questions about Monica Lewinsky.

She had been named on the December 5 witness list. On January 12, only five days before the deposition, Ms. Jones' attorneys identified Ms. Lewinsky as a trial witness. In response, Judge Wright approved her as a witness. Two days later, on January 14, the president's private attorney asked Ms. Lewinsky's attorney to fax Ms. Lewinsky's affidavit. During the deposition itself, the president's attorney stated that the president was "fully familiar" with Ms. Lewinsky's affidavit.

At the outset of his January 17 deposition, therefore, the president faced a fourth critical decision. Fully aware that he would likely receive questions about Ms. Lewinsky, would the president continue to make false statements under oath –

this time in the presence of a United States District judge?

The president said not a word – to the judge or, so far as we are aware, to his attorney.

The president testified that he did not know that Vernon Jordan had met with Ms. Lewinsky and talked about the Jones case. That was untrue.

He testified that he could not recall being alone with Ms Lewinsky. That was untrue.

He testified that he could not recall ever being in the Oval Office hallway with Ms. Lewinsky except perhaps when she was delivering pizza. That was untrue.

He testified that he could not recall gifts exchanged between Ms. Lewinsky and him. That was untrue.

He testified – after a 14-second pause – that he was "not sure" whether he had ever talked to Ms. Lewinsky about the possibility that she might be asked to testify in the lawsuit. That was untrue.

The president testified that he did not know whether Ms. Lewinsky had been served a subpoena at the time he last saw her in December 1997. That was untrue. When his attorney read Ms. Lewinsky's affidavit denying a sexual relationship, the president stated that the affidavit was "absolutely true." That was untrue.

The evidence thus suggests that the president – long aware that Ms. Lewinsky was a likely topic of questioning at his deposition – made not one, or two, but a series of false statements under oath.

The president further allowed his attorney to use Ms. Lewinsky's affidavit, which the president knew to be false, to deceive the court.

This evidence suggests that the president directly contravened the oath he had taken – as well as the Supreme Court's mandate, in which the court had stated that Ms. Jones was entitled, like every other citizen, to a lawful disposition of her case.

D. The President's Actions: Jan. 17-21

During his deposition testimony, the president referred to his secretary Betty Currie. The president testified, for example, that Ms. Lewinsky had come to the White House to see Ms. Currie, not him; that Ms. Currie had been involved in assisting Ms. Lewinsky in her job search; and that Ms. Currie had communicated with Vernon Jordan about Mr. Jordan's assistance to Ms. Lewinsky. In response to one question at the deposition, the president said he did not know the answer and "you'd have to ask Betty."

Given the president's repeated references to Ms. Currie and his suggestion to Ms. Jones' attorneys that they contact her, the president had to know that Ms. Jones' attorneys might want to question Ms. Currie.

Shortly after 7 p.m. on Saturday, Jan. 17 – just two and a half hours after the deposition – the president attempted to contact Ms. Currie at her home. The president asked Ms. Currie to come to the White House the next day, which she did, although it was unusual for her to come in on a Sunday. According to Ms. Currie, the president appeared concerned and made a number of statements abut Ms. Lewinsky to Ms. Currie. The statements included:

Ms. Currie further testified that the president ran through the same basic statements with her again on January 20 or 21.

He knew he had been alone with Ms. Lewinsky. He knew Ms. Currie could not see or hear everything.

The president thus could not have been trying to refresh his recollection, as he subsequently suggested.

That raises the question: Is there a legitimate explanation for the president to have said those things in that manner to Ms. Currie? The circumstances suggest not.

The facts suggest that the president was attempting to improperly coach Ms. Currie, at a time when he could foresee that she was not a potential witness in Jones v. Clinton.

E. The President's Actions: Jan. 21-Aug. 17

Or would he continue to deny the truth?

