10A - The Michigan Daily - Monday, September 14, 1998

INVESTIGATING THE PRESIDENT


RESPONSE
Continued from Page 9A
Ms. Lewinsky's note because he did not want
to have to turn it over to the Jones lawyers.
The OIC has absolutely no basis for assum-
ing that the President was aware of the docu-
ment request at the time he received the book.
Thus, even assuming the President had
received and discarded the note, his acts
would not constitute obstruction of justice.
Finally, setting aside whether the President
actually received Ms. Lewinsky's note, or
knew whether it was subject to a document
request, at bottom the OIC is transforming a
civil discovery issue into yet another flimsy
criminal charge, accusing the President with
obstruction of justice on the basis of his
alleged failure to produce this note to the
Jones lawyers. As the OIC clearly knows, the
obstruction of justice statute does not apply
to a party's concealing or withholding of dis-
coverable documents in civil litigation...
Allegations of Concealment of
Relationship
The essence of the OIC's argument is that,
because the President and Ms. Lewinsky
attempted to conceal the improper nature of

their relationship while it was going on and
because the President failed affirmatively to
assure that each statement contained in the
affidavit filed by Ms. Lewinsky was true, he
therefore obstructed justice...
First, the Referral alleges that during the
course of their admittedly improper relation-
ship, the President and Ms. Lewinsky con-
cealed the nature of their relationship from
others. This is hardly a remarkable proposi-
tion. The use of "cover stories" to conceal
such a relationship, apart from any proceed-
ing, is not unusual and not an obstruction of
justice...
The Referral also alleges that the President
somehow obstructed justice by suggesting to
Ms. Lewinsky that she could sign an affidavit
in the Jones case. But the Referral again fails
to establish how this might constitute
obstruction. The OIC makes no contention
that the President ever told Ms. Lewinsky to
file a false affidavit. A suggestion to submit
written testimony under oath in a judicial
proceeding, if he made it, is hardly improper
-- let alone an obstruction of justice. The
President was aware that other potential
deponents in the Jones case had filed affi-
davits in an attempt to avoid the expense, bur-
den, and humiliation of testifying in the Jones
case, and that there was a chance that doing
so might enable Ms. Lewinsky to avoid testi-
fying. Even if the affidavit did not "disclose
the true nature of their relationship," as the
OIC asserts, since the Jones case concerned
allegations of nonconsensual sexual solicita-
tion, a truthful albeit limited affidavit might
have allowed her to have avoided giving a
Jones deposition. But the President never told
Ms. Lewinsky what to say in the affidavit,
knew that Ms. Lewinsky had her own lawyer
to protect her interests, and expressly
declined the opportunity to review the con-
tent of the affidavit, according to Ms.

And he did not abuse
the powers of the office
of the presidency'

Lewinsky. Narrative at 203. The OIC's posi-
tion appears to be that this is somehow
obstruction of justice - that the President
had an affirmative duty to ensure that Ms.
Lewinsky volunteered in her affidavit all
information in which the Jones lawyers might
possibly have an interest. There simply is no
such duty under the law, nor does the OIC
cite any basis for such a duty. Civil litigation
is based upon an adversarial process of deter-
mining truth, and a party is under no affir-
mative obligation to assist an opponent in
every way it can.
Conversations with
Vernon Jordan
The OIC asserts in its eighth allegation
that the President was "asked during his civil
deposition whether he had talked to Mr.
Jordan about Ms. Lewinsky's involvement in
the Jones case" and that he "stated that he did
not recall whether Mr. Jordan had talked to
Ms. Lewinsky about her involvement in the
Jones case." Acts at 115. This account of the
question and answer is simply false.
The President was not asked that question,
and he did not give that answer.
Nor do the remaining two passages state
what the OIC claims. The next passage asked
whether, in the past two weeks (before
January 17) anyone had reported to the
President that they had had a conversation
with Ms. Lewinsky about the lawsuit, to
which the President replied he did not believe
so. This response of course does not rule out
all conversations with Mr. Jordan about Ms.
Lewinsky's involvement in the case, as the
OIC would suggest, but only in the two-week
period and only accounts of conversations
with Ms. Lewinsky, not conversations simply

about her involvement in the case.
Allegations of Witness
Tampering
In its ninth allegation the OIC charges that
President Clinton obstructed justice and
improperly influenced a witness when lie
spoke with Ms. Currie the day after his depo-
sition in the Jones case.
The OIC's claims are wrong and, again,
the product of extraordinary overreaching
and pejorative conjecture, a transparent
attempt to draw the most negative inference
possible about lawful conduct...
The President's actions could not as a mat-
ter of law give rise to either charge because
Ms. Currie was not a witness in any proceed-
ing at the time he spoke with her: her name
had not appeared on any of the Jones witness
lists; she had not been named as a witness in
the Jones case; there were just two weeks of
discovery left in the case; and there was no
reason to suspect she would play any role in
that case. The President had no reason to sus-
pect that the OIC had embarked on a wholly
new phase of its four-year investigation, one
in which Ms. Currie would later be called by
the OIC as a witness. To obstruct a proceed-
ing or tamper with a witness, there must be
both a witness and a proceeding. Here, there
was neither. Despite the OIC's far-fetched
suggestion to the contrary, there was no rea-
son the President should not have spoken
with Ms. Currie about Ms. Lewisky...
Allegations of Refusal to Testify
The tenth allegation is premised on the
OIC's misrepresentation of the facts. The
assertion that "the President] simultaneously
lied to potential grand jury witnesses;"
"[w]hile refusing to testify for seven months"
is a gross distortion of the Referral's own
citations...
The statements to Presidential aides cited
by the Referral were made either on the day
the Lewinsky story broke (January 21, 1998)
or within a few days of that date. Those state-
ments were concurrent in time with the
President's repeated public statements to the
country denying sexual relations with Ms.
Lewinsky. And they were virtually identical
in substance. Having announced to the whole
country on live television that he was not hav-
ing sexual relations with Ms. Lewinsky, it is
simply absurd to believe that he was some-
how attempting to corruptly influence the tes-
timony of aides when lie told them virtually
the same thing attlhe same time...
In sum, the President's statements to his
aides could not have obstructed justice as a

