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Full Coverage: Independent Counsel Report | Report: Table of Contents| The Rebuttal
This Referral presents substantial and credible information
that President Clinton criminally obstructed the judicial
process, first in a sexual harassment lawsuit in which he was the
defendant and then in a grand jury investigation.
The opening
section of the Narrative provides an overview of the object of
the President's cover-up, the sexual relationship between the
President and Ms. Lewinsky.
Subsequent sections recount the
evolution of the relationship chronologically, including the
sexual contacts, the President's efforts to get Ms. Lewinsky a
job, Ms. Lewinsky's subpoena in Jones v. Clinton, the role of
Vernon Jordan, the President's discussions with Ms. Lewinsky
about her affidavit and deposition, the President's deposition
testimony in Jones, the President's attempts to coach a potential
witness in the harassment case, the President's false and
misleading statements to aides and to the American public after
the Lewinsky story became public, and, finally, the President's
testimony before a federal grand jury. B. Evidence Establishing Nature of Relationship Physical evidence conclusively establishes that the
President and Ms. Lewinsky had a sexual relationship.
After
reaching an immunity and cooperation agreement with the Office of
the Independent Counsel on July 28, 1998, Ms. Lewinsky turned
over a navy blue dress that she said she had worn during a sexual
encounter with the President on February 28, 1997.
According to
Ms. Lewinsky, she noticed stains on the garment the next time she
took it from her closet.
From their location, she surmised that
the stains were the President's semen.(1) Initial tests revealed that the stains are in fact semen.(2)
Based on that result, the OIC asked the President for a blood
sample.(3)
After requesting and being given assurances that the
OIC had an evidentiary basis for making the request, the
President agreed.(4)
In the White House Map Room on August 3,
1998, the White House Physician drew a vial of blood from the
President in the presence of an FBI agent and an OIC attorney.(5)
By conducting the two standard DNA comparison tests, the FBI
Laboratory concluded that the President was the source of the DNA
obtained from the dress.(6)
According to the more sensitive RFLP
test, the genetic markers on the semen, which match the
President's DNA, are characteristic of one out of 7.87 trillion
Caucasians.(7) In addition to the dress, Ms. Lewinsky provided what she
said were answering machine tapes containing brief messages from
the President, as well as several gifts that the President had
given her. Ms. Lewinsky was extensively debriefed about her
relationship with the President.
For the initial evaluation of
her credibility, she submitted to a detailed "proffer" interview
on July 27, 1998.(8)
After entering into a cooperation agreement,
she was questioned over the course of approximately 15 days.
She
also provided testimony under oath on three occasions:
twice
before the grand jury, and, because of the personal and sensitive
nature of particular topics, once in a deposition.
In addition,
Ms. Lewinsky worked with prosecutors and investigators to create
an 11-page chart that chronologically lists her contacts with
President Clinton, including meetings, phone calls, gifts, and
messages.(9)
Ms. Lewinsky twice verified the accuracy of the chart
under oath.(10) In the evaluation of experienced prosecutors and
investigators, Ms. Lewinsky has provided truthful information.
She has not falsely inculpated the President.
Harming him, she
has testified, is "the last thing in the world I want to do."(11) Moreover, the OIC's immunity and cooperation agreement with
Ms. Lewinsky includes safeguards crafted to ensure that she tells
the truth.
Court-ordered immunity and written immunity
agreements often provide that the witness can be prosecuted only
for false statements made during the period of cooperation, and
not for the underlying offense.
The OIC's agreement goes
further, providing that Ms. Lewinsky will lose her immunity
altogether if the government can prove to a federal district
judge -- by a preponderance of the evidence, not the higher
standard of beyond a reasonable doubt -- that she lied.
Moreover, the agreement provides that, in the course of such a
prosecution, the United States could introduce into evidence the
statements made by Ms. Lewinsky during her cooperation.
Since
Ms. Lewinsky acknowledged in her proffer interview and in
debriefings that she violated the law, she has a strong incentive
to tell the truth:
If she did not, it would be relatively
straightforward to void the immunity agreement and prosecute her,
using her own admissions against her. Between 1995 and 1998, Ms. Lewinsky confided in 11 people
about her relationship with the President.