For this question, the president consulted others. According to Dick Morris, the president and he talked on Jan. 21. Mr. Morris suggested that the president publicly confess. The president replied "But what about the legal thing? You know, the legal thing? You know. Starr and perjury and all." Mr. Morris suggested they take a poll. The president agreed. Mr. Morris called with the results. He stated that the American people were willing to forgive adultery but not perjury or obstruction of justice. The president replied, "Well, we just have to win, then."

Over the next several months, it became apparent that the strategy to win had many prongs.

First, the president denied the truth publicly and emphatically. Second, he publicly promised to cooperate with the investigation. Third, the president deflected and diverted the investigation by telling aides false stories that were then relayed to the grand jury. Fourth, he refused invitations to testify to the grand jury for over six months. Fifth, his administration delayed the investigation through multiple privilege claims, each of which has been rejected by the federal courts. Sixth, surrogates of the president attacked the credibility and legitimacy of the grand jury investigation. Seventh, surrogates of the president attempted to convince the Congress and the American people that the matter was unimportant.

The first step was for the president to deny the truth publicly. For this, political polling led to Hollywood staging.

The president's California friend and producer Harry Thomason flew to Washington and advised that the president needed to be very forceful in denying the relationship. On Monday, January 26, in the Roosevelt Room, before members of Congress and other citizens, the president provided a clear and emphatic public statement denying the relationship.

The president also made false statements to his Cabinet and aides. They then spoke publicly and professed their belief in the president.

The second step was to promise cooperation. The president told the American people on several television and radio shows on Jan. 21 and 22 that "I'm going to do my best to cooperate with the investigation."

As a fourth step, the president not only refused to testify himself, but he authorized the use of various governmental privileges to delay the testimony of many of his taxpayer-paid assistants.

The extensive use of governmental privileges against grand jury and criminal investigations has, of course, been a pattern throughout the administration.

Most notably, the White House cited privilege in 1993 to prevent Justice Department and Park Police officials from reviewing documents in Vincent Foster's office in the days after his death.

In the Lewinsky investigation, the president asserted two privileges, executive privilege and a government attorney-client privilege.

A subordinate administration official, without objection from the president, claimed a previously unheard-of privilege that was called the protective function privilege.

The privileges were asserted to prevent the full testimony of several White House aides and the full testimony of the sworn law enforcement officers of the Secret Service.

In asserting executive privilege, the president was plowing headlong into the Supreme Court's unanimous decision 24 years ago in United States v. Nixon. There, the Supreme Court ruled that executive privilege was overcome by the need for relevant evidence in criminal proceedings. And thus, it came as no surprise that Chief Judge Norma Holloway Johnson rejected President Clinton's effort to use executive privilege to prevent disclosure of relevant evidence.

In asserting protective function and government attorney-client privileges, the administration was asking the federal courts to make up one new privilege out of whole cloth and to apply another privilege in a context in which no federal court had ever applied it before. And thus it again came as little surprise that the federal courts rejected the administration's claims. Indeed, as to the government attorney-client claim, the D.C. Circuit and the District Court, like the Eighth Circuit a year ago, stated that the president's position not only was wrong but would authorize a "gross misuse of public assets." The Supreme Court refused to grant review of the cases notwithstanding the administration's two strongly worded petitions.

This point bears emphasis: The administration justified its many privilege claims by claiming an interest in protecting the presidency, not the president personally. But that justification is dubious for two reasons.

First, Presidents Carter and Reagan waived all government privileges at the outset of criminal investigations in which they were involved. The examples set by those two presidents demonstrate that such privilege claims in criminal investigations are manifestly unnecessary to protect the presidency.

Second, these novel privilege claims were quite weak as a matter of law.

And that raises a question: What was it about the Monica Lewinsky matter that generated the administration's particularly aggressive approach to privileges? The circumstantial evidence suggests an answer: delay.

Indeed, when this office sought to have the Supreme Court decide all three privilege claims at once this past June, the Administration opposed expedited consideration.

On March 24, 1998, while traveling in Africa, the president was asked about executive privilege. He stated in response: "You should ask someone who knows. I haven't discussed that with the lawyers. I don't know."

