The conversation between the president and Ms. Lewinsky on Dec. 17 was a critical turning point. The evidence suggests that the president chose to engage in a criminal act to reach an understanding with Ms. Lewinsky that they would both make false statements under oath. At that moment, the president's intimate relationship with a subordinate employee was transformed into an unlawful effort to thwart the judicial process. This was no longer an issue of private conduct.
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.
In her written proffer on Feb. 1, four weeks after the fact, Ms. Lewinsky stated that Ms. Currie had called her to retrieve the gifts. If so, that necessarily meant that the president had asked Ms. Currie to call. It would directly and undeniably implicate him in an obstruction of justice. Ms. Lewinsky later repeated that statement in testimony under oath. Ms. Currie, for her part, recalls Ms. Lewinsky calling her. But even if Ms. Lewinsky called Ms. Currie, common sense and the evidence suggest some presidential knowledge or involvement, as the referral explains.
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 Leinsky, 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.
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 Jan. 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 Dec. 5 witness list. On Jan. 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 Jan. 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 Jan. 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?
At the start of the deposition, Judge Susan Webber Wright administered the oath. The president swore to tell the truth, the whole truth, and nothing but the truth. As his testimony began, the president, in response to a question from Ms. Jones' attorneys, stated that he understood he was providing his testimony under the penalty of perjury.
The president was asked a series of questions about Ms. Lewinsky. After a few questions, the president's attorney Mr. Bennett objected to the questioning about Ms. Lewinsky, referring to it as "innuendo." Mr. Bennett produced Ms. Lewinsky's false affidavit. Mr. Bennett stated to Judge Wright that Ms. Lewinsky's affidavit indicated that "there is absolutely no sex of any kind in any manner, shape, or form." Mr. Bennett stated that the president was "fully aware of Ms. Lewinsky's affidavit." During Mr. Bennett's statements, the president sat back and let his attorney mislead Judge Wright. The president said not a word to the judge or, so far as we are aware, to his attorney.
Judge Wright overruled Mr. Bennett's objection. The questioning contiued. In response, the president made false statements not only about his intimate relationship with Ms. Lewinsky, but about a whole host of matters. 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
As our referral outlines, the president's deposition did not mark the end of the scheme to conceal. 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 numbr of statements abut Ms. Lewinsky to Ms. Currie. The statements included:
"You were always there when she was there, right? We were never really alone."
"You could see and hear everything."
Ms. Currie concluded that the president wanted her to agree with him when he made these statements. Ms. Currie stated that she did in fact indicate her agreement although she knew that the president and Ms. Lewinsky had been alone and that she could not hear or see them when they were alone.
Ms. Currie further testified that the president ran through the same basic statements with her again on January 20 or 21.
What is important with respect to these two episodes is that at the time the president made these statements, he knew that they were false. 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
The president's next major decision came in the days immediately after Jan. 21. On the 21st, The Washington Post publicly reported the story of Ms. Lewinsky's relationship with the president. After the public disclosure of his relationship with Ms. Lewinsky and the ongoing criminal investigation, the president faced a decision. Would he admit the relationship publicly, correct his testimony in Ms. Jones' case, and ask for the indulgence of the American people? 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 muliple 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, Jan. 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."
The third step was the president's refusal to provide testimony to the grand jury despite six invitations to do so and despite his public promise to cooperate. Refusing invitations to provide information to a grand jury in a federal criminal investigation authorized by the attorney general of the United States and one in which there is a high national interest in prompt completion was inconsistent with the president's initial January promise to cooperate and with the general statutory duty of all government officials to cooperate with federal criminal investigations.
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 eed 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.