All have been
questioned by the OIC, most before a federal grand jury:
Andrew
Bleiler, Catherine Allday Davis, Neysa Erbland, Kathleen Estep,
Deborah Finerman, Dr. Irene Kassorla, Marcia Lewis
Some of Ms. Lewinsky's statements about the relationship were contemporaneously memorialized. These include deleted email recovered from her home computer and her Pentagon computer, email messages retained by two of the recipients, tape recordings of some of Ms. Lewinsky's conversations with Ms. Tripp, and notes taken by Ms. Tripp during some of their conversations. The Tripp notes, which have been extensively corroborated, refer specifically to places, dates, and times of physical contacts between the President and Ms. Lewinsky.(13)
Everyone in whom Ms. Lewinsky confided in detail believed she was telling the truth about her relationship with the President. Ms. Lewinsky told her psychologist, Dr. Irene Kassorla, about the affair shortly after it began. Thereafter, she related details of sexual encounters soon after they occurred (sometimes calling from her White House office).(14) Ms. Lewinsky showed no indications of delusional thinking, according to Dr. Kassorla, and Dr. Kassorla had no doubts whatsoever about the truth of what Ms. Lewinsky told her.(15) Ms. Lewinsky's friend Catherine Allday Davis testified that she believed Ms. Lewinsky's accounts of the sexual relationship with the President because "I trusted in the way she had confided in me on other things in her life. . . . I just trusted the relationship, so I trusted her."(16) Dale Young, a friend in whom Ms. Lewinsky confided starting in mid-1996, testified:
[I]f she was going to lie to me, she would have said to me, "Oh, he calls me all the time. He does wonderful things. He can't wait to see me." . . . [S]he would have embellished the story. You know, she wouldn't be telling me, "He told me he'd call me, I waited home all weekend and I didn't do anything and he didn't call and then he didn't call for two weeks."(17)
In addition to her remarks and email to friends, Ms. Lewinsky wrote a number of documents, including letters and draft letters to the President. Among these documents are (i) papers found in a consensual search of her apartment; (ii) papers that Ms. Lewinsky turned over pursuant to her cooperation agreement, including a calendar with dates circled when she met or talked by telephone with the President in 1996 and 1997; and (iii) files recovered from Ms. Lewinsky's computers at home and at the Pentagon.
5. Consistency and Corroboration
The details of Ms. Lewinsky's many statements have been checked, cross-checked, and corroborated. When negotiations with Ms. Lewinsky in January and February 1998 did not culminate in an agreement, the OIC proceeded with a comprehensive investigation, which generated a great deal of probative evidence.
In July and August 1998, circumstances brought more direct and compelling evidence to the investigation. After the courts rejected a novel privilege claim, Secret Service officers and agents testified about their observations of the President and Ms. Lewinsky in the White House. Ms. Lewinsky agreed to submit to a proffer interview (previous negotiations had deadlocked over her refusal to do so), and, after assessing her credibility in that session, the OIC entered into a cooperation agreement with her. Pursuant to the cooperation agreement, Ms. Lewinsky turned over the dress that proved to bear traces of the President's semen. And the President, who had spurned six invitations to testify, finally agreed to provide his account to the grand jury. In that sworn testimony, he acknowledged "inappropriate intimate contact" with Ms. Lewinsky.
Because of the fashion in which the investigation had unfolded, in sum, a massive quantity of evidence was available to test and verify Ms. Lewinsky's statements during her proffer interview and her later cooperation. Consequently, Ms. Lewinsky's statements have been corroborated to a remarkable degree. Her detailed statements to the grand jury and the OIC in 1998 are consistent with statements to her confidants dating back to 1995, documents that she created, and physical evidence.(18) Moreover, her accounts generally match the testimony of White House staff members; the testimony of Secret Service agents and officers; and White House records showing Ms. Lewinsky's entries and exits, the President's whereabouts, and the President's telephone calls.