But White House Counsel Charles Ruff had filed an affidavit in federal court only seven days earlier in which he swore that he had discussed the assertion of executive privilege with the president and the president had approved its invocation.

After Chief Judge Johnson ruled against the president, the president dropped the executive privilege claim in the Supreme Court. In August, the president explained to the grand jury why he dropped it. The president stated: "I didn't really want to advance an executive privilege claim in this case beyond having it litigated."

In truth, the president had again asserted executive privilege only a few days earlier. And a few days after his grand jury testimony, the president again asserted executive privilege to prevent the testimony of Bruce Lindsey. These executive privilege cases continue to this day; indeed, one case is now pending in the D.C. Circuit.

When the president and the administration assert privileges in a context involving the president's personal issues; when the president pretends publicly that he knows nothing about the executive privilege assertion; when the president and the administration rebuff our office's efforts to expedite the cases to the Supreme Court; when the president contends in the grand jury that he never really wanted to assert executive privilege beyond having it litigated – despite the fact that he had asserted it six days earlier and will do so again four days afterwards, there is substantial and credible evidence that the president has misused the privileges available to his office. Remember, if I say it, it must be true     And the misuse delayed and impeded the federal grand jury's investigation. Remember, if I say it, it must be true.  I just love my choice of words.  Carries you right along to my conclusion that I try to make sound like a proven fact.

The president made false statements to his aides and associates about the nature of the relationship – with knowledge that they could testify to that effect to the grand jury sitting here in Washington.

The president did not simply say to his associates that the allegations were false or that the issue was a private matter that he did not want to discuss. Instead, the president concocted alternative scenarios that were then repeated to the grand jury.

The final two tactics were related: (i) to attack the grand jury investigation, including the Justice Department prosecutors in my office – to declare war, in the words of one presidential ally –

and (ii) to shape public opinion about the proper resolution of the entire matter.

It is best that I leave it to someone outside our office to elaborate on the war against our office. But no one really disputes that those tactics were employed – and continue to be employed to this day.

F. The President's Actions: Aug. 17

It changed course in August after Monica Lewinsky reached an immunity agreement with our office, and the grand jury, after deliberation, issued a subpoena to the president.

The president testified to the grand jury on Aug. 17. Beforehand, many in Congress and the public advised that the president should tell the whole truth. They cautioned that the president could not lie to the grand jury. Senator Hatch, for example, stated that "So help me, if he lies before the grand jury, that will be grounds for impeachment."

Senator Moynihan stated simply that perjury before the grand jury was, in his view, an impeachable offense.

The evidence suggests that the president did not heed this senatorial advice.

Although admitting to an ambiguously defined inappropriate relationship, the president denied that he had lied under oath at his civil deposition. He also denied any conduct that would establish that he had lied under oath at his civil deposition. The president thus denied certain conduct with Ms. Lewinsky and devised a variety of tortured and false definitions.

The president's answers have not been well received. Congressman Schumer, for one, stated that "it is clear that the president lied when he testified before the grand jury."

Congressman Meehan stated that the president engaged in a "dangerous game of verbal Twister." Indeed, the president made false statements to the grand jury

and then that same evening spoke to the nation and criticized all attempts to show that he had done so as invasive and irrelevant. The president's approach appeared to contravene the oath he took at the start of the grand jury proceedings. It also disregarded the admonitions of those members of Congress who warned that lying to the grand jury would not be tolerated.

It also discounted Judge Wright's many orders in which she had ruled that this kind of evidence was relevant in the Jones case.

And thus ended the over-eight-month journey that had begun on December 5, 1997, when Monica Lewinsky's name appeared on the witness list. The evidence suggests that the eight months included false statements under oath,

false statements to the American people, false statements to the president's Cabinet and aides,

witness tampering,

obstruction of justice,

and the use of presidential authority and power in an effort to conceal the truth of the relationship and to delay the investigation.

III. Jurisdiction

Let me explain how the investigation came to be handled by our office rather than by the Department of Justice or some new independent counsel. The explanation is straightforward.

You name it. We have heard it. In each case, we must make an initial assessment whether it is a serious tip or a crank call, as well as an assessment of jurisdictional issues.

We discussed jurisdiction. We noted that it is in everyone's interest to avoid time-consuming jurisdictional challenges.

We stated that the Lewinsky investigation could be considered outside our jurisdiction as then constituted. We stressed that someone needed to work the case: the Justice Department or an independent counsel.

Before her decision was final, we reviewed the evidence in detail with two experienced career prosecutors in the department. One senior Justice Department prosecutor listened to portions of the FBI tape. The attorney general made her final decision on Friday, Jan. 16. That day, through a senior career prosecutor, the attorney general asked the three-judge special division to expand our jurisdiction. The special division granted the request that day.

IV. Referral Standards

Perjury and obstruction of justice are, of course, serious crimes. In 1790, the first Congress passed a criminal law that banned perjury. A violation was subject to three years' imprisonment. Today, federal criminal law makes perjury a felony punishable by five years' imprisonment.

History and practice support the conclusion that perjury, in particular, is a high crime or misdemeanor. Perjury has been the basis for the removal of several judges. As far as we know, no one questioned whether perjury was a high crime or misdemeanor in those cases. In addition, as several of the scholars who appeared before you testified, perjury seems to have been recognized as a high crime or misdemeanor at the time of the founding. And the House manager's report in the impeachment of Judge Walter Nixon for perjury stated, "It is difficult to imagine an act more subversive to the legal process than lying from the witness stand." And finally, I note that the federal sentencing guidelines include bribery and perjury in the same guideline (2Jl.3), reflecting the common-sense conclusion that bribery and perjury are equivalent means of interfering with the governmental process.

A final point warrants mention in this respect. Criminal prosecution and punishment are not the same as – or a substitute for – congressionally imposed sanctions.

As the Supreme Court stated in a 1993 case, "The framers recognized that most likely there would be two sets of proceedings for individuals who commit impeachable offenses – the impeachment trial and a separate criminal trial. In fact, the Constitution explicitly provides for two separate proceedings. The framers deliberately separated the two forums to avoid raising the specter of bias and to ensure independent judgment."

A. Overview

And our record shows that there is a bright line between law and politics, between courts and polls. It leaves the polls to the politicians and spin doctors.

We are officers of the court who live in the world of the law. We have presented our cases in court, and with very rare exception, we have won.

In early 1994, a Little Rock judge and businessman David Hale pled guilty to certain unrelated federal crimes. As part of his plea, David Hale told Mr. Fiske's team that he had received money as a result of a loan from Madison in 1986 and that his company loaned it to others as part of a scheme to help some members of the Arkansas political establishment.

One loan of $300,000 went to Susan McDougal's make-believe company, Master Marketing. Based on our investigation, we now know that some $50,000 of the proceeds of that loan went to benefit the Whitewater corporation. David Hale stated that he had discussed the Susan McDougal loan with Governor Clinton, including at a meeting in 1986 with Jim McDougal and the governor.

In August 1994, when I first arrived in Little Rock, we devised a plan. First, based on the testimony of David Hale and others, as well as documentary evidence, we would take steps, if appropriate, to seek an indictment of Jim and Susan McDougal and others involved in what clearly appeared to be criminal transactions.

If a Little Rock jury convicted the McDougals or others, we would then obtain their testimony and determine whether they had other relevant information – including, of course, whether the McDougals possessed information that would either exonerate or incriminate the Clintons as to Madison and Whitewater matters.

We garnered a number of guilty pleas in my first year, including from Webster Hubbell, who had worked at the Rose Law Firm and was knowledgeable about its work with Madison, including that of Mrs. Clinton. In addition, Robert Palmer, a real estate appraiser, pled guilty to fraudulently doctoring Madison documents to deceive federal bank examiners. Three other associates of McDougal pled guilty and agreed to cooperate.