matter of law. Their legal duty was to answer
the prosecutor's questions and to tell the truth
honestly as they knew it, and the President's
comments in no conceivable way affected
that duty...
Allegations of Abuse of Power
The OIC begins with the charge that the
President's false denial that he had an
improper relationship with Ms. Lewinsky,
something that he has now admitted and
apologized for, was itself an abuse of power
because it served to deceive the American
people. Implicit in this charge is the notion
that any official, in any branch of the govern-
ment, who makes a public statement about
his own conduct, or indeed any other matter,
that is not true may be removed from office.
It would follow, therefore, that no official
could mount a defense to impeachment, or to
ethics charges, or to a criminal investigation
while remaining in office, for anything other
than an immediate admission of guilt will
necessarily be misleading...
Reading the OIC's Referral, one would
never know which party to the executive priv-
ilege litigation was right and which was
wrong on the basic question whether the priv-
ilege applied to the communications the OIC
was seeking to obtain. In the District Court,
the OIC took the position that executive priv-
ilege was simply inapplicable in the face of
its grand jury subpoena because the commu-
nications at issue related to the President's
private conduct, but Chief Judge Johnson
rejected that claim out of hand. In Grand Jury
Proceedings, 1998 U.S. Dist. Lexis 7736
(D.D.C. 1998). Astoundingly, however, the
OIC simply repeats that claim in the Referral,
Acts at 155, with no acknowledgement that
the court agreed with the White House that
the privilege had been properly asserted...
More importantly, the OIC's abuse-of-
power allegation must necessarily rest on the
assumption that the President initiated the
executive privilege claim with intent to
impede the OIC's investigation. Yet. the
record is clear that it was only after extensive
negotiations in which the White House
offered to make available to the OIC factual
information concerning the President's con-
duct and had its offer rejected out of hand,
that the White House Counsel notified the
President of the OIC's demands, explained
the failed accommodation effort, and recom-
mended that he invoke the privilege. Counsel
gave that advice because he believed it
important to protect the constitutional inter-
ests of the presidency. Thus, the President's
decision to claim privilege was not the result
of his own initiative, much less of any intent
to obstruct the grand jury investigation, but
rather was the result of his Counsel's advice.
Last. the OIC charges that it was an abuse
of power for the President, at a time when
both his personal and official interests were
in the balance, not to testify before the grand
jury until August surely a claim that must
astound lawyers and laymen alike. Could the
OIC truly be taking the position that any gov-

enment official who is the subject of a cr9
inal investigation must immediately come
forward and testify at a prosecutor's whim or
risk impeacnhment? To state the question is to
anSwer itt.
Conclusion
It has come down to this.
After four years, scores of FBI agents,
hundreds of subpoenas. thousands of docu-
ments, and tens of millions of dollars. A*
hirimg lawyers, accountants, IRS agents, out-
side consultants, law professors, personal
counsel, ethics advisers, and a professional
public relations expert. Alter impaneling
grand juries and leasing office space in tlhee
jurisdictions, and investigating virtually
every aspect of the President's business;
financial, political, official and, ultimately.
personal life, the Office of Independent
Counsel has presented to the House a
Referral that no prosecutor would prsent o
any jury.
The President has admitted he had an
improper relationship with Ms. Lewinsky. He
has apologized.
The wrongfulness of that relationship is
not in dispute. And yet that relationship is the
relentless focus of virtually every page of the
OIC's Referral.
In 445 pages, the Referral mentions
Whitewater, the failed land deal which origi-
nated its investigation. twice. It never <
mentions other issues it has been invosti
ing for years matters concerning the firing of
employees of the White House travel office
and the controversy surrounding the FBI
files. By contrast, the issue of sex is men-
tioned more than 500 times, in the most
graphic, salacious and gratuitous manner.
The Office of Independent Counsel is ask-
ing the House of Representatives to under-
take its most solemn and consequential
process short of declaring war; to remove a
duly, freely and fairly elected President ofO
United States because he had - as he has
admitted - an improper, illicit relationship
outside of his marriage. Having such a rela-
tionship is wrong. Trying to keep such a rela-
tionship private, while understandable, is
wrong. But such acts do not even approach
the Constitutional test of impeachment -
"Treason, Bribery, or other high Crimes and
Misdemeanors."
The founders were wise to set such a h
standard, and were wise to vest this aweso'
authority in the hands of the most democrat-
ic and accountable branch of our
Government, and not in the hands of unac-
countable prosecutors.
We have sought in this Initial Response to
begin the process of rebutting the OIC's
charges against the President charges legal
experts have said would not even be brought
against a private citizen.
The President did not commit perjury. He
did not obstruct justice. He did not tar*
with witnesses.
And he did not abuse the power of the
office of the Presidency.

Harry Winer a prominent Hollywood writer, producer and director, in conjunction with
The Program in Film and Video Studies will present a special screening of his new TNT film.
"Jeremiah" is the story of one man's search for faith amid the turmoil of a Babylonian
invasion. It relates a moving personal story and an important overview of ancient Judah.
Mr. Winer will discuss his experiences of shooting this film in Morocco.
Monday September 14th
8:00 p.m.
Natural Science Auditorium
Free


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