In the Jones deposition on January 17, 1998, the President denied having had "a sexual affair," "sexual relations," or "a sexual relationship" with Ms. Lewinsky.(19) He noted that "[t]here are no curtains on the Oval Office, there are no curtains on my private office, there are no curtains or blinds that can close [on] the windows in my private dining room," and added: "I have done everything I could to avoid the kind of questions you are asking me here today. . . ."(20)
During the deposition, the President's attorney, Robert Bennett, sought to limit questioning about Ms. Lewinsky. Mr. Bennett told Judge Susan Webber Wright that Ms. Lewinsky had executed "an affidavit which [Ms. Jones's lawyers] are in possession of saying that there is absolutely no sex of any kind in any manner, shape or form, with President Clinton." In a subsequent colloquy with Judge Wright, Mr. Bennett declared that as a result of "preparation of [President Clinton] for this deposition, the witness is fully aware of Ms. Lewinsky's affidavit."(21) The President did not dispute his legal representative's assertion that the President and Ms. Lewinsky had had "absolutely no sex of any kind in any manner, shape or form," nor did he dispute the implication that Ms. Lewinsky's affidavit, in denying "a sexual relationship," meant that there was "absolutely no sex of any kind in any manner, shape or form." In subsequent questioning by his attorney, President Clinton testified under oath that Ms. Lewinsky's affidavit was "absolutely true."(22)
Testifying before the grand jury on August 17, 1998, seven months after his Jones deposition, the President acknowledged "inappropriate intimate contact" with Ms. Lewinsky but maintained that his January deposition testimony was accurate.(23) In his account, "what began as a friendship [with Ms. Lewinsky] came to include this conduct."(24) He said he remembered "meeting her, or having my first real conversation with her during the government shutdown in November of '95." According to the President, the inappropriate contact occurred later (after Ms. Lewinsky's internship had ended), "in early 1996 and once in early 1997."(25)
The President refused to answer questions about the precise nature of his intimate contacts with Ms. Lewinsky, but he did explain his earlier denials.(26) As to his denial in the Jones deposition that he and Ms. Lewinsky had had a "sexual relationship," the President maintained that there can be no sexual relationship without sexual intercourse, regardless of what other sexual activities may transpire. He stated that "most ordinary Americans" would embrace this distinction.(27)
The President also maintained that none of his sexual contacts with Ms. Lewinsky constituted "sexual relations" within a specific definition used in the Jones deposition.(28) Under that definition:
[A] person engages in "sexual relations" when the person knowingly engages in or causes -- (1) contact with the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to arouse or gratify the sexual desire of any person . . . . "Contact" means intentional touching, either directly or through clothing.(29)
According to what the President testified was his understanding, this definition "covers contact by the person being deposed with the enumerated areas, if the contact is done with an intent to arouse or gratify," but it does not cover oral sex performed on the person being deposed.(30) He testified:
[I]f the deponent is the person who has oral sex performed on him, then the contact is with -- not with anything on that list, but with the lips of another person. It seems to be self-evident that that's what it is. . . . Let me remind you, sir, I read this carefully.(31)
In the President's view, "any person, reasonable person" would recognize that oral sex performed on the deponent falls outside the definition.(32)
If Ms. Lewinsky performed oral sex on the President, then -- under this interpretation -- she engaged in sexual relations but he did not. The President refused to answer whether Ms. Lewinsky in fact had performed oral sex on him.(33) He did testify that direct contact with Ms. Lewinsky's breasts or genitalia would fall within the definition, and he denied having had any such contact.(34)
In his grand jury testimony, the President relied heavily on a particular interpretation of "sexual relations" as defined in the Jones deposition. Beyond insisting that his conduct did not fall within the Jones definition, he refused to answer questions about the nature of his physical contact with Ms. Lewinsky, thus placing the grand jury in the position of having to accept his conclusion without being able to explore the underlying facts. This strategy -- evidently an effort to account for possible traces of the President's semen on Ms. Lewinsky's clothing without undermining his position that he did not lie in the Jones deposition -- mandates that this Referral set forth evidence of an explicit nature that otherwise would be omitted.
In light of the President's testimony, Ms. Lewinsky's accounts of their sexual encounters are indispensable for two reasons. First, the detail and consistency of these accounts tend to bolster Ms. Lewinsky's credibility. Second, and particularly important, Ms. Lewinsky contradicts the President on a key issue. According to Ms. Lewinsky, the President touched her breasts and genitalia -- which means that his conduct met the Jones definition of sexual relations even under his theory. On these matters, the evidence of the President's perjury cannot be presented without specific, explicit, and possibly offensive descriptions of sexual encounters.
According to Ms. Lewinsky, she and the President had ten sexual encounters, eight while she worked at the White House and two thereafter.(35) The sexual encounters generally occurred in or near the private study off the Oval Office -- most often in the windowless hallway outside the study.(36) During many of their sexual encounters, the President stood leaning against the doorway of the bathroom across from the study, which, he told Ms. Lewinsky, eased his sore back.(37)
Ms. Lewinsky testified that her physical relationship with the President included oral sex but not sexual intercourse.(38) According to Ms. Lewinsky, she performed oral sex on the President; he never performed oral sex on her.(39) Initially, according to Ms. Lewinsky, the President would not let her perform oral sex to completion. In Ms. Lewinsky's understanding, his refusal was related to "trust and not knowing me well enough."(40) During their last two sexual encounters, both in 1997, he did ejaculate.(41)
According to Ms. Lewinsky, she performed oral sex on the President on nine occasions. On all nine of those occasions, the President fondled and kissed her bare breasts. He touched her genitals, both through her underwear and directly, bringing her to orgasm on two occasions. On one occasion, the President inserted a cigar into her vagina. On another occasion, she and the President had brief genital-to-genital contact.(42)
Whereas the President testified that "what began as a friendship came to include [intimate contact]," Ms. Lewinsky explained that the relationship moved in the opposite direction: "[T]he emotional and friendship aspects . . . developed after the beginning of our sexual relationship."